United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Luis
Chacon-Manriquez's Motion to Preclude Search of Mr.
Chacon's Cell Phone as Unreasonable. Doc. 55. The
government filed a Response [Doc. 60] and Mr.
Chacon-Manriquez filed a Reply [Doc. 64]. The government then
filed an Opposed Motion to Strike or in the Alternative,
Motion for Leave to File a Surreply. Doc. 66. Having
considered the Motions, relevant law, and being otherwise
fully informed, the Court finds as moot Mr.
Chacon-Manriquez's Motion, and further finds that the
government's Motion to Strike is well-taken and will be
25, 2019, Mr. Chacon-Manriquez filed the instant Motion
seeking to preclude the government from searching his
cellular phone. Doc. 55. He states that his cellular phone
was taken at the time of his arrest on June 28, 2018, and it
was not searched nor was a warrant sought to obtain its
contents. Id. at 1-2. He argues that the government
had been in possession of his cellular phone for over ten
months, and as such, its further seizure of his phone is
unjustified. Id. at 2-3. He maintains that continued
seizure of his phone is unreasonable and any search would
similarly be unreasonable and would violate his Fourth
Amendment rights. Id. at 3. Using the balancing of
the government's interest in the seizure of the cellular
phone against Mr. Chacon-Manriquez's possessory interest,
Mr. Chacon-Manriquez asserts that his interest far outweighs
that of the government, and the Court should preclude any
search and order it be returned to him immediately.
Id. at-6 (citing United States v. Pratt,
915 F.3d 266, 272 (4th Cir. 2019)).
Response, filed May 29, 2019, the government argues that the
Motion should be denied as moot as a search warrant was
obtained on May 17, 2019 and the warrant was executed prior
to the filing of the instant Motion. Doc. 60 at 1. The
government acknowledges that a cellular phone's owner has
significant privacy interests in the phone, but argues that
Mr. Chacon-Manriquez “did nothing for several months to
assert a possessory interest in the telephone.”
Id. at 2-3. Instead, he sought the contents of the
phone from the government in April 2019 and did not request
the return of the cellular phone until May 2019. Id.
at 3. The government asserts that it was Mr.
Chacon-Manriquez's averment that the phone contained
exculpatory material that triggered its discovery
obligations, prompting it to obtain a search warrant.
Id. However, it maintains that no exculpatory
information was located, but instead, it procured impeachment
information that it will use to refute Mr.
Chacon-Manriquez's defenses in rebuttal should he open
the door by asserting the defense of entrapment or duress.
Id. at 4. Furthermore, the government restates its
offer to provide the contents of the phone to Mr.
Chacon-Manriquez. Id. at 2.
Reply filed on June 12, 2019, Mr. Chacon-Manriquez maintains
that the search and seizure of his phone violated his Fourth
Amendment rights because the government's extended
seizure of his phone was unreasonable. Doc. 64 at 2. He
disputes that he in any way diminished his possessory
interest in the phone, and states that he merely refused to
sign an affidavit that would allow the government to
attribute the entirety of the contents on the phone to him.
Id. Mr. Chacon-Manriquez asserts that the government
unlawfully infringed on his Fourth Amendment rights by
keeping the phone, providing no justification for the
protracted delay in obtaining a search warrant, and only
seeking to obtain evidence off the phone after he alleged the
phone to contain exculpatory material. Id. at 3.
Furthermore, he argues that the affidavit in support of the
search warrant did not include information that he sought to
have his cellular phone returned through a motion that was
filed on May 16, 2019, the day prior to the government's
submission of the warrant and affidavit to Untied States
Magistrate Judge Kirtan Khalsa. Id. at 4.
Ultimately, Mr. Chacon-Manriquez asks that this Court find
that the extended seizure and subsequent search of his phone
was an unreasonable violation of his Fourth Amendment rights.
Id. at 5.
14, 2019, the government filed an Opposed Motion to Strike or
in the Alternative, Motion for Leave to file a Surreply. Doc.
66. The government requests that the Court strike the newly
raised argument in the Reply that the search warrant in this
matter contained an omission or was deficient. Id.
at 1. The government argues that courts normally should not
consider arguments first brought up in a Reply Brief.
Id. Furthermore, it argues that Mr. Chacon-Manriquez
misrepresented the exculpatory nature of the contents of the
phone and now seeks the suppression of the inculpatory
contents. Id. at 2. It also argues that his
representation that it is crucial that the phone should be
returned is “deceptive, ” as the phone is
awaiting pick up at the DEA Albuquerque District Office.
Id. The government requests that the Court disregard
Mr. Chacon-Manriquez's newly raised suppression argument
because it was his declaration that the cellular phone
contained exculpatory material that triggered the
government's discovery obligations. Id. at 4.
Furthermore, the phone was searched pursuant to a warrant
which was lawfully obtained prior to the filing of the
instant Motion. Id. Finally, because Mr.
Chacon-Manriquez reframed his argument in the Reply as a
motion to suppress, the government seeks leave to file a
surreply to address these arguments, as well as
“factual inaccuracies.” Id. at 6.
Court finds as moot the instant motion because the government
has already conducted a search of the cellular phone. For the
first time, in the Reply brief, Mr. Chacon-Manriquez raised
arguments pertaining to deficiencies in the search warrant
for his cellular phone. See Doc. 64 at 4. Courts
generally do not review issues that are raised for the first
time in a reply brief. Stump v. Gates, 11 F.3d 527,
533 (10th Cir. 2000) (citing Headrick v. Rockwell Intern.
Corp., 24 F.3d 1272, 1178 (10th Cir. 1994)). Arguments
raised for the first time in reply briefs may be deemed
waived. United States v. Harrell, 642 F.3d 907, 918
(10th Cir. 2011).
time, the Court can no longer decide the Motion to Preclude
Search of Mr. Chacon's Cell Phone, and there is no remedy
the Court can provide under the current circumstances. Mr.
Chacon-Manriquez requests that the Court find that the
extended seizure and subsequent search of his phone was
unreasonable, but he does not specify the precise remedy
sought. Id. at 5. If he seeks suppression of the
evidence retrieved from the search of his cellular phone, the
Court finds that such an argument should properly be brought
in a separate motion to suppress, detailing the legal
standard to be applied and the specific remedy sought.
IS THEREFORE ORDERED that the Court finds as moot
Mr. Chacon-Manriquez's motion to preclude the search of
his cellular phone [Doc. 55]. The Court further finds that
the government's Motion to Strike [Doc. 66] is
GRANTED. Mr. Chacon-Manriquez is free to
file another motion outlining the remedy sought with ...