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United States v. Cordero-Rosario

United States Court of Appeals, First Circuit

May 4, 2015


Page 65


José L. Nieto-Mingo, with whom Nieto Law Offices, José A. Pagá n, and Pagá n Law Offices were on brief, for appellant.

Francisco A. Besosa-Martí nez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Howard, Lipez, and Barron, Circuit Judges.


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BARRON, Circuit Judge.

This appeal concerns a district court's decision to deny a sweeping motion to suppress evidence in a federal child pornography prosecution. The defendant contends that all of the evidence that he seeks to suppress may be traced to two allegedly unconstitutional searches that the Puerto Rico police carried out before he was even under suspicion on the federal charges.

The defendant seeks first to suppress any evidence that was acquired in those two searches. And we agree that, under the established precedent of the Supreme Court and our Circuit, the searches carried out by the Puerto Rico police did violate the Fourth Amendment and that any evidence that the government wishes to use that was acquired only from those searches must be suppressed.

The more difficult issue concerns the defendant's attempt to suppress the evidence that federal agents later acquired after receiving the consent of the defendant's then-wife to examine certain electronic devices taken from her and the defendant's home. The defendant contends that this evidence also must be suppressed because the federal agents initiated their investigation -- and thus carried out the consent-based examinations -- only after the Puerto Rico police supplied a tip that was premised solely on information the Puerto Rico police acquired from the two prior unlawful searches.

We have previously held that the taint from a prior unconstitutional search may render evidence obtained from a subsequent consent-based search illegal " fruits of the poisonous tree" that must be suppressed. See United States v. Navedo-Colón, 996 F.2d 1337, 1338-39 (1st Cir. 1993). Unfortunately, however, the record in this appeal contains little that would help us decide whether such suppression is required here. The District Court made no factual findings on the relationship between the searches the Puerto Rico police conducted and the subsequent federal investigation, which resulted in federal authorities obtaining the consent of the defendant's then-wife. Instead, the District Court ruled -- erroneously -- that the two searches the Puerto Rico police carried out did not violate the Fourth Amendment. For that reason, the District Court had no occasion to address whether those unlawful searches taint the evidence federal authorities later acquired pursuant to the consent the defendant's then-wife provided.

The parties do appear to ask us to resolve this issue on the basis of the record before us, notwithstanding its undeveloped state. But because the issue is so fact dependent, we vacate and remand so that the District Court may hold an evidentiary hearing to determine whether the Puerto Rico police's prior searches so tainted the

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evidence the federal agents later obtained pursuant to the consent that the defendant's then-wife supplied that such evidence must be suppressed. If the District Court determines suppression is required, then the District Court also must determine what specific evidence in fact must be suppressed in consequence.


On February 4, 2011, Agent Noel Ramos-Ortíz, an officer in the Carolina Sexual Crimes Division of the Puerto Rico State Police, filed an affidavit with the Puerto Rico Court of First Instance. Agent Ramos filed the affidavit in support of his request for a warrant to search the apartment of Hilton Cordero-Rosario, the defendant in this case.[1]

The affidavit explained that Cordero was under investigation for having committed lewd acts with a minor, in violation of Puerto Rico law. See P.R. Laws Ann. tit. 33, § 4772(a). A Puerto Rico magistrate judge issued the warrant the same day Agent Ramos submitted it, and Agent Ramos then conducted a search of Cordero's apartment later that day. During that search, the police seized a desktop computer and other electronic equipment.

Three weeks later, on February 25, 2011, and in connection with the same criminal investigation, Agent Ramos filed a second affidavit with the Court of First Instance. Agent Ramos again sought a warrant to search Cordero's apartment. A magistrate judge issued a warrant following this second request, and a search of Cordero's apartment ensued on February 26, 2011. The police conducted this second search in the presence of Cordero's then-wife, D.M.C., but not Cordero himself. The police seized various electronic devices not taken in the first search.

Following these searches, Agent Ramos's team determined that the seized materials, including the desktop computer obtained on February 4, contained images believed to be child pornography. Puerto Rico police informed federal law enforcement officials in Puerto Rico of what they had found.[2]

More than a month later, on April 11, 2011, after the Puerto Rico police had informed federal authorities about the images the Puerto Rico police had found, federal agents approached D.M.C. and apparently asked for her assistance in their investigation of her husband for federal child pornography violations. D.M.C. consented to the federal agents' examination of the family's desktop computer, which at that time was apparently still in the custody of the Puerto Rico police. D.M.C. also agreed to turn over other digital media in the home. Cordero was not present during this meeting between federal agents and his then-wife.

On the basis of the consent D.M.C. gave, federal law enforcement agents on May 2, 2011, performed their own forensic examination of the desktop computer. That examination revealed a number of sexually explicit photographs of a minor female. The minor depicted in these photographs

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was not the same minor female whose complaint of lewd acts had precipitated the initial searches of Cordero's apartment The government conducted interviews with the minor who appeared in these images on May 12, 2011.

Then, on December 7, 2011, a federal grand jury in Puerto Rico indicted the defendant for twenty counts of production of child pornography (in violation of 18 U.S.C. § 2251(a)) and two counts of possession of child pornography (in violation of 18 U.S.C. § 2252(a)(4)(B)). Cordero entered a plea of not guilty on December 22, 2011. The grand jury then issued a superseding indictment that alleged, in substance, the same charges.

Cordero did not immediately enter a plea under the superseding indictment. Instead, on June 25, 2012, Cordero filed a motion to suppress. In that motion, Cordero sought to suppress " all the evidence that was obtained as a result of the execution of both" the February 4 and February 25 search warrants, as well as the evidence that the federal agents had obtained pursuant to D.M.C.'s consent to the examination of the desktop computer and the other materials that she turned over to the federal agents.

According to Cordero's motion, the warrant affidavits filed with the Puerto Rico Court of First Instance failed to establish the probable cause necessary to support the two searches of his apartment on February 4 and February 26, respectively. Cordero also argued that these unlawful searches -- by leading to the discovery of the images that initiated the federal child pornography investigation -- required that all the evidence that federal law enforcement later obtained be suppressed as " fruit of the poisonous tree."

The District Court denied Cordero's motion to suppress. In doing so, the District Court did not wait for the government's response to Cordero's motion. Nor did the District Court hold an evidentiary hearing, as Cordero had requested. Instead, the District Court based its suppression ruling solely on the February 4 and February 25 affidavits. According to the District Court:

Agent Ramos-Ortiz's application for search warrant state she is investigating a complaint regarding lewd and lascivious acts committed against minor P.C.M., who herself provided the information about the pornographic material in the defendant's computer. While possession of pornography in and of itself, may not be a state or federal crime, here, the possession pertains to an investigation of a sexual crime against a minor. The fact that the application for a search warrant is not drafted as elaborately as an FBI application does not do away with probable cause.

Cordero and the government then reached a plea agreement. Cordero pled guilty only to one of the two possession counts. That count was based on the material found on the hard drive of the desktop computer that the Puerto Rico police had seized on February 4 and that the federal authorities had later examined (with D.M.C.'s consent) after their April 11 interview with D.M.C. In return for Cordero's plea, the government agreed to allow Cordero to reserve the right to appeal the District Court's decision denying the motion to suppress.

Cordero now invokes that right. He contends that the District Court erred not only in denying his suppression motion outright, but also in not holding an ...

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