UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 13-cr-98-JL Opinion No.

Olawaseun Adekoya

MEMORANDUM ORDER

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

, and conspiracy to commit

bank fraud, in violation of

& 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:

• 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,

(1969); and

• 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

2 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.

See, e.g., United States v. Joubert,

, 55 & n.1

(D.N.H. 2014) (noting a district court’s authority to later

reduce its prior findings and rulings to writing).

I. Background

Based upon the testimony and other evidence presented at the

hearing, the court makes the following factual findings.

This case evolved out of an earlier investigation into a

Vietnamese national, Hieu Minh Ngo, whom the United States Secret

Service suspected of operating a website that sold substantial

amounts of personally identifiable information (“PII”), including

Social Security and driver’s license numbers, that belonged to

other individuals. Due to the lack of an extradition treaty

between the United States and Vietnam, the Secret Service lured

Ngo to the U.S. territory of Guam, arrested him, and transported

him to New Hampshire to face charges in this court. Confronted

with the prospect of a lengthy term of imprisonment, Ngo agreed

3 to cooperate with further investigations into individuals who had

purchased PII from him, and authorized Secret Service Special

Agent Matthew O’Neill to access and use his e-mail account.

Agent O’Neill, who is stationed in New Hampshire, discovered

correspondence between Ngo and several e-mail accounts that

originated from an IP address associated with Adekoya’s New

Jersey residence. In these exchanges, Ngo’s correspondent sought

to purchase several persons’ Social Security numbers. Using this

information, the government obtained an indictment against, and

an arrest warrant for, Adekoya in this court.

Rather than having Adekoya arrested immediately upon the

warrant’s issuance, O’Neill took a different tack. Knowing that

defendants in cases involving Internet communications frequently

invoke the so-called “some other dude did it” or “SODDI” defense,

and claim that someone else was behind the keyboard, O’Neill

sought to lure Ngo’s correspondent, who he believed to be

Adekoya, to New Hampshire. In so doing, he hoped to demonstrate

that Adekoya himself had corresponded with Ngo regarding the

purchase of PII.

To this end, O’Neill, impersonating Ngo, wrote to one of the

e-mail accounts that originated from the IP address associated

with Adekoya’s home, asking whether Ngo’s correspondent would be

interested in traveling to New Hampshire to engage in an “ATM

4 cashout,” a scheme in which fraudulently manufactured ATM cards

are used to withdraw funds from legitimate bank accounts. The

user responded affirmatively, suggesting that he would be able to

assemble a team of individuals to participate in the cashout. He

and O’Neill, still in the virtual guise of Ngo, then proceeded to

discuss the logistics of the scheme, the potential payout, the

division of the proceeds, and various other details.

The scheme was put into action on October 1, 2013, when four

individuals traveled from Atlanta, Georgia to Manchester, New

Hampshire to conduct the cashout. As discussed by O’Neill and

his correspondent, the four proceeded to a local hotel, where

they retrieved a package containing 200 white plastic cards,

which they had been led to believe were encoded to access ATMs,

and several lists of banks in Manchester to be targeted. From

there, they set out for the listed banks. After attempting to

use the ATM cards during the early morning hours of October 2,

all four individuals were arrested.

Although O’Neill, masquerading as Ngo, had insisted that he

would deliver the cards to his correspondent only if the latter

personally came to New Hampshire to pick them up, Adekoya was, to

O’Neill’s surprise, not among the four individuals arrested.

Nonetheless, when law enforcement agents questioned the four,

they indicated that one of them, Adebayo Adegbesan, had been in

5 contact via text messages with Adekoya, who resided in New

Jersey. The arrestees also claimed that they had come to New

Hampshire at Adekoya’s request.

Following the events of October 2, O’Neill requested that

inspectors of the United States Postal Inspection Service

(“USPIS”) in New Jersey execute the arrest warrant for Adekoya

and take him into custody.1 Thus, on the morning of October 3,

2013, a four-person team from the USPIS traveled to Adekoya’s

residence, where he lived with his parents, to arrest him.

The USPIS team waited outside the home for several hours,

hoping to observe Adekoya either arriving or leaving, to no

avail. When a delivery truck arrived at the residence, the team

saw someone open the door to receive the package, but could not

positively identify that person as Adekoya. At that point, they

approached the residence and knocked on the door, which Adekoya

opened. At the request of the USPIS inspectors, Adekoya stepped

outside to speak with them, and was promptly arrested. When

placing Adekoya in handcuffs, the arresting inspectors seized a

cellular phone from his hand, which they then took with them.2

1 The New Hampshire division of USPIS had also been involved in the investigation into Adekoya, and the New Jersey division of USPIS was already familiar with him from a previous investigation into similar alleged crimes. 2 The court makes this finding based principally upon the testimony of two USPIS inspectors–-Ketty Larco and Eric Malecki--

6 Several months after Adekoya’s arrest, O’Neill subpoenaed

the telephone records associated with the phone seized from

Adekoya, identifying the phone by reference to the IMEI number

inscribed on its back. Those records revealed a number of text

messages between that phone and several of the phones seized from

the four individuals arrested in New Hampshire, both on and

leading up to the night of the attempted cashout.

at the suppression hearing. Inspector Larco testified that she took the phone from the defendant’s hand herself when arresting him, while Inspector Malecki testified that Inspector Larco told him at the scene of the arrest that she had seized the phone from Adekoya’s person (although he did not personally observe that). Adekoya’s father gave contrary testimony at the suppression hearing, where he claimed that the phone was located on the dining room table during the arrest. As discussed in detail on the record at the hearing, the court found the inspectors’ testimony more consistent and more credible than the testimony of Adekoya’s father. The inspectors had no strong incentive to give false testimony, as they had no involvement in the investigation apart from being asked to effectuate Adekoya’s arrest. Their delivery, demeanor, and tone gave a credible impression; they did not appear to be attempting to shade or color their testimony in any way so as to advance the prosecution’s position. Their accounts were consistent with one another and internally consistent, not to mention consistent with a jailhouse phone call made by the defendant (admitted into evidence at the hearing) in which he stated that “the phone was in my possession [and] they took it.” The defendant’s father, by contrast, had an obvious motive to try to benefit his son. While it was clear to the court that the elder Adekoya was somewhat disappointed that his son had yet again found himself in trouble with the law, it was also apparent that he cared deeply for him. His testimony was disjointed and inconsistent, and his delivery, demeanor, and tone were defiant and indignant–-a mien that is perhaps understandable given his son’s predicament (and his own occupation as a New York City cabdriver), but which certainly did not enhance his credibility.

7 II. Analysis

As mentioned at the outset, Adekoya challenges both the

USPIS inspectors’ warrantless seizure of the cellular phone at

the time of his arrest, and Agent O’Neill’s later viewing of the

IMEI number inscribed on the phone, also without a warrant.

When, as here, a criminal defendant challenges a warrantless

search or seizure, the prosecution bears the burden of showing,

by a preponderance of the evidence, that an exception to the

warrant requirement applies. See United States v. Matlock,

, 178 & n.14 (1974); United States v. Dickerson,

(1st Cir. 2008). For the reasons that follow, the

prosecution has carried its burden here, and has demonstrated

that both the seizure of the phone, and the subsequent viewing of

the IMEI number, were permissible under recognized exceptions to

the Fourth Amendment’s warrant requirement. Adekoya’s motion is

accordingly denied.

A. Seizure of the phone

The Fourth Amendment to the U.S. Constitution protects

“[t]he right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures.”

U.S. Const. amend. IV; see also Katz v. United States,

(1967). Generally, for a search or seizure of property

8 to qualify as “reasonable,” law enforcement agents must first

“secure a search warrant supported by probable cause.” United

States v. Gifford,

(1st Cir. 2013). Like many

rules of general applicability, however, this one has exceptions.

One of those is particularly relevant here: “[i]t is well settled

that a search incident to a lawful arrest is a traditional

exception to the warrant requirement of the Fourth Amendment.”

United States v. Robinson,

(1973).

That exception, succinctly summarized, “permits an arresting

officer to search for and seize any evidence on the arrestee’s

person in order to prevent its concealment or destruction.”

United States v. Wurie,

(1st Cir. 2013), aff’d sub

nom. Riley v. California,

(2014). As discussed in

Part I, supra, the court finds that the phone in question was on

Adekoya’s person–-specifically, in his hand–-at the time he was

arrested. It was, therefore, potentially fair game for seizure

under the exception (to which the court will refer in the

remainder of this order as the “search-incident exception”).

The court’s analysis cannot end there, however. Adekoya

argues that even if the phone was, indeed, in his hand at the

time of his arrest, the search-incident exception does not apply

because neither of the twin aims of the exception–-protecting the

safety of arresting officers and preventing the destruction of

9 evidence–-was implicated. He is incorrect as to both the facts

and the law. USPIS Inspector Eric Malecki, who participated in

the arrest, testified at the suppression hearing that Agent

O’Neill had informed him prior to the arrest that Adekoya’s

alleged co-conspirators claimed to have been in phone contact

with Adekoya during the commission of the cashout. So, as the

court discussed on the record at the hearing, there was in fact

good reason for the USPIS inspectors who arrested Adekoya to

believe that evidence might exist on the phone (in the form of

text messages or call history documenting Adekoya’s exchanges

with those who directly participated in the cashout) and that

this evidence could be destroyed if the phone was not seized.

Even if one accepts Adekoya’s position that neither aim was

implicated, moreover, that still does not mean the seizure of the

phone was unlawful. It is true that the Supreme Court, in

articulating the search-incident exception, originally justified

it as necessary to protect officer safety and to prevent the

concealment or destruction of evidence. See Chimel,

. The Court later explained, though, that while the exception

is “based upon the need to disarm and to discover evidence,” a

search incident to a lawful arrest is reasonable regardless of

“the probability in a particular arrest situation that weapons or

evidence would in fact be found upon the person of the suspect.”

U.S. at 235; see also Riley,

. So

the USPIS inspectors’ seizure of Akekoya’s phone without a

warrant at the time of his arrest was permissible under the

Fourth Amendment, whether or not they had reason to believe their

own safety was endangered or that evidence might be destroyed.

B. Viewing the IMEI number

Even when law enforcement agents permissibly seize a phone

when making an arrest, they do not then have carte blanche to do

whatever they wish with it. The Fourth Amendment’s prohibition

of unreasonable searches places at least one limitation on law

enforcement’s ability to examine a phone after a lawful seizure,

preventing the viewing of the digital data stored on the phone

without a warrant. See Riley,

(“Our answer to

the question of what police must do before searching a cell phone

seized incident to an arrest is . . . simple–-get a warrant.”).

Adekoya asserts that a similar rule should govern law enforcement

agents’ viewing of the IMEI number on a cell phone. He maintains

that if “a state actor had to manipulate the phone in any manner

in order to view the IMEI number”–-including simply turning the

phone over to look at the back of it–-“that action constitute[s]

a search,” prior to which the government must obtain a warrant.

Deft.’s Reply (document no. 77) at 1.

11 Adekoya is incorrect, at least as far as the IMEI number in

this case is concerned. The Supreme Court’s recent decision in

Riley reaffirmed that the search-incident exception entitles law

enforcement officers to “examine the physical aspects of a phone”

after seizing it. Riley,

; cf. also Wurie,

n.1 (suggesting that, once phone is lawfully seized

incident to arrest, officers are “entitled to take notice of any

information that [is] visible to them on the outside of the

phone”). It is undisputed that the IMEI number on the phone

seized from Adekoya was inscribed on the phone’s rear exterior,

and that no protective case enclosed the phone, so that the IMEI

number was visible to the naked eye. As such, it falls easily

within the category of the phone’s “physical aspects” that are

subject to examination without a warrant.

As the concurring opinion in Riley notes, moreover, “[i]t

has long been accepted that” the search-incident exception

permits the examination of “written items found on the person of

an arrestee.”

& n.* (Alito, J., concurring).

That includes information contained in, among other things, a

defendant’s diary, wallet, notebooks, and check books. See

(citing, inter alia, Hill v. California,

(1979) and

Warden, Md. Penitentiary v. Hayden,

(1967)). It

stands to reason that if law enforcement officers may permissibly

12 view the written information contained in these types of

materials without a warrant, the substantially less intrusive

warrantless viewing of an IMEI number on the exterior of a

phone–-which reveals, in and of itself, no personal information

about the person from whom it is seized, and serves only to

identify the phone–-is similarly permissible under the Fourth

Amendment.3

As a last-ditch effort, Adekoya also argues that even if the

search-incident exception would otherwise permit law enforcement

officers to view an external IMEI number without a warrant, a

warrant should nonetheless have been obtained to view the IMEI

number here if, as the government claims, there was probable

cause to believe the phone contained evidence. In other words,

Adekoya takes the position that when law enforcement possesses

sufficient probable cause to obtain a search warrant, it must

obtain one even when doing so would not ordinarily be required.

3 As discussed in Part I, supra, several months apparently passed between the date on which Adekoya was arrested and the phone was seized, and the date on which Agent O’Neill viewed the IMEI number in order to prepare a subpoena for the phone records. Adekoya has not argued–-in either his written memoranda or at the suppression hearing–-that this lengthy delay bears on whether the viewing of the IMEI number was “incident to” Adekoya’s arrest, so the court need not address that issue. But cf. United States v. Chadwick,

(1977) (search of footlocker, seized at time of defendants’ arrest, that occurred over an hour after the seizure and long after defendants were in custody, could not “be viewed as incidental to the arrest”), abrogated on other grounds by California v. Acevedo,

(1991).

13 He has cited no authority for this proposition, however (in fact,

at the suppression hearing, his counsel conceded that he had

none), and the court is not aware of any. In the absence of such

authority, the court must reject Adekoya’s argument, which runs

counter to the rationale for, and, indeed, the very existence of,

the search-incident exception. See Wayne R. LaFave, Search and

Seizure: A Treatise on the Fourth Amendment, Section 2 572 (5th

ed. 2012) (noting, with regard to that exception, that “because

the right to make the search flows automatically from the

preceding arrest, there would be no issue to be decided by the

magistrate concerning the search even if there were time to

consult him”).

In sum, under the search-incident exception, Agent O’Neill

permissibly viewed the IMEI number on the phone while preparing

the subpoena, and the phone records thereby obtained need not be

suppressed.

III. Conclusion

For the foregoing reasons, the defendant’s motion to

suppress4 is DENIED.

SO ORDERED.

4 Document no. 64.

14 Joseph N. Laplante United States District Judge

Dated: November 12, 2014

cc: Arnold H. Huftalen, Esq. Theodore M. Lothstein, Esq.

15