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                                                                     [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 12-11970
                              ________________________

                     D.C. Docket No. 1:11-cr-00239-CAP-ECS-29

UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellant,

                                               versus

TOMAR SHAW,
a.k.a. Jay,

                                                                       Defendant-Appellee.
                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________


                                    (August 5, 2013)

Before MARTIN and BLACK, Circuit Judges, and GOLDBERG, * Judge.

PER CURIAM:


       *
          Honorable Richard W. Goldberg, United States Court of International Trade Judge,
sitting by designation.
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       In this interlocutory appeal, the Government challenges the district court’s

order granting Tomar Shaw’s pretrial motions to suppress evidence obtained from

three cellular phones found in Shaw’s pockets at the time of his arrest. After

review, we reverse the district court’s order granting Shaw’s motion to suppress

and remand for further proceedings consistent with this opinion. 1

                                     I. BACKGROUND

       In June 2008, the Government began an investigation of a large Mexican

drug trafficking organization operating in the Atlanta area. Between April 2009

and April 2011, agents monitored approximately 42 phones with court-authorized

wiretaps and seized about $1.36 million in drug proceeds, 312 kilograms of

cocaine, and 3,200 pounds of marijuana. Through some of the monitored calls,

agents learned that Shaw was involved in the drug trafficking.

       In May 2011, a grand jury returned a sealed 19-count indictment charging 32

defendants with various drug trafficking and money laundering offenses. 2 The

indictment charged Shaw with one count of conspiracy to distribute, and possess

with the intent to distribute, at least 1,000 kilograms of marijuana and at least 5




       1
           In reviewing a district court’s ruling on a motion to suppress, we review findings of
fact for clear error and the application of the law to those facts de novo. United States v.
Muegge, 

, 1269 (11th Cir. 2000).
       2
          A superseding indictment, filed on June 14, 2011, added another defendant to the case,
bringing the total number of defendants to 33.
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kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(ii)

and (vii). Arrest warrants were issued for 30 charged defendants, including Shaw.

       On June 8, 2011, DEA Special Agent Gregory Malloy arrested Shaw while

Shaw was sitting in a truck outside a residence. During Shaw’s arrest, Agent

Malloy conducted a pat-down search, found three cell phones in Shaw’s pockets,

and seized them as evidence. Another DEA agent, Leonard Purvines, opened the

seized cell phones and wrote down the phone numbers for each cell phone and the

phone numbers and names in each cell phone’s contact list.

       On June 13, 2011, Shaw was arraigned and entered a not-guilty plea. The

district court granted the Government’s motion to detain Shaw pending trial, and

Shaw remained in pretrial detention throughout the district court proceedings. On

August 15 and 16, 2011, Shaw filed a generic motion to suppress all evidence and

an amended motion to suppress. The amended motion to suppress identified the

items seized, including the three cell phones taken from Shaw’s pockets at the time

of his arrest.

       On September 7, 2011, Agent Malloy obtained search warrants to search the

three cell phones. In his affidavit in support of the search warrant applications,

Agent Malloy noted he was not relying on Purvines’ search data to establish

probable cause. After obtaining the search warrants, agents conducted a more

thorough search of the three cell phones.


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      On October 11, 2011, a magistrate judge held a hearing on Shaw’s motions

to suppress. When the Government appeared at the hearing, it was “not sure

exactly what the issue [was].” Defense counsel clarified that Shaw was not

contesting “the seizure of the phones at the time of the arrest.” Nor was Shaw

contesting “whether the search warrant [was] valid.” Rather, defense counsel

wanted to address a “strange question[:] . . . whether or not the act of searching the

cell phones at the time [of the initial seizure] . . . in some form or fashion taint[ed]

the later obtaining of a search warrant to search the same phones.” Defense

counsel then clarified that it wanted “to introduce evidence as to what the extent of

[the initial] search was so that [defense counsel could] have a determination made

as to whether that search was illegal.”

      The magistrate judge expressed doubt that the initial search of the cell

phones at the scene of Shaw’s arrest was unlawful. However, the magistrate judge

sua sponte raised the issue of delay and stated that “the only thing that gives me

pause would be . . . if there was a sufficiently long delay between the seizure of the

property and the obtaining of the warrant that might in some way come into play as

a factor.” At the end of the hearing, the magistrate judge gave defense counsel

leave to brief “whatever issues.” Shaw submitted a brief in which he abandoned

his argument that the initial search was illegal and tainted the later search. Instead,

citing United States v. Mitchell, 

 (11th Cir. 2009), Shaw claimed that


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the Government’s three-month delay in seeking the search warrants had violated

his Fourth Amendment rights.

       The magistrate judge issued a report and recommendation (R&R)

recommending that Shaw’s motions to suppress be granted. The R&R stated that

“[t]he facts of the instant case are not materially distinguishable from Mitchell and

dictate the same result.” Based on the “substantially similar circumstances,” the

magistrate judge concluded the Government’s delay in obtaining the search

warrants was unreasonable, and recommended that the motions to suppress be

granted. Over the Government’s objections, the district court adopted the R&R

and granted Shaw’s motions to suppress insofar as Shaw sought to suppress the

evidence obtained from the cell phones as a result of the search warrants. The

Government filed this interlocutory appeal. 3

                                     II. DISCUSSION

       Although Shaw concedes the initial seizure of the cell phones was

constitutional, and has abandoned his argument that the initial search of the cell

phones was unconstitutional, “a seizure lawful at its inception can nevertheless

violate the Fourth Amendment because its manner of execution unreasonably

infringes possessory interests protected by the Fourth Amendment’s prohibition on


       3
          We have jurisdiction pursuant to 18 U.S.C. § 3731. The U.S. Attorney certified in the
notice of appeal that this appeal was not taken for purpose of delay and that the suppressed
evidence is a substantial proof of a fact material in the proceeding. See 18 U.S.C. § 3731.
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‘unreasonable [seizures].’” Mitchell, 565 F.3d at 1350 (some quotation marks

omitted). In other words, a lawful seizure can become unlawful “if the police act

with unreasonable delay in securing a warrant.” Id. (internal quotation marks

omitted). We evaluate the reasonableness of the delay “in light of all the facts and

circumstances, and on a case-by-case-basis.” Id. at 1351 (internal quotation marks

omitted). Applying the rule of reasonableness requires a “careful balancing of

governmental and private interests.” Id.

       In Mitchell, agents were investigating “individuals engaged in distributing

and receiving child pornography via the internet.” Id. at 1348. Through search

warrants and wiretaps, agents obtained the names of hundreds of individuals who

had visited a child pornography website, including Mitchell. Id. at 1349. Two

agents conducted a “knock and talk” at Mitchell’s residence, during which

Mitchell admitted he had purchased subscriptions to pornography websites. When

an agent asked if Mitchell’s computers contained any child pornography, Mitchell

responded, “yes, probably.” Id. Mitchell consented to a search of his laptop

computer, but refused to allow agents to search his desktop computer, which he

indicated was the computer that contained the child pornography. The agents

seized the desktop computer’s hard drive, and left without arresting Mitchell. Id.

Three days later, the agent who seized the hard drive left for a two-week training

program out of state. Id. After his return, 21 days after the hard drive’s seizure,


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the agent sought and obtained a warrant to search the hard drive and found images

of child pornography. Mitchell was then indicted for receipt and possession of

child pornography. Id. at 1350.

      On appeal, Mitchell conceded the agents had probable cause to seize the

hard drive from his computer, but argued that the 21-day delay in obtaining a

warrant was unreasonable. Id. We stated the detention of Mitchell’s hard drive for

21 days constituted “a significant interference with Mitchell’s possessory interest.”

Id. at 1351. We then determined that the excuse offered for the delay—attendance

at a training seminar—was insufficient. Id. at 1352. Under the particular facts and

circumstances of the case, we concluded the 21-day delay was unreasonable. Id.

In reaching this conclusion, we emphasized that we were “applying a rule of

reasonableness that is dependent on all of the circumstances.” Id. For example,

we recognized that “there may be occasions where the resources of law

enforcement are simply overwhelmed by the nature of a particular investigation, so

that a delay that might otherwise be unduly long would be regarded as reasonable.”

Id. at 1353.

      The district court erred by adopting the R&R’s conclusion that “[t]he facts

of the instant case are not materially distinguishable from Mitchell and dictate the

same result.” There are numerous material distinctions between the instant case

and the facts and circumstances of Mitchell. At the time of the initial seizure,


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Mitchell was merely the “possible target” of an investigation and had not been

charged with a crime, id. at 1349, while Shaw was indicted and charged with

conspiracy to distribute and possess with intent to distribute at least 1,000

kilograms of marijuana and at least 5 kilograms of cocaine. The hard drive in

Mitchell was seized based on probable cause from Mitchell’s home, id. at 1350; the

cell phones were seized from Shaw’s pockets incident to Shaw’s lawful arrest.

The agents here had wiretap evidence indicating that Shaw used cell phones to

further the drug conspiracy; the agents in Mitchell could not be certain that the

hard drive had any evidentiary value until they searched it. See id. at 1351 (noting

that even if the defendant admits there is child pornography on a hard drive, agents

cannot be certain that this is factually or legally true until it is searched). Shaw

was in custody throughout the contested delay and concedes he could not have

physically possessed the phones; Mitchell was not in custody and remained free to

use computers even after his hard drive was seized. Id. In sum, the facts and

circumstances presented in the instant case are materially different than those

presented in Mitchell.

      The district court also erred in failing to apply Mitchell’s rule of

reasonableness. It appears the district court relied on the perceived similarities of

fact between this case and Mitchell in lieu of conducting a reasonableness analysis.

However, Mitchell requires courts to analyze the reasonableness of a delay “in


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light of all the facts and circumstances, and on a case-by-case basis.” Id. (internal

quotation marks omitted).

      Since the district court’s ruling on the motion to suppress, and after briefing

in this case was completed, we issued an opinion in United States v. Laist, 

 (11th Cir. 2012). Laist more fully explains the application of the rule of

reasonableness in a delay case. In particular, Laist highlights a non-exclusive list

of relevant factors to consider in conducting the “fact-intensive” reasonableness

inquiry. Id. at 614. Laist observes that because of “the complex interactions of

these factors,” in some cases, “a delay as short as 90 minutes may be unreasonable,

while in others, a delay of over three months may be reasonable.” Id. (citations

omitted). We remand for further proceedings in light of our opinion in Laist.

Moreover, we note that the record before us has not been fully developed on the

issue of delay because the focus of the suppression hearing was on the initial

search until the magistrate judge sua sponte raised the delay issue.

                                 III. CONCLUSION

      We REVERSE the district court’s order granting Shaw’s motions to

suppress and REMAND to the district court for further proceedings consistent with

this opinion.

      REVERSED AND REMANDED.




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