United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON PLAINTIFFS' MOTION TO
SUPPRESS EVIDENCE (Docket No. 196)
TIMOTHY S. HILLMAN DISTRICT JUDGE
United States of America (the “Government”)
charged Isaac Cardona (“Defendant”) with
conspiracy to distribute and possess with intent to
distribute 500 grams or more of cocaine and conspiracy to
distribute and possess with intent to distribute one kilogram
or more of heroin. Defendant now moves to suppress evidence
obtained pursuant to a search warrant and an order of this
Court. (Docket No. 196). For the following reasons, the Court
denies the motion.
2015, the U.S. Drug Enforcement Agency (“DEA”)
began investigating suspected drug trafficking and money
laundering activities by David Cruz (“Mr. Cruz”).
As part of that investigation, the DEA tracked communications
between phones associated with Mr. Cruz and other numbers.
One of those numbers, (413) 657-5385 (the “5385
Phone”), was registered in the name of Luis Colon,
although the user identified himself as “Isaac”
in several text messages. On May 16, 2016, the DEA obtained a
search warrant to confirm the identity of the user of the
5385 Phone (the “May Order”). The DEA determined
that Isaac Cardona (“Defendant”), the son of
Rafael Cardona, Sr., one of Mr. Cruz's former drug
associates and a suspected member of the drug trafficking
conspiracy, was at the same location as the phone during
several of the intercepts.
6, 2016, the Court authorized the DEA to intercept the wire
and electronic communications of the number (413) 777-3204
(“TT1”) and the wire communications of the number
(413) 204-3199 (“TT2”) for 30 days (the
“July Order”). The Court extended its
authorization on August 3, 2016, and August 31, 2016.
Pursuant to this authorization, the DEA intercepted phone
calls between the Defendant and Rafael Cardona, Sr., who was
using TT2, about drug trafficking and money laundering
activities. A grand jury issued a Superseding Indictment
charging Defendant and several others with conspiracy to
distribute and possess with intent to distribute 500 grams or
more of cocaine and conspiracy to distribute and possess with
intent to distribute one kilogram or more of heroin. On
August 8, 2019, Defendant moved to suppress evidence gathered
under the May Order and July Order. (Docket No. 196). The
Court held a hearing on this motion on October 2, 2019.
(Docket No. 227).
preliminary matter, the Government contends that Defendant
does not have standing to challenge the May Order. The Fourth
Amendment only protects individuals to the extent they have a
reasonable expectation of privacy against invasion, and a
defendant carries the burden of making a threshold showing of
a reasonable expectation of privacy. See United States v.
Stokes, 829 F.3d 47, 51 (1st Cir. 2016). According to
the Government, because Defendant denies ownership or use of
the 5385 Phone, he cannot show any reasonable expectation of
privacy in its geolocation. The Court rejects this argument.
The Government applied for a search warrant to confirm that
the Defendant used the 5385 Phone. The geolocation data
obtained showed Defendant in the same location as the phone.
Under the circumstances, the Court cannot say he lacked a
reasonable expectation of privacy in the 5385 Phone's
geolocation. See Carpenter v. United States,
138 S.Ct. 2206, 2217 (2018).
contends that the Government failed to establish probable
cause for the May Order. The Court disagrees. The May Order
incorporates the affidavit of Agent John McGrath
(“Agent McGrath”), see Docket No. 220-1
at 2 (“I find that the affidavit(s) . . . establish
probable cause to search and seize the person or property
described above . . . .”), and Agent McGrath's
affidavit establishes probable cause. For example, in his
affidavit, Agent McGrath stated that the 5385 Phone is
registered in the name of Luis Colon. (Docket No. 220-2 at
27). The user of the 5385 Phone, however, identified himself
as “Isaac” in several messages intercepted under
a state court warrant. (Docket No. 220-2 at 26-27). Agent McGrath
testified that, in his experience, “drug dealers often
use cellular phones subscribed to relations, non-existent
individuals, and false names and addresses in order to
conceal the real user of the cellular phone.”
See Docket No. 220-2 at 27; see also United
States v. Hoffman, 832 F.2d 1299, 1306 (1st Cir. 1987)
(noting that a court may consider “the imprimatur of
agents specially trained in the ways of drug
trafficking”). Agent McGrath also noted that 5385 Phone
had exchanged hundreds of calls and/or texts over the span of
a few months with Magaly Colon, Defendant's mother;
Rafael Cardona, Sr., Defendant's father; Mr. Cruz,
subject of the drug trafficking investigation; and Eduardo
Sanchez-Sierra, another suspected member of the drug
trafficking conspiracy. (Docket No. 220-2 at 32). In his
experience, a high “volume of calls . . . and the
fluctuation of use and disuse of a cellphone number are
consistent with how drug dealers use cellular phones to
conduct their drug trafficking business.” See
Docket No. 220-2 at 31-32; see also Hoffman, 832
F.2d at 1306. Given this evidence, the Court determines that
probable cause supports the May Order.
alternatively argues that the district court exceeded its
jurisdictional authority under Federal Rule of Criminal
Procedure 41(b) in issuing the May Order. (Docket No. 197 at
21-22). The Court rejects this contention. Because 18 U.S.C.
§ 2307 contains its own geographical scope,
Defendant's argument relies on the assumption that
geolocation data is not an electronic communication
“affecting interstate commerce” under §
2307. (Docket No. 197 at 21). But the
geolocation data obtained under the May Order was sent
electronically by a service provider who operates in
interstate commerce, so it plainly affects interstate
commerce within the meaning of the Commerce Clause. And in
any event, even if the geolocation data did not fall within
§ 2307 and Rule 41(b) controlled, it would be admissible
under the good faith exception. United States v.
Ackies, 918 F.3d 190, 202-03 (1st Cir. 2019) (finding
that the good faith exception applies even when a court
violates Federal Rule of Criminal Procedure 41(b)); see
also United States v. Leon, 468 U.S. 897, 922-23 (1984).
Defendant has not offered any evidence of unreasonable
reliance or bad faith to render the good faith exception
contends that the July 6, 2016, order authorizing the
interception of wire and electronic communications with TT1
and wire communications with TT2 fails on its face because it
does not adequately describe “the type of communication
subject to seizure.” (Docket No. 197 at 6). To survive
on its face, an “order authorizing or approving the
interception of any wire, oral, or electronic
communication” must specify, inter alia,
“a particular description of the type of communication
sought to be intercepted, and a statement of the particular
offense to which it relates.” 18 U.S.C. §
2518(4)(c). Because “conversations are not like
physical evidence” and their content cannot be known in
advance, courts approach this requirement flexibly in the
context of electronic surveillance. United States v.
Gambale, 610 F.Supp. 1515, 1538 (D. Mass. 1985).
“The key question is whether . . . the warrant's
description of the communications authorized to be
intercepted was sufficiently particular to give clear
direction as to which communications could be lawfully
intercepted and recorded and which could not.”
United States v. Samuels, 436 F.Supp.2d 280, 284 (D.
Court determines that the July Order was “sufficiently
particular to give clear direction as to which communications
could be lawfully intercepted and recorded and which could
not.” See Id. The July Order authorizes the
interception of wire and electronic communications over TT1
and wire communications over TT2 concerning the participants
of the drug trafficking conspiracy, the nature and scope of
the illegal activity, and the nature of the relationships
among the parties. (Docket No. 220-7 at 3-4). And it provides
for a screening system to determine which communications may
be intercepted and recorded and which may not. (Docket No.
220-7 at 8-9). The order admittedly does ...