LEONARD T. STRAND, Chief District Judge.
This matter is before me on a Report and Recommendation (R&R) (Doc. No. 32) in which the Honorable Kelly K.E. Mahoney, United States Magistrate Judge, recommends that I grant defendant's amended motion to suppress (Doc. No. 18).
A district judge must review a magistrate judge's R&R under the following standards:
28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b). Thus, when a party objects to any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed under at least a "clearly erroneous" standard. See, e.g. Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that when no objections are filed "[the district court judge] would only have to review the findings of the magistrate judge for clear error"). As the Supreme Court has explained, "[a] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under a more exacting standard, even if no objections are filed:
Thomas v. Arn, 474 U.S. 140, 150 (1985).
On February 23, 2017, the grand jury returned an indictment (Doc. No. 2) charging defendant with one count of conspiracy to distribute methamphetamine. Defendant filed a motion (Doc. No. 15) to suppress evidence on May 15, 2017, and an amended motion (Doc. No. 18) to suppress on June 2, 2017. The Government filed a resistance (Doc. No. 26) to the amended motion on June 12, 2017. Judge Mahoney conducted a hearing on June 28, 2017, and issued her R&R on August 10, 2017. The Government filed objections (Doc No. 38) and defendant has responded (Doc. No. 42).
This case involves the use of a GPS tracking device on defendant's vehicle. Special Agent Dan Louwagie of the Minnesota Bureau of Criminal Apprehension submitted an application for the first state warrant authorizing the use of the GPS device on December 21, 2015. Ex. A at 1-7.
The main issue is whether the warrants authorizing the use of the GPS device were supported by probable cause. The relevant facts from each warrant, along with Judge Mahoney's findings, are summarized below. Also at issue is whether the good faith exception applies, negating the need to suppress.
Because much of the information in the four warrants is the same, Judge Mahoney began by determining whether Warrant No. 1 (Ex. A) was supported by probable cause. Warrant 1 contains the following statements regarding defendant:
Ex. A, at 6. Following this recitation, along with five additional pages of evidence which do not relate to defendant, Louwagie was granted permission to install the GPS device on defendant's vehicle.
Judge Mahoney found probable cause was lacking:
Doc. No. 32 at 9-12.
Warrant 2 contained little additional information involving defendant. Judge Mahoney summarized the information in Warrant 2's affidavit as follows, and concluded that it also was not supported by probable cause:
Doc. No. 32 at 11-12.
Judge Mahoney next addressed whether the "good faith reliance" exception established in United States v. Leon, 468 U.S. 897 (1984), applies with regard to Warrants 1 and 2. Judge Mahoney found that the exception does not apply because "no officer could have reasonably believed that the affidavits for Warrants #1 and #2 established probable cause to believe that Lopez-Zuniga or his vehicle were involved in drug trafficking or related activities." Id. at 12. Excluding the data obtained during the pendency of the first invalid warrant, both warrants were facially devoid of "information to show that Lopez-Zuniga or his vehicle were involved in ongoing drug trafficking, [or] statements showing why evidence of such activity would be revealed through the location of his vehicle." Id. at 13.
The affidavits for Warrants 3 and 4 were drafted by Nissen. As with Warrants 1 and 2, much of the information contained in Nissen's affidavit is duplicative. Excluding the GPS data, Warrant 3 included the following evidence in support of the request for a 60 day extension for the GPS tracker:
Ex. C at 6-7. The affidavit in support of Warrant 4 is virtually identical to the affidavit for Warrant No. 3, except that it contains GPS data for an additional 60 days and states that law enforcement learned Lopez-Zuniga re-entered the United States via the Laredo, Texas, port of entry on June 9, 2016. Ex. D at 7.
Judge Mahoney found that this additional information was not probable cause to support the extended GPS tracking of defendant's vehicle:
Doc. No. 32 at 14-15. Judge Mahoney further found that the inclusion of defendant's return from Mexico in Warrant 4 was not enough to establish probable cause.
Turning to the issue of good faith reliance on Warrants 3 and 4, Judge Mahoney noted it was a much closer question than whether investigating officers had reasonably relied on Warrants 1 and 2. Judge Mahoney stated:
Doc. No. 32 at 15-16.
Based on these findings, Judge Mahoney recommends that I grant defendant's motion to suppress the GPS evidence.
The Government objects to Judge Mahoney's findings, arguing she "misses the mark in that the focus of the search warrants is on the totality of the circumstances involving Lopez-Zuniga's vehicle and not Lopez-Zuniga himself." Doc. No. 38 at 3. The Government argues it has established a nexus between a known drug dealer, Garcia-Jimenez, and defendant's vehicle, thereby establishing probable cause to track the vehicle's movements by GPS device.
"Placement of a GPS tracking device on a vehicle is a `search' within the meaning of the Fourth Amendment, requiring probable cause and a warrant." United States v. Faulkner, 826 F.3d 1139, 1144 (8th Cir. 2016) (citing United States v. Jones, 565 U.S. 400, 404 (2012)). Probable cause exists when, "under the totality of the circumstances, there is a fair probability evidence of a crime will be found in a particular place" or the requested search will "lead to the discovery of evidence." Id. at 1144, 1146. This requires a nexus between the items officers are searching for and the place or item to be searched. See United States v. Johnson, 848 F.3d 872, 878 (8th Cir. 2017). "Factors to consider in determining if a nexus exists include `the nature of the crime and the reasonable, logical likelihood of finding useful evidence.'" Id. (quoting United States v. Colbert, 828 F.3d 718, 726 (8th Cir. 2016)); see also United States v. Schermerhorn, 71 F.Supp.3d 948, 956 (E.D. Mo. 2014) (probable cause was lacking where the government failed to establish "a relationship between either, the known drug dealer and the
Both sides below argue that the facts of this case are best explained by comparison to Schermerhorn. According to defendant, his case is directly analogous to Schermerhorn, requiring a finding that probable cause is lacking. Doc. No. 18 at 5-7. The Government argues that all that was lacking in Schermerhorn was a nexus between the known drug dealer and the driver or the known drug dealer and the car, and that the Government has established probable cause by showing a connection between the known drug dealer, Garcia-Jimenez, and defendant's car on two occasions. Doc. No. 38 at 4-5.
In Schermerhorn, the court held that the Government failed to establish the required nexus between the place to be searched by GPS device (a car) and the drug dealer. 71 F. Supp. 3d at 956. The warrant at issue in Schermerhorn was similar to the warrant in the present case: officers described surveillance efforts regarding a known drug dealer, Nguyen. Id. at 952-53. During surveillance, a DEA agent observed the following related to Schermerhorn:
Id. The subsequent GPS warrant, which was based solely on the above information, was held to be unsupported by probable cause because the above information did not establish the required nexus between the evidence to be seized and the place to be searched. Id. at 953, 56. Although "[i]t is true that the fact that a known drug dealer travelled with a driver in a specific car on one occasion to a known drug supplier's residence may establish a fair probability that the car will be used to make future trips to facilitate drug trafficking activities," the above facts did not provide enough information to justify the installation of a GPS device. Id. at 957 (emphasis in original). Put another way, even though this one trip was suspicious, the officers were required to provide some evidence that this suspicious event was not an isolated event before they tracked the car for a lengthy period of time.
Defendant's case is distinguishable from Schermerhorn in two ways. First, the events in Schermerhorn were more likely to indicate a drug deal involving Schermerhorn's vehicle than were the facts of the present case. As Judge Mahoney explained, there is nothing to suggest defendant's two interactions with Garcia-Jimenez were anything other than innocent. Although anything is possible, officers applying for a warrant are required to identify facts which support a probability that the search will uncover evidence or contraband. If the two interactions described in Louwagie's affidavit are sufficient to establish probable cause, anyone could become subject to 240 days of GPS tracking. In Schermerhorn, there was at least some evidence that the Schermerhorn's vehicle was used in a drug transaction observed by officers (although it was not enough to justify GPS tracking). Second, and less significantly, the warrant application here described two interactions between the defendant's car and Garcia-Jimenez, in Schermerhorn there was only one recorded interaction between the known drug dealer and the defendant's car. Id. at 952-53.
The Government focuses much of its argument on the second distinction between Schermerhorn and the present case—that there were two interactions observed between defendant's car and Garcia-Jimenez, as opposed to the one interaction observed in Schermerhorn. The Government argues that considering the totality of the evidence, two interactions with a known drug dealer establishes the nexus that was missing in Schermerhorn. This argument misses the mark. The fact that there was a second innocent interaction between defendant and Garcia-Jimenez does not make it more likely defendant's vehicle is being used in trafficking activities. In Schermerhorn, the one-time use of a car to complete a likely drug transaction was not enough to support an inference the same car would be used in the future. Id. at 957. The fact that there were two innocent interactions between a known drug dealer and a car is equally not enough to support an inference the same car will be used in future drug transactions. This case is akin to cases such as United States v. Herron, 215 F.3d 812 (8th Cir. 2000), in which officers had a hunch based on a mere relationship with a target drug dealer, and included the defendant in their warrant application based solely on an innocent connection. Like the defendant in Herron, defendant takes up so little space in the overall affidavit that it seems as though his information was pasted into the ongoing investigation against Garcia-Jimenez as an afterthought. Id. at 814 n.1, 815.
I agree with Judge Mahoney that there is nothing in the affidavit attached to Warrant 1 to establish defendant's car has been or is likely to be used in trafficking activities. Warrant 2 adds nothing to the analysis that could be used to create the required nexus between defendant's vehicle and the drug trafficking activities at issue. The Government's objections to Judge Mahoney's R&R are overruled.
The Government next argues Judge Mahoney erred in finding no reasonable officer could rely on Warrants 1 and 2 because she relied on a case that was distinguishable and inapplicable to the present situation. Doc. No. 38 at 9.
Where it is later determined a warrant is not supported by probable cause, evidence from a warrant need not be excluded if officers reasonably relied in good faith on the judge's issuance of the warrant. United States v. Carpenter, 341 F.3d 666, 669 (8th Cir. 2003) (discussing the good faith exception outlined in Leon). To determine whether an officer's reliance on a warrant was objectively reasonable, a reviewing court considers the totality of the circumstances, including information known to officers but not presented to the judge who issued the warrant. United States v. Jackson, 784 F.3d 1227, 1231 (8th Cir. 2015). Officers cannot rely in good faith on a warrant when the supporting affidavit is "so lacking in indicia of probable cause as to render [officers' belief in its existence entirely unreasonable." Carpenter, 341 F.3d at 670 (quoting Leon, 468 U.S. at 923). The issue is "whether a reasonably well trained officer would have known that the search was illegal despite a judge's issuance of the warrant." Jackson, 784 F.3d at 1231.
The Government spent considerable time objecting to Judge Mahoney's use of the Herron case, which it argues is factually distinguishable and therefore inapplicable. Doc. No. 38 at 8-9. Specifically, "Herron is inapplicable because [of its] context (i.e. house versus GPS tracking device on a vehicle), target (i.e. person versus vehicle), and information relied upon by law enforcement (i.e. historical versus direct evidence). . . Here, agents sought the search warrants in the form of placing a GPS tracking device on a vehicle for suspected drug transportation—which is a mobile, less predictable form of drug trafficking." Id. at 9. This argument is unconvincing. First, as discussed above, the use of a GPS device is a search subject to the requirements of the Fourth Amendment. Faulkner, 826 f.3d at 1144. The use of a GPS device requires a warrant, and a warrant requires probable cause. Id. The Fourth Amendment protections do not disappear because the protected area is a car instead of a home.
Second, the argument that officers were not targeting defendant, but rather were targeting his vehicle, does not overcome my finding that they failed to develop probable cause to search the vehicle. Again, vehicles are protected by the Fourth Amendment. The Government's contention that this case involves historical rather than direct evidence of defendant's alleged involvement in drug trafficking does distinguish this case from Herron in terms of the probable cause analysis. However, as discussed above, the alleged "direct evidence" of defendant's involvement, as used to obtain the first two warrants, shows only innocent behavior. Clearly, the fact that behavior may have an innocent explanation does not preempt a finding of good faith reliance. See United States v. Simpkins, 914 F.2d 1054, 1058 (8th Cir. 1990). Here, though, the totality of the circumstances enumerated in Warrants 1 and 2 failed to support an inference that defendant was involved in drug trafficking. Finally, the distinction between drug transporting and drug trafficking is not explained, either in the subsequent sections of the Government's briefs or by citation. Regardless, the type of crime under investigation does not affect the level of probable cause required before officers are permitted to track a suspect's car.
The Government next argues Schermerhorn supports a finding of good faith reliance. Doc. No. 38 at 9. In Schermerhorn, the court held that officers relied in good faith on a facially deficient warrant because they had knowledge of additional information which would have established probable cause. 71 F. Supp. 3d at 957-59. Officers testified to these facts during a hearing on the motion to suppress. Id. at 960-62. Several cases demonstrate that officers can overcome the lack of probable cause supporting a warrant by testifying to the facts they relied on in seeking the warrant, establishing that their reliance on the warrant was in fact in good faith. See, e.g., United States v. Pruett, 501 F.3d 976, 981 (8th Cir. 2007) (recounting testimony of affiant at suppression hearing regarding additional information that corroborated information from an informant contained in the affidavit), vacated on other grounds, 552 U.S. 1241 (2008), reinstated in relevant part, 523 F.3d 863 (8th Cir. 2008); Johnson, 848 F.3d at 870 (noting affiant also knew in search for sex abuse evidence that defendant was a registered sex offender, had previously failed to register as a sex offender, lived with the victim's mother during the time of alleged abuse and occasionally lived at the residence searched); United States v. Marion, 238 F.3d 965, 969 (8th Cir. 2001) (discussing affiant's testimony at suppression hearing about additional surveillance at the place to be searched and that cocaine found prior to search warrant was consistent with distribution).
Here, the Government did not attempt to establish the facts that were missing from the affidavit, such as facts analogous to those in Schermerhorn that the apartment the drug dealer and the defendant visited to retrieve a duffel bag of potential drugs was in fact the defendant's residence. 71 F. Supp. 3d at 956-57. Thus, despite minor factual variations between this case and Herron, Judge Mahoney did not err in relying on Herron where the Government offered no further evidence to overcome the deficiencies of the facially invalid warrant. Accordingly, the Government's objection is overruled.
After striking the illegally-obtained GPS data from the applications for Warrants 3 and 4, there is little information to support prolonged GPS tracking of defendant's vehicle. The Government again objects that Judge Mahoney did not take into account the "totality of the circumstances" in evaluating probable cause in support of these warrants. The Government relies on the allegations that defendant was in regular phone contact with Garcia-Jimenez and "other suspected methamphetamine dealers," defendant's participation in a controlled buy and the inferences the Government alleges officers could make from the GPS data.
The Government's argument that Judge Mahoney failed to consider the inferences which officers could draw from defendant's movements is problematic for two reasons. First, although officers certainly could infer from the GPS tracking that the defendant was making frequent, short trips between restaurants that were being targeted as a part of the methamphetamine conspiracy, they could not reach this inference without relying on the GPS data, which will be suppressed. Second, even if officers could consider these inferences in support of Warrants 3 and 4, there is no evidence as to what they may or may not have inferred. Nissen did not explain what inferences he was drawing, or how the GPS data supported defendant's involvement in the alleged conspiracy. He did, however, provide an innocent explanation for the frequent trips to Denison, Iowa, where one of the target restaurants was located: defendant's brother lived there. Ex. D at 6. During one of the periods during which defendant's car was in the same town as the target restaurant, defendant was actually in Mexico. Id. at 15. Again, virtually anything may be possible, but probable cause requires facts showing a fair probability that use of a tracker on defendant's vehicle will likely lead to the discovery of drug-trafficking evidence. The Government had the opportunity during the June 28, 2017, hearing to explain the inferences officers made in support of the warrant applications. However, it did not call any witnesses and instead stood on its brief and the warrant applications. Doc. No. 35 at 4.
Additionally, I agree with Judge Mahoney that the phone contacts with Garcia-Jimenez and the circumstances of the controlled buy are not sufficient to establish probable cause to support GPS tracking of defendant's vehicle. Certainly, these phone contacts could suggest that defendant was in a conspiracy with Garcia-Jimenez to distribute methamphetamine using their cell phones, especially when considered in conjunction with the evidence of the controlled buy. See, e.g. Simpkins, 914 F.2d at 1058. However, this case is distinguishable from Simpkins. In Simpkins, a series of controlled buys and the use of a cell phone to complete a controlled buy, combined with the timing of the defendant coming and going from his house before and after the controlled buys, was sufficient to support an inference that contraband would be found at the his house. Id. However, unlike Simpkins, nothing about the phone contacts or the controlled buy in this case indicate that defendant or Garcia-Jimenez were using defendant's car as a part of their alleged conspiracy. If a potential drug sale involving defendant's vehicle was not enough to establish probable cause for GPS tracking, as in Schermerhorn, a buy without the vehicle, and without evidence the vehicle was involved, likewise failed to support GPS tracking.
The Government argues that the totality of the circumstances surrounding the investigation of defendant allowed officers to rely in good faith on Warrants 3 and 4. The problem with this argument is that it offers no evidence in support of the officer's reliance on the warrants. The Government fails to explain how the officers could assume there was a nexus between the drug trafficking and defendant's vehicle, without ever establishing that there was a connection between the two.
In Schermerhorn, officers had reason to suspect the defendant was assisting a known drug dealer with transportation based on the facts that officers followed defendant and the drug dealer to the defendant's house, then watched them apparently retrieve a duffel bag from the house and deliver the duffel bag to a second residence that was under investigation for drug trafficking. 71 F. Supp. 3d at 957. The fatal flaw in the warrant was that some of the above information was missing from the affidavit, although it was known to the officers. Here, as discussed above, it is impossible to discern whether the officers were in possession of additional information establishing the missing nexus between defendant's vehicle and the drug trafficking at issue so as to justify 240 days of GPS tracking. Thus, their record contains no evidence from which I could conclude that the officers relied in good faith on Warrants 3 and 4.
1. For the reasons set forth herein, I
2. The Government's objection (Doc. No. 38) to the Report and Recommendation is
3. Defendant's amended motion to suppress evidence (Doc. No. 18) is
