ROGER T. BENITEZ, District Judge.
Defendant Vincent Cardona-Lopez moves to quash a second search warrant
On March 7, 2017, Defendant applied for entry into the United States at the San Ysidro, California Port of Entry. He was the registered owner, sole occupant, and driver of a 2007 Toyota Corolla. After a Customs and Border Protection Officer received a negative customs declaration from Defendant, the officer noticed Defendant's car was unusually clean, had been in Mexico a very short time, and had a limited crossing history, Defendant was directed to a secondary lot for further inspection. During the secondary inspection, eight packages were found concealed within Defendant's vehicle; each package field-tested for methamphetamine. Subsequently, government agents arrested Defendant and seized his cell phone.
On December 18, 2017, the government applied for and obtained a warrant to extract and analyze the data from Defendant's cell phone. The supporting affidavit set forth the circumstances of Defendant's arrest, explained that narcotics smugglers commonly use cell phones to communicate instructions on how to cross the border and where and when to deliver the controlled substances, and asserted that information in the phone was likely to identify Defendant's criminal associates and communications relevant to his crimes. As to the methods that would be used, the affidavit stated:
(Docket No. 52-1, Ex. 1 at p. 13)
The search warrant also described the objects of the search:
(Id. a p. 5.)
As of January 8, 2018, the date Defendant filed the instant motion, Defendant had not received a copy of the warrant application, the warrant itself, or the results of the search. On January 16, 2018, the government filed an opposition to Defendant's motion, and attached the search warrant. Neither party's moving papers included declarations to support the factual premises asserted, as required by this District's Local Criminal Rules.
Nevertheless, during a motion in limine hearing on January 22, 2018, the Court entertained oral arguments. During the hearing, the Court asked Defendant to identify the specific evidence he wished to have suppressed. Rather than point to specific evidence, Defendant asserted all evidence should be suppressed on the grounds that the proffered probable cause was insufficient to support the search warrant in its entirety. Alternatively, if the Court found probable cause existed, Defendant indicated the Court should suppress all evidence dated prior to March 6, 2017 (the day before Defendant's arrest) because there was insufficient probable cause to support a search prior to that date.
Under the Warrant Clause of the Fourth Amendment "no Warrants shall issue, but upon probable cause, . . . and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. To satisfy these requirements, a warrant must comply with two distinct rules. First, it must describe the place to be searched or things to be seized with sufficient particularity, taking into account the circumstances of the case and the types of items to be seized. See United States v. SDI Future Health, Inc., 568 F.3d 684, 702 (9th Cir. 2009). Second, it must be limited by the probable cause upon which the warrant is based. Id. These aspects of specificity are referred to as "particularity" and "breadth." Id. Evidence obtained pursuant to a warrant that violates either requirement must generally be suppressed, unless an exception to the exclusionary rule applies, such as the exception for "a search conducted in good faith reliance upon an objectively reasonable search warrant." Id. at 706 (internal quotation marks omitted).
Defendant advances two primary arguments in support of his motion. First, the search warrant application did not establish probable cause and therefore the search warrant was invalid at the time it was issued. Second, even if the Court finds probable cause existed to issue the warrant, the warrant was invalid because it was insufficiently particular and overbroad, and "fails to include constitutionally sufficient methodology." (Docket No. 34-1 at p. 9.) Each of Defendant's arguments are without merit.
The parties agree that "[p]robable cause exists when `there is a fair probability that contraband or evidence of a crime will be found in a particular place.' United States v. Grubbs, 547 U.S. 90, 95 (2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). "Whether there is a fair probability depends upon the totality of the circumstances, including reasonable inferences, and is a commonsense, practical question. Neither certainty nor a preponderance of the evidence is required." United States v. Kleinman, No. 14-50585, 2017 WL 6997333, at *11 (9th Cir. June 16, 2017) (quoting United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007) (internal quotation marks omitted). In the Ninth Circuit, a magistrate judge's determination that probable cause exists is accorded "great deference." Id. Additionally, "[i]n drug investigations a court `may consider the experience and expertise of the officers involved,' which experience and expertise `may lead a trained narcotics officer to perceive meaning from conduct which would otherwise seem innocent to the untrained observer.'" United States v. Santillan, 571 F.Supp.2d 1093, 1100 (D. Ariz. 2008) (quoting United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999)).
Defendant asserts probable cause was lacking because "the entirety of the government's attempt to establish probable cause is based on Agent Hallat's claim that (1) Mr. Cardona possessed a cell phone; (2) drugs were found in his car, [sic] and (3) drug smugglers possess cell phones." Defendant's selective reading of the supporting affidavit is baseless.
The parties appear to agree that Defendant was arrested for attempting to import 3.5 kilograms of methamphetamine in a load vehicle.
Defendant was part of an on-going conspiracy to import, transport, possess, and distribute methamphetamine, and likely used the target telephone to coordinate with coconspirators regarding the importation and delivery of the drugs. (Id.)
That drug smuggling operations use cell phones to contact each other, to give direction and instructions, that they use scouts and multiple vehicles to cross drugs, are all well-known strategies.
It is also well-known that smugglers will buy cars and provide them to the drivers who will sometimes bum the plates (e.g., drive the vehicle across the border one or more times without drugs so as to establish a lawful crossing history) before using the vehicle to smuggle the drugs.
Therefore, following the guidance of the Ninth Circuit to use a commonsense approach, draw reasonable inferences, and give great deference to a magistrate judge's findings, the Court finds the warrant application indicated there was a fair probability that evidence of narcotics trafficking would be found within the memory of the target telephone. Accordingly, Defendant's motion on this ground is denied.
Defendant first contends that the warrant's use of the words "including but not limited to" and "tending to indicate" to describe the information to sought gave law enforcement too much discretion and not enough meaningful restrictions on the search.
The government counters that the use of such phrases does not render a warrant per se unreasonable, and that the Ninth Circuit has rejected similar arguments when context limited the scope of the search. (Docket. No. 52 at p. 6.) For example, in United States v. Reeves, 210 F.3d 1041 (9th Cir. 2000), the words "may include, but is not limited to," and "other items" did not make a warrant impermissibly overbroad because context made clear that the search was for "evidence of the possession, manufacture, and delivery of the controlled substance methamphetamine." Id at 1046. Additionally, in United States v. Shi, 525 F.3d 709 (9th Cir. 2008), the words "including, but not limited to" did not make a warrant insufficiently particular because it authorized a search of only the limited area the defendant inhabited. See id. at 731.
Similarly, in this case, context provided by the warrant limited the search to a limited area (the contents of Defendant's cell phone) and plainly directed searchers to look for information relevant to drug trafficking and to identifying Defendant's communications, movements, and co-conspirators.
Finally, Defendant's reliance on United States v. Bridges, 344 F.3d 1010 (9th Cir. 2003) is misplaced. As the government correctly identifies, although the Ninth Circuit expressed concern with the words "including but not limited to," it ultimately held that "this warrant's failure to specify what criminal activity was being investigated, or suspected of having been perpetrated renders its legitimacy defective." Id. at 1016-18. Simply put, Bridges does not stand for a prohibition against the use of certain phrasing in identification of places or things to be searched and seized. Here, unlike in Bridges, the search warrant includes the specific criminal activity being investigated, and incorporated the affidavit that supported it. Id. at 1018. As a result, the court concludes that the language Defendant objects to does not render the warrant insufficiently particular.
Next, Defendant asserts the search warrant is unconstitutionally overbroad. In essence, Defendant complains that there was insufficient probable cause to support the time period of the search: October 6, 2016 to March 8, 2017.
Contrary to Defendant's contention that "[n]othing in the application for the search warrant discusses events so far back in time from Mr. Cardona's arrest," Agent Hallat's affidavit (which is specifically incorporated by reference in the search warrant) identifies October 6, 2016 as the date Defendant registered as the owner of the vehicle he was driving (and with which he was allegedly attempting to import drugs) at the time of his arrest. (See Docket No. 52-1 at p. 11)
In light of Agent Hallat's opinion that Defendant was in an on-going conspiracy to import, transport, possess, and distribute methamphetamine, it would not be unreasonable to infer that the car, which was registered to Defendant shortly before his arrest, may have been acquired to further this conspiracy. As such, it would also not be unreasonable to use the registration date as starting point in the search of the phone.
In short, Defendant's overbreadth argument fails because the Court is satisfied there was sufficient probable cause to support the time period of the search.
Finally, Defendant argues that the warrant was insufficiently particular and overbroad because it lacked a sufficient methodology. (Docket. No. 34-1 at pp. 9-13.) Specifically, he complains that "the Methodology in the warrant applications did not say anything meaningful or precise about what would happen during the search. Among other deficiencies, it failed to indicate: "(1) the type of `forensic analysis,' (2) what `search protocols' would be employed, and (3) when/if computer-assisted searching would yield to manual searching." (Id. at pp. 10-11.) Defendant also objects that the search warrant did not provide a method for segregating unreviewable data, did not provide specific guidance on how to determine which data had a nexus to the crime, did not indicate whether the government would image the device, and did not account for the segregation, return, or destruction of data that fell outside the scope of the warrant. (Id.)
Defendant's position relies largely on In re Nextel Cellular Telephone, in which a Kansas magistrate judge denied an application for a warrant for similar reasons. See 2014 WL 2898262 (D. Kan. June 26, 2014). Nextel is not binding on this Court, however.
Moreover, although "the Ninth Circuit has `look[ed] favorably upon the inclusion of a search protocol . . . its absence is not fatal.' Hernandez, 2016 WL 471943, at *5 (citing United States v. Hill, 449 F.3d 966 (9th Cir. 2006)) (declining to require a search protocol for a computer in a child pornography case); United States v. Schesso, 730 F.3d 1040 (9th Cir. 2013) (declining to require a search protocol for the search and seizure of a defendant's computer system and all of his digital storage devices in a child pornography case); Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam) (declining to adopt Judge Kozinski's concurring opinion laying out "guidance" for digital searches).
In sum, the Court is not persuaded the search protocols are either insufficiently particular or overly broad such that the search warrant is invalid.
For all of the foregoing reasons, Defendant's motion to quash the search warrant and suppress evidence obtained by searching his cell pJ.one is denied.
As it appears Defendant does not dispute the government's representation that no search was conducted and no evidence was derived from the first search warrant, Defendant's previous motion is denied as moot. The Court has reviewed and compared the first and second search warrants, which do not appear to be materially different. (Compare Docket Nos. 34-2 & 52-1.) Therefore, the Court construes Defendant's purported "renewed" motion as a motion to quash the second search warrant and suppress evidence obtained under the second search warrant. Per Defendant's request, the Court shall consider the arguments raised in the initial motion in the context of the second search warrant.
United States v. Beasley, No. 13-10112-01-JTM, 2016 WL 502023, at *8 (D. Kan. Feb. 8, 2016) (emphasis added).
