United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the motion (1) to suppress fruits of the search of the cell phones, (2) to suppress the wiretap, and (3) for leave to file further motions filed by Defendant Sofia Martinez. (ECF No. 43).
On October 30, 2013, the grand jury returned an indictment charging the Defendant Sofia Martinez and co-defendant Angel Arceo-Sevilla with conspiracy to bring in illegal aliens for financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and three counts of bringing in illegal aliens for financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2.
MOTION TO SUPPRESS SEARCH OF THE CELL PHONES
A. Background facts
In 2011, Homeland Security Investigation ("HSI") received information from a source that Defendant Sofia Martinez was coordinating the smuggling of illegal aliens from Mexico into the United States. The source of information said that Defendant Martinez would hire drivers to pick up illegal aliens on the north side and facilitate the aliens into vehicles or vessels on the south side.
Department of Homeland Security Special Agent Aaron Mulkins initiated an investigation of the Defendant which included interviewing individuals apprehended attempting to enter the United States illegally. Over the next six to nine months, a number of individuals identified Defendant Martinez as involved in alien smuggling, including a material witness from a maritime smuggling event, the driver of a load vehicle, an individual involved in alien smuggling in east county, and an another individual who identified Defendant's photos as the person involved in the smuggling offense.
Based upon this information, Agent Mulkins put a record in the TECS system so he could know when Defendant crossed the border. TECS is a system used at the international border to track people who come into and go out of the United States. At some point, Agent Mulkins changed the TECS look out to stop the Defendant and to notify him when she crossed the border into the United States.
On February 20, 2012 at about 2 a.m., agents arrested several illegal aliens on the beach in Carlsbad, California, along with two boat operators who were fleeing to Mexico in a boat. A cellular phone seized from one of the boat operators listed "Sofia" in the contact list. Phone records from the number listed to "Sofia" showed that the number had approximately 180 calls with phone numbers tied to known alien smugglers. Records showed that Defendant entered into the United States from Mexico at 1:31 a.m. on this same day in a Chevy Suburban with another individual who had previously been arrested for alien smuggling. Agents believed that Defendant entered into the United States to pick up the aliens and continued to investigate Defendant.
On March 28, 2012, Defendant made application for entry into the United States at the San Ysidro Port of Entry. Defendant was sent to secondary inspection based on a computer generated referral from the TECS system. Agent Mulkins was notified because he had put a look out in TECS. Agent Mulkins went to the San Ysidro Port of Entry and retrieved five cell phones and an Apple Touch out of Defendant's vehicle. Agent Mulkins downloaded the phones at the Port of Entry using a Cellebrite system. The Cellebrite system retrieves the phone numbers of phone calls to the phone and phone calls made from the phone, as well as text messages, photos and videos. HSI agents conducted the search of four of the five phones using the Cellebrite system downloading the phone numbers and text messages into and out of the phones. After the search was completed, Defendant was released and her phones were returned.
Agents continued to investigate Defendant utilizing the information obtained from Defendant's phones.
B. Contentions of parties
Defendant contends that the search of her phones at the border on March 28, 2012 was an illegal search and that all information derived from the search must be suppressed. Defendant contends that reasonable suspicion did not exist to conduct the extensive forensic search of the five cell phones. Defendant asserts that all of the information that formed the basis for suspicion that she was involved in criminal activity came from unreliable sources and that the Government has failed to prove timely and reliable information to sustain a reasonable suspicion to search her phones.
The Government contends that the search of the Defendant's cell phones at the Port of Entry on March 28, 2012 was a permissible border search and did not require reasonable suspicion. The Government contends that the Cellebrite system gathers only a small fraction of the information that can be gathered through a forensic analysis and that the Cellebrite system at the Port of Entry is not an intrusive forensic exam which requires a particularized suspicion. The Government further contends that the agents had reasonable suspicion at the time of the border ...