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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v

Case No. 15-20652
Hon. George Caram Steeh

COREY BAILEY,
Defendant.
_________________________________
MOTION TO SUPPRESS EVIDENCE FROM CELLULAR TELEPHONE
Defendant Corey Bailey, by his attorneys Keith Spielfogel and John Minock,
requests that this Court grant his Motion for the following reasons:
1.

Defendant is charged in eleven counts of the Fourth Superseding

Indictment, as follows: Count One, RICO Conspiracy, 18 U.S.C. 1962(d); Count Four,
murder in aid of racketeering, 18 U.S.C. 2 and 1959(a) (1); Count Five, use of firearm
in furtherance of a crime of violence causing death, 18 U.S.C. 924(c) and (j); Counts
Six, Seven and Eight, attempted murder in aid of racketeering, 18 U.S.C.1959(a)(5);
Counts Nine, Ten, and Eleven, assault with a dangerous weapon in aid of racketeering
18 U.S.C. 1959(a)(3) and 2; Count Twelve, use and carrying of a firearm during, and
in relation to, a crime of violence 18 U.S.C. 924(c), and 2; and Count Thirty-two,
possession of a firearm in furtherance of a crime of violence.
2.

On July 22, 2014, he was arrested at 15621 Novara St, Detroit. He was
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charged with being a Felon in Possession of a Firearm. At the time of his arrest,
Detroit police officers seized a Black Metro PCS LG cell phone from his person.
3.

On August 20, 2014, the government submitted an application for a

search warrant to search the cell phone seized from Defendant on July 22, 2014. The
warrant was issued on the same day by a magistrate judge of this Court. (Copies of the
warrant, the application and the affidavit are attached as Exhibit 1).
4.

It appears the government intends to introduce evidence acquired from

the cell phone at the trial of this cause.
5.

Corey Bailey has possessory and property interests in the cell phone and

a reasonable expectation of privacy in the data stored on them.
6.

The cell phone was seized in violation of Corey Bailey’s Fourth

Amendment rights, because it was seized during a search incident to an arrest and was
neither a weapon nor evidence of criminal activity, and because the search warrant
affidavit failed to demonstrate probable cause to believe that the evidence sought
would be found on the recovered cell phone.
7.

The government was notified of this motion and does not concur.

8.

An evidentiary hearing is required.

9.

The facts and law are more fully set forth in the Memorandum Brief filed

in support of this motion and are incorporated by reference.
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WHEREFORE, Defendant Corey Bailey, requests this Court enter an Order
suppressing from evidence information acquired from the seizure and search of the
cell phone acquired from him on July 22, 2014, and any and all evidence and
testimony derived therefrom.
Dated: September 14, 2017

s/Keith Spielfogel
Attorney for Defendant
190 S. LaSalle St. Suite 520
Chicago, IL 60603
(312)236-6021
spielfogel@sbcglobal.net
s/John Minock
Attorney for Defendant
339 E. Liberty St. Suite 200
Ann Arbor, MI 48104
(734) 668-2200
jminock@cramerminock.com

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v

Case No. 15-20652
Hon. George Caram Steeh

COREY BAILEY,
Defendant.
_________________________________
BRIEF IN SUPPORT OF MOTION TO SUPPRESS
EVIDENCE FROM CELLULAR TELEPHONE
Issues Presented
Whether the seizure of Defendants cell phone incident to his arrest was
proper?
Whether the affidavit for the search warrant for the cell phone
established probable cause for the search?
Principal Authorities
Chimel v. California, 395 U.S. 752 (1969)
Arizona v. Gant, 556 U.S. 332, 339 (2009)
Katz v. United States, 389 U.S. 347 (1967)
Soldal v. Cook County, IL, 506 U.S. 56 (19920
United States v. Underwood, 725 F.3d 1076 (9th Cir. 2013)
United States v. Schultz, 14 F.3d 1093 (6th Cir. 1994)
Facts
According to Detroit Police reports, on July 22, 2014, Defendant was observed
near 15621 Novara, Detroit, by Detroit Police Lieutenant Mayers attempting to
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conceal a handgun as he walked in the direction of the officer.1 Mayers informed
Detroit Police officer Richardson of this, and said that Defendant had entered the back
yard. Shortly after receiving this information, Richardson arrested Defendant in front
of the address. Defendant was not in possession of a gun at the time of his arrest.
Police searched the back yard and found a handgun in the back yard adjacent to 15621
and a rifle in a disabled car in the back yard.
Defendant was searched afer his arrest, and police seized a cell phone from him.
On August 20, 2014, the government obtained a search warrant to search the phone.
The affidavit in support was sworn to by Kareem Wheeler and is attached as Exhibit
1.
I. The Seizure of the Cell Phone Was Improper.
A warrantless seizure of personal property is per se unreasonable under the
Fourth Amendment. Katz v. United States, 389 U.S. 347, 355 (1967). Certain
exceptions to that principle have been recognized, including for searches incident to
arrest. In Chimel v. California, 395 U.S. 752 (1969), the Court analyzed the rationale
for the exception and the limitations placed on it. The Court described what an officer
may seize during a search incident to arrest:

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For purposes of this motion only, Defendant assumes the police reports
setting out the facts are accurate.
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When an arrest is made, it is reasonable for the arresting officer to search
the person arrested in order to remove any weapons that the latter might
seek to use in order to resist arrest or effect his escape. Otherwise, the
officer's safety might well be endangered, and the arrest itself frustrated.
In addition, it is entirely reasonable for the arresting officer to search
for and seize any evidence on the arrestee's person in order to prevent
its concealment or destruction. 395 U.S. at 762-763. (Emphasis added.)
Forty years later, in Arizona v. Gant, 556 U.S. 332 (2009), the Court clarified
the limitations on searches incident to arrest:
In Chimel, we held that a search incident to arrest may only include "the
arrestee's person and the area 'within his immediate control'--construing
that phrase to mean the area from within which he might gain possession
of a weapon or destructible evidence." Ibid. That limitation, which
continues to define the boundaries of the exception, ensures that the
scope of a search incident to arrest is commensurate with its purposes
of protecting arresting officers and safeguarding any evidence of the
offense of arrest that an arrestee might conceal or destroy. See ibid.
(noting that searches incident to arrest are reasonable "in order to remove
any weapons [the arrestee] might seek to use" and "in order to prevent
[the] concealment or destruction" of evidence. 556 U.S. at 339.
(Emphasis added.)
The government bears the burden of proof to establish that the search incident
exception applies. If the government fails to meet that burden, the evidence must be
suppressed. United States v. Hrasky, 453 F.3d 1099, 1104 (8th Cir. 2006), citing Katz.
Police departments have policies for the seizure of property incident to arrest,
which are guided by Katz, Gant, and Chimel. The Detroit Police Department Policy
on Searches and Seizures, Section 202.2-13, reads:
202.2-13 Search Incident to an Arrest
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1.

The most common warrantless search is the search of a
person under arrest. The major reason for this exemption is
to protect the officer from a potential attack. Having to wait
for a search warrant could increase the officer’s exposure
to possible injury from weapons that the arrested person
may have.

2.

For this exemption to be applicable there must be: a lawful
custodial arrest: the search is for weapons and evidence
located within the immediate control of the arrestee; and
the search is conducted contemporaneously (almost
immediately) to the arrest.

In “the absence of consent or a warrant permitting the seizure of the items in
question, such seizures can be justified only if they meet the probable cause standard.”
Soldal v. Cook County, Ill., 506 U.S. 56, 66 (1992 ), citing Arizona v. Hicks, 480 U.S.
321, 326-327 (1987). Therefore, even in a justified search incident to an arrest, the
police must have probable cause to seize the item. They must be able to show that the
recovered item was seized for their protection or because it was evidence of a crime.
The seizure of Corey Bailey’s cell phone exceeded the scope of what is
permitted on the basis of a search incident to an arrest. The cell phone was seized
after Mr. Bailey was secured and in custody. If he had possessed a weapon on his
person, the officer would have been expected to and justified in seizing that weapon.
But he did not have a weapon nor did he have anything else that constituted a threat
to the safety of the officer. The seizing of the cell phone clearly cannot be justified on
the basis that it was necessary for the protection of the officer.
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The second basis for seizing the phone under Gant and Chimel would be that
it was necessary to preserve evidence of a crime. Possession of a cell phone is not a
crime. The arresting officers had no reason to suspect the phone contained any
evidence of the crime Bailey had either been arrested for or of any other crime. Even
if the officers would have had a suspicion that it contained evidence of a crime, that
suspicion would not have justified the seizure under Soldal and Hicks, because
suspicion is not probable cause.
II.

The Affidavit for the Search Warrant Did Not Establish
Probable Cause for its Issuance.

The “mere affirmance of belief or suspicion is not enough” to establish probable
cause. Nathanson v. United States, 290 U.S. 41, 47 (1938). See, also, United States
v. Hodson, 543 F.3d 286, 293-294 (6th Cir. 2008) (“An officer seeking a warrant must
produce adequate supporting facts about the underlying circumstances to show that
probable cause exists to support the particular search requested.”).
Rather, “[s]ufficient information must be presented to the magistrate to allow
that official to determine probable cause; his action cannot be a mere ratification of
the bare conclusions of others.” Illinois v. Gates, 462 U.S. 213,239 (1983).
In United States v. Underwood, 725 F.3d 1076, l 081 (9th Cir. 2013), the Court
stated:
Conclusions of the affiant unsupported by underlying facts cannot be
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used to establish probable cause. See United States v. Cervantes, 703
F.3d 1135, 1139-40 (9th Cir.2012) (affording little if any weight to
detective's conclusory statement that, based on his training and
experience, the box in defendant's possession came from a suspected
narcotics stash house); see also Spinelli v. United States, 393 U.S. 410,
418, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Gates, 462 U.S. at 241, 103
S.Ct. 2317. An affidavit must recite underlying facts so that the issuing
judge can draw his or her own reasonable inferences and conclusions;
it is these facts that form the central basis of the probable cause
determination. United States v. Ventresca, 380 U.S. 102, 108-09, 85
S.Ct. 741, 13 L.Ed.2d 684 (1965); Giordenello v. United States, 357
U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958) (“The
Commissioner must judge for himself the persuasiveness of thefacts
relied on by a complaining officer to show probable cause. He should
not accept without question the complainant's mere conclusion that the
person whose arrest is sought has committed a crime.”) (emphasis
added); United States v. Rubio, 727 F.2d 786, 795 (9th Cir.1983) (“The
magistrate must be provided with sufficient facts from which he may
draw the inferences and form the conclusions necessary to a
determination of probable cause.”) (emphasis added); United States v.
Dubrofsky, 581 F.2d 208, 212 (9th Cir.1978) (“A search warrant may not
rest upon mere affirmance or belief without disclosure of supporting
facts or circumstances.”).
“To justify a search, the circumstances must indicate why evidence of illegal
activity will be found in a particular place.” United States v. Carpenter, 360 F.3d 591,
594 (6" Cir. 2004) (en banc). The affidavit in support of the warrant must set forth
“a nexus between the place to be searched and the evidence sought.” United States v.
Beals, 698 F.3d 248, 364 (6th Cir. 2012); United States v. Brooks, 594 F.3d 488, 492
(6th Cir. 2010); Ellison v. Balinski, 625 F.3d 953, 958 (6th Cir.2000); United States
v. McPherson, 469 F.3d 518, 524 (6th Cir. 2006); United States v. Laughton, 409 F.3d
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744, 747 (6th Cir. 2005); United States v. Van Shutters, 163F.3d 331, 336-37 (6th Ci
r. 1998).
For example, a defendant's status as a drug dealer alone, is insufficient to find
probable cause to search the defendant's residence without other facts indicating
illegal activity at the residence. United States v. Frazier, 423 F.3d 526, 531 (6th Cir.
2005) (quoting Gates, 462 U.S. at 231). In McPherson, supra, the Court affirmed the
district court's suppression of evidence discovered during a search of defendant's
residence after a pat down on the porch of that residence revealed crack on the
defendant's person.

Even “a high incidence of child molestation ... may not

demonstrate that a child molester is likely to possess child pornography” for purposes
of establishing probable cause. United States v. Hodson, 543 F.3d 286, 293 (6th Cir.
2008). There must be some reliable evidence connecting criminal activity to the
residence or place to be searched.
More recently, the Supreme Court has emphasized the need to protect
individual privacy interests in the vast amount of data and information stored in cell
phones by the requirement of a search warrant, supported by probable cause. Riley
v. California, 134 S.Ct. 2473, 189 L. Ed. 2d 430 (2014).
The warrant authorized the search for and seizure of the following:
1.

All information and records, contained in Devise [sic] 1 (the recovered
cell phone) that relate to violations of 18 U.S.C. 933(g), Felon in
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Possession of a Firearm, including but not limited to the following:

2.

a.

Identities, locations, and contact information for coconspirators;

b.

Incriminating statements or messages made to and from the
device's owner;

c.

Text messages and emails to and from coconspirators;

d.

Call log history, including numbers, dates, times, and
duration;

e.

Electronic calendars;

f.

Digital voice recorded messages from co-conspirators;

g.

Stored photos and video files relevant to gang related
activity;

h.

Internally stored GPS data;

i.

Stored memos and scratch pad files pertaining to drug
distribution;

j.

Internet browser, saved browsing favorites, and hours of
operation relevant to drug distribution;

Evidence of user attribution showing who used or owned Devise [sic] 1
at the time the things described in this warrant were created, edited, or
deleted, such as logs, phonebooks, saved usernames and passwords,
documents , and browsing history.
The Wheeler Affidavit recites Agent Wheeler’s history in law enforcement and

asserts that based on his participation in the investigation, information he received
from other officers and on his history, training and experience he knows people who
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possess firearms often take/share pictures/videos of them, use cell phones to traffic in
firearms, and store phone numbers, names, and other information relating to their
criminal activities.
The factual basis on which the Wheeler Affidavit is predicated is as cited above
with the additions that Bailey has prior felony convictions and is on parole; that Bailey
later admitted having a gun and; that on July 25, 2014 the cell phone was retrieved
from Bailey’s property at the jail.
The information set forth in the Wheeler Affidavit sets forth nothing
establishing a nexus between Bailey’s criminal activity - possessing a firearm - and
his cell phone other than the officer’s conclusory statements that in if a person
illegally possess a gun then the cell phone he possesses often contains evidence of
criminal activity and is subject to being searched.
The warrant authorizes a search for the identities, locations, and contact
information for coconspirators. It calls for a search for text messages and emails
between conspirators, digital voice recorded messages from co-conspirators,
information relating to gang activity, and information relating to drug activity. It calls
for a search for this information despite the fact that there are no facts set forth in the
affidavit from which the magistrate could conclude the recovery of the weapon had
anything to do with coconspirators, gang activity, or drug distribution.
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What the Wheeler Affidavit does is offer the agent’s guess and opinion that
maybe there is information relating to criminal activity in the cell phone. It offers
nothing more. An officer’s training and experience can not provide probable cause.
In United States v. Schultz, 14 F.3d 1093 (6th Cir. 1994), the Court explicitly rejected
such an assertion, noting that without a factual nexus with the place to be searched,
the courts would be authorizing “general warrants” based on guess-work in violation
of the Fourth Amendment:
While an officer's “training and experience” may be considered in
determining probable cause, see, e.g., Texas v. Brown, 460 U.S. 730,
742-43, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983); U.S. v. Martin,
920 F.2d 393, 399 (6th Cir.1990), it cannot substitute for the lack of
evidentiary nexus in this case, prior to the search, between the safe
deposit boxes and any criminal activity. Officer Ideker did not have
anything more than a guess that contraband or evidence of a crime would
be found in the boxes, and therefore the first warrant should not have
been issued. To find otherwise would be to invite general warrants
authorizing searches of any property owned, rented, or otherwise used
by a criminal suspect - just the type of broad warrant the Fourth
Amendment was designed to foreclose. 14 F. 3d at 1098-1099.
The nexus between the recovery of the gun and the search of the cell phone
is predicated solely on the officer’s training and experience. That training and
experience is insufficient to meet the dictates of the numerous cases cited herein.
For all the above reasons, Defendant requests that the Court hold an evidentiary
hearing and then order suppression of all evidence recovered from the seized cell
phone.
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s/Keith Spielfogel
Attorney for Defendant
190 S. LaSalle St. Suite 520
Chicago, IL 60603
(312)236-6021
spielfogel@sbcglobal.net
s/John Minock
Attorney for Defendant
339 E. Liberty St. Suite 200
Ann Arbor, MI 48104
(734) 668-2200
jminock@cramerminock.com

CERTIFICATE OF SERVICE
I hereby certify that on September 13, 2017, I electronically filed the foregoing
document with the Clerk of the Court using the ECF system which will send
notification of such filing to the attorneys of record.
s/John Minock
Attorney for Defendant

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