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United States v. Alexander

United States District Court, D. Nevada

May 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
VONTEAK ALEXANDER, Defendant.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court is Mr. Alexander's Motion to Suppress [ECF No. 38]. The Court held an evidentiary hearing on this Motion on November 11, 2017, February 5, 2018 and April 18, 2018. The Motion challenges the search of a Sprint cellular telephone by Detective Leung on April 16, 2016 without a warrant. Alexander argues that Leung received consent to search the Sprint phone from a third person, a minor female (“A.B.W.”), who did not have actual or apparent authority to consent to a search of the phone. Alexander also asserts that, as a minor, A.B.W. could not consent to a search of the Sprint phone. Alexander concludes that the fruits of the search of the Sprint phone must be suppressed since the search of the phone was illegal. For the reasons stated below, the Court denies the Motion to Suppress.

         II. FACTUAL FINDINGS

         Based upon the evidence received on the record and the Court's assessment of the credibility of witnesses, the Court makes the following findings of fact. On April 16, 2016, A.B.W., a minor female, approached security at the Orleans Hotel and Casino and told them she was a missing juvenile who was being sex trafficked. Orleans Security contacted the Las Vegas Metropolitan Police Department (“Metro”). As A.B.W. had indicated that she was being trafficked, Metro dispatched a VICE detective, Detective Kenton, to the Orleans. Kenton conducted an initial interview with A.B.W. During this initial interview, A.B.W. confirmed her identity and again indicated that she had been involved in prostitution against her will and at the direction of another person. Kenton found A.B.W. to be credible in the interview. Kenton requested further assistance for the investigation and Detective Leung was assigned and dispatched to the Orleans to complete the investigation. Upon arriving the Orleans, Leung discussed the initial interview with Kenton.

         Detective Leung then conducted a recorded interview of the A.B.W. A.B.W. explained that in the middle of March 2016 she had been abducted from the area of San Leandro, California by a man who she identified as Defendant Vonteak Alexander[1] and others. She was then forced to travel with them Los Angeles, California and coerced into engaging in prostitution. Alexander also promised to buy A.B.W. clothes and other things if she engaged in prostitution. Under these circumstances, A.B.W. “agreed” to prostitute herself for Alexander. According to A.B.W. Alexander later brought her to Las Vegas to engage in prostitution. She further explained that she engaged in prostitution in California and Las Vegas and turned over the money she made to Alexander.

         A.B.W. had in her possession a Sprint cellular telephone with the number 510-866-6448 (the “Sprint phone”) whose search is the subject of the Motion. She did not have any other phone in her possession, and she did not possess, while in Las Vegas, a separate personal cell phone. A.B.W. provided the number for the Sprint phone to Leung. A.B.W. identified Alexander as the person who had brought her to Las Vegas for the purpose of engaging in prostitution. A.B.W. told Leung that the Sprint phone was a “trap” phone that Alexander used to communicate with A.BW. and others while she was engaged in prostitution for him. A.B.W. told Leung that Alexander had given her the Sprint phone earlier in the day for her use. She told Leung that Alexander will usually ask to have the Sprint phone back at some point. Alexander had not asked on April 16 to have the Sprint phone returned to him. Leung found A.B.W. to be candid and credible during the interview. The Court finds Leung's testimony on this point and others to be credible.

         After the recorded interview, A.B.W. explained to Leung that she had previously used the phone. She told Leung that she had previously used the Sprint phone on other days. She explained that Alexander had given her the Sprint phone and the access code to the phone. A.B.W. indicated that she had used the Sprint phone on April 16, 2016 to text and call Alexander as well as others. She explained that Alexander primarily used a cell phone with the number 916-807-5262.

         Leung then asked A.B.W. for consent to review the contents of the Sprint phone. The Sprint phone at that time was locked with an access code. A.B.W. consented to the examination of the phone and provided Leung with the access code to unlock the phone. With the access code, Leung was able to unlock the Sprint phone on the first attempt. He first reviewed the text messages on the phone that were sent by A.B.W. and received by A.B.W. Leung found these messages to be consistent with A.B.W.'s discussion with him about her communications with Alexander. Leung observed messages sent to and received from a cellular phone with the number 916-807-5262. This is a number that A.B.W. had previously identified as a number she normally called or texted to reach Alexander. At this time, Leung only reviewed the text messages and call log on the telephone. He did not conduct a full search of all of the contents of the phone. Leung then asked A.B.W. if he could impersonate her and text Alexander. She consented and Leung engaged in a series of text exchanges on the Sprint phone with someone he believed to be Alexander. These text exchanges further corroborated A.B.W.'s description of her relationship with Alexander in terms of their familiarity and her acts of prostitution as Alexander's responses suggested no confusion about who she was and the subject of her texts. Leung did not access Alexander's Facebook account through the Sprint phone and he did not send a friend request or any other message to Alexander's Facebook account from the Sprint phone. / / /

         III. LEGAL STANDARD

         A. Consent - Actual Authority

         “[C]onsent is a recognized exception to the Fourth Amendment's protection.” United States v. Arreguin, 735 F.3d 1168, 1174-75 (9th Cir. 2013). If consent comes from a third party, the government must demonstrate the third party had “shared use and joint access to or control over a searched area.” Id. (internal citations omitted). The Court need only determine that the third party “possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974); see also United States v. Tosti, 733 F.3d 816, 823 (9th Cir. 2013)(accord). Common authority is “joint access or control for most purposes.” Matlock, 415 U.S. at 171 n.7.

         The Ninth Circuit has also established that, even in circumstances where a third party has limited access or authority, a “defendant may assume the risk that the third party will at times exceed the scope of authorized access, as that is defined in precise and narrow terms.” United States v. Sledge, 650 F.2d 1075, 1080 n.10 (9th Cir. 1981). Such assumption of risk may occur where an individual allows a third party total control of property or goods for even limited periods of time. United States v. Kim, 105 F.3d 1579, 1582 (9th Cir. 1997).

         B. Consent - ...


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