UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

David Konze

v. Civil No. 18-cv-63-JL Opinion No.

Town of Salem, et al.

MEMORANDUM ORDER

Summary judgment in this action, in which plaintiff David

Konze alleges that members of the Salem Police Department

violated his rights under the United States Constitution, turns

on whether contents of his cell phone were searched pursuant to

a valid warrant. Konze was arrested by two of the defendants,

Detectives Robert Farah and Joshua Dempsey, on May 9, 2015.

While being questioned at the Salem Police Department, he

requested, but was not provided, an opportunity to test his

blood glucose. Detective Farah subsequently obtained a warrant

to search Konze’s phone and, after another officer created a

forensic copy of the phone’s contents, did so. Konze brings

claims under

, alleging that the defendants

violated his rights under the Fourth, Fifth, and Fourteenth

Amendments of the United States Constitution by (1) using

excessive force in his arrest, (2) failing to provide him with

medical treatment after the arrest, (3) searching his phone before a warrant issued, and (4) conducting a search broader

than the circumstances justified.

This court has subject-matter jurisdiction over this action

pursuant to

(federal question). The defendants

move for summary judgment on all claims. Because Konze concedes

that defendants did not use excessive force and did not fail to

provide him with medical treatment after his arrest, the

defendants are entitled to summary judgment on those claims.

And because Konze has not raised any dispute of material fact

concerning the warrant-related claims, the court grants the

defendants’ motion for summary judgment on those claims as well.

Applicable legal standard

Summary judgment is appropriate where “the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A dispute is “genuine” if it could reasonably be

resolved in either party’s favor at trial, and “material” if it

could “sway the outcome under applicable law.” Estrada v. Rhode

Island,

(1st Cir. 2010).

The moving party “bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the factual record] which it

believes demonstrate the absence of a genuine issue of material

2 fact.” Celotex Corp. v. Catrett,

(1986).

“Once the moving party has properly supported [his] motion for

summary judgment, the burden shifts to the nonmoving party, with

respect to each issue on which [he] has the burden of proof, to

demonstrate that a trier of fact reasonably could find in [his]

favor.” DeNovellis v. Shalala,

(1st Cir.

1997) (citing Celotex,

).

“[T]he non-moving party ‘may not rest upon mere allegation

. . . but must set forth specific facts showing that there is a

genuine issue for trial.’” Braga v. Hodgson,

(1st Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc.,

(1986)). In analyzing a summary judgment motion,

the court “views all facts and draws all reasonable inferences

in the light most favorable to the non-moving” parties.

Estrada,

.

Background

On the night of May 9, 2015, Konze visited an acquaintance

at a house on Haverill Road in Salem, New Hampshire. While he

was there, an altercation broke out. According to its

occupants, Konze had broken into the home the previous day and,

that night, had sent the occupants a series of threatening text

messages before arriving unexpectedly and entering the house.

3 One of the occupants called 911. Konze fled into woods near the

house.

Detectives Farah and Dempsey, and a third not named in this

action, responded to the call. Detective Farah arrived first

and followed Konze into the woods. He ordered Konze to leave

the woods and lay face down on the ground. Konze complied. All

three officers took Konze into custody. According to Konze, the

arrest lasted less than twelve seconds.

Based on the text messages that one of the house’s

occupants showed to Detective Farah, he sought and obtained a

warrant to search Konze’s phone -- specifically, his text

messages, photographs, voicemail, email, GPS coordinates, and

internet history. Another detective copied the phone’s contents

and reviewed that copy.

Konze was interviewed at the Salem Police Department. At

one point during the interview, he informed the interviewing

detective that he was diabetic and asked to test his blood

sugar, though he did not indicate that he felt any ill effects.

The detective agreed to ask the fire department to bring a

glucometer for this purpose but instead concluded the interview.

Konze was then transported to the Rockingham County House of

Corrections, where he requested and was given crackers and milk.

He sought no further treatment.

4 Konze was charged with burglary, assault with a deadly

weapon, falsifying physical evidence, and criminal threatening.

A second burglary charge was added in light of GPS information

drawn from Konze’s phone.1 Ultimately, Konze pleaded guilty to

simple assault and criminal threatening.

Analysis

In this action, Konze brought two claims against the Town

of Salem and three of its officers. By his first claim, brought

under

, he alleged violations of the Fourth,

Fifth, and Fourteenth Amendments of the United States

Constitution.2 As his second claim, he sought declaratory

judgment that the defendants’ conduct violated those Amendments,

as well as Konze’s rights under New Hampshire’s Constitution.3

Konze has since clarified that he based these claims on:

(1) Detective Farah’s use of force in pointing his gun at Konze

during the arrest; (2) Officer Dempsey’s use of force in

allegedly striking Konze from behind during the arrest; (3) the

scope of the search warrant; (4) the scope and timing of the

search of his phone; and (5) failure to provide medical

1 See Objection (doc. no. 18) ¶ 8. 2 Compl. (doc. no. 1) ¶ 25. 3 Id. ¶ 26.

5 attention as requested during his interview at the police

station.

Undisputed claims. In his objection to the defendants’

summary judgment motion, Konze indicated that he “chooses not to

contest Defendants’ contention that the use of force by

Detectives Farah and Dempsey was not excessive.”4 At oral

argument, Konze conceded that no record evidence supported this

claim. And, though he did not affirmatively withdraw it, Konze

neither addresses nor raises any dispute of fact with respect to

his claim that he was not afforded medical attention.

Defendants are, therefore, entitled to summary judgment on both

claims.

Timing of search warrant. Konze argues, in essence, that

Detective Farah searched his phone before obtaining a warrant to

do so.5 The warrant to search his phone issued at 8:50am EDT on

May 13, 2015.6 There is no dispute that Detective Farah searched

a copy of the phone’s contents. Any factual dispute that may

exist concerns what time that copy was made.

Konze’s position that the phone’s contents were copied

before the warrant issued initially appears to have support in

4 Objection (doc. no. 18) ¶ 9. 5 Objection (doc. no. 18) ¶ 12; id. at 3-4. 6 Farah Aff’t Ex. C (doc. no. 17-5).

6 the record. Detective Ryan Sambataro’s report suggests that the

copy was made at 10:13am UTC which, in May 2015, equated to

6:13am EDT -- two and a half hours before the warrant issued.

Sambataro used Cellebrite forensic data extraction software to

extract the contents of Konze’s cell phone, which he then burned

onto physical media and provided to Detective Farah.7 In his

report, he recorded that the extraction began at 10:13:16 UTC

and finished at 10:14:27 UTC.8 The extraction report itself

lists the extraction start and end times as 10:13:16 AM and

10:14:27 AM, respectively, though does not indicate whether

those times are local -- that is, EDT -- or UTC.9 It does,

however, list the “Time zone settings (UTC)” as “Original UTC

value.”10 Konze argues that this time zone setting indicates

that the data could have been extracted at 10:13am UTC.

The weight of record evidence, however, supports the

opposite conclusion -- that the copy was made after the warrant

issued. In his sworn affidavit submitted in support of the

summary judgment motion, Detective Sambataro explained that the

use of “UTC” in his report was an error and that he made the

7 Obj. Ex. C (doc. no. 18). 8 Id. 9 Obj. Ex. B (doc. no. 18). 10 Id.

7 copy at 10:13 AM local time, after Detective Farah provided him

with the executed warrant.11 Detective Farah contemporaneously

reported that Detective Sambataro “ripped a copy of all data and

files” from Konze’s phone “[a]t approximately 1013 hours.”12 In

his deposition, Detective Farah confirmed that the copy was made

at 10:13 AM local time, after he provided both the phone and the

executed warrant to Detective Sambataro.13 Detective Sambataro’s

report indicates that he worked from 8:00am to 4:00pm on May 13,

2015, suggesting he did not copy the phone’s contents around

6:00am. And Konze himself filed a “Memorandum for

Clarification,” explaining that he learned from a “Cellebrite

Junior Technical Support Engineer” that, despite references to

UTC in the extraction report, the listed extraction date and

time referred to local time.14

Thus, while there initially appeared to be a dispute of

material fact concerning precisely when Detective Sambataro

extracted data from Konze’s phone, the sworn affidavits and

testimony, as well as Konze’s own research, indicate that the

extraction occurred at 10:13 AM EDT, after the warrant issued at

11 Sambataro Aff’t (doc. no. 19-1) ¶¶ 5, 8. 12 Obj. Ex. D (doc. no. 18). 13 Surreply Ex. C (doc. no. 20-3) at 20-21. 14 Mem. for Clarification (doc. no. 23).

8 8:50 AM EDT. Accordingly, the defendants are entitled to

summary judgment on Konze’s claim that the phone was searched

before the warrant issued.

Scope of search warrant. Konze summarily “asserts that the

scope of the search” of his cell phone “was also overly broad,

given the circumstances,”15 in violation of the Fourth Amendment,

which provides that “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things

to be seized.” U.S. Const. amend. IV. “To satisfy [the

probable-cause] standard, a search-warrant application must

reveal probable cause to believe two things: one, that a crime

has occurred . . . and two, that specified evidence of the crime

will be at the search location . . . .” United States v.

Rivera,

(1st Cir. 2016). Konze appears to

challenge this latter “nexus element” with respect to certain of

his phone’s contents.

Detective Farah sought and obtained a warrant to search

“[a]ll forms of messages” on Konze’s phone, “to include, but not

limited to” text, MMS, email, voicemail, and Apple Messages, as

well as to search call logs, photographs, videos, GPS

15 Surreply (doc. no. 20) at 1.

9 coordinates, and internet history.16 In support of the warrant

application, Detective Farah submitted an affidavit explaining

that one occupant of the house at 24 Haverhill Road showed him

harassing and threatening text messages that Konze had sent

before his arrival.17 In questioning Detective Farah, Konze

acknowledged that these events gave Detective Farah probable

cause to search his texts, call logs, and iMessages.18 But he

questioned whether probable cause existed for searching the

photographs, videos, GPS, internet history, and email on his

phone.19 Specifically, he challenges whether the defendants had

probable cause to believe that evidence connected to those

threats and his intentions in visiting the house that evening

would be found among his photographs, videos, GPS, internet

history, and email.

“[P]robable cause does not demand certainty, or proof

beyond a reasonable doubt, or even proof by a preponderance of

16 Farah Aff’t Ex. C (doc. no. 17-5). 17Farah Aff’t Ex. B (doc. no. 17-4) ¶¶ 6-7, 11. Konze does not dispute that Detective Farah was told that Konze sent a series of threatening text messages to one of the house’s occupants that evening. Nor does he dispute that the house’s occupant showed text messages to Detective Farah on the night of the arrest. Mot. for Summary Judgment (doc. no. 17) ¶ 5; Obj. (doc. no. 18) ¶ 5. 18 Surreply Ex. C (doc. no. 20-3) at 14-15. 19

10 the evidence—it demands only ‘a fair probability that contraband

or evidence of a crime will be found in a particular place.’”

Rivera,

(quoting Illinois v. Gates,

(1983)). Courts consider the totality of the circumstances

in determining whether probable cause existed to search a

particular location.

“[A] connection with the search site

can be deduced from the type of crime, the nature of the items

sought, plus normal inferences as to where a criminal would hide

evidence of his crime.”

(internal citations and quotations

omitted).

Here, Konze concedes that probable cause existed to search

the messaging applications on his phone. Under the

circumstances present in this case, if his messaging

applications contained evidence concerning his threats to the

house’s occupant and his intentions on arriving at the house on

the evening of May 9, other written-communication media on his

phone, such as his email, may have included related evidence.

And, given that the altercation arose after he arrived at the

house immediately after purportedly making threatening

statements to the occupants, his GPS data may also reasonably

contain evidence connected with the crime. Cf. United States v.

Bass,

(6th Cir. 2015) (rejecting

particularity challenge to warrant authorizing search of cell

phone where affidavit set forth “a substantial basis to believe”

11 that evidence of the crime existed on the defendant’s “cell

phone, but it was unclear as to the particular format in which

the evidence existed.”).

The evidence less clearly supports probable cause to search

other media on Konze’s phone, such as his videos and internet

history. Even if the warrant was overbroad with respect to

those categories of information, however, there is no evidence

that Konze’s videos or internet history were searched.20 The

only evidence concerning the scope of the actual search

indicates that Detective Farah reviewed “the texts, call

history, GPS information and some photos” from Konze’s phone.21

Nor does the plaintiff identify any damages arising from this

limited search. Defendants are, accordingly, entitled to

summary judgment on this claim as well.

Conclusion

Konze concedes that the defendants are entitled to summary

judgment on his claims that the defendants used excessive force

20Because Konze further clarified his challenge to the scope of the warrant at oral argument, the court permitted the defendants to submit a supplemental memorandum addressing that argument. In that memorandum, the defendants provided general authority for broad, exhaustive phone search warrants. See Supp. Mem. (doc. no. 24) at 4-6. The court takes note of that authority but, as discussed here, it need not rely on that authority given the limited scope of the conducted search. 21 Supp. Farah Aff’t (doc. no. 24-1) ¶ 4.

12 and failed to provide him with medical attention. He further

concedes that Detective Sambataro copied, and Detective Farah

thus searched, the contents of his phone after a warrant issued.

Finally, Konze has not raised a question of material fact

concerning whether probable cause supported the scope of the

warrant.

The defendants’ motion for summary judgment22 is, therefore,

GRANTED. The clerk shall enter judgment accordingly and close

the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: January 15, 2019

cc: David Konze, pro se Brian J.S. Cullen, Esq.

22 Document no. 17.

13