United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matters before the Court are: 1) the motion to suppress fruits of the wiretap, suppress cell site data, order a bill of particulars, and order a discovery cut-off (ECF No. 89) and 2) the motion to sever, suppress statements, and suppress fruits of tracker warrants (ECF No. 120) filed by Defendant Sofia Martinez.
Homeland Security Investigation ("HSI") began investigating this case sometime in 2010 after receiving information from a source indicating that Defendant Sofia Martinez was involved in the smuggling of illegal aliens from Mexico into the United States. Department of Homeland Security Special Agent Aaron Mulkins initiated an investigation which included interviewing individuals apprehended attempting to enter the United States illegally. 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 individual who identified Defendant's photos as the person involved in the smuggling offense. The investigation continued through 2011 and 2012.
On March 12, 2013, the Government requested and received an order allowing interception of calls relating to T-1, which agents identified as a phone used by Defendant Martinez. The affidavit in support of the wiretap application asserted that there was probable cause to believe that Defendant Martinez was using T-1 in connection with the commission of criminal activity, including transportation of illegal aliens, and bringing in illegal aliens for financial gain in violation of federal laws.
On April 16, 2013, the Government requested and received a second wiretap order for T-1 and two other phone lines. The affidavit in support of the wiretap application asserted that there was probable cause to believe that Defendant Martinez was using T-1 in connection with the commission of criminal activity, including transportation of illegal aliens, bringing in illegal aliens for financial gain, and conspiracy to import controlled substances in violation of federal laws.
On May 10, 2013, a panga boat carrying illegal aliens arrived on the beach in La Jolla, California. Agents apprehended fourteen individuals. One individual was prosecuted in another case. A material witness identified the boat driver as "Loreto."
On September 13, 2013, the United States submitted an "Application for Order Authorizing Disclosure of Subscriber and other Information" pursuant to 18 U.S.C. § 2703(c) and (d) to the United States Magistrate Judge. (ECF No. 193-1 at 3-7). The application requested an order to Sprint Nextel, an electronic communications service provider, to disclose "subscriber and other information about a subscriber, including cell site location information from its historical databases" pertaining to an identified target telephone. Id. at 4. The Magistrate Judge found that the Government had set forth "specific and articulable facts showing that there are reasonable grounds to believe that the records and information sought are relevant to a criminal investigation" regarding a violation of 8 U.S.C. § 1324 by the subscriber or other users of the subject telephone. The Magistrate Judge ordered that Nextel Sprint disclose subscriber information for the target telephone, including local and long distance connection records, and cell site and cell sector activations by the subject telephone during the period April 1, 2013 to and including September 9, 2013. The facts described in support of the application included the May 10, 2013 panga boat event which supported the Government's belief that the Defendant was using the target telephone to participate in criminal activity.
On September 25, 2013, the grand jury returned an indictment charging Defendant Sofia Martinez with conspiracy to bring in illegal aliens for financial gain in violation of 18 U.S.C. § 371.
On October 7, 2013, Defendant Martinez was stopped at the Otay Mesa Port of Entry as she attempted to enter the United States. Defendant Martinez was placed under arrest pursuant to an arrest warrant. Defendant Martinez was interviewed that same day. The interview was video-recorded. The video shows that Defendant Martinez was asked for biographical information, that Defendant was advised of her Miranda rights in the English language, and that Defendant confirmed she understood her rights. Defendant Martinez stated that she was willing to talk and confirmed with the agent that she could stop answering questions at any time.
After Defendant Martinez signed the Miranda waiver form, the interview took place in the English language with a few exchanges in the Spanish language. The video shows that Defendant Martinez appeared calm and readily responded to the questions asked. The interview ended after a short time when the Defendant indicated that she no longer wanted to answer questions and that she wanted an attorney.
On October 30, 2013, the grand jury returned a superseding indictment charging Defendant Sofia Martinez and Defendant Angel Arceo-Sevilla with conspiracy to bring in illegal aliens for financial gain in violation of 18 U.S.C. § 371, 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.
On July 21, 2014, Defendant Arceo-Sevilla entered a plea of guilty to all four charges in the superseding indictment. Defendant Arceo-Sevilla admitted as a factual basis for his pleas of guilty that he agreed with Defendant Martinez and others to bring illegal aliens to the United States via the ocean for payment, including a May 9, 2013 panga boat landing in Mission Beach, California; and a May 10, 2013 panga boat landing in La Jolla, California.
On July 22, 2014, this Court entered an order denying the motion to suppress the wiretap evidence filed by Defendant Sofia Martinez. (ECF No. 86). The Court found in part that "each of the affidavits in support of the wiretap applications set forth facts sufficient to establish probable cause that the target telephone was used by Defendant Sofia Martinez to violate federal laws, specifically to illegally smuggle Mexican nationals or individuals from other countries into the United States and that communications about her criminal activity would be intercepted as a result of the wiretap." Id. at 11.
On or about July 29, 2014, Loreto Mesa-Villegas was apprehended on a jet ski after dropping off two illegal aliens near Silver Strand beach. Agents subsequently identified him as the individual named "Loreto" who had driven the panga boat on May 10, 2013.
On August 6, 2014, the grand jury returned a second superseding indictment charging the Defendant Sofia Martinez and Defendant Loreto Mesa-Villegas with conspiracy to bring in illegal aliens for financial gain in violation of 18 U.S.C. § 371, 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.
On September 30, 2014, Defendant Mesa-Villegas entered a plea of guilty to all four charges in the superseding indictment. Defendant Mesa-Villegas admitted as a factual basis for his pleas of guilty that he agreed with Defendant Martinez and other to bring illegal aliens to the United States via the ocean for payment, including a May 9, 2013 panga boat landing in Mission Beach, California; and the May 10, 2013 panga boat landing in La Jolla, California.
Trial is scheduled to begin on November 4, 2014 for Defendant Martinez.
Motion to suppress cell site data
On September 13, 2013, the United States submitted an application to receive "subscriber and other information about a subscriber, including cell site location information from its historical databases" pertaining to an identified target telephone from Sprint Nextel pursuant to 18 U.S.C. § 2703(c) and (d) for the phone that the Government believed Defendant used on May 9 and 10, 2013. An order was signed by the Magistrate Judge. The Government intends to use the cell site data received from Sprint Nextel as evidence at trial to show that Defendant was in the La Jolla, California area at the time of the May 10, 2013 panga boat event.
Defendant moves the Court to suppress the cell site location data on the grounds that the order obtained pursuant to 18 U.S.C. § 2703 (c) and (d) violated her constitutional rights. Defendant contends that 18 U.S.C. § 2703 (d) requires only "reasonable grounds" to believe that the wire or electronic communication information are relevant and material to an ongoing criminal investigation. Defendant asserts that recent opinions by the United States Supreme Court, the Court of Appeals for the Eleventh Circuit, and the Court of Appeals for the Third Circuit require the conclusion that seizure of historical cell site data based upon a showing of relevance violated her Fourth Amendment rights. Defendant asserts that seizure of this information required a warrant based upon probable cause and that the information should be suppressed.
The Government contends that the records were obtained from Sprint Nextel pursuant to a valid application and order under 18 U.S.C. §2703 (c) and (d). The Government contends that the records were generated by Sprint Nextel, stored on Sprint Nextel premises, and subject to Sprint Nextel control. The Government asserts that Defendant has no Fourth Amendment claim to prohibit the production of business records held by third parties. The Government asserts that the recent Supreme Court cases relied upon by the Defendant have no relevance to business records obtained from third parties.
The Stored Communications Act ("the Act"), Pub. L. No. 99-508, 100 Stat. 1848 (1986) (codified as amended at 18 U.S.C. §§ 2701-2711 (2010)), is directed in part to the disclosure of communication information by providers of electronic communications. Section 2703(c) of the Act applies to "[r]ecords concerning electronic communication service" and states in relevant part: "[a] governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of ...