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United States v. Rojas-Reyes

United States District Court, S.D. Indiana, Indianapolis Division

July 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RAFAEL ROJAS-REYES, HECTOR SAUL CASTRO-AGUIRRE a/k/a CHAPITO a/k/a CHAPO, JOHN RAMIREZ-PRADO, and JOSE MANUEL CARRILLO-TREMILLO a/k/a MECHE, Defendants.

          ORDER DENYING DEFENDANT ROJAS-REYES' MOTION TO SUPPRESS

          TANYA WALTON PRATT UNITED STATES DISTRICT COURT.

         This 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.

         I. FINDINGS OF FACT AND CONCLUSION OF LAW

         In his 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 argues,

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.

         The 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.

         Responding 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.

         Almost 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.

         Despite 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.

         At the 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).

         The 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 Cir. 2017).[1]

         Alternatively, 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.

         The 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 ...


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