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United States v. Adekoya

United States District Court, D. New Hampshire

November 12, 2014

United States of America
v.
Olawaseun Adekoya

Page 288

For Oluwaseun Adekoya, Defendant: Theodore M. Lothstein, LEAD ATTORNEY, Lothstein Law Office PLLC, Concord, NH.

For USA, Plaintiff: Arnold H. Huftalen, LEAD ATTORNEY, U.S. Attorney's Office (NH), Concord, NH.

Page 289

MEMORANDUM ORDER

Joseph N. Laplante, United States District Judge.

This case involves the warrantless seizure of an arrestee's cellular phone, and the subsequent use of information from the exterior of the phone in furtherance of an investigation. That arrestee, defendant Olawaseun Adekoya, was one of the targets of a sting operation that drew several of his acquaintances (but not Adekoya himself) to New Hampshire in order to purchase fraudulent ATM cards, which they intended to use to withdraw money from unknowing victims' bank accounts. The plan was foiled by federal agents, who arrested the participants in the act of attempting to withdraw cash with the cards.

Based upon information implicating Adekoya in the scheme, federal agents arrested him at his home in New Jersey the next day. During the arrest, the agents seized a cellular phone (precisely where the phone was located at that time, as will be discussed, is the subject of some debate between the parties). Later, using an identification number inscribed on the phone's exterior--known as an international mobile equipment identity, or " IMEI," number--the prosecution subpoenaed the phone's records, which revealed that incriminating communications passed between that phone and phones seized from the New Hampshire arrestees at and around the time of the crime.

A jury in this court ultimately convicted Adekoya of bank fraud, in violation of 18 U.S.C. § 1344, and conspiracy to commit bank fraud, in violation of 18 U.S.C. § § 371 & 1344. Prior to trial, Adekoya moved to suppress the phone, as well as the records that had been obtained using the IMEI, as fruits of an illegal search in violation of his Fourth Amendment rights. Adekoya's motion challenged both the seizure of the phone and the government's subsequent use of the IMEI number to obtain records from the service provider associated with the phone. Specifically, the motion argued:

o that the phone was not located in Adekoya's hand at the time of arrest, as the arresting agents claimed, but rather on a dining room table, outside of the space that permissibly can be searched by law enforcement incident to arrest, see Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); and

o that even if the phone had been lawfully seized, the Fourth Amendment required the government to obtain a warrant before viewing the IMEI number.

The court held a hearing on the motion, at which several federal agents testified for the prosecution. Adekoya's father, who was present when his son was arrested, testified on Adekoya's behalf. The court then issued, on the record at the hearing, an oral order that (1) found that the phone had been in Adekoya's hand at the time of arrest; (2) concluded that, because the phone was in Adekoya's hand, the arresting agents had lawfully seized it incident to arrest; and (3) concluded that the government needed no search warrant to view the IMEI number. The court accordingly denied Adekoya's motion, and now issues this written order to explain its findings and conclusions in more detail.

Page 290

See, e.g., United States v. Joubert, 980 F.Supp.2d 53, 55 & n.1 (D.N.H. 2014) (noting a district court's authority to later reduce its ...


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