United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING DEFENDANT ROJAS-REYES' MOTION TO
WALTON PRATT UNITED STATES DISTRICT COURT.
matter is before the Court on a Motion to Suppress Cell Site
Records filed by Defendant Rafael Rojas-Reyes
(“Rojas-Reyes”) (Filing No. 579).
Rojas-Reyes is charged with conspiracy to distribute
controlled substances, money laundering, distribution and
possession of controlled substances, and continuing criminal
enterprise. He asks the Court to conduct a hearing on his
Motion and to suppress the cellular site records for
telephone numbers 317-832-8595 and 317-935-0772. On July 16,
2018, Defendant Hector Saul Castro-Aguirre filed a Motion to
Join Defendant Rojas-Reyes' Motion to Suppress Cell Site
Record (Filing No. 603). Castro-Aguirre's
request to join is granted. On July 17,
2018, Defendant Jose Carrillo-Tremillo filed a Motion to
Suppress Cell Site Records (Filing No. 609), wherein
he joins in Rojas-Reyes' motion to suppress. For the
reasons stated below, Rojas-Reyes and Carillo-Tremillo's
Motions to Suppress are denied.
FINDINGS OF FACT AND CONCLUSION OF LAW
memorandum in support of his Motion, Rojas-Reyes explains
that the Government obtained cellular site records for his
telephone numbers pursuant to 18 U.S.C. §§
2703(c)(1)(B) and 2703(d), commonly referred to as the Stored
Communications Act, and the Government intends to use this
cellular site location information at trial. Rojas-Reyes
The United States Supreme Court in Carpenter v. United
States, 2018 U.S. Lexis 3844(2018) [sic] decided on June
22, 2018 declared that the Government's use of the Stored
Communications Act, 18 U.S.C. 2703, to obtain cell site
location information was a search and as such required that
the Government comply with the Fourth Amendment to the United
States Constitution. Compliance with the Fourth Amendment
requires that absent an exception or exigent circumstances
the government is required to obtain a probable cause warrant
in order to obtain cell site location information. In the
instant case the Government used the Stored Communications
Act to obtain cell site location information for telephone
numbers 317-832-8595 and 317-935-0772 used by Rojas-Reyes.
The government did not obtain a warrant as required by the
Fourth Amendment. The pertinent facts in the instant case are
virtually identical to the facts in Carpenter. The
cell site location information for cell phone numbers
317-832-8595 and 317-935-07712 [sic] was obtained in
violation of the defendant's Fourth Amendment right to be
free from unreasonable search and seizure.
(Filing No. 580 at 2.) Rojas-Reyes argues that based
on these facts and the change in law, the cellular site
records for his telephone numbers should be suppressed.
Government accurately responds that Rojas-Reyes is not
entitled to a hearing on his Motion to Suppress because a
hearing is not required unless the movant demonstrates a
significant factual dispute that must be resolved. United
States v. Sophie, 900 F.2d 1064, 1071 (7th Cir. 1990);
see also United States v. Moreland, 703 F.3d 976,
981-82 (7th Cir. 2012) (defendants' request for
evidentiary hearing “properly refused because they were
unable to specify any assertion in the government's
affidavits that they could contest with evidence”).
There are no factual disputes to be resolved regarding the
Motion to Suppress, so no evidentiary hearing is necessary.
to the merits of the Motion to Suppress, the Government
contends that it obtained cellular site records for two
telephone numbers used by Rojas-Reyes. The evidence was
obtained pursuant to the Stored Communications Act, which
allows for the discovery of these records when the Government
“offers specific and articulable facts showing that
there are reasonable grounds to believe that . . . the
records or other information sought are relevant and material
to an ongoing criminal investigation.” 18 U.S.C. §
2703(d). After the Government met this standard, the
Magistrate Judge signed orders authorizing the Government to
obtain the cellular site records. The Government's
applications and the Magistrate Judge's Orders were
issued in July 2016.
two years later, the United States Supreme Court ruled that
the Government may not use the Stored Communications Act to
obtain cellular site records because such conduct constitutes
a “search, ” implicating the Fourth Amendment and
its probable cause standard. United States v.
Carpenter, 138 S.Ct. 2206, 2221 (2018). The Supreme
Court “conclude[d] that the Government must generally
obtain a warrant supported by probable cause before acquiring
such records.” Id. The Supreme Court noted
that “warrantless searches are typically unreasonable,
” and it also pointed out the difference in the
standards for a warrant supported by probable cause and an
order issued under the Stored Communications Act, the latter
requiring a much lower standard. Id. In reaching its
decision, the Supreme Court reversed the lower court's
holding that individuals do not possess a reasonable
expectation of privacy in cellular site location data.
Id. at 2213.
this new direction from the Supreme Court, the Government
argues that suppression of the cellular site records is not
an appropriate remedy in this case. The Fourth
Amendment's exclusionary rule does not apply when law
enforcement officers act with the objectively reasonable
belief that their conduct did not violate the Fourth
Amendment. United States v. Leon, 468 U.S. 897,
918-19 (1984). The Government asserts that, where law
enforcement officers act in good faith, courts should not
suppress evidence obtained from a Fourth Amendment violation.
Id. at 918-21.
time that it applied for and secured orders from the
Magistrate Judge to obtain the cellular site records, the
existing legal authority in the Seventh Circuit suggested the
Stored Communications Act allowed the Government to obtain
cellular site records in criminal investigations. The
Government argues, although the Seventh Circuit did not
explicitly determine whether cellular site records implicate
the Fourth Amendment, in 2014 the court indicated in
dicta that it had “not found any federal appellate
decision accepting [the] premise that obtaining cell-site
data from telecommunications companies . . . raises a concern
under the Fourth Amendment.” United States v.
Thousand, 558 Fed.Appx. 666, 670 (7th Cir. 2014). The
Government also points to a 2015 case from the Northern
District of Illinois, wherein the court determined obtaining
cellular site evidence under the Stored Communications Act
was permissible. See United States v. Lang, 78
F.Supp.3d 830, 833-36 (N.D. Ill. 2015).
Government argues the cellular site records should not be
suppressed because the good faith doctrine prevents the
exclusionary rule from applying to suppress evidence obtained
by an officer acting in objectively reasonable reliance on a
statute that is subsequently declared unconstitutional.
Illinois v. Krull, 480 U.S. 340, 349-53 (1987). To
bolster this argument, the Government points out that other
circuit courts of appeal have held that the good faith
exception to the exclusionary rule applies when the
Government used an order under the Stored Communications Act
to obtain cellular site records. See Davis v. United
States, 785 F.3d 498, 518 n.20 (11th Cir. 2015);
United States v. Pembrook, 876 F.3d 812, 823 (6th
the Government asserts that the § 2703 applications
submitted to obtain the cellular site records would have
supported a finding of probable cause. It argues that
probable cause existed to believe that Rojas-Reyes used both
telephone numbers to engage in criminal activity because he
used both telephones to facilitate controlled purchases of
methamphetamine. (Filing No. 592-1 at 2-4;
Filing No. 592-3 at 2-6); see United States v.
Dumes, 313 F.3d 372, 379- 80 (7th Cir. 2002) (use of
cellular telephone in conjunction with controlled purchases
of drugs generates probable cause to support application for
wire surveillance over telephone). Because the factual
evidence set forth in the § 2703 applications supports a
finding of probable cause, any error with obtaining
authorization under the Stored Communications Act does not
affect the substantive legal rights of Rojas-Reyes.
Government notes that it has recently applied for and
obtained search warrants for the same cellular site records
that it seeks to introduce at trial (see Filing No.
592-5; Filing No. 592-6; Filing ...