United States v. Cardona

          ORDER AND MEMORANDUM ON PLAINTIFFS' MOTION TO SUPPRESS EVIDENCE (Docket No. 196)

          TIMOTHY S. HILLMAN DISTRICT JUDGE

         The 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.

         Background

         In 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.

         On July 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).

         Discussion

         1. May Order

         As a 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.^[1] See Carpenter v. United States, 138 S.Ct. 2206, 2217 (2018).

         Defendant 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.^[2] 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.^[3] (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, ^[4] the 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.

         Defendant 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.^[5] (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 inapplicable here.

         2. July Order

         A. Facial Sufficiency

         Defendant 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. Mass. 2006).

         The 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 ...