USA v. Koistinen

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Jeffrey Allen Koistinen,
Defendant.
No. CR-23-01495-TUC-AMM (EJM)
REPORT AND RECOMMENDATION
Pending before the Court are the defendant’s Motion to Suppress Electronics and
Motion to Suppress Blue iPhone. (Docs. 33 & 34.) On April 18, 2026, the government
filed its responses. (Docs. 44 & 45.) Subsequently, defendant replied. (Docs. 51 & 52.)
Pursuant to LRCrim 5.1, this matter came before the undersigned for an evidentiary
hearing and a report and recommendation. The Court held an evidentiary hearing on the
instant motions on February 23, 2026 and March 5, 2026.1 (Docs. 100 & 106.) The
motions are fully briefed and the Court has received the hearing transcripts. As such, the
motions are ripe for adjudication. For the reasons discussed below, it is recommended that
the District Court deny both motions.
. . .
. . .
. . .
1 The evidentiary hearing was continued multiple times for the following reasons: (1)
resolving whether defense counsel has a nonwaivable conflict of interest preventing him from
representing the defendant; (2) the parties were negotiating a plea agreement that would have made
the motions moot; and (3) witness unavailability.
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I. PROCEDURAL BACKGROUND
A. The Pending Charges
The defendant is charged in an eleven (11) count Indictment dated September 27,
2023, with the following offenses: (1) Attempted Productions of Child Pornography, in
violation of 18 U.S.C. §§ 2251(a) & 2251(e) (Counts 1, 3, 5, 7, and 9); (2) Attempted
Coercion and Enticement, in violation of 18 U.S.C. § 2422(b) (Counts 2, 4, 6, 8, and 10):
and (3) Receipt of Child Pornography, in violation of 18 U.S.C. §§ 2252(a)(2) & (b)(1)
(Count 11). (Doc. 13.)
B. The Motions to Suppress
On March 6, 2025, the defendant filed the instant motions. The blue iPhone and
other electronic devices were seized and searched pursuant to state search warrants targeted
at an illegal marijuana grow operation. After suspected images of child pornography were
found during the search of the blue iPhone, law enforcement obtained another state search
warrant to search the iPhone and the other electronic devices for evidence of child
pornography. The defendant does not challenge the lawfulness of that search warrant.
Rather, the Motion to Suppress Electronics seeks the suppression of evidence extracted
from seized electronic devices because (1) there was not probable cause that evidence of
the illegal marijuana grow operation would be contained on the electronic devices; (2) the
search warrant was overbroad allowing officers to seize all electronic devices regardless of
whether they contained evidence of the grow operation; and (3) the search warrant did not
particularly describe the electronic devices to be seized or limit the search of the devices.
(See Doc. 34.) The Motion to Suppress Blue iPhone seeks the suppression of evidence
extracted from the phone because the government has no evidence of where and when the
phone was found or who found it. (See Doc. 33.)
The government argues that there was probable cause for the search warrant and
addendums for the defendant’s residence and vehicles because the search warrant affidavits
established that the defendant and his children were engaged in an illegal marijuana grow
operation. Specifically, the affidavit details that (1) the defendant’s daughter told law
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enforcement officers that it was her father’s idea to conduct the grow operation; (2) he
recently got upset because she did not want to help with the grow operation; and (3) the
defendant owns the residences where the grow operations were being conducted. (See Doc.
46.) Additionally, the affidavit sets forth why financial records pertaining to such a grow
operation were likely to be found in a suspect’s residence and vehicles, as well as why
these documents would likely be stored on electronic devices. (Id.) With respect to the
inability to pinpoint when and where the blue iPhone was found by law enforcement while
executing the search warrants, the government argues that the defendant’s Motion to
Suppress blue iPhone “does not provide a basis for suppression and instead at best raises a
factual dispute which goes to the weight rather than the admissibility of the evidence and
which should be resolved by the jury.” (See Doc. 45.)
II. FACTUAL BACKGROUND
At the evidentiary hearing, the government called three witnesses: Detective
Fernando Robles, TPD Officer Brandon Angulo, and Detective Michael Szelewski. The
defense called two witnesses: Marana Police Officer William Dittiger and TPD Officer
Phillip Hengstler.
A. The Golden Mirror and Fallen Shadow Search Warrants
In April 2022, Marana Police Department officers received an anonymous
complaint about drugs being manufactured at a residence located at 12565 North Golden
Mirror Drive (the “Golden Mirror house”). (Def. Ex. 22 at 3.) In July 2022, officers
observed a Tesla vehicle registered to Brooke Koistenen leaving that house and followed
the vehicle to a house located at 12379 North Fallen Shadow (the “Fallen Shadow house”).
(Id.)
On August 16, 2022, Marana Police Officers were conducting a surveillance
operation of the Golden Mirror house. (Hr’g Tr. 2/23/2026 at 8; Def. Ex. 22 at 3.) Officers
observed a Tesla and Mercedes arrive at the house. (Def. Ex. 22 at 3.) The drivers of the
vehicles and a passenger went into the house for a short period of time. (Id.) When they
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left the house, a traffic stop was performed on the Tesla. (Id.) The driver and registered
owner was the defendant. (Id.) The defendant told “police that if he gave information on
the activity at the residence on Golden Mirror, his daughter Brooke Koistenen and her
husband would get in trouble.” (Id.)
TPD officers obtained a search warrant for the Golden Mirror house which they
knew was owned by the defendant. (Hr’g Tr. 2/23/2026 at 11; Def. Ex. 22 at 3.) The
search warrant authorized a search of the residence for marijuana, drug paraphernalia,
indicia of occupancy or ownership of the residence, and documents related to the grow
operation. (Hr’g Tr. 2/23/2026 at 12.) During the search of the Golden Mirror house,
officers found “marijuana plants in various stages of cultivation that exceeded the statutory
allowance of 12 plants,” a sophisticated “multi-room marijuana grow operation,” “some
evidence of processing of marijuana,” and sophisticated equipment used for the marijuana
grow operation. (Hr’g Tr. 2/23/2026 at 14, 18–19; Def. Ex. 22 at 3.) It appeared that no
one was living at Golden Mirror house and there was no evidence that it was being rented.
(Id. at 14, 35.)
TPD officers subsequently obtained information that the defendant’s daughter and
son were living at the Fallen Shadow house, which was also owned by the defendant, and
that additional items of evidence may be located at that residence. (Id. at 14.) Based on
that information and the evidence found at the Golden Mirror house, a search warrant was
obtained for the Fallen Shadow residence. (Id. at 15.)2
Brooke Koistenen was present at the Fallen Shadow house when officers arrived to
conduct the search. (Def. Ex. 22 at 3.) She told police that she was helping her dad “with
a marijuana grow by cleaning, filling propane and doing things for him.” (Id.) Brooke
also said that “her dad became upset two weeks ago because she did not wish to help him
with the marijuana grow.” (Id.) She identified “her brother Brandon [a]s the mastermind,
2 Officers did not “check for any licensing” that allowed the marijuana grow operations at
the Golden Mirror or Fallen Shadows houses. (Hr’g Tr. 2/23/2026 at 34–35.) The defendant,
however, does not challenge the search warrants issued for those houses.
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but it was her dad’s idea to grow marijuana.” (Id.) During the search at Fallen Shadow
officers found financial receipts and documents related to the grow operation, including
documents related to the purchase of grow equipment. (Hr’g Tr. 2/23/2026 at 19, 40.) The
documents did not reference the defendant or his home address. (Id. at 40–41.)
B. The Butterfly Mountain Search Warrant
Based on Brooke Koistenen’s statements and the evidence seized from the Golden
Mirror and Fallen Shadow houses, on August 17, 2022, Tucson Police Detective Michael
Szelewski presented a Marana Municipal Court Judge with a telephonic search warrant
affidavit requesting a search warrant for the defendant’s home located at 4495 West
Butterfly Mountain Drive (the “Butterfly Mountain house”), as well as a motor home
located on the property and the defendant’s person.3 (Def. Ex. 22 at 1.) Detective
Szelewski told the judge that (1) prior to the execution of the Golden Mirror and Fallen
Shadow search warrants, the defendant conveyed to officers that he if told them about the
activity going on at the Golden Mirror residence his daughter and her husband would get
in trouble; (2) during the searches of the Golden Mirror and Fallen Shadow residences,
officers found “marijuana plants in various stages of cultivation that exceeded the statutory
allowance of 12 plants”; (3) the defendant’s daughter was present at the Fallen Shadow
residence and told officers that she was helping her dad with the marijuana grow, he got
upset when she told him that she wanted to stop, and it was her dad’s idea to grow
marijuana; (4) the defendant’s home address is 4495 West Butterfly Mountain Drive and a
parcel search of the Golden Mirror and Fallen Shadow houses show the property owner
associated with the Butterfly Mountain house; and (5) “DES records show no reportable
income for Jeffery Koistenen, but he is the owner of GM Holding Company, LCC[,]”
which lists its address as 4495 West Butterfly Mountain Drive.” (Id. at 3–4.)
3 Detective Szelewski went to the same judge that issued the Golden Mirror and Fallen
Shadows search warrants because that judge “was already familiar with the situation and the
ongoing investigation.” (Hr’g Tr. 3/5/2026 at 6.) Detective Szelewski described the investigation
as “complicated” and observed that it had been going on for months and involved multiple
residences and individuals. (Id.)
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Detective Szelewski requested permission to search the Butterfly Mountain house
for evidence related to the marijuana grow operation, including records related to the grow
operation. (Id. at 1–2, 4.) He further requested to search the contents of computers and cell
phones for these records. (Id.) Detective Szelewski explained that “drug dealers and
money launderers utilize these devices to keep track of their negotiations, they take
photographs and videos of their product and proceeds, as well as utilize the internet and
social media accounts to advertise and promote their illegal enterprise.” (Id. at 4.)4
The Marana Municipal Court Judge issued a telephonic search warrant authorizing
law enforcement officers to search the house, motor home, and defendant’s person for
evidence related to the illegal marijuana grow operation and money laundering, as well as
to search the contents of electronic devices (e.g., computers and cell phones) found at those
locations. (Def. Ex. 22 at 4–5; Def. Ex. 23.) The search warrant’s authorization to search
electronic devices did not “provide for any limitation as to a time frame” and it was
similarly without limitation regarding “communications between specific parties” or
“specific transaction[s].” (Hr’g Tr. 3/5/2026 at 19.)
Prior to executing the Butterfly Mountain search warrant, law enforcement officers
did not know exactly what electronic devices the defendant owned. (Id. at 25.) If officers
had “known specifically what electronic devices the defendant owned,” those devices
would have been identified in the search warrant affidavit. (Id.) Ultimately, officers seized
numerous computers and electronic storage devices from the Butterfly Mountain house.
(Hr’g Tr. 2/23/2026 at 32; Def. Exs. 16 & 25.) The blue iPhone was not one of the devices
seized from the defendant’s Butterfly Mountain residence. (Hr’g Tr. 2/23/2026 at 23; Def.
Ex. 23.)
. . .
4 At the time that Detective Szelewski applied for the Butterfly Mountain search warrant,
law enforcement did not have evidence that the defendant received proceeds from marijuana sales,
that he made any purchases of grow equipment, or that he used a phone or any other electronic
device in connection with the grow operation. (Hr’g Tr. 2/23/2026 at 38.) For the reasons
discussed, infra, and notwithstanding the absence of this evidence, there was probable cause for
the Butterfly Mountain search warrant.
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C. The traffic stop of the defendant and the search of his person
On August 17, 2022, at approximately 6:20 p.m., TPD Officer Phillip Hengsteler
performed a traffic stop of the defendant’s white Tesla. (Hr’g Tr. 2/23/2026 at 19–20, 27,
98–99). The defendant was driving and his wife was in the front passenger seat. (Id. at
19, 27, 99.) Officer Hengsteler had the defendant step out of and away from the vehicle;
however, he did not place the defendant under arrest at that time. (Def. Ex. 11 at 00:42;
Hr’g Tr. 2/23/2026 at 99.)
For officer safety reasons, he asked the defendant’s wife to give him her purse and
phone; he told her that he was not going to search her purse. (Def. Ex. 11 at 10:40; Hr’g
Tr. 2/23/2026 at 103.) The defendant’s wife gave Officer Hengsteler her purse and a cell
phone with a red case. (Def. Ex. 11 at 11:10; Hr’g Tr. 2/23/2026 at 103.)5 Officer
Hengsteler also asked the defendant’s wife where the defendant’s phone was located. (Def.
Ex. 11 at 11:20; Def. Ex. 13 at 3; Hr’g Tr. 2/23/2026 at 105.) She looked around the inside
of the vehicle and said, “I don’t know.” (Def. Ex. 11 at 11:20; Def. Ex. 13 at 3; Hr’g Tr.
2/23/2026 at 105.)
Marana Police Officer Duarte, who arrived on scene at about 6:30 p.m., handcuffed
the defendant, searched him, and placed him in the back of his patrol vehicle. (Def. Ex. 12
at 3:25, 5:40, 6:40; Hr’g Tr. 2/23/2026 at 99.)6 Officer Durate’s body camera footage
shows him searching the defendant, removing a wallet and loose cash and coins from the
5 Body camera footage shows Officer Hengsteler placing the wife’s purse and phone on
the front windshield/hood area of the defendant’s car. (Ex. 11 at11:50; Ex. 12 at 9:00.) Officer
Hengsteler does not recall if he returned the purse to the defendant’s wife. (Hr’g Tr. 2/23/2026 at
103.) Body camera footage, however, shows Officer Hengsteler picking up the purse and phone
from the front windshield/hood area of the defendant’s car and handing them to the defendant’s
wife through the front passenger window. (Def. Ex. 11 at 29:00)
6 The transcript of the audio from the body camera footage reflects Officer Hengsteler later
advised other officers that the defendant was under arrest, but his wife was not. (Def. Ex. 13 at 3.)
It also reflects that he said that “they need to get an addendum to the warrant to search that.” (Id.)
Officer Hengsteler’s best recollection is that another officer at the scene told him that a search
warrant addendum was needed. (Hr’g Tr. 2/23/2026 at 111.) Presumably Officer Hengsteler was
referring to an addendum to search the vehicle, but no testimony was elicited to clarify that point.
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defendant’s pockets, and placing those items in an evidence bag. (Def. Ex. 12 at 3:25.)7
Officer Hengsteler does not recall whether Officer Duarte provided him with those items;
however, he agreed that the body camera footage shows only a wallet and loose cash in an
evidence bag. (Def. Ex. 11 at 12:30; Def. Ex. 12 at 5:40, 6:40; Hr’g Tr. 2/23/2026 at 103–
04.)
When the defendant was in the back of the patrol vehicle, Officer Hengsteler asked
him “where his phone was” and the defendant responded, “either in the car or ‘she has
it[.]’” (Hr’g Tr. 2/23/2026 at 104.) The defendant did not tell officers that an “officer took
it from” him. (Id. at 106.) Officer Hengsteler did not read the defendant his Miranda rights
before asking about the phone. (Id. at 109.) Officer Hengsteler does not recall finding or
taking custody of a cell phone; if he had done either, it would be documented in his report,
and his report does not mention a cell phone. (Id. at 100–01.)
Marana Police Sergeant Dittiger responded to Officer Hengsteler’s traffic stop of
the defendant’s Tesla. (Id. at 87, 91.)8 When he arrived, the defendant was in the back
seat of a law enforcement vehicle. (Id.) Sergeant Dittiger did not take part in searching the
defendant’s person or bagging the evidence collected. (Id. at 91.) He also did not search
the defendant’s wife or her purse and does not recall being involved the search of the Tesla.
(Id. at 92, 95.)
7 Officer Duarte was not a witness. His body camera footage was admitted into evidence
without objection, but it was not played in court. The Court notes the following based on its review
of the one-hour and twenty-two minutes of footage. Officer Duarte is heard confirming with the
defendant that he did not have any other items on his person. (Ex. 12 at 12:44.) Additionally, at
approximately minute eleven, the video shows the rear hatch of the defendant’s vehicle open and
then officers close it. (Def. Ex. 12 at 11:15.) Finally, the body camera footage makes clear that
the Butterfly Mountain house had not been searched by the time of the traffic stop because officers
ask the defendant if he had his house keys and whether he has dogs at the house. (Def. Ex. 12 at
10:00.) Subsequently at 7:12 p.m. (assuming the time is accurate on the camera footage), Officer
Duarte asks the defendant to explain how to open the gate where the box trailer is located on the
property; Officer Duarte can then be heard on his phone relaying that information to officers who
are presumably at the Butterfly Mountain house. (Def. Ex. 12 at 42:45.)
8 At the time of the stop, Sergeant Dittiger was a supervisor in the asset forfeiture
department of the Counter Narcotics Alliance. (Hr’g Tr. 2/23/2026 at 86.) He and several other
officers were assigned to assist with the execution of the various search warrants. (Id.)
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Sergeant Dittiger does not recall if he recovered a blue iPhone at the scene of the
traffic stop and he “did not write a supplement” affirming whether or not he had found a
blue iPhone. (Id. at 87–88.) Sergent Dittiger’s supplemental report notes that he does not
“remember taking custody of Jeffery Koistenen’s cell phone[.]” (Def. Ex. 18; Hr’g Tr.
2/23/2026 at 89.) Sergeant Dittiger also does not remember “observ[ing] anybody else
find a blue iPhone[.]” (Hr’g Tr. 2/23/2026 at 88.) Sergeant Dittiger agreed that it is
possible he found the blue iPhone even though it is not documented in the chain of custody
forms. (Id. at 93–94.) He also testified that even if he did not find the phone, it is also
possible that he took custody of the phone from another officer at the scene of the traffic
stop, later provided the phone to TPD Officer Brandon Angulo (who was tasked with
making a record of the seized evidence), and told Officer Angulo where the phone was
found. (Id. at 94–96.)
Sergeant Dittiger clearly recalls driving the defendant’s Tesla from the scene of the
traffic stop to the Butterfly Mountain residence. (Def. Ex. 18; Hr’g Tr. 2/23/2026 at 92.)
Officer Hengsteler left the scene at the same time. (Def. Ex. 14.) Neither officer testified
about what time they left the scene. At around 7:53 p.m., which is when Officer Duarte’s
body camera footage ends, the defendant’s vehicle is still at the scene of the traffic stop.
(Def. Ex. 12 at 1:22:44.)
D. The Butterfly Mountain Search Warrant Addendum
At 7:54 p.m., Detective Szelewski submitted a telephonic affidavit requesting an
addendum to the Butterfly Mountain search warrant authorizing the search a white Tesla
with an Arizona license plate. (Gov. Ex. 1 at 2.) Detective Szelewski told the Marana
Municipal Court Judge that officers wanted to search the vehicle because the defendant
was seen leaving the Butterfly Mountain house in the vehicle and officers were continuing
to investigate the unlawful cultivation of marijuana and money laundering.9 (Id. at 2–3.)
As a result, officers requested permission to search the vehicle, seize electronic devices
9 Detective Szelewski contacted the same Judge who had issued the original Butterfly
Mountain search warrant. (See Gov. Ex. 1.)
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found in the vehicle, and search the devices for records and documents related to those
crimes.10 (Id. at 3.) At 7:56 p.m., the judge issued an addendum to the Butterfly Mountain
search warrant which authorized officers to search the Tesla, as well as seize and search
electronic devices found in the vehicle. (Gov. Ex. 1 at 3; Hr’g Tr. 3/5/2026 at 27–28.) 11
E. The Evidence Log’s entry for the seizure of the Blue iPhone
TPD Officer Angulo was assigned to be the recorder for the various search warrants,
which means as officers locate evidence during their search “it’s brought to [him] for
recording purposes.” (Hr’g Tr. 2/23/2026 at 68.) He performed that duty at the Butterly
Mountain residence. (Id.)
Officer Angulo’s report notes that the blue iPhone was seized from the defendant’s
person.12 (Def. Ex. 16.) Neither his report nor the property log notes which law
enforcement officer brought him the blue iPhone; however, that is standard practice
10 When seeking the addendum, Detective Szelewski relied on the same information
contained in the probable cause affidavit for the Butterfly Mountain search warrant. (Hr’g Tr.
3/5/2026 at 8.) The only addition to his affidavit for the addendum was that the Tesla “showed
up, that it left, and that [he] needed to search the vehicle because it could have housed or concealed
the items” that officers were searching for in the Butterfly Mountain residence. (Id. at 10.)
11 Detective Szelewski also applied for and obtained addendums to search two other
vehicles which are only relevant to the instant motions in the following respect. The first
addendum was for a white Tesla with a California license plate. The Butterfly Mountain search
warrant notes that this addendum was issued at 6:23 pm. (Def. Ex. 23.) The second addendum
was for the defendant’s while Tesla with an Arizona license plate. (Id.) Although the search
warrant does not note the time this addendum was issued, the transcript of the telephonic affidavit
reflects that Detective Szelewski applied for the second addendum at 7:54 p.m., and it was issued
at 7:56 p.m. (Gov. Ex. 1 at 3.) The third addendum was for a white BMW with a California
license plate. (Def. Ex. 23.) The search warrant notes that this addendum was issued at 9:16 p.m.
(Id.) Detective Szelewski testified that he forgot to note the time the second addendum was issued.
(Hr’g Tr. 3/5/2026 at 31.)
12 Officer Angulo’s initial report mistakenly noted that the blue iPhone was associated with
the white BMW. (Hr’g Tr. 2/23/2026 at 72.) That mistake resulted from the fact that this was “a
very fast-moving investigation” and several officers were bringing Officer Angulo “lots of pieces
of evidence[.]” (Id. at 73.) Officer Angulo realized his mistake about the vehicles after speaking
with other officers who were present for the searches. (Id. at 77–78.) Officer Hengstelar, who
was present at both traffic stops, advised Officer Robles that Jeffrey Koistinen was driving the
white Tesla and Brandon Koistinen was driving the white BMW. (Id. at 78–79.) Once Officer
Angulo realized his mistake, he prepared a supplemental report to reflect that Jeffery Koistinen
was driving the white Tesla. (Id. at 74.)
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because there were multiple officers providing him with many items of evidence. (Hr’g
Tr. 2/23/2026 at 26, 80–81.) Officer Angulo has known Sergeant Dittiger for over a
decade, and they worked in the same building for years. (Id. at 82.) As a result, Officer
Angulo is “[o]ne hundred percent” certain that Sergeant Dittiger provided him with the
blue iPhone and said that the phone belonged to Jeffrey Koistinen and that it was “located
on his person.” (Id. at 69–70, 82)
Based on Detective Robles’s review of the evidence related to the investigation (i.e.,
law enforcement reports, evidence collection logs, and body camera footage), he believes
the iPhone was not seized from the defendant’s person. (Id. at 25.) Detective Robles
believes that the blue iPhone was found either in the defendant’s white Tesla or his wife’s
purse “[s]ometime between the traffic stop and when the Tesla got back to Butterfly
Mountain.” (Id. at 33, 45.) But regardless of whether the blue iPhone was located in the
Butterfly Mountain residence, the defendant’s white Tesla, or the defendant’s person, all
of these “locations were covered by the Butterfly Mountain warrant and the addendum[.]”
(Id. at 28, 31, 33.) Detective Robles has no “reason to believe that the seizure of the blue
iPhone fell outside the scope of the [search] warrants[.]” (Id. at 31.)
F. Search of the blue iPhone
About a week after the various search warrants were executed, Detective Robles
searched the blue iPhone for evidence relating to the marijuana grow operation. (Hr’g Tr.
2/23/2026 at 28–29, 47.) Detective Robles reviewed the information extracted from the
phone on his computer. (Id. at 47.) He usually looks “at images and videos first because
they’re much easier to consume than documents and other things like that.” (Id. at 51.) As
Detective Robles was looking through the phone, he saw some images and videos that were
“potential child pornography[.]” (Id. at 29–30.) Detective Robles cannot specifically recall
which file in the phone contained the suspected child pornography; he either saw it in the
images or videos. (Id. at 50–51.)13 When he saw the suspected child pornography,
13 Detective Robles does not recall if he saw adult pornography before he saw the suspected
child pornography. (Hr’g Tr. 2/23/2026 at 53.) The presence of adult pornography on the blue
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Detective Robles stopped his search and obtained a search warrant from a Pima County
Superior Court Judge to search the phone and the other seized electronic devices for
evidence related to child pornography. (Def. Ex. 25; Hr’g Tr. 2/23/2026 at 30.)
III. DISCUSSION
A. There was probable cause for the Butterfly Mountain search warrant and
addendum issued for the search of the residence and the defendant’s
person and vehicle, as well as for the search of the electronic devices found
in those locations
The Fourth Amendment requires that a search warrant be supported by probable
cause. The Supreme Court has held that probable cause exists when there is a “fair
probability that contraband or evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). That Court has also held that “only the
probability, and not a prima facie showing, of criminal activity is the standard for probable
cause.” Gates, 462 U.S. at 235 (quotations and citations omitted).
The search warrant affidavit must establish a “reasonable nexus” between the
alleged criminal activity and the place to be searched. United States v. Pitts, 6 F.3d 1366,
1369 (9th Cir. 1993) (citations omitted). A judge presented with a search warrant “is
entitled to draw reasonable inferences about where evidence is likely to be kept, based on
the nature of the evidence and the type of offense.” United States v. Angulo-Lopez, 791
F.2d 1394, 1399 (9th Cir. 1986) (citations omitted). When evaluating whether a search
warrant is supported by probable cause, a court can only consider the facts contained within
the four corners of the search warrant affidavit. Whiteley v. Warden, 401 U.S. 560, 565 n.8
(1971). The duty of the court reviewing whether a search warrant is supported by probable
iPhone would not have prevented him “looking at the rest of the pictures to see if there’s indicia
of a marijuana grow operation[.]” (Id. at 63.) During the twenty years Detective Robles has
reviewed information extracted from cell phones, he has “seen an immense amount of
pornography” because “it almost goes hand in glove with narcotics and with people in general.”
(Id. at 53.) As a result, finding adult pornography on a phone does not make him believe that he
is going to find anything other than the evidence that he is searching for. (Id.) In fact, this was
the first time he had ever seen images that looked like child pornography. (Id.)
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cause “is simply to ensure that the [issuing judge] had a substantial basis for concluding
that probable cause existed.” Gates, 462 U.S. at 238–39 (quotations and citations omitted).
Search warrant affidavits should not be interpreted “in a hypertechnical, rather than a
common-sense manner.” Id. at 236 (quotations and citations omitted). A judge’s
determination of probable cause “should be paid great deference” by the reviewing court.
Id. (quotations and citations omitted). “[T]he resolution of doubtful or marginal cases in
this area should be largely determined by the preference to be accorded warrants.” Id. at
237 n.10 (quotations and citations omitted).
The defendant argues that Detective Szelewski’s affidavit “failed to demonstrate
probable cause to believe that the broad class of electronic devices it sought to seize [and
search] would provide evidence related to the marijuana grow operations uncovered in the
Golden Mirror and Fallen Shadow houses.” (Doc. 34 at 7.) Specifically, the “affidavit
failed to assert that any suspects in the marijuana grow operation even had – let alone used
for any criminal purpose – any electronic devices.” (Id. at 7–8.)
The government argues that the search warrant affidavit for the Butterfly Mountain
residence and addendum articulated probable cause that evidence of the illegal marijuana
grow operation was likely to be found in the residence, in the defendant’s vehicle, and on
his person. (Doc. 46 at 7–9.) The government further argues that there was probable cause
to seize and search electronic devices because the affiant represented that, based on his
experience, people who engage in marijuana grow operations store records on computers
and cell phones. (Id. at 8–9.)
The Court concludes that there clearly was probable cause for the search warrant
for Butterfly Mountain house and the defendant’s person, and the addendum for the
defendant’s vehicle. Law enforcement had already discovered two marijuana grow
operations in houses owned by the defendant. The defendant essentially admitted that he
knew about the grow operation in the Golden Mirror house when he told law enforcement
that his daughter and her husband would get in trouble if he provided information about
what was going on in that house. The defendant’s daughter not only implicated herself
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(and her brother) in the marijuana grow operation, she told officers it was the defendant’s
idea to grow marijuana and he recently became upset when she did not want to help with
the operation. Finally, DES records showed that the defendant had no reportable income
but owned an LLC whose address was the Butterfly Mountain house. These facts establish
a fair probability that evidence of the grow operation and money laundering may be found
in the Butterfly Mountain residence and on the defendant’s person.
With respect to the addendum authorizing the search of the defendant’s vehicle, the
affidavit noted that the defendant was seen leaving the Butterfly Mountain residence in that
vehicle shortly before the execution of the search warrant and that officers were continuing
to investigate drug dealing and money laundering. Based on those facts and the facts
detailed in the original affidavit for the Butterfly Mountain search warrant, there was also
a fair probability that evidence of the grow operation and money laundering may be found
in the vehicle and/or on the defendant’s person.
The only real issue is whether there was a fair probability that evidence of the grow
operation would be found on electronic devices. As discussed earlier, a judge presented
with a search warrant is entitled to draw reasonable inferences about where evidence is
likely to be kept, based on the nature of the evidence and the type of offense. Angulo-
Lopez, 791 F.2d at 1399. As a result, the Marana Municipal Court Judge was entitled to
draw a reasonable inference that there was a fair probability that records related to drug
dealing and money laundering may be stored on computers and cell phones which have
made hard copies of documents and filing cabinets obsolete.
The Municipal Court Judge did not have to draw an inference, however, because
Detective Szelewski articulated in his affidavit that, based on his experience, “drug dealers
and money launderers utilize these devices to keep track of their negotiations, they take
photographs and videos of their products and proceeds, as well as utilize the internet and
social media accounts to advertise and promote their illegal enterprise.” (Def. Ex. 22 at 4.)
The Ninth Circuit has made clear that an issuing judge is able to consider a search warrant
affiant’s opinion as an expert and use their knowledge in determining there is a substantial
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probability that evidence may be found on a suspect’s electronic devices. United States v.
Lacey, 119 F.3d 742, 745–46 (9th Cir. 1997) (finding probable cause to believe entire
computer system may contain evidence of criminal activity and rejecting the argument that
the warrant was too general because it authorized the seizure of the entire computer system
and over 100 discs). Thus, the Municipal Court Judge properly relied on Detective
Szelewski’s expert opinion that there was a substantial probability that records related to a
large marijuana grow operation would be found on electronic devices seized from the
various locations.
For the reasons discussed above, the Court concludes that the search warrant
affidavits for the Butterfly Mountain search warrant and addendum articulated probable
cause to search the Butterfly Mountain house, the defendant, and his vehicle for evidence
of the marijuana grow operations, including the contents of electronic devices found in
those locations.
B. The Good Faith Exception
“When police act under a warrant that is invalid for lack of probable cause, the
exclusionary rule does not apply if the police acted ‘in objectively reasonable reliance’ on
the subsequently invalidated search warrant.” Herring v. United States, 555 U.S. 135, 142
(2009) (quoting United States v. Leon, 468 U.S. 897, 922 (1984)). The inquiry is “‘whether
a reasonably well-trained officer would have known that the search was illegal’ in light of
‘all the circumstances.’” Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at 922 n.23).
The Supreme Court in Leon identified the following “four situations that per se fail
to satisfy the good faith exception”: (1) “the affiant recklessly or knowingly placed false
information in the affidavit that misled the issuing judge”; (2) “the judge wholly abandon[s]
his [or her] judicial role”; (3) “the affidavit ‘is so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable’”; and (4) the warrant is “so
facially deficient” that executing officers cannot presume it to be valid. United States v.
Underwood, 725 F.3d 1076, 1085 (9th Cir. 2013) (alterations in original) (quoting Leon,
468 U.S. at 922–23).
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The government argues that even if the Court concludes that there was not probable
cause for the Butterfly Mountain search warrant and addendum, “the evidence seized need
not be suppressed as long as . . . the seizing officers acted in good faith.” (Doc. 46 at 15.)
The government does not address the four situations set forth in Leon that per se fail to
satisfy the good faith exception.
The defendant does not argue that the Marana Municipal Court Judge clearly
abandoned her judicial role when issuing the search warrant and addendum, that the search
warrant itself is deficient, or that the affidavit is lacking any indicia of probable cause to
render law enforcement’s belief in its existence entirely unreasonable. The defendant only
argues that the search warrant affiant misled the Marana Municipal Court judge by
providing “conclusory and incomplete information.” (Doc. 52 at 7.)
The defendant claims that the affiant misled the judge by “relying on Brooke
Koistenen’s statements implicating her dad, without providing context that she had already
lied to law enforcement on more than one occasion.” (Id.) The defendant, however, does
not articulate the alleged lies that Brooke Koistenen told law enforcement officers and
counsel did not elicit testimony from witnesses on that issue. Thus, the Court cannot assess
whether the alleged lies raised such a significant concern about her credibility that the state
court judge would not have issued the Butterfly Mountain search warrant notwithstanding
the other facts that supported probable cause—i.e., the defendant owned the houses where
the grow operations were occurring, officers saw him go into the Golden Mirror house, and
he admitted to officers he was aware of the grow operation at the Golden Mirror house.
The defendant also claims that because law enforcement found “no indicia of
marijuana grows” at the defendant’s other properties, the affiant “misled the judge by
implying by omission that Jeffrey Koistenen had no reportable income, and that all of his
rental properties were used for marijuana grow operation[s.]” (Id.) The fact that the
defendant had reportable income and owned other properties that were not involved in
marijuana grows does not mean that he was not involved in and/or profiting from the
marijuana grows at his Golden Mirror and Fallen Shadows houses. In fact, the opposite
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inference can be drawn based on the facts set forth in the search warrant affidavit.
The Court finds the search warrant affiant did not mislead the judge who issued the
Butterfly Mountain search warrant. As a result, the Court recommends that the District
Court conclude that the good faith exception applies even if there was not probable cause
for the search warrant.
C. The Butterfly Mountain search warrant and addendum are not overbroad
The defendant argues that the Butterfly Mountain search warrant was overbroad
because it authorized the seizure of all electronic devices without any limitation. (Doc. 34
at 10.) The defendant provides the following examples of how officers could have limited
the scope of the search warrant: (1) “identify a specific criminal transaction”; (2) “describe
a kind of offense”; (3) “cite the statute particular to only one criminal act”; (4) “provide
the precise identity and nature of the items to be seized within a general category, such as
communications between specified individuals”; and/or (5) “provide a timeframe to assist
agents in limiting the seizure to relevant items.” (Id. at 10–11 (citations omitted).) The
defendant claims that the Butterfly Mountain search warrant was an unlawful general
warrant because it permitted officers to look through all electronic devices without any
limitation. (Id. at 11.)
The government argues that the Butterfly Mountain search warrant was not
overboard or a general warrant because the “two crimes which were the subject of the
searches were clearly spelled out within the warrant.” (Doc. 46 at 9.) As a result, officers
“knew they were limited to seizing items which could contain evidence” of these crimes.
(Id.) Similarly, the search of electronic devices was limited to evidence of drug dealing
and money laundering. (Id. at 10.)
“Breadth deals with the requirement that the scope of the warrant be limited by the
probable cause on which the warrant is based.” United States v. SDI Future Health, Inc.,
568 F.3d 684, 702 (9th Cir. 2009) (quotations and citations omitted). In United States v.
Adjani, the Ninth Circuit held that a search warrant which authorized the seizure all
electronic devices in the defendant’s home, including a computer belonging to another
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person who lived with the defendant but was not a suspect or named in the search warrant,
was not overbroad. 452 F.3d 1140 (9th Cir. 2006). The court reasoned that the “critical
element in a reasonable search is not that the owner of the property is suspected of a crime
but that there is a reasonable cause to believe that the specific ‘things’ to be searched for
and seized are located on the property to which entry is sought.” Id. at 1146. The Ninth
Circuit has also held that the search of multiple computers and digital devices found at a
residence was lawful based on one contraband image. See United States v. Brobst, 558
F.3d 982, 993–94 (9th Cir. 2009) (search warrant authorizing the seizure and search of
computers, compact discs, hard drives, memory cards, and other digital devices was lawful
even though based on a witness’s observation of one illicit photograph in the defendant’s
home); United States v. Krupa, 658 F.3d 1174, 1178 (9th Cir. 2011) (search of fifteen
computers at a residence based on one contraband image and a report of child neglect was
lawful.)
The defendant’s overbreadth argument is undercut by the fact that the crimes at issue
were not a discrete transaction or an isolated incident. This sophisticated marijuana grow
operation was ongoing and clearly taking place for some time. Moreover, there were
multiple people involved in this family-run operation. Based on their experience, officers
knew that electronic devices are used to further drug dealing and money laundering.
Officers had no way of knowing, however, what specific devices were being used, how
many were being used, or who was using them. As a result, the search warrant and
addendum were not overbroad in authorizing officers to seize all electronic devices found
at the search locations and search the devices for evidence of these articulated crimes.
Defendant’s argument that the Butterfly Mountain search warrant should have
contained a specific timeframe is weakened by the warrant’s limited subject matter. The
Sixth Circuit Court of Appeals found portions of a warrant “sufficiently particular” without
a time limitation because “their subject-matter limitation (fruits and evidence of gambling)
fulfills the same function as a time limitation would have done, by limiting the warrant to
evidence of the crimes described in the affidavit.” United States v. Ford, 184 F.3d 566,
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578 (6th Cir. 1999). The Fourth Circuit Court of Appeals has also rejected the idea that
the Fourth Amendment requires a warrant to contain a specific timeframe. United States
v. Cobb, 970 F.3d 319, 328 (4th Cir. 2020). The Cobb court observed that “a warrant may
satisfy the particularity requirement either by identifying the items to be seized by
reference to a suspected criminal offense or by describing them in a manner that allows an
executing officer to know precisely what he has been authorized to search and seize[,] [but]
. . . [it] need not satisfy both criteria.” Id. at 329 (quotations and citations omitted).
Here, officers did not know when the illegal marijuana grow began. Moreover,
marijuana cultivation and money laundering are ongoing offenses that could have dated
back years, which is evidenced by officers finding marijuana plants in various stages of
cultivation, a sophisticated multi-room marijuana grow operation, equipment used to
conduct the grow operation, evidence of processing of marijuana, and financial receipts
and documents related to the grow operation. Thus, officers limited the warrant to a search
of electronic devices for evidence of drug dealing and money laundering. Because this
discreet subject matter is sufficiently limiting, a specific timeframe was not required. See
Ford, 184 F.3d at 578.
D. The items to be seized were described with sufficient particularity
The defendant argues that the Butterfly Mountain search warrant “failed to describe
with sufficient particularity the objects of the search” because “the warrant called for the
seizure, without limit,” of all electronic devices. (Doc. 34 at 9.) The defendant also argues
that: (1) the search warrant “gave officers no guidance as to what devices or data were
reasonable to seize, nor what they should have done with the devices”; (2) “[n]o target or
goal of the search was described”; (3) “[n]o relevant timeframe was described”; and (4)
“[n]o suspects or types of suspects were identified.” (Id. at 9–10.) Once again, the
defendant argues that the search warrant was an unlawful general warrant because it
allowed officers to “indiscriminately rummage[e] through the personal effects of the
Koistenen household” as well as his electronic devices. (Id. at 10.)
The government argues that the search warrant described the items to be seized with
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sufficient particularity because the law does not require (nor is it realistic) that law
enforcement officers “know in advance which exact devices would contain relevant
evidence.” (Doc. 46 at 10.) The officers did not know how many and what types of specific
electronic devices may be found at the various locations; and officers cannot not determine
whether electronic devices have evidence of a crime until information is extracted from
them. (Id.) That is the purpose of a search warrant for electronic devices, and all the law
requires is probable cause to believe that evidence of a crime may be contained on an
electronic device. (Id. at 10–11.)
“Particularity is the requirement that a warrant must clearly state what is being
sought.” United States v. Towne, 997 F.2d 537, 544 (9th Cir. 1993). The particularity
requirement prevents against the “exploratory rummaging in a person’s belongings.”
Andreson v. Maryland, 427 U.S. 463, 480 (1976). The requirement that a search warrant
particularly describe “the things to be seized makes general searches under them
impossible and prevents the seizure of one thing under a warrant describing another.”
Marron v. United States, 275 U.S. 192, 196 (1927). “As to what is to be taken, nothing is
left to the discretion of the officer executing the warrant.” Id.
In United States v. Schesso, the Ninth Circuit rejected the argument that the search
warrant lacked particularly reasoning that “[t]he government had no way of knowing which
or how many illicit files there might be or where they might be stored, or of describing the
items to be seized in a more precise manner.” 730 F.3d 1040, 1046 (9th Cir. 2013). Here,
as in Schesso, officers had no way of knowing where records or images related to drug
dealing and money laundering may be stored on the devices. As a result, officers could
not describe items that may be stored in electronic devices more precisely than evidence
related to drug dealing and money laundering. Thus, the list of items to be searched for on
the electronic devices was sufficiently particular by limiting the search to evidence of these
crimes.
. . .
. . .
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E. The evidence established that the blue iPhone was found in the
defendant’s vehicle or a container within the vehicle
The defendant argues that the government’s inability to prove the location of the
phone when seized renders the seizure unlawful. Stated another way, the government
cannot prove that the phone was seized from one of the three locations authorized by the
Butterfly search warrant and addendum—i.e., the house, the vehicle, or the defendant’s
person.
The government argues that this failure “does not provide a basis for suppression
and instead at best raises a factual dispute which goes to the weight rather than the
admissibility of the evidence and which should be resolved by the jury.” (Doc. 45 at 1.)
The government also argues the location where the phone was found is irrelevant because
the Butterfly Mountain search warrant and the addendum authorized the search of every
possible location where the phone could have been found. In fact, the government contends
that the testimony and body camera footage establish that the phone was found either in
the defendant’s car or a container in his car, i.e., his wife’s purse, which were both subject
to search pursuant to the addendum to the Butterfly Mountain search warrant.
The testimony of the law enforcement officers regarding the blue iPhone clearly
established that no one knows which officer found the phone, where it was found, or when
it was found. That said, the Court agrees with the government that the testimony and
evidence established that the phone could only have been found at one of the three locations
covered by the Butterfly Mountain search warrant and addendum. Additionally, for the
following reasons, the Court also agrees with the government that the testimony and
evidence established that the phone had to have been found in the defendant’s car or in his
wife’s purse, which was also subject to search. See Wyoming v. Houghton, 526 U.S. 295,
307 (1999) (probable cause to search a vehicle includes the right to search a passenger’s
belongings located within the vehicle if those belongings can conceal the object of the
search).14
14 Based on the Court’s review of body camera footage, it is unlikely that the phone was
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The testimony and the evidence collection log make clear that the phone was not
found in the Butterfly Mountain house. Moreover, the body camera footage makes clear
that the phone was not found on the defendant’s person. The footage shows Officer Duarte
searching the defendant, removing a wallet and loose cash from his pockets, and placing
those items in an evidence bag. Moreover, a few minutes after the search, the defendant
confirmed with Officer Duarte that those were the only items in his pockets. The defendant
also confirmed that the phone was not seized from his residence or from his person because
when asked where his phone was located, he said that it was either in the car or his wife
had it. Based on the defendant’s statement, as well as the process of elimination based on
the other evidence discussed above, the phone had to have been found in the defendant’s
car or his wife’s purse, which was in the vehicle and therefore subject to search. See
Houghton, 526 U.S. at 307. (1999).
F. Although the government has not met its burden in establishing that the
defendant’s vehicle was lawfully searched pursuant the addendum to the
Butterfly Mountain search warrant, the search and seizure were lawful
based on exceptions to the warrant requirement
The defendant also argues that the government’s inability to establish that the search
warrant addendum was issued prior to the search of the vehicle and seizure of the phone
renders the search and seizure unlawful.15 The government argues that even if the phone
found in the purse. When asked about the defendant’s phone, his wife looked around the interior
of the vehicle and said: “I don’t know.” (Def. Ex. 11 at 11:20.) Moreover, Officer Hengsteler told
her that he was not going to search her purse. (Def. Ex. 11 at 10:40; Hr’g Tr. 2/23/2026 at 103.)
The body camera footage shows Officer Hengsteler putting the purse on the front windshield/hood
area of the defendant’s car and then later picking it from that location and handing it to the wife
through the front passenger window. (Def. Ex. 11 at 29:00.) Finally, Officer Hengsteler told other
officers that an addendum to the warrant would be needed to conduct any search.
15 In defendant’s Supplemental Brief, he argues that “[e]ven if the blue iPhone had been
seized within one of the exceptions to the warrant requirement, a warrant authorizing its search is
a prerequisite to searching the phone.” (Doc. 111 at 6.) That argument is baffling (or at least
confusing) because the Butterfly Mountain search warrant and addendum, which authorized the
search of the blue iPhone and the other seized electronic devices for evidence of drug dealing and
money laundering, had issued about a week before Detective Robles first searched the blue iPhone
for that evidence and found suspected child pornography. As discussed earlier, Detective Robles
properly obtained a warrant to search the electronic devices evidence of child pornography, and
the defendant does not challenge that warrant.
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was seized prior to the issuance of the search warrant addendum, both the automobile
exception to the warrant requirement and the inevitable discovery doctrine apply.16
As discussed earlier, the traffic stop of the defendant’s vehicle occurred at about
6:20 p.m. and the Butterfly Mountain search warrant addendum for the defendant’s vehicle
was issued about an hour-and-a-half later at 7:56 p.m. Officer Hengsteler remained at the
scene of the traffic stop until Sergeant Dittiger drove the defendant’s vehicle back to the
Butterfly Moutain house. Neither witness testified about what time they left the scene.
Sergeant Dittiger could not have left the scene before 7:53 p.m. because Officer Duarte’s
body camera footage ends at that time and the defendant’s vehicle is still at the scene of
the traffic stop. (Def. Ex. 12 at 1:22:44.)
Because the body camera footage shows the defendant’s vehicle at the scene of the
traffic stop up until the time the search warrant addendum was issued, it is possible that the
vehicle was lawfully searched at the scene pursuant to the addendum. There is no
conclusive evidence about when the search occurred—i.e., before or after the addendum
was issued at 7:56 p.m.—because the witnesses shed no light on that issue. None of the
witnesses took part in searching the vehicle and they do not recall any officer finding a
phone in the defendant’s vehicle at the scene of the traffic stop. In fact, the witnesses do
not even know if the vehicle was searched at that time. Because there is no evidence about
when the vehicle was searched, the Court finds that the government has not met its burden
in establishing that the vehicle was lawfully searched and the phone was lawfully seized
pursuant to the search warrant addendum. As a result, the Court turns to the exceptions to
16 The government also argues that the defendant lacks standing to challenge the search of
his wife’s purse because defendant has not met his burden to demonstrate that he “had any
expectation of privacy in his wife’s purse.” (Doc. 112 at 7.) The government’s standing argument
presumes that the phone was found in the wife’s purse. There is no evidence, however, that the
wife’s purse was searched, let alone that the phone was found in the purse. As noted earlier, none
of the officers know whether any search of the vehicle or containers in the vehicle was done at the
scene of the traffic stop. Moreover, Officer Hengsteler told the wife that he was not going to
search her purse. Although he cannot recall if he searched the purse, the body camera footage
seems to reflect that he kept his promise. As a result, the Court need not further address the
government’s argument that the defendant does not have standing to challenge a search of the
purse.
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the warrant requirement.
1. The Automobile Exception to the Warrant Requirement
The Supreme Court has held that a warrantless search of an automobile and
containers or packages found inside the vehicle is not unconstitutional if “officers have
probable cause to believe that the vehicle contains contraband” and the vehicle is readily
mobile. United States v. Ross, 456 U.S. 798, 808 (1982); see also Maryland v. Dyson, 527
U.S. 465, 466 (1999) (recognizing “automobile exception” to warrant requirement); United
States v. Faagai, 869 F.3d 1145, 1150 (9th Cir. 2017) (citations omitted) (a warrantless
search of a vehicle is lawful “if there is probable cause to believe the vehicle contains
evidence of a crime”). Probable cause to search a vehicle also includes the right to search
a passenger’s belongings located within the vehicle if those belongings can conceal the
object of the search. Houghton, 526 U.S. at 307. In fact, if probable cause exists to believe
that a vehicle contains contraband and the vehicle is readily mobile, the scope of the
warrantless search can be as broad as a magistrate could authorize through a warrant.
California v. Carney, 471 U.S. 386, 394–95 (1985). There is no separate exigency
requirement. Dyson, 527 U.S. at 466; see also Ross, 456 U.S. at 809.
The Court has already concluded that the affidavit submitted in support of the
addendum to the Butterfly Mountain search warrant articulated probable cause to search
the defendant’s vehicle for evidence of drug dealing and money laundering and seize that
evidence, including electronic devices. Additionally, there is no doubt that the defendant’s
vehicle was readily mobile. As the government points out, the stop occurred “on a public
roadway and could have been moved beyond the reach of law enforcement at any moment
absent intervention.” (Doc. 112 at 3–4.) Moreover, the defendant’s wife remained in the
vehicle. For these reasons, the Court concludes that the government has met its burden in
proving that the automobile exception applies, and as a result, the warrantless search of the
vehicle and seizure of the defendant’s phone was lawful.
2. The Inevitable Discovery Doctrine
The government also argues even if the blue iPhone was seized prior to the issuance
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of the search warrant addendum and falls outside the automobile exception, “suppression
is unwarranted because the phone would have been inevitably discovered through lawful
means.” (Doc. 112 at 4.) For the following reasons, the Court agrees.
The inevitable discovery doctrine is an exception to the exclusionary rule. United
States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986) (citing Nix v. Williams, 467 U.S.
431 (1984)). “The doctrine permits the government to rely on evidence that ultimately
would have been discovered absent a constitutional violation.” United States v. Ruckes,
586 F.3d 713, 718 (9th Cir. 2009) (citing Nix, 467 U.S. at 443). The doctrine “applies only
when the fact that makes discovery inevitable is born of circumstances other than those
brought to light by the illegal search itself.” United States v. Reilly, 224 F.3d 986, 995 (9th
Cir. 2000) (citations omitted). The burden is on the government to establish inevitable
discovery by a preponderance of the evidence; and that evidence must be based on
“historical facts capable of ready verification or impeachment[.]” Nix, 467 U.S. at 44 n.5.
Here, the evidence established the requisite historical facts necessary for the Court
to apply the inevitable discovery doctrine. The Court agrees with the government that
officers had already identified the defendant’s vehicle as a target and relied on the same
probable cause supporting the search warrant for the Butterfly Mountain house. (Hr’g Tr.
3/5/2026 at 8.) When officers stopped the vehicle, they were actively pursuing judicial
authorization for an amendment to the warrant. (Def. Ex. 23; Gov. Ex. 1.) The decision
to seek the warrant addendum stemmed from the broader investigation and existing
probable cause, not the discovery of the phone. (Gov. Ex. 1 at 2–3.) Thus, the discovery
of the phone was not “born of circumstances other than those brought to light by the
[alleged] illegal search itself.” Reilly, 224 F.3d at 995.
Additionally, there is no evidence that the phone would have been rendered
unavailable prior to the execution of the addendum. The Court also agrees with the
government that the evidence established that the defendant’s vehicle “was under
continuous police control from the time of the stop until the warrant addendum was
obtained.” (Doc. 112 at 6.) Moreover, Sergeant Dittiger, a supervisor in the asset forfeiture
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department of the Counter Narcotics Alliance, testified that he drove the defendant’s
vehicle from the scene of the traffic stop to the Butterfly Mountain house; and the vehicle
(and many others) were seized by law enforcement. Thus, the phone would have inevitably
been discovered in the vehicle while in law enforcement custody and subject to search
pursuant to the search warrant addendum.17
IV. RECOMMENDATION
For the foregoing reasons, the Magistrate Judge RECOMMENDS that the District
Judge DENY the Defendant’s Motions to Suppress (Docs. 33 and 34).
Pursuant to 28 U.S.C. §636(b) and Rule 59(b)(2) of the Federal Rules of Criminal
Procedure, any party may serve and file written objections within fourteen (14) days after
being served with a copy of this Report and Recommendation. No reply shall be filed
unless leave is granted from the District Court. If objections are filed, the parties should
use the following case number: CR-23-01495-TUC-AMM.
Failure to file timely objections to any factual or legal determination of the
Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right
of review.
Dated this 8th day of April, 2026.
17 As the government acknowledges, its inability to establish which officer found the phone
may be an issue at trial; but who found the phone is not relevant to the instant motion.
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