USA v. Bernard, Jr.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Regina M. Rodriguez
Civil Action No. 24-cr-00320-RMR
UNITED STATES OF AMERICA,
Plaintiff,
v.
DERRICK PATRICK BERNARD, JR.,
Defendant.
ORDER
This matter is before the Court on Defendant Derrick Bernard’s Motion to
Suppress, ECF No. 83. The Government filed a response, ECF No. 104. Having
considered the briefing and the exhibits, the Court finds that no hearing is necessary to
resolve the Motion.1 For the reasons stated below, 	the Motion is granted in part and
denied in part.
I. 	BACKGROUND
Defendant is charged with two counts in the Indictment: Count One: Conspiracy to
Commit an Offense Against the United States, namely a violation of 18 U.S.C. § 844(e),
1 The choice to hold an evidentiary hearing on a motion to suppress is within the discretion of the Court.
United States v. Chavez-Marquez, 66 F.3d 259, 261 (10th Cir. 1995). A hearing is required only when the
motion to suppress raises “factual allegations that are sufficiently definite, specific, detailed, and
nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the
search are in issue.” Id. A district court may deny a request for an evidentiary hearing if the motion to
suppress only argues about the legal effect of information, rather than disputes the underlying facts at issue.
See United States v. Mathews, 928 F.3d 968, 978 (10th Cir)., cert. denied, 140 S. Ct. 460, 205 L. Ed. 2d
285 (2019). In this case, Defendant raises only legal issues about the sufficiency of the Warrant (staleness,
nexus, and the good-faith exception) and does not challenge the factual allegations themselves. (Doc. #
24). Therefore, the Court declines to hold an evidentiary hearing.
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to willfully make a threat and maliciously convey false information about a cross burning
as an attempt to intimidate a political candidate via the internet, contrary to 18 U.S.C. §
371 and punishable by up to 5 years of imprisonment; and Count Two: substantive
violation of 18 U.S.C. § 844(e), punishable by up to 10 years of imprisonment, for using
the internet to make a threat, and to maliciously and knowingly convey false information
about an alleged attempt to intimidate the candidate by a cross burning. ECF No. 1.
On May 19, 2023, Detective Nathan Jorstad (“Detective Jorstad”) of the CSPD applied
for a search warrant to search and seize Defendant and “any cellular phones or smart
devices on his person or in his possession.” ECF No. 85-1. In his affidavit, Detective
Jorstad explains the facts that gave rise to probable cause:
• 	Detective Jorstad has been a police officer since February 2002 and has
served as a detective with the CSPD Intelligence Unit since June 2022.
• 	On April 25, 2023, Detective Jorstad was assigned to investigate a bias-
motivated criminal mischief case where an unknown suspect spray
painted “NIGGER” in red on a campaign sign for mayoral candidate
Yemi Mobolade at the northwest corner of N. Union Blvd. and E. Fillmore
St. in Colorado Springs. The suspect also lit a wooden cross, which was
positioned a few feet in front of the campaign sign, on fire.
• 	Detective Jorstad learned that on April 23, 2023, a citizen of Colorado
Springs discovered the spray painted sign and burned cross and took
them down to keep them from being posted on social media. He took
photos and e-mailed them to a campaign volunteer for Yemi Mobolade.
• 	Also on April 23, 2023, an email was sent to various media outlets,
multiple Colorado government officials, several activist groups, as well
as Yemi Mobolade’s campaign email address with a photo and four
second video of the vandalized sign and the wooden cross actively
burning. The author of the email noted that the photo and video were
received from an “anonymous tip.” The email expressed outrage at the
“hate incident” and suggested it was done to intimidate Yemi Mobolade
and suppress voter turnout.
• 	Detective Jorstad reviewed the metadata from the video and determined
that the video was created at 3:21 a.m. on April 23, 2023 on the
northwest corner of N. Union Blvd. and E. Fillmore St.
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• 	Detective Jorstad then reviewed footage from traffic cameras and
surveillance footage from businesses in the area of N. Union Blvd. and
E. Fillmore St.
• 	From the footage, Detective Jorstad observed the following:
o 	At 2:38 a.m., two vehicles parked on the side of the roadway, each
positioned on in front of the other, near where the vandalization and
cross burning occurred. Both vehicles appeared to be light color
white or silver sedans.
o 	At 2:43 a.m., two individuals are seen walking from the parked
vehicles. One of the suspects appears to be carrying a long object
wrapped in a blanket. The individuals are last seen walking toward
the location of the vandalization. One individual was wearing a black
top and red pants and the other was wearing all black clothing.
o 	At 3:02 a.m., an individual wearing all black is seen walking back
toward the two vehicles. The suspect is still carrying the object
wrapped in a blanket. At 3:03 a.m., the second suspect wearing the
red pants is seen walking back toward the parked vehicles. At 3:06
a.m., a suspect can be vaguely seen on the passenger side of the
rear vehicle getting into the vehicle and the vehicle then drives away.
Detective Jorstad suspected the individuals were scouting and
preparing for the actual crime that occurred around 3:21 a.m.
o 	At approximately 3:15 a.m., a vehicle, which appeared to be a light
color white or silver sedan, pulled over in the area and stopped for
about six seconds before driving away. Detective Jorstad believed
this vehicle looked similar to the vehicle that drove away at 3:06 a.m.
o 	At around 3:21 a.m., a fire erupts near the campaign sign. Once the
fire ignites, the footage briefly showed what appeared to be an
individual wearing a red color article of clothing moving next to the
sign as well as what appeared to be a suspect in dark color clothing.
Both appeared to walk away quickly toward the west. Detective
Jorstad noted that the metadata from the video of the burning cross
sent via email correlates to the timestamp on the traffic camera
footage for when the fire ignited.
o 	Between 3:15 and 3:28 a.m., there is additional movement around
the 	vehicles 	and 	the 	vehicles 	both 	drove 	in 	close 	proximity
southbound on Templeton Gap Rd.
o 	Detective 	Jorstad 	obtained 	video 	evidence 	from 	a 	7-Eleven
convenience store in the vicinity. He noted that the 7-Eleven is
located on an intersection a quarter mile west of Templeton Gap Rd.
At 3:29 a.m., a light color silver or gold color sedan is observed
pulling into the 7-Eleven. The vehicle looked the same and had
similar 	attributes 	indicating 	it 	was 	the 	same 	vehicle 	that 	was
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observed earlier. Detective Jorstad and other detectives determined
the vehicle was likely a 2003 to 2007 Saturn Ion sedan.
o 	At 3:30 a.m., a female suspect walks away from the suspect vehicle
and into the 7-Eleven. The female suspect appeared to be a Hispanic
female in her mid to late 30’s wearing a red jogging suit sweatshirt
and pants. The red pants are consistent with what one of the
suspects was wearing.
• 	With the vehicle make and model, Detective Jorstad conducted a search
of police traffic database and discovered that a gold color 2005 Saturn
Ion bearing Colorado license plate CSEI18 was one of the vehicles with
a possible match (the “Saturn”). The Saturn had a dent in the passenger
side rear corner of the bumper which matched the dent in the suspect
vehicle seen on the traffic camera footage.
• 	Detective Jorstad learned that license plate was registered to Ashley
Hernandez. A comparison of the Colorado Department of Revenue
license photo with that of the 7-Eleven suspect showed that they
appeared to be the same person.
• 	Detective Jorstad and other detectives searched a variety of stock
vehicle photos to determine a make and model of the second vehicle
that was observed pulling up behind the Saturn at 2:37 a.m. and
determined that it was likely a 2007 model Mercedes sedan, specifically
an E350 model.
• 	Additional investigation revealed that Defendant was in a relationship
with the driver of the Saturn, Ms. Hernandez, and that Defendant worked
in the 1826 E. Platte Ave. building.
• 	On May 12, 2023, during a surveillance operation, detectives observed
a silver Mercedes bearing temporary plate 5051127 (the “Mercedes”)
pull into the parking lot of the 1826 E. Platte Ave. building and observed
a black male matching the likeness of a law enforcement database photo
of Defendant exit the vehicle. Detective Jorstad noted the similarities in
the vehicle to those of the traffic camera image from the suspected crime
scene.
• 	Additional surveillance operations resulted in observations of both the
Saturn and Mercedes being parked outside Ms. Hernandez’s residence
and Defendant exiting the residence, entering the Mercedes, and driving
away.
• 	Detective Jorstad is aware that criminals often carry their personal cell
phones and smart devices with them when conducting criminal activity
and that suspects often record or take photographs with those devices
of their criminal activity and share them on various media sources. He
believed that recovering the smart devices and cell phones in the
possession of Defendant would result in additional evidence.
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ECF No. 85-1. Detective Jorstad made the application to Magistrate/Judge of the
District/County Court of El Paso County and received the Search Warrant the same day
(the “Person/Phone Search Warrant”). Id. Detective Jorstad did not immediately execute
the Person/Phone Search Warrant.
That same day, Detective Jorstad sought and received a second search warrant
for the Mercedes (the “Mercedes Search Warrant”). ECF No. 85-2. The affidavit in support
of the Mercedes Search Warrant is nearly identical to the affidavit in support of the
Person/Phone Search Warrant.
The Mercedes Search Warrant authorized the search and seizure of:
• 	Any and all cellular phones or smart devices.
• 	Red spray paint, wooden construction materials, twine, lighters, fire
accelerants or other items used for the construction/burning of a cross
or the vandalism.
• 	Receipts for purchases of the above construction/vandalism items.
• 	Clothing matching what was worn during the commission of the crime.
• 	Items of indicia to include vehicle registration, bills, mail, photographs,
or other paperwork.
ECF No. 85-2.
Both search warrants were executed on May 25, 2025. Officers located and detained
Defendant, seizing a gold Apple iPhone from his person. The Mercedes was secured and
impounded to facilitate a more thorough search. On May 26, 2023, Detective Summey,
accompanied by Detective Jorstad and Sergeant Carter, conducted a search of the
Mercedes at the police impound facility. During the search of the Mercedes, Detective
Summey located a black bag on the passenger front floorboard containing a Sony
"Handycam" camcorder video recording device model number FDR-AX53 with serial
number 3222657 (the “Camcorder”).
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On June 30, 2023, a federal search warrant was issued authorizing the search of the
data and contents of the iPhone. ECF No. 85-3. The forensic extraction and data
download occurred on July 13, 2023. The probable cause articulated in the affidavit was
substantially similar to that presented in the state court warrants. On May 30, 2023,
Detective Jorstad sought and received an additional search warrant for the Mercedes
which added “any and all devices capable of recording or storing digital media” and
“downloading and viewing all digital media located on the [Camcorder].” ECF No. 85-4.
II. 	LEGAL STANDARD
The Fourth Amendment provides that “no warrant shall issue, but upon probable
cause, supported by oath and affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const. amend. IV. If a search
violates the Fourth Amendment, an exclusionary rule typically requires that the evidence
obtained as a result of that search be suppressed. Nix v. Williams, 467 U.S. 431, 440–42
(1984). As a general matter, if the challenged search or seizure was conducted pursuant
to a warrant, the defendant has the burden of proof to demonstrate that it violated the
Fourth Amendment. United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir. 1993).
A court “review[ing] the sufficiency of the affidavit upon which a warrant is issued” is
tasked with “simply ensuring ‘that the magistrate had a substantial basis for concluding
that probable cause existed.’ ” United States v. Tisdale, 248 F.3d 964, 970 (10th Cir.
2001) (quoting Illinois v. Gates, 462 U.S. 213, 238–39 (1983)). Such “[p]robable cause
exists when ‘there is a fair probability that contraband or evidence of a crime will be found
in a particular place.’ ” United States v. Grubbs, 547 U.S. 90, 95 (2006) (quoting Gates,
462 U.S. at 238). Probable cause requires a nexus between the suspected criminal
activity and the place to be searched. United States v. Biglow, 562 F.3d 1272, 1279 (10th
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Cir. 2009). In reviewing a duly issued warrant, a court “accord[s] a ... judge’s probable-
cause finding ‘great deference.’ ” Id. at 1281. Because the Fourth Amendment exhibits a
“strong preference for warrants,” a reviewing court must “resolve ‘doubtful or marginal
cases’ by deferring to a magistrate judge’s determination of probable cause,” id. at 1282
(quoting Massachusetts v. Upton, 466 U.S. 727, 734 (1984)).
III. ANALYSIS
Defendant argues that the searches of his person, car, cell phone, and camcorder
violated the Fourth Amendment and that the fruits of those searches must be suppressed.
Defendant raises three arguments: (1) the search of his person and the Mercedes were
not supported by probable cause that evidence of the crime would still be present more
than 25 days later; (2) the seizure of the Camcorder exceeded the scope of the warrant;
and (3) there was an unconstitutional delay in searching the contents of the iPhone. ECF
No. 83. Because each search was conducted pursuant to a warrant, Defendant bears the
burden of showing that the Fourth Amendment was violated.
A. Probable Cause for the Person/Phone Search Warrant and Mercedes Search
Warrant
Defendant argues that the affidavits supporting the Person/Phone Search Warrant
and Mercedes Search Warrant lacked probable cause. “An affidavit establishes probable
cause for a search warrant if the totality of the information it contains establishes the fair
probability that contraband or evidence of a crime will be found in a particular place.”
United States v. Roach, 582 F.3d 1192, 1200 (10th Cir. 2009) (quotation omitted).
“Sufficient information must be presented to the magistrate to allow that official to
determine probable cause; his action cannot be a mere ratification of the bare conclusions
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of others.” United States v. Cooper, 654 F.3d 1104, 1124 (10th Cir. 2011) (quoting Illinois
v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
Defendant argues that the affidavits “provide no basis to believe that [Defendant]
would retain evidence of the crime on his person or in his vehicle nearly a month after the
incident.” ECF No. 83. Although this argument is not fully developed, the Court views this
as an argument that the information contained in the affidavit was stale by the time the
warrant was issued. “A search warrant may not issue if [it is] based upon information that
has grown stale, i.e., information that no longer supports an affidavit’s underlying
assertion that the item sought will be found in the area or location to be searched.” United
States v. Cantu, 405 F.3d 1173, 1177 (10th Cir. 2005) (citing United States v. Snow, 919
F.2d 1458, 1459 (10th Cir.1990)). “However, timeliness and relevance cannot be judged
solely by the days of the calendar.” Id. Rather, “whether the information is too stale to
establish probable cause depends on the nature of the criminal activity, the length of the
activity, and the nature of the property to be seized.” Id. (citation omitted).
Here, the Court does not find that the affidavits for the Person/Phone Search Warrant
or the Mercedes Search Warrant were based upon stale information. The suspected
criminal offense occurred on April 23, 2023, and the warrants were sought just under a
month later, on May 19, 2023. The affidavits are replete with facts tying Defendant and
the Mercedes to the suspected criminal activity. See ECF No. 85-2. For example, the
Person/Phone Search Warrant lays out the investigatory steps taken to tie Defendant to
the suspected criminal offense and states:
Your Affiant is aware that criminals often carry their personal cell phones
and smart devices with them while conducting criminal activity. Your Affiant
knows that suspects often record or take photographs with those devices of
their criminal activity and often share those on various media sources
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including email and social media outlets. Smart devices are capable of
being downloaded and often reveal historical location data as well. Your
Affiant believes that recovering the smart devices and cell phones that are
in the possession of Derrick Bernard . . . will result in additional evidence.
ECF No. 85-1.
Further, the Mercedes Search Warrant affidavit lays out the video footage and photos
showing the vehicle used in the commission of the crime, the investigatory steps that
CSPD took to identify the make and model of the vehicle as the Mercedes, and
surveillance and investigation tying Defendant to the Mercedes. Id. The affidavit states
that the “Affiant suspects that additional evidence of the crime, including cell phones,
smart devices, spray paint, clothing, and wood construction materials that were used
during the commission of the crime may still be in located on Bernard’s person or in the
Mercedes he has been driving.” Id. (emphasis added). Viewed in a “in a commonsense,
nontechnical manner,” see United States v. Barrera, 843 F.2d 1576, 1581 (10th Cir.
1988), the affidavits support that evidence of the crime, which is believed to have been
committed by Defendant using the Mercedes just under a month prior to when the warrant
was sought, may still be stored in the Mercedes, and it is entirely reasonable to believe
that Defendant would retain his cell phone on his person. Viewing the affidavits as a
whole, the Court finds that the magistrate judge had a substantial basis to conclude that
the information contained in the affidavit was timely. Accordingly, the Court will not
invalidate the Person/Phone Search Warrant or Mercedes Search Warrant based on
staleness.
B. Seizure of Camcorder Exceeded Scope of Warrant
Next, Defendant argues the seizure of the Camcorder from the Mercedes exceeded
the scope of the Mercedes Search Warrant, which authorized the search and seizure of
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“cell phones and smart devices.” ECF No. 83 at 8. Defendant asserts that the “camcorder
falls outside even the most generous reading of these categories” and “[t]he officers'
decision 	to 	seize 	the 	camcorder 	based 	on 	generalized 	concerns 	about 	evidence
preservation exemplifies precisely the kind of discretionary rummaging that the Fourth
Amendment's particularity requirement was designed to prevent.” Id. In its response, the
Government represents that “it does not intend to introduce the camcorder or any other
evidence from the search of the Mercedes, so any questions about suppression of that
evidence are moot.” ECF No. 104 at 1 n.1.
The Fourth Amendment’s particularity requirement “ensures that the search will be
carefully tailored to its justifications, and will not take on the character of the wide-ranging
exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U.S.
79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). “[O]btaining a sufficiently particular warrant
is just the first step to conducting a reasonable search. The officers tasked with executing
a sufficiently particular warrant must conduct their search ‘strictly within the bounds set
by the warrant.’ ” United States v. Loera, 923 F.3d 907, 916 (10th Cir. 2019) (quoting
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395
n.7, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)). “If the scope of the search exceeds that
permitted by the terms of a validly issued warrant . . . the subsequent seizure [of evidence]
is unconstitutional without more.” Horton v. California, 496 U.S. 128, 140, 110 S.Ct. 2301,
110 L.Ed.2d 112 (1990). This is “an exercise in reasonableness assessed on a case-by-
case basis.” Loera, 923 F.3d at 916.
Here, Defendant has a valid argument that the seizure of the Camcorder may have
exceeded the scope of the warrant, which authorized search and seizure of cell phones
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or smart devices. The Government does not set forth any argument as to why the seizure
of the Camcorder fell within the scope of the warrant and instead represents it will not
introduce 	the 	Camcorder 	as 	evidence. 	Accordingly, 	given 	the 	Government’s
representation, the Court will assume without deciding that the seizure of the Camcorder
exceeded the scope of the warrant, and will exclude it from trial.
C. Unreasonable Delay
Finally, Defendant next argues that “[t]he 35-day delay between the seizure of
Bernard’s 	iPhone 	and 	obtaining 	a 	warrant 	to 	search 	its 	contents 	constitutes 	an
independent Fourth Amendment violation.” ECF No. 83 at 9. “[A]n unreasonable delay in
obtaining a search warrant can sometimes violate the Fourth Amendment.” United States
v. Christie, 717 F.3d 1156, 1162 (10th Cir. 2013). “In assessing the reasonableness of a
delay in seeking a warrant, however, we must take account of the totality of the
circumstances wary of the temptation to impose rigid rules, bright-line tests, and
mechanistic inquiries.” Id. (internal citations and quotations omitted). The Court’s task in
each case is to “balance the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the governmental interests alleged to
justify the intrusion.” United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77
L.Ed.2d 110 (1983).
Defendant argues that the 35-day delay between when CSPD seized the cell phone
on May 25, 2023 and when it obtained the search warrant for the data on the cell phone
on June 30, 2023 is unreasonable. The Court disagrees. In United States v. Burgess, the
Tenth Circuit held that a forty-four day delay between the seizure of hard drives and
securing a warrant for a search of the hard drives was not unreasonable where a warrant
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was secured prior to the hard drives being seized, there was no indication officers were
not diligent in executing the search, probable cause was unaffected by the delay, the
reasons to search the computer and hard drives did not dissipate during the month and
a half the items sat in an evidence locker, defendant did not identify any prejudice from
the delay, and any delay was due to the agent’s efforts to make sure the job was done
right. 576 F.3d 1078, 1097-98 (10th Cir. 2009). The same is true here. The cell phone
was seized pursuant to a warrant, and Defendant does not allege that there was any
prejudice from the delay. Moreover, the reasons to search the cell phone did not dissipate
in the month between when it was seized and when the warrant was obtained, and there
is no reason to believe the officials were not diligent in their investigation. Accordingly,
the Court does not find that suppression is warranted on this basis.
D. Good Faith Exception
Moreover, even if the Court were to find the warrants invalid, the good faith exception
would apply here. Under the good faith exception, even if a warrant fails to satisfy the
Fourth Amendment’s particularity requirement, the exclusionary rule should not be
applied to suppress evidence obtained by officers acting in objectively reasonable
reliance on a search warrant issued by a detached and neutral magistrate judge. United
States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984). The rationale
for Leon’s good faith exception is the underlying purpose of the exclusionary rule—
namely, to deter police misconduct. When an officer acts in good faith, there is nothing to
deter. Id. at 3418.
An officer’s reliance on a defective warrant still must be objectively reasonable: the
government is not entitled to the good faith exception when a warrant is “so facially
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deficient—i.e., in failing to particularize the place to be searched or the things to be
seized—that the executing officers cannot reasonably presume it to be valid.” Id. at 3420-
21. “The test is an objective one that asks whether a reasonably well-trained officer would
have known that the search was illegal despite the magistrate’s authorization.” U.S. v.
Otero, 563 F.3d 1127, 1134 (10th Cir. 2009). “Not every deficient warrant, however, will
be so deficient that an officer would lack an objectively reasonable basis for relying upon
it.” Id. at 1134.
Here, as explained above, the Court believes that each of the challenged searches
was supported by a warrant with sufficient probable cause and particularity to satisfy the
Fourth Amendment’s requirements. However, even if one of the warrants was defective,
the Court concludes that the good faith exception would apply in this case. The searches
in this case were objectively reasonable under the circumstances. The affidavits carefully
outlined the investigation, the places or items to be searched, and the evidence to be
searched for based on the alleged crime. The warrants were presented to the magistrate
judge, 	sworn, 	signed, 	and 	issued 	to 	law 	enforcement. 	Suppression 	under 	these
circumstances would not serve to bolster the underlying purpose of the exclusionary
rule—to deter police misconduct—as law enforcement had every reason to believe they
were relying on valid warrants issued by a neutral and detached judicial officer. See
United States v. Russian, 848 F.3d 1239, 1246 (10th Cir. 2017) (“The rationale for Leon’s
good faith exception is the underlying purpose of the exclusionary rule—namely, to deter
police misconduct.”); United States v. Riccardi, 405 F.3d 852, 860 (10th Cir. 2005) (“[T]he
suppression of evidence obtained pursuant to a warrant should be ordered only in the
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unusual cases in which exclusion will further the purposes of the exclusionary rule.”).
Accordingly, the good faith exception would uphold the searches conducted in this action.
IV. CONCLUSION
For the foregoing reasons, the Motion to Suppress, ECF No. 83, is GRANTED IN
PART to the extent it seeks suppression of the Camcorder, but DENIED IN PART as
to the remaining arguments for suppression.
DATED: April 24, 2025.
BY THE COURT:
REGINA M. RODRIGUEZ
United States District Judge
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