United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SUPPRESS
WILLIAM ALSUP, District Judge.
In this prosecution under RICO, VICAR, and other penal statutes, defendants have filed separate motions to suppress (1) evidence from the warrantless searches of cell phones; (2) evidence seized from the search of a defendant and his residence; (3) evidence from the seizure and search of a defendant and a car; and (4) an identification from a roadside cold show. Furthermore, one defendant has requested evidentiary hearings on two of his motions. To the extent stated, the motions are GRANTED IN PART AND DENIED IN PART.
The background of this action is set forth in prior orders ( see, e.g., Dkt. Nos. 72, 87). In brief, this is a non-capital criminal gang prosecution alleging seventeen counts against eight defendants. According to the indictment, nearly all defendants are connected to the Varrio South Park gang, a Norteño group affiliated with the prison gang Nuestra Familia. Four defendants - Lucio Lerenzo Mendoza, Kalin Carell, Andrew Hill-Piccola, and Edmund Deshawn Deneiliom - have already pled guilty. As to the four remaining defendants, here are the pertinent facts.
1. DEFENDANT SAMUEL TEWOLDE.
On March 12, 2012, Santa Rosa police officers approached a group of men at an intersection, including defendant Samuel Tewolde, after receiving an anonymous call about possible drug sales there. When the officers approached the intersection, the group dispersed, but one of the officers recognized Tewolde from a police investigation the week before.
Knowing that Tewolde was on parole at the time, the officers stopped him in a green Honda, searched the Honda to find keys to another car, and found crack cocaine in the other car. The police then arrested Tewolde that day, later seizing and searching his cell phone. On March 19, 2012, the police searched his cell phone again. Another eight months passed before the police searched his cell phone on November 13, 2012, this time as part of an investigation into defendant Cesar Castellano's alleged crime of attempted murder. There was no warrant for any of these three cell-phone searches.
2. DEFENDANT CESAR CASTELLANOS.
On the night of October 9, 2012, Castellanos fought with "Victim 1" outside of a bar in Santa Rosa. Victim 1 was a known member of the Vario Santa Rosa Norte group, another Norteño gang. After the fight, Victim 1 left with two friends in a Honda Accord, and while they were stopped at a traffic light, Castellanos allegedly shot at the Honda Accord from an adjacent SUV, using a semi-automatic pistol wrapped in a black bandana. That SUV was reportedly driven by another individual, and carried a front-seat passenger as well as a potential fourth person in addition to Castellanos.
On December 11, 2012, Santa Rosa police officers obtained a state search warrant for Castellanos and his residence. Among other items, such as handguns, digital cameras, and electronic information stored within computers, the warrant authorized the search of "[a]ny cellular telephone devices and any information, contacts, photographs, text messages, images, videos or other data stored within the devices" (Wolf Exh. A at VSP-0004252).
Two days later, the police arrested Castellanos, at which point they searched him and took his iPhone. The police also executed a search of his residence later that day, seizing two more cell phones, a 9 mm Glock handgun, gun ammunition, gang paraphernalia, marijuana, and other items. The record does not indicate whether the police then searched any of the cell phones taken from Castellanos or his residence.
3. DEFENDANTS DAVID ANDREW MARTINEZ AND RUBEN ALEJANDRO QUIROZ.
At 11:48 PM on August 19, 2013, radio-dispatched descriptions of two men suspected of an armed robbery and shooting were broadcast. Specifically, the victims of the alleged robbery had described the suspect vehicle as a red Dodge Neon occupied by two suspects. The dispatch also reported that the suspects were "a heavyset Hispanic male wearing all black clothing, and a white male wearing a black sweater who was armed with a gun" (Taylor Exh. 1 at VSP-0000241). The dispatch further advised that the robbery had taken place at Occidental Road and Irwin Lane in Santa Rosa, though the victims later said that the robbery happened in a shopping center near Occidental and Irwin.
Shortly thereafter at 11:56 PM, a sheriff's deputy saw a red Dodge Neon with two occupants at River Road and Fulton Road in Santa Rosa, later stopping that vehicle at the West Steele Lane off-ramp on southbound Highway 101. There was no warrant for this stop. Then, at gunpoint, the deputy detained the vehicle's two occupants - defendants David Andrew Martinez and Ruben Alejandro Quiroz - ordered them out of the car, handcuffed them, and conducted a pat-down for weapons. In doing so, the deputy felt a hard object hidden in Martinez's pants that the deputy "suspected may have been a weapon, " but which turned out to be Martinez's iPhone ( id. at VSP-0000252). The deputy also found a glass methamphetamine pipe in Martinez's pants. No items were found and taken from Quiroz, other than cash, but two large trash bags full of marijuana were found inside the car at the scene (Young Exh. B at 10). Police reports later indicated that the trash bags contained approximately ten pounds of marijuana.
At 12:11 AM on August 20, 2013, another police dispatch advised that one of the victims had given a partial license plate identification of the red Dodge Neon allegedly involved in the robbery and shooting - 6JBU. At minimum, the "6JB" identification matched the first three digits of the red Dodge Neon that had been carrying Martinez and Quiroz - 6JBV620 ( id. at 11).
Santa Rosa police officers then brought two of the victims from the scene of the alleged robbery to the West Steele Lane off-ramp, so that they could conduct a roadside cold show of Martinez and Quiroz. At hearing, the government represented (and defense counsel did not dispute) that this cold show took place less than an hour and a half after the initial dispatch. Specifically, one Santa Rosa police officer reported (Taylor Exh. 1 at VSP-0000242):
I advised [the two victims] of the In-Field Line-up Admonishment and they stated that they understood. [The] deputies presented the two suspects one at a time. I asked [one victim] if he recognized either of the suspects. [He] stated that he recognized Quiroz. He stated that he recognized his grey and black sweatshirt, his hair, and his thin mustache. [That victim] stated that he could not positively identify Martinez as one of the two suspects.
The second victim, in contrast, could not positively identify either Martinezor Quiroz. The record also does not indicate what exactly was said as part of "the In-Field Line-up Admonishment" mentioned above.
The officers later took Martinez and Quiroz into custody, although the record is unclear as to the exact time that this occurred. The red Dodge Neon was also towed and inventoried. After Martinez and Quiroz were placed into custody, the police downloaded the contents of Martinez's iPhone and created a cell-phone examination report at around 1:40 AM that day. Again, there was no warrant for this cell-phone search.
Then at 2:45 AM, the police interviewed the victim who had recognized Quiroz during the roadside cold show. During that interview, the victim admitted that about five pounds of marijuana had been taken from him and his friends during the armed robbery. He also affirmed that the robbery was done by two men who fled in a red Dodge Neon, describing one suspect as "chubby, black hair, unknown facial hair, 5'-9'', 220-250 pounds, wearing a black sweatshirt and black sweat pants, " and the other suspect as a man "with light skin, possibly wearing all black..." (Taylor Exh. 2). The victim further commented on his identification from the roadside cold show, stating that "he was 90% sure the subject he identified was the suspect with the gun" in the robbery ( ibid. ).
4. THE PRESENT MOTIONS.
At issue are defendants' separate motions to suppress (1) evidence from the warrantless searches of cell phones; (2) evidence seized from the search of a defendant and his residence; (3) evidence from the seizure and search of a defendant and a car; and (4) an identification from the roadside cold show. One defendant also seeks evidentiary hearings on two of his motions.
The government opposes each of the above motions. Defendants, however, have not submitted any replies, despite a scheduling order permitting them to do so by August 1, 2014 (Dkt. No. 125). With that deadline now passed, and having considered the parties' briefing and oral argument at two separate hearings, this order decides all motions below.
1. THE WARRANTLESS SEARCHES OF CELL PHONES.
Tewolde and Martinez have each filed motions to suppress evidence from the warrantless searches of their cell phones. Although Castellanos likewise moves for the suppression of cell-phone evidence, this order considers Castellanos' objections in the next section, with his motion to ...