REPORT AND RECOMMENDATION

LYNETTE C. KIMMINS, Magistrate Judge.

Pending before the Court is Defendant Castro-Valenzuela's Motion to Suppress. (Doc. 124.) Defendant argues that all evidence obtained from the pole camera should be suppressed because it violated his reasonable expectation of privacy. The government responded in opposition (Doc. 128), and Defendant replied (Doc. 135). This matter came before the Court for an evidentiary hearing and a report and recommendation as a result of a referral, pursuant to LRCrim 57.6. Evidence and argument were heard on April 12, and May 3, 2018.1 (Docs. 149, 180.) Having now considered the matter, the Magistrate Judge recommends that the District Court, after its independent review, deny in part and grant in part Defendant's motion to suppress.

I. FACTUAL BACKGROUND

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 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, and 18 U.S.C. Sections 371 and 1956. (Doc. 44.) Trial is currently scheduled for July 31, 2018. (Doc. 155.)

Special Agent Zachary Kliniske with Homeland Security Investigations (HSI) began investigating this case in December 2016. (RT1 at 7.) He learned about a junkyard at 32 West Elwood Street in Phoenix operated by Defendant Castro-Valenzuela. (RT2 at 6-7.) In February 2017, Agent Kliniske began physical surveillance of the junkyard and also obtained a Court-ordered GPS ping for Defendant's phone. (RT1 at 8-9.) Between February and May, he conducted physical surveillance at least a dozen times on foot and in vehicles. (RT2 at 7-8.) Agents saw Defendant Castro-Valenzuela and Defendant Beltran-Ruiz coming and going, along with several other persons and vehicles. (RT1 at 61.) Agent Kliniske took numerous photographs of the surveillance during that time period. (RT1 at 61-62; RT2 at 8.) He wrote Reports of Investigation documenting his physical surveillance for February 13, 14, 15, and 24, March 2, 9, 21, 29, and 30, and April 7. (RT2 at 9; Ex. 37B.)2

Agent Kliniske explained in a search warrant application that the pole camera was used because "traditional surveillance means have proven ineffective to gather intelligence on the happenings at this location." (RT1 at 59.) The investigative team was limited in their physical surveillance because they could not be present all the hours of the day, they had multiple locations from the Mexican border to Glendale to cover, and they were concerned about being noticed on the street. (RT1 at 9; RT2 at 9.)

On May 5, 2017, following HSI protocol, a pole camera was installed by their technical officers pointing towards the junkyard. (RT1 at 8, 9, 28-29.) The camera was mounted on what appeared to be a light pole in the parking lot of a nightclub on the south side of the street across from the junkyard. (RT1 at 14, 68-69; Exs. 34, 38.) HSI did not obtain permission from the parking lot owner to place the camera on the pole in the lot. (RT1 at 70.) The camera was placed above the height a person could reach. (RT1 at 72.) The nightclub parking lot could be accessed by a vehicle only through a gap in a wall from a church property to the south. (RT1 at 19-22; Exs. 3-6, 35.) The pole camera was used for surveillance until May 30, when Defendants were arrested. (RT1 at 72-73.)

The junkyard had a long gate covered in wooden slats, which slid in front of the cinder-block wall when opened. (RT1 at 37; Exs. 13.) There are small gaps between the wooden slats of the gate, allowing significantly obscured visibility through the gate when closed. (RT2 at 35; Ex. 21B.) Both the gate and the cinder-block wall along the south side of the junkyard were 5'4" tall. (Exs. 17, 18; RT1 at 37-38, 51-52.) The trailer on the junkyard property is elevated, and a good portion of the door is visible over the wall from the street. (RT1 at 53; Ex. 9B.) Between the cinder-block wall and the road was a dirt area, deep enough for vehicles to park. (RT1 at 79-80; Exs. 7, 33, 20B, 21B.) From the area where a sidewalk would be located (if there was a sidewalk, which there was not in front of the junkyard), a 6-foot tall person could partially see inside the junkyard, from the head or shoulders up on a person and the tops of vehicles. (RT1 at 55, 64; Ex. 44.) To the east of the junkyard was a tall block wall that a person could not see over. (Ex. 40B.)

Agent Kliniske noted that the gate to the junkyard was left open for approximately 15 minutes on May 23 (RT1 at 73-74; Ex. 36B); however, the gate was closed the "vast majority of the time" (RT1 at 74; RT2 at 40). On the gate to the junkyard was a sign that read, "Warning, Do Not Enter, No Pedestrians in Traffic Lane, Barrier Gate Can Cause Serious Injury or Death." (RT2 at 17-18; Exs. 32, 9B.) On the junkyard trailer was a sign in English and Spanish that read, "all activities are recorded on video tape to aid in the prosecution of any crime committed against this facility." (RT2 at 22-23; Exs. 9B, 34B.)

The property adjacent to the west of the junkyard had a long metal gate with open metal posts covered by a somewhat translucent tarp. (RT1 at 31-35; Exs. 9-11, 16, 9B, 10B, 13B.) Between the properties was an open chain-link fence. (RT1 at 37; Exs. 9-11, 15, 2B, 36B.) When Agent Kliniske conducted physical surveillance he often parked southwest of the junkyard. (RT1 at 81.) The agent said the gate of the property to the west of the junkyard was open when people where there, first thing in the morning and again around 5 p.m. (with intermittent stop-bys during the day). (RT2 at 16.) When the gate to the west was open, a person could see right into the junkyard through the chain-link fence. (RT1 at 81-82; RT2 at 15.) The only photos viewing into the junkyard through the neighbor's gate, open or closed, are from 2018 in preparation for the evidentiary hearing. (Exs. 9B, 10B.) No 2017 surveillance photos were presented showing this area. Agent Kliniske testified that, even when the neighboring gate was closed, he still could view much of the junkyard. (RT1 at 81-82.) Several 2018 photographs indicate that there is some visibility (if positioned close to the gate) into the junkyard through the closed gate of the neighboring property. (Exs. 9, 10, 11.)

Defendant Jimenez was captured by the pole camera urinating in the junkyard several times on May 15 and 23. (RT1 at 74-75; Exs. 36B, 39.) The pole camera captured images of Defendant Castro-Valenzuela and Defendant Beltran-Ruiz hugging in the junkyard. (RT1 at 76; Exs. 40, 41.) It also recorded Defendant Castro-Valenzuela drinking a beer and without a shirt on. (RT1 at 77; Exs. 42, 43.)

Agent Kliniske believed there were three narcotics deliveries to the junkyard captured by the pole camera, May 15, May 23, and May 30. (RT1 at 40.) For May 30, agents already had obtained a search warrant and there was physical surveillance on sight and by air that day. (RT1 at 49.) The pole camera allowed Agent Kliniske to identify Defendant Jimenez for the first time based on his arrival at the junkyard on May 15. (RT1 at 82-83.) The pole camera also allowed the agent to zoom-in and see with clarity that Defendant Castro-Valenzuela was wiping down the Ford Fusion driven by Defendant Jimenez. (RT1 at 84; Ex. 36B.) The agent testified he could have seen Defendant conducting the wipe-down from the street, even with the gate shut. (RT1 at 84; Ex. 36B.)

II. DISCUSSION

Defendant argues he had a reasonable expectation of privacy in the junkyard; therefore, use of the pole camera without a warrant violated his Fourth Amendment right and all evidence derived therefrom must be suppressed. A person has an expectation of privacy in commercial property, although it is less than the privacy expectation a person has in his home. See New York v. Burger, 482 U.S. 691, 699-700 (1987). The parties agree that this motion should be resolved by using a reasonable expectation of privacy analysis.3 The Court must determine if Defendant Castro-Valenzuela had a subjective expectation of privacy in the junkyard and, if so, was "society willing to recognize that expectation as reasonable?" California v. Ciraolo, 476 U.S. 207, 211 (1986) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)).

Use of a surveillance camera to gather evidence that could be lawfully observed by law enforcement does not violate the Fourth Amendment. United States v. McIver, 186 F.3d 1119, 1125 (9th Cir. 1999), overruled on other grounds by United States v. Jones, 132 S.Ct. 945 (2012); United States v. Dubrofsky, 581 F.2d 208, 211-12 (9th Cir. 1978) (technological aids that enhance what could be accomplished by visual surveillance are permissible). "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Ciraolo, 476 U.S. at 213 (quoting Katz v. United States, 389 U.S. 347, 351 (1967)). Because it would be visible to anyone passing by, Defendant Castro-Valenzuela did not have a reasonable expectation of privacy in the coming and going of vehicles from the junkyard, activity occurring outside the wall, the door to the trailer, or any activity occurring at the junkyard with the gate open. See Ciraolo, 476 U.S. at 213 ("[T]he mere fact that an individual has taken measures to restrict some views of his activities [does not] preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible.").

The Court must examine more closely whether Defendant Castro-Valenzuela had a reasonable expectation of privacy in what took place behind the wall of the junkyard when the gate was closed. Although the fence and gate were only 5'4" tall, they were set back from the road. Therefore, a person walking along the public road or driving by could not see anything directly behind the wall or view all the activities in the junkyard. The gate almost always was closed when no one was using it to enter or exit. Similarly, the gate to the private business next door was closed for most of the day. The signs on the gate and the trailer indicate that the junkyard was not a business open to the public. In light of all these details, and the fact that Defendant and his invited guests engaged in private behavior in the junkyard, the Court finds he had a subjective expectation of privacy in the junkyard when the gate was closed.

The Court is not aware of any cases in the Ninth Circuit or this District involving a pole camera positioned to allow round-the-clock observation of a privately-owned outdoor area not fully visible from the street. Both parties cite the Brooks case from this District — the government to support its position and Defendant to distinguish it. United States v. Brooks, 911 F.Supp.2d 836 (D. Ariz. 2012). This Court does not rely on Brooks because, in that case, the area captured by the camera was fully visible to anyone that entered the apartment complex through the unlocked pedestrian gate or from the adjoining open-air arena parking lot. Id. at 843.

The Supreme Court holds that a person does not have a reasonable expectation of privacy from aerial surveillance in lawful airspace (used to identify marijuana plants), even if the area is obstructed from street view. See Ciraolo, 476 U.S. at 213-14; Florida v. Riley, 488 U.S. 445, 450 (1989). The Court relied, in part, upon the fact that "private and commercial flight in the public airways is routine." Ciraolo, 476 U.S. at 215; see Riley, 488 U.S. at 451 (noting that helicopters flying over at 400 feet are not "sufficiently rare" that a person can reasonably rely on not being observed from that perspective). In contrast, constant video surveillance of private property is not routine. Further, a one-time flight over a property is substantially less invasive than constant video surveillance. See United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (noting that the minimal intrusion of a fly-over does not authorize all possible surveillance). The Ninth Circuit has instructed that when evaluating a person's expectation of privacy, courts must consider "the severity of the intrusion to which they were subjected" and "hidden video surveillance is one of the most intrusive investigative mechanisms available to law enforcement." United States v. Nerber, 222 F.3d 597, 602-03 (9th Cir. 2000) (citing Cuevas-Sanchez, 821 F.2d at 251). Defendant Castro-Valenzuela did not knowingly expose the activities of the junkyard, occurring with the gate closed, to constant video surveillance. His expectation to be free from such monitoring in his backyard is one society would recognize as reasonable. See id. at 604 (finding reasonable privacy interest when alone in another person's hotel room even though a person cannot expect "total privacy" in that space); Cuevas-Sanchez, 821 F.2d at 251.

III. RECOMMENDATION

It is recommended that, after its independent review of the record, the District Court deny in part and grant in part Defendant's Motion to Suppress (Doc. 124). Specifically, it is recommended that the Court suppress video evidence of the interior of the junkyard taken when the gate was closed with the exception of views of the trailer door. It is recommended the motion to suppress be denied as to all other video evidence, including the coming and going of vehicles from the junkyard, activity occurring outside the wall, the door to the trailer, or any activity occurring at the junkyard with the gate open.

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.