LYNNETTE C. KIMMINS, Magistrate Judge.
Pending before the Court is Defendant Arnoldo Castro-Valenzuela's Motion to Suppress Cell Phone Location Data.
Defendant Castro-Valenzuela was indicted on June 28, 2017, with Conspiracy to Possess with Intent to Distribute Cocaine, Possession with Intent to Distribute Cocaine, Conspiracy to Import Cocaine, and Importation of Cocaine, in violation of 21 U.S.C. Sections 841, 846, 952, 960 and 963; as well as for Using, Carrying or Possessing a Firearm During and in Relation to a Drug Trafficking Crime, in violation of 18 U.S.C. Section 924(c), and Alien in Possession of a Firearm, in violation of 18 U.S.C. Section 922(g)(5)(A). (Doc. 23.) A superseding indictment was filed as to all Defendants on September 6, 2017, adding counts of Conspiracy to Commit Bulk Cash Smuggling and Conspiracy to Commit International Money Laundering in violation of 31 U.S.C. Section 5332, 18 U.S.C. Sections 371 and 1956.
On March 7, 2017, Magistrate Judge D. Thomas Ferraro found probable cause for agents to obtain physical location data for a cell phone number associated with Defendant Castro-Valenzuela to procure "evidence of violations of 21 U.S.C. Sections 846 and 841, and 18 U.S.C. Sections 1956 and 1957, among other offenses, as well as to [identify] individuals who are engaged in the commission of these offenses." (Ex. 1.)
The supporting affidavit was authored by Immigration and Customs Enforcement (ICE), Homeland Security Investigations (HSI), Special Agent Zachary Kliniske. He stated that, in December 2016, he received information from a credible source (CS) with proven reliability that an individual named "Lizbeth I. Jimenez" was using a Chevrolet Aveo with a hidden compartment to traffic cocaine into the United States from Mexico. (Ex. 1 ¶ 3.) The CS further indicated that Jimenez crosses through the Nogales DeConcini Port of Entry (POE) and delivers the narcotic-laden vehicle to Phoenix where an individual named "Arnoldo Castro" takes possession of the vehicle to unload the narcotics. (Id.) After the narcotics are unloaded, the Aveo is returned to Jimenez, who then returns the vehicle to Mexico, sometimes with bulk U.S. currency now loaded into the hidden compartment. (Id.) The CS further stated that there are likely three other drivers/vehicles from Nogales, Mexico that drive to Phoenix and meet with Castro. (Id.)
As a result of the December 2016 tip from the CS, Agent Kliniske began researching various databases and positively identified Defendant Lizbeth Imelda Jimenez-Rivera, discovering she had a 2004 Chevrolet Aveo registered in her and her father's name. (Ex. 1 ¶¶ 4-5.) Agent Kliniske then reviewed historical border crossing information on Jimenez-Rivera driving the Aveo. Agent Kliniske determined that, within an 18-month period, Jimenez-Rivera had crossed the border in the Aveo at the DeConcini POE SENTRI lane in excess of 50 times. During all but one of these crossings she was the sole occupant in the Aveo. (Ex. 1 ¶ 5.) Within a 9-month period, Jimenez-Rivera made at least 18 trips, entering the United States on a weekday morning through the SENTRI lane at the DeConcini POE, spending an average of 7.6 hours in the United States, and returning to Mexico the same afternoon. She would then leave the Aveo in Mexico and reenter the United States by walking through the DeConcini POE pedestrian lane. (Ex. 1 ¶¶ 5-6.) This crossing pattern was distinct from Jimenez-Rivera's crossing pattern with other vehicles registered to her and her father and, based on Agent Kliniske's training and experience, was indicative of smuggling narcotics and bulk cash. (Ex. 1 ¶¶ 6-8.) Specifically, Agent Kliniske explained in his affidavit that Jimenez-Rivera's crossing patterns in the Aveo and overall behaviors were consistent with the modus operandi of members of drug trafficking organizations (DTO) bringing narcotics through a POE. When trafficking through a POE, DTO load cars are often built with high-end compartments and registered in the load driver's name. The vehicles are kept and controlled by the DTO and usually only given to the driver immediately preceding a smuggling move, but having a load vehicle with an established crossing pattern and registered in the driver's name lessens suspicion when crossing the border. (Ex. 1 ¶ 8.)
Agent Kliniske reviewed Jimenez-Rivera's phone records from a suspicious crossing in the Aveo on December 7, 2016, where she crossed into the U.S. through the DeConcini POE at 9:45 a.m., returned to Mexico in the Aveo at 5:05 p.m., and crossed back into the U.S. via the pedestrian lane 18 minutes later. (Ex. 1 ¶¶ 9-12.) After crossing into the U.S., Jimenez-Rivera began texting a Mexican phone number until she passed through the Border Patrol I-19 checkpoint. Once past the checkpoint, she immediately began texting a U.S. telephone number associated with Defendant Castro. Agent Kliniske's review of the times and numbers for texts and incoming calls to and from Jimenez-Rivera, Defendant Castro, and the unknown Mexico phone number led Agent Kliniske to believe that Jimenez-Rivera was communicating with the Mexico number and Defendant Castro while she was traveling to Phoenix with the load vehicle, making the arrangements with the parties and returning back to Mexico. Jimenez-Rivera's last communication with Defendant Castro on that day was about the time you would expect her to be leaving Phoenix. Jimenez-Rivera's last telephonic communication to the Mexican telephone number was at the exact time she was crossing back into the U.S. through the POE pedestrian lane. (Ex. 1 ¶¶ 15-18.)
On March 2, 2017, Agent Kliniske learned that Jimenez-Rivera had driven the Aveo through the POE SENTRI lane at 9:59 a.m. and had crossed northbound through the I-19 checkpoint 28 minutes later. (Ex. 1 ¶¶ 19-21.) Agent Kliniske located Jimenez-Rivera from his I-10 surveillance point and began following her with air surveillance to Phoenix. (Ex. 1 ¶¶ 22-23.) The surveillance team witnessed the Aveo meet up at an industrial area with a red Crown Victoria, which agents had previously seen parked in the driveway of Castro-Valenzuela's residence. (Ex. 1 ¶¶ 24-25, 32.) The driver of the red Crown Victoria, later identified as Castro-Valenzuela, retrieved a black tool bag from his vehicle, placed it in the back seat of the Aveo, and switched vehicles with Jimenez-Rivera. (Ex. 1 ¶¶ 25-28, 31.) Agents observed Castro-Valenzuela drive into a Planet Fitness parking lot. He moved to the Aveo's passenger seat and the driver of a black SUV got into the driver's seat. (Ex. 1 ¶¶ 29-31.) When the Aveo reached a housing area near South 71st Avenue, it began a series of quick counter-surveillance turns through the neighborhood before driving into a garage of a residence located on 74
Approximately one hour and twenty minutes later (sufficient time for unloading and reloading a hidden compartment), the Aveo returned to the Planet Fitness parking lot. (Ex. 1 ¶¶ 35-36.) The driver of the SUV returned to his vehicle, while Castro-Valenzuela drove the Aveo east on I-10 until surveillance was lost. (Ex. 1 ¶¶ 36-38.) Later that day, a license plate reader detected the Aveo driving eastbound on I-10 near Eloy. Agent Kliniske located the car, now being driven by Jimenez-Rivera, on I-10 near the Prince Road Exit, and surveilled her until she drove into Mexico through the POE. (Ex. 1 ¶¶ 39-41.) Approximately 15 minutes later, Jimenez-Rivera was recorded walking into the United States through the pedestrian lane of the POE. (Ex. 1 ¶ 42.)
On March 7, 2017, as a result of the above information, Agent Kliniske applied for, and received, a warrant to obtain physical location data for Defendant Castro-Valenzuela's phone. (Ex. 1.) On April 6, 2017, Agent Kliniske obtained an extension of the original warrant. (Ex. 2.) The affidavit for the first extension included and incorporated all the information in the original affidavit. (Compare Ex. 1 with Ex. 2.) In addition, the first extension affidavit indicated that, within the 30-day time period, the monitoring of physical location information led to numerous investigative leads that would not have been obtained but for the monitoring, and that Defendant Castro-Valenzuela continued to travel to various suspicious locations that were still under investigation by HSI as to potential involvement with the DTO. (Ex. 2 ¶¶ 43-45.) Agent Kliniske went on to explain that HSI had also initiated physical surveillance on a number of occasions to include March 9, 2017, when an agent found Defendant Castro-Valenzuela at the Mesa Motor Vehicle Department and overheard a telephone conversation in which agents believed Defendant was talking in code regarding potential narcotic trafficking.
In the first extension affidavit, Agent Kliniske indicated that Jimenez-Rivera had not crossed the border in the Aveo since March 2, 2017. However, based on a detailed analysis of Jimenez-Rivera's last 2 years of border crossings, he believed based on his training and experience that she would be crossing the border again soon in the Aveo and would communicate with Defendant Castro-Valenzuela in the same manner as on March 2, 2017, via his monitored cellphone. (Ex. 2 ¶¶ 50-51.)
A second extension of the warrant was granted by Magistrate Judge Ferraro on May 5, 2017. (Ex. 3.) The affidavit in support of the second extension included and incorporated all the information in the original affidavit and the first extension affidavit. (Compare Ex. 1 with Exs. 2, 3.) In addition, the second extension affidavit indicated that the continued monitoring of Defendant Castro-Valenzuela's telephone in April of 2017 showed a different phone number. (Ex. 3 ¶ 50.) In order to verify that the targeted telephone was still in Defendant Castro-Valenzuela's possession, HSI agents traveled to Phoenix and were able to determine that he was in possession of the target device by physically tracking the pings and verifying he was at the location of the pings. (Ex. 3 ¶ 51.) Thereafter, Agent Kliniske contacted AT&T and learned that Defendant Castro-Valenzuela had changed his cellphone number but the International Mobile Subscriber Identifier (IMSI) number remained the same. (Ex. 3 ¶ 52.) Agent Kliniske avowed that, since the first extension, HSI continued to monitor the movements of Defendant Castro-Valenzuela and had identified locations of investigative interest that would not be possible to identify through traditional physical surveillance. (Ex. 3 ¶ 53.)
Identical to the first extension affidavit, in the second extension affidavit, Agent Kliniske indicated that Jimenez-Rivera had not crossed the border in the Aveo since March 2, 2017. He continued to believe, based on crossing records and his training and experience, that she would cross the border again soon in the Aveo, travel to Phoenix, and communicate with Defendant Castro-Valenzuela via his monitored cellphone. (Ex. 3 ¶ 54.) In granting each extension, Magistrate Judge Ferraro found probable cause to believe that Defendant Castro-Valenzuela's phone would continue to be used to facilitate the transportation of narcotics and that he was using the device in order to facilitate the transportation of illegal drugs and/or laundering of bulk cash proceeds, and that monitoring the cellphone location would provide further evidence of such criminal activity, thereby justifying the extension. (Exs. 2, 3.)
Information regarding the CS's background and reliability was
(Ex. 8 ¶ 3, n.1.)
Information regarding the CS's reliability that was
In his motion, Defendant argues that the facts set forth in the original and extension affidavits do not provide probable cause, and the information provided in the extension affidavits was stale. Further, pursuant to Franks v. Delaware, 438 U.S. at 170 (1978), the government deliberately or recklessly omitted certain facts from the affidavits that, if included, would have precluded a finding of probable cause.
Counsel for both parties agreed that the sufficiency of the affidavits should be determined by reviewing the four corners of the documents and applying the probable cause standard.
All information necessary to show probable cause for the issuance of a search warrant must be contained within "the four corners" of the written affidavit. United States v. Gourde, 440 F.3d 1065, 1067 (9th Cir. 2006) (en banc) (citing United States v. Anderson, 453 F.2d 174, 175 (9th Cir. 1971)). The standards for determining probable cause for a search are set forth in Illinois v. Gates, 462 U.S. 213 (1983). Probable cause has been defined as a "fair probability" that contraband or evidence is located in a particular place. Id. at 238. A fair probability is dependent on the "totality of the circumstances" and can include reasonable inferences, as well as a "common sense practical" approach. United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007). A fair probability is not a certainty or even a preponderance of the evidence. United States v. Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011) (citing United States v. Gourde, 440 F.3d 1065, 1069-71 (9th Cir. 2006) (en banc)). Further, "great deference" should be given to a magistrate judge's determination, upholding it as long as the judge has a "substantial basis" to find probable cause. Gates, 462 U.S. at 236, 238 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969); Jones v. United States, 362 U.S. 257, 271 (1960)). Moreover, "resolution of doubtful or marginal cases in this area should largely be determined by the preference to be accorded to warrants." Kelley, 482 F.3d at 1051 (citing Gates, 462 U.S. at 237 n.10) (other citations omitted).
The Court finds the magistrate judge had a "substantial basis" to find probable cause for the original affidavit based on the totality of the circumstances. See United States v. Alvarez, 358 F.3d 1194, 1203 (9th Cir. 2004). The affidavit in this case averred that, in December 2016, a credible source identified a Lizbeth Jimenez as using a Chevrolet Aveo to transport narcotics from Mexico to an Arnoldo Castro in Phoenix. The CS stated that Jimenez then would return the car to Mexico, sometimes carrying cash. Based on historical records, Agent Kliniske confirmed that Lizbeth Jimenez-Rivera crossed the border from Mexico in the Aveo more than 50 times in the prior year-and-a-half. He also determined that over the course of nine months she had made 18 trips that fit the same pattern: entering on a weekday morning, spending an average of 7-and-a-half hours in the United States, then returning the car to Mexico and walking back into the United States on the same day. The agent explained why this behavior was indicative of a DTO member smuggling narcotics and cash across the border.
Jimenez-Rivera had followed the identified pattern on December 7, 2016. That day, after crossing into the United States, Jimenez-Rivera was texting a Mexican telephone number. After she passed the I-19 checkpoint, she began texting a number associated with Defendant Castro-Valenzuela in Phoenix. She last communicated with the Phoenix number at the time she would have had to leave Phoenix to be back at the border to cross around 5 p.m. Her last contact with the Mexican phone number was at the time she crossed into the United States as a pedestrian. On March 2, 2017, Jimenez-Rivera drove the Aveo from Mexico to Phoenix and met with Defendant Castro-Valenzuela. He took the Aveo and, with another person, drove to a residential area and entered a garage. One hour and twenty minutes later, Defendant dropped off the other occupant of the car. Later that day, Jimenez-Rivera drove the car into Mexico and entered the United States by the pedestrian gate 15 minutes later.
A magistrate judge should consider "an informant's veracity, reliability and basis of knowledge" when determining whether an affidavit establishes probable cause. United States v. Alvarez, 358 F.3d 1194, 1203 (9th Cir. 2004). This can be satisfied if the affidavit provides a "substantial basis" to credit the informant's information. See United States v. Harris, 403 U.S. 573, 581 (1971) (relying on defendant's reputation as known to the officer and a second anonymous source to corroborate the informant's information); cf. Adams v. Williams, 407 U.S. 151, (1972) (corroborating information as to part of an informant's information supports the reliability of the remaining information for purposes of probable cause to arrest). The affidavit cited specific information provided by the CS that was then corroborated by the agents' independent investigation including identification and border crossing databases, as well as agency surveillance. See United States v. Bishop, 264 F.3d 919, 925 (9th Cir. 2001) (finding that independent corroboration by law enforcement is one way for a court to verify the reliability of an informant's information). Jimenez-Rivera was tracked driving the Aveo to meet with Defendant Castro-Valenzuela in Phoenix. On another date, with the same border-crossing pattern, she was in communication with Defendant on the cell phone relevant to the warrant. Additionally, Jimenez-Rivera had crossed the border many times in the identified car and remained in the United States for a similar amount of time. It was reasonable to believe she would do that again within a reasonable period of time. The CS indicated that Jimenez-Rivera would meet with Defendant in Phoenix to transfer the drugs and that is what appeared to have occurred in March.
In March, Defendant Castro-Valenzuela was physically present in the Aveo as it went to multiple locations, including inside a garage. The magistrate judge had reason to believe that Defendant would be involved in future drug transfers and that tracking Defendant's location would further the investigation into drug trafficking. The Court finds there was a fair probability that Defendant was using the cell phone in furtherance of drug trafficking and money laundering and that physical location data for that phone would lead to evidence, fruits, or instrumentalities of those crimes and the identification of involved individuals. Under a totality of the circumstances, the issuing magistrate judge did not err in making a practical, common-sense decision finding probable cause for the original warrant.
Defendant contends there was not sufficient probable cause for the extensions because the agent's additional factual avowals were not specific and, in totality, did not provide probable cause. Additionally, Defendant argues the information about Jimenez-Rivera's crossings was stale.
In the first request for extension, Agent Kliniske included all of the factual averments in the original affidavit and stated that tracking of Defendant's phone had created "numerous" leads still under investigation, including revealing Defendant traveling to a variety of "suspicious locations." Further, an agent heard Defendant on the phone talking to someone about having lots of "work" and, based on experience, the agents believed the conversation was code for drug trafficking. In the second extension request, Agent Kliniske averred that by monitoring the location of the phone, law enforcement was continuing to develop investigative leads. In both extension requests, Agent Kliniske reported that Defendant Castro-Valenzuela was still in possession of the phone.
The information from the original affidavit was sufficient for probable cause and was included in the requests for extension. At the time of the extensions, the magistrate judge knew that Defendant Castro-Valenzuela was still using the phone and that agents were developing investigative leads by tracking the phone location. The one detailed factual offering revealed that Defendant used his phone to discuss drug trafficking. Although Agent Kliniske did not provide many details about the investigative leads, taken as a whole, the magistrate judge had a substantial basis to find probable cause for the extensions.
Defendant argues the information from the original affidavit was stale by the time of the extensions because there was no evidence Jimenez-Rivera had crossed the border and gone to meet Defendant Castro-Valenzuela since March 2
Defendant argues that Agent Kliniske misrepresented the reliability of information in the affidavits by omitting relevant information (1) about the CS and (2) necessary to assess Defendant Castro-Valenzuela's conversation overheard by an agent and interpreted to be about drug trafficking.
An affidavit offered in support of a warrant is presumed valid. See Franks v. Delaware, 438 U.S. 152, 171 (1978). However, a court must conduct a hearing pursuant to Franks if a defendant makes "a substantial preliminary showing that `(1) the affidavit contains intentionally or recklessly false statements, and (2) the affidavit purged of its falsities [or adding omitted information] would not be sufficient to support a finding of probable cause.'" United States v. Stanert, 762 F.2d 775, 780 (9th Cir. 1985) (quoting United States v. Lefkowitz, 618 F.2d 1313, 1317 (9th Cir. 1980)).
First, Agent Kliniske's affidavits did not include background information regarding the CS's reliability and criminal history. Specifically, Defendant contends the affidavit should have mentioned that the CS had been paid cash in the past, was working as a CS for immigration benefits, and previously had worked off state criminal charges with another agency. Although omitted from the affidavit, the judicial officer "would naturally have assumed that the informant was not a disinterested citizen" but had a motive for acting as a source. United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988). However, an agent should generally disclose an informant's motive for providing information to law enforcement. See United States v. Martinez-Garcia, 397 F.3d 1205, 1216 (9th Cir. 2005). Even if the Court concluded this information was recklessly omitted, the affidavit in entirety supported a finding of probable cause for the warrant and extensions. This additional information would not undermine the fact that law enforcement had corroborated the tip from the CS with an independent investigation.
Additionally, Defendant focuses on the omission of the CS's "background" which encompasses more than just his/her incentive to provide information to law enforcement. Also omitted from the cell phone data location affidavits was information that the CS had provided information several times in the past, with complete accuracy, which led to numerous arrests and drug seizures. If that omitted information had been included it would have diminished the impact of the CS's criminal history and his/her motivation to provide the information. See United States v. Reeves, 210 F.3d 1041, 1045 (9th Cir. 2000); United States v. Elliott, 322 F.3d 710, 714 (9th Cir. 2003) (finding tip sufficiently reliable based on history of tips leading to arrests, despite criminal history).
Second, in the extension affidavits, Agent Kliniske stated that, on March 9, 2017, Defendant Castro-Valenzuela was overheard talking on his phone. Defendant mentioned having a lot of work, invited the person to come by his shop to see a bicycle, and said they could go for tacos. See supra note 5. Agent Kliniske testified at the motion hearing that, based on his training and experience, Defendant's use of the Spanish word "jale" in the overheard conversation was indicative of work in the context of drug traffickers moving narcotics. (Doc. 284 at 26-27, 34.)
Defense counsel acknowledged that without any context, the conversation might sound "kind of sketchy." (Doc. 284 at 58.) Defendant argues that it was misleading for Agent Kliniske to omit from the affidavit that Defendant, in fact, has a junkyard and frequents a nearby taco shop. After cross-examination of the agent (Doc. 284 at 34-35), there is no evidence he acted recklessly in omitting this information. See Franks, 438 U.S. at 271 (negligence is not sufficient to warrant a hearing). Based on the agent's training and experience, the portion of the conversation about "work" referred to drug trafficking. Even to a lay person, the translated conversation is stilted and raises suspicions. The fact that Defendant owned a junkyard near a taco shop does not alter the agent's interpretation. The agent testified that he had never seen a bicycle at the junkyard (Doc. 284 at 27), and even a genuine invitation to eat tacos is not incompatible with discussing drug trafficking in the same call. Finally, adding this additional information into the extension requests would not alter the probable cause finding. With respect to this evidence omitted from the extension requests, Defendant fails to meet either prong of the Franks test.
Magistrate Judge Ferraro had a substantial basis to find probable cause for the original warrant and the extensions. None of the information omitted from the affidavits, and cited by Defendant, preclude a conclusion that there was a fair probability of finding evidence of a crime by tracking Defendant Castro-Valenzuela's location. Therefore, Defendant is not entitled to a full Franks hearing. And, there is no basis to suppress the results of the search.
It is recommended that, after its independent review of the record, the District Court deny Defendant's Motion to Suppress (Doc. 250).
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within 14 days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.
