STEARNS, District Judge.
The above-captioned case was transferred to this session of the court on November 4, 2014. Several motions to suppress are pending. The first three involve the identifications of defendants Danny Veloz, Jose Matos, and Gadiel Romero by cooperating witnesses.
The FBI and various local law enforcement agencies had undertaken a joint investigation of Joloperros (which roughly translates to "stick-up men") involved in violent kidnappings and home invasions in the Lawrence, Massachusetts area. Joloperros "crews" frequently targeted local drug dealers. The crews would surreptitiously attach global positioning system (GPS) units to their victims' vehicles, track their movements, and after a successful hostage-taking, demand ransom payments from the kidnap victims and their families.
On July 23, 2012, Lawrence police responded to a 9-1-1 call at 67 Allston Street, after Minerva Amparo reported having witnessed a white minivan follow her husband's car into their driveway.
Early the following morning, Manchester, New Hampshire police responded to a 9-1-1 call at 859 Clay Street, after a homeowner reported that a man standing on his porch claimed to have been a kidnapping victim. Manuel Amparo, displaying visible injuries, had escaped from his captors and run for help. He told police that he had been kidnapped in Lawrence the day before by four masked men in a white Toyota minivan. He had been take to New Hamphire where he was punched, kicked, burned with an iron, and held for ransom.
After initially denying his involvement, one of the arrested men (identified as CW-2) begin cooperating with the government. On the evening of July 24, 2012, CW-2 gave a lengthy, recorded, post-Miranda statement in which he admitted to his role in the kidnapping. See Dkt. No. 309-9. CW-2 related that he met the members of the crew (Guzman, Wallace, Gadiel Romero also known as "TC," and Luis Reynoso) at the Veloz residence, and drove to Matos also known as "Boyca"'s apartment to gather firearms and police shirts. They then drove to Amparo's home in the white minivan. There, dressed in police regalia, they had abducted Amparo and Castro and taken them to New Hampshire. CW-2 named Veloz as the chief of the crew and described the location and interior layout of his home. CW-2 explained that Veloz tracked the movements of his potential victims (mostly drug dealers referred to Veloz by other drug dealers who paid him for protection) by attaching GPS units to their cars. CW-2 stated that he had personally observed Veloz monitoring the movements of his victims on a laptop computer attached to a large-screen television and a cellular phone in his home.
Prior to his initial appearance in Boston, CW-2 rode with agents to 443-447 Andover Street in Lawrence, where he identified
On August 2, 2012, FBI Special Agent Kathryn Earle obtained a supplemental search warrant for the contents of the seized devices. On August 6 and 7, 2012, agents downloaded data from the thumb drives and the cellular phones.
Also on August 2, 2012, CW-2 was shown a three-ring binder containing 37 photographs (without any identifying information) labeled 1-37.
CW-3 also began to cooperate with law enforcement shortly after the July 23 kidnapping. In August of 2012, he told the grand jury that he had met Maldonado at a methadone clinic in 2007 and had begun selling pills with him, supplied by Veloz, in or about January of 2012. In the spring of 2012, Maldonado approached CW-3 about participating in a hostage-taking and introduced CW-3 to Guzman. Maldonado and Guzman referred to Veloz as "Maestro" because of his role in orchestrating the kidnappings. CW-3 also testified about Veloz's use of GPS devices to track potential victims. Prior to the July 23 kidnapping, CW-3 met with Veloz and other crew members at Veloz's apartment approximately five times. CW-3 accurately described the exterior and interior of Veloz's residence, and related that Veloz had purchased a Cadillac with the proceeds of a prior successful kidnapping. CW-3 also described meeting with Matos at the Veloz residence, that Matos's apartment served
On July 30, 2012, CW-3 was shown a loose-leaf binder containing 36 numbered photographs without identifying information. He identified photograph 30 as Veloz. During his grand jury testimony, he accurately identified photographs of Guzman, Maldonado, and two photos of Veloz. On August 29, 2012, CW-3 also identified Matos from an array of 6 photos.
Like CW-2 and CW-3, CW-5 pled guilty to conspiracy to commit kidnapping and agreed to cooperate with the government. He told the grand jury in July of 2013 that he had met Veloz and Romero while they were inmates at the Middleton Jail in late 2010/early 2011. Veloz recruited CW-5 and Romero to join his kidnapping crew. Veloz had explained to CW-5 the use of GPS units to track potential ransom victims (usually drug dealers). CW-5 testified that he had either participated in or had knowledge of seven different kidnappings carried out by the Veloz crew. For example, CW-5 admitted to taking part in the kidnapping of a target named "Majimbe" with Veloz, Romero, and Matos. CW-5 had observed Matos put a GPS device on Majimbe's vehicle prior to the kidnapping, and participated in the remote tracking of Majimbe's car from Veloz's apartment. CW-5 met with other members of the crew on multiple occasions at Veloz's residence and accurately described its interior.
In November of 2012, CW-5 was shown individual photographs taken from the binder kept by the FBI and accurately identified two photos of Veloz, as well as photos of Romero, Matos, Maldonado, Wallace, and Reynoso. During his grand jury testimony he identified photos of Veloz and Romero.
Defendants argue that the conduct of the photographic identifications was deficient because: (1) the agents did not employ a double blind or blinded procedure; (2) the cooperating witnesses were not told that they were not required to make an identification; and (3) were not asked how certain or confident they were when they did make an identification. Veloz and Matos also contend that some of the arrays shown were of an unconstitutionally small size (arrays of 6 photos were shown to identify Matos, while CW-2 during his initial interview was shown a single photograph of Veloz).
While the policy arguments over best practices in conducting a photographic identification are of interest, they are of no constitutional import. The arguments are principally derived from dicta in a Supreme Judicial Court (SJC) decision, Commonwealth v. Silva-Santiago, 453 Mass. 782, 797, 906 N.E.2d 299 (2009) (while "[w]e have yet to conclude that an identification procedure is unnecessarily suggestive unless it is administered by a law enforcement officer who does not know the identity of the suspect (double-blind procedure),... we acknowledge that it is the better practice...."). The SJC's further ruminations on the desirability of instructing a person being asked to view an array that the alleged wrongdoer may or may not be depicted, and asking her at time of the identification how certain she is, id. at 797-798, 906 N.E.2d 299, were adopted as recommended "best practices" by a Study Group appointed by the SJC to delve into the issue of misidentifications. See SJC Study Group of Eyewitness Evidence, Report
The use of photographs for identification purposes in federal investigations is governed by due process considerations of fairness. The test to be applied is whether the methods used by police to elicit an identification were "so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). It is generally held that an array of at least six photos (the suspect and five fillers) is acceptable,
There is no reason, however, to belabor the issue — what distinguishes this case is the fact that each of the cooperating witnesses had prior familiarity with the person or persons they identified — indeed, they were literal "partners in crime." It is uniformly held by state and federal courts, that where a witness is shown to have had prior familiarity with a defendant, a due process hearing need not be held, as no amount of police suggestion is likely to have influenced the witness's identification. See People v. Rodriguez, 79 N.Y.2d 445, 450, 583 N.Y.S.2d 814, 593 N.E.2d 268 (1992) (the "known to one another" exception); Commonwealth v. Pressley, 390 Mass. 617, 619, 457 N.E.2d 1119 (1983) (a judge need not instruct on the possibility of good faith mistake where "the parties are so well known to each other or so closely related that ... the identification by the victim is either true or the victim is lying."); United States v. Henderson, 320 F.3d 92, 101 (1st Cir.2003) ("Nor need we dwell too long on Powers' identification of defendant. There was evidence from which it could be found that she had known Henderson going back to 1994."); United States v. Drougas, 748 F.2d 8, 27 (1st Cir.1984), holding modified on other grounds by United States v. Piper, 35 F.3d 611 (1st Cir.1994) ("As a fellow conspirator in the smuggle, the government witness certainly had the opportunity and incentive to accurately identify Ellis."); see also Mears, 614 F.2d at 1177 (despite improperly including two photos of defendant in the photo array, witness's in-court identification of defendant was reliable because of their prior mutual business dealings).
Veloz contends that after seizing his computer, cell phones, and thumb
With respect to the former argument, Veloz conflates the forensic examiner's search of a device — where data is copied for further review — with the review of the already seized data. See United States v. Habershaw, 2002 WL 33003434, at *8 (D.Mass. May 13, 2002) ("Further forensic analysis of the seized hard drive image does not constitute a second execution of the warrant or a failure to `depart the premises' as defendant claims, any more than would a review of a file cabinet's worth of seized documents."). Although reports reflecting on-going analysis of the seized data were generated in March of 2014, there is no dispute that the government copied or attempted to copy the data from the devices almost immediately after their seizure. "The Fourth Amendment itself contains no requirements about when the search or seizure is to occur or the duration." United States v. Syphers, 426 F.3d 461, 469 (1st Cir.2005) (internal quotation marks omitted). "A delay in execution of the warrant under Rule 41 does not render inadmissible evidence seized, absent a showing of prejudice to the defendants resulting from the delay.... Courts have permitted some delay in the execution of search warrants involving computers because of the complexity of the search." Id.
Given the impracticalities of conducting a forensic examination in a person's home or office, the creation of a mirror image of a suspect computer hard drive for later analysis has become a common and constitutionally permissible practice. See United States v. Ganias, 755 F.3d 125, 135-136 (2d Cir.2014) (collecting cases). "[C]omputer searches are not, and cannot be subject to any rigid time limit because they may involve much more information than an ordinary document search, more preparation and a greater degree of care in their execution." United States v. Triumph Capital Grp., Inc., 211 F.R.D. 31, 66 (D.Conn.2002).
Where problems have arisen is in instances in which the government fails to expeditiously return non-responsive information found on a seized or mirrored hard drive. See Ganias, 755 F.3d at 140-141 (suppression called for where government agents retained computer documents that were beyond the scope of the original warrant for almost two-and-a-half years). But, even in these instances, a rule of reasonableness applies. Where, as here, the government acted reasonably in seeking outside forensic expertise, and there is no allegation that wrongfully seized and later discovered material of an exculpatory nature was willfully retained, the on-going off-site analysis of the contents of Veloz's hard drives raises no Fourth Amendment or due process issue.
Veloz contends that there was no probable cause to issue the warrant to search his
Probable cause means "reasonable cause," something significantly less exacting than "more likely than not" or "by a preponderance of the evidence." United States v. Melvin, 596 F.2d 492, 495 (1st Cir.1979). Probable cause "merely requires that the facts available to the officer would `warrant a man of reasonable caution in the belief' that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion) (internal citation omitted). In assessing probable cause, federal courts are to adhere to the flexible "totality of the circumstances" test of probable cause approved by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 230-231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (stressing that probable cause is a fluid concept — "not readily, or even usefully, reduced to a neat set of legal rules"). Whether a warrant in fact issued on a showing of probable cause is a matter of law to be determined by the court. Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
It has long been the rule that probable cause may be established solely through hearsay information provided by a confidential informant. In Gates, the Supreme Court rejected any "rigid" application of the "two-pronged" test of an informant's tip drawn from Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Gates involved an anonymous tip implicating a local couple in drug trafficking. The officer who prepared the warrant succeeded in corroborating a number of largely innocent details and in confirming predictions contained in the tip, but had no means of establishing the informant's identity and thus, the basis of his or her knowledge of the couple's criminal activity. Applying the Aguilar-Spinelli test, the Illinois Supreme Court found the affidavit wanting.
The Supreme Court reversed. Conceding that the Aguilar factors of "veracity," "reliability," and "basis of knowledge" are "highly relevant," the Court nonetheless rejected the notion that "these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case." Gates, 462 U.S. at 230, 103 S.Ct. 2317. The Court concluded that
Id. at 238-239, 103 S.Ct. 2317.
Although Gates suggests a likely finding of probable cause even were CW-2 an anonymous informant, that is simply not the case. Veloz's legal argument, which is based on the law governing anonymous tips, see Def.'s Br. at 7, founders on this point. CW-2, far from being anonymous, was not only known to police — he was in fact one of Veloz's coconspirators. In United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), Chief Justice Burger, in discussing Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), noted that "Jones never suggested that an averment of previous reliability was necessary," and held that an informant's admissions of his own criminal involvement — his "declarations against penal interest" — carried their own indicia of credibility. Harris, 403 U.S. at 581-582, 594, 91 S.Ct. 2075. "People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions." Id. at 583, 91 S.Ct. 2075; see also United States v. Schaefer, 87 F.3d 562, 566 (1st Cir.1996) ("The fact that an informant's statements are against his or her own penal interest adds credibility to the informant's report."); United States v. Campa, 234 F.3d 733, 738 (1st Cir.2000) ("Bullon's own admission of complicity, and the risk of police retaliation for giving false information, added to the likelihood of his veracity." (internal citations omitted)).
While a judicial ruling on a motion to suppress is ordinarily confined to the "four corners" of the affidavit, there are circumstances in which a defendant may challenge the truthfulness of statements made by the affiant. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); cf. United States v. Southard, 700 F.2d 1, 7 (1st Cir.1983) (a facially sufficient affidavit is entitled to a presumption of validity). To be entitled to a Franks hearing, a defendant must make a "substantial preliminary showing" that an affidavit contains intentionally false or recklessly untrue statements that are material to a finding of probable cause. Franks, 438 U.S. at 155-156, 170, 98 S.Ct. 2674.
If a hearing is warranted, the defendant must prove the knowing falsity or recklessness of the affiant's statements by a preponderance of the evidence. Franks, 438 U.S. at 156, 98 S.Ct. 2674. If the showing is made, the offending statement is excised from the affidavit, which is then reexamined for probable cause. Id. at 171-172, 98 S.Ct. 2674; United States v. Veillette, 778 F.2d 899, 903-904 (1st Cir. 1985).
The reckless omission of material information from the affidavit also raises a Franks issue. See United States v. Rumney, 867 F.2d 714, 720 (1st Cir.1989); see also United States v. Hall, 113 F.3d 157, 158 (9th Cir.1997) (reckless omission of the "absolutely critical" fact that the informant had been previously convicted for falsely reporting a crime); cf. United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir.1997) ("[A]n affidavit which omits potentially exculpatory information is less likely to present a question of impermissible official conduct than one which affirmatively includes false information.").
On the other hand, the omission of a fact that does not cast doubt on the existence of probable cause is not a material misrepresentation. United States v. Dennis, 625 F.2d 782, 791 (8th Cir.1980); see also United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990) (an omission must be made with the intent to mislead); United States v. Moscatiello, 771 F.2d 589, 603 (1st Cir.1985), vacated on other grounds sub. nom. Carter v. United States, 476 U.S. 1138, 106 S.Ct. 2241, 90 L.Ed.2d 688 (1986) (the omission of irrelevant facts is no basis for suppression); United States v. Reivich, 793 F.2d 957, 962-963 (8th Cir.1986) (the failure to apprise the magistrate of the fact that informants had been promised leniency did not diminish the showing of probable cause); United States v. Calisto, 838 F.2d 711, 714-716 (3d Cir.1988) (affiant's failure to disclose that certain information in the affidavit had been transmitted by fellow officers did not detract from the showing of probable cause). There may also be circumstances, although they would appear rare, in which the failure to include information not known to the affiant might give rise to a Franks violation. See Tanguay, 787 F.3d at 53 (asking whether certain "red flags" about an informant's history of mental instability might have created "a duty of further inquiry"). Where there is a finding that the affiant intentionally or recklessly omitted material facts from the affidavit, the reviewing court should determine whether the omitted information, had it been included, would have defeated the finding of probable cause. United States v. Cole, 807 F.2d 262, 267-268 (1st Cir. 1986).
The Franks hearing is limited to material impeaching the veracity and care of the affiant. Franks, 438 U.S. at 171, 98 S.Ct. 2674. The credibility of a confidential informant or cooperating witness is tested by the rules set out in Aguilar, Spinelli, and Gates, and not by way of a Franks hearing. See United States v. Carmichael, 489 F.2d 983, 989 (7th Cir.1973); In re Search Warrant Dated July 4, 1977, 667 F.2d 117, 137 (D.C.Cir.1981), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Stated differently, the issue is not whether a non-governmental informant gave false or misleading information, but whether the affiant fabricated the informant,
Here, the only potentially material omission advanced by Veloz is the fact that CW-2, when first arrested, gave a self-exculpatory and false version of the facts, a version that he quickly recanted. An experienced Magistrate Judge would not be surprised to learn that a defendant-informant had initially denied involvement in a crime. See Rumney, 867 F.2d at 720 ("Nassoura's denials of involvement were made, predictably, before he was confronted with evidence linking him to the robbery. Once the police gathered enough information to arrest Nassoura, he changed his story. That the police chose not to include Nassoura's denials along with the reason for his recantation is not material to a finding of probable cause.").
Veloz contends that the search of his email accounts hosted Apple and Google servers should be suppressed as "fruits of the poisonous tree." Because the argument is premised on the alleged illegal search of his laptop computer (from which the email addresses were taken), it fails with the denial of his motion to suppress that search.
For the foregoing reasons, the motions to suppress are DENIED. The Clerk will set the case for trial.
SO ORDERED.
