United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins United States Magistrate Judge
Pending
before the Court is Defendant Arnoldo Castro-Valenzuela's
Motion to Suppress Cell Phone Location Data.[1] (Doc. 250.) The
government filed a response and Defendant Castro-Valenzuela
replied. (Docs. 259, 264.) This matter came before the Court
for an evidentiary hearing and a report and recommendation as
a result of a referral, pursuant to LRCrim 57.6. An
evidentiary hearing was held on August 24, 2018. (Doc. 268.)
Having now considered the matter, the Magistrate Judge
recommends that the District Court, after its independent
review, deny Defendant's motion to suppress.
I.
FACTUAL BACKGROUND
Defendant
Castro-Valenzuela was indicted on June 28, 2017, with
Conspiracy to Possess with Intent to Distribute Cocaine,
Possession with Intent to Distribute Cocaine, Conspiracy to
Import Cocaine, and Importation of Cocaine, in violation of
21 U.S.C. Sections 841, 846, 952, 960 and 963; as well as for
Using, Carrying or Possessing a Firearm During and in
Relation to a Drug Trafficking Crime, in violation of 18
U.S.C. Section 924(c), and Alien in Possession of a Firearm,
in violation of 18 U.S.C. Section 922(g)(5)(A). (Doc. 23.) A
superseding indictment was filed as to all Defendants on
September 6, 2017, adding counts of Conspiracy to Commit Bulk
Cash Smuggling and Conspiracy to Commit International Money
Laundering in violation of 31 U.S.C. Section 5332, 18 U.S.C.
Sections 371 and 1956.[2] (Doc. 44.) Trial is currently scheduled
for January 2, 2019, for Defendants Castro-Valenzuela and
Jimenez-Rivera. (Doc. 283.)
On
March 7, 2017, Magistrate Judge D. Thomas Ferraro found
probable cause for agents to obtain physical location data
for a cell phone number associated with Defendant
Castro-Valenzuela to procure “evidence of violations of
21 U.S.C. Sections 846 and 841, and 18 U.S.C. Sections 1956
and 1957, among other offenses, as well as to [identify]
individuals who are engaged in the commission of these
offenses.” (Ex. 1.)[3] On April 6, 2017, and again on May 5,
2017, Magistrate Judge Ferraro granted 30-day extensions,
finding probable cause to believe that the cell phone was
being used in furtherance of the enumerated criminal
activity, and that the requested information would continue
to lead to evidence of ongoing criminal activity related to
federal drug and money laundering offenses, in addition to
the identification of individuals involved in the commissions
of those offenses. (Exs. 2, 3.)[4]
The
supporting affidavit was authored by Immigration and Customs
Enforcement (ICE), Homeland Security Investigations (HSI),
Special Agent Zachary Kliniske. He stated that, in December
2016, he received information from a credible source (CS)
with proven reliability that an individual named
“Lizbeth I. Jimenez” was using a Chevrolet Aveo
with a hidden compartment to traffic cocaine into the United
States from Mexico. (Ex. 1 ¶ 3.) The CS further
indicated that Jimenez crosses through the Nogales DeConcini
Port of Entry (POE) and delivers the narcotic-laden vehicle
to Phoenix where an individual named “Arnoldo
Castro” takes possession of the vehicle to unload the
narcotics. (Id.) After the narcotics are unloaded,
the Aveo is returned to Jimenez, who then returns the vehicle
to Mexico, sometimes with bulk U.S. currency now loaded into
the hidden compartment. (Id.) The CS further stated
that there are likely three other drivers/vehicles from
Nogales, Mexico that drive to Phoenix and meet with Castro.
(Id.)
As a
result of the December 2016 tip from the CS, Agent Kliniske
began researching various databases and positively identified
Defendant Lizbeth Imelda Jimenez-Rivera, discovering she had
a 2004 Chevrolet Aveo registered in her and her father's
name. (Ex. 1 ¶¶ 4-5.) Agent Kliniske then reviewed
historical border crossing information on Jimenez-Rivera
driving the Aveo. Agent Kliniske determined that, within an
18-month period, Jimenez-Rivera had crossed the border in the
Aveo at the DeConcini POE SENTRI lane in excess of 50 times.
During all but one of these crossings she was the sole
occupant in the Aveo. (Ex. 1 ¶ 5.) Within a 9-month
period, Jimenez-Rivera made at least 18 trips, entering the
United States on a weekday morning through the SENTRI lane at
the DeConcini POE, spending an average of 7.6 hours in the
United States, and returning to Mexico the same afternoon.
She would then leave the Aveo in Mexico and reenter the
United States by walking through the DeConcini POE pedestrian
lane. (Ex. 1 ¶¶ 5-6.) This crossing pattern was
distinct from Jimenez-Rivera's crossing pattern with
other vehicles registered to her and her father and, based on
Agent Kliniske's training and experience, was indicative
of smuggling narcotics and bulk cash. (Ex. 1 ¶¶
6-8.) Specifically, Agent Kliniske explained in his affidavit
that Jimenez-Rivera's crossing patterns in the Aveo and
overall behaviors were consistent with the modus operandi of
members of drug trafficking organizations (DTO) bringing
narcotics through a POE. When trafficking through a POE, DTO
load cars are often built with high-end compartments and
registered in the load driver's name. The vehicles are
kept and controlled by the DTO and usually only given to the
driver immediately preceding a smuggling move, but having a
load vehicle with an established crossing pattern and
registered in the driver's name lessens suspicion when
crossing the border. (Ex. 1 ¶ 8.)
Agent
Kliniske reviewed Jimenez-Rivera's phone records from a
suspicious crossing in the Aveo on December 7, 2016, where
she crossed into the U.S. through the DeConcini POE at 9:45
a.m., returned to Mexico in the Aveo at 5:05 p.m., and
crossed back into the U.S. via the pedestrian lane 18 minutes
later. (Ex. 1 ¶¶ 9-12.) After crossing into the
U.S., Jimenez-Rivera began texting a Mexican phone number
until she passed through the Border Patrol I-19 checkpoint.
Once past the checkpoint, she immediately began texting a
U.S. telephone number associated with Defendant Castro. Agent
Kliniske's review of the times and numbers for texts and
incoming calls to and from Jimenez-Rivera, Defendant Castro,
and the unknown Mexico phone number led Agent Kliniske to
believe that Jimenez-Rivera was communicating with the Mexico
number and Defendant Castro while she was traveling to
Phoenix with the load vehicle, making the arrangements with
the parties and returning back to Mexico.
Jimenez-Rivera's last communication with Defendant Castro
on that day was about the time you would expect her to be
leaving Phoenix. Jimenez-Rivera's last telephonic
communication to the Mexican telephone number was at the
exact time she was crossing back into the U.S. through the
POE pedestrian lane. (Ex. 1 ¶¶ 15-18.)
On
March 2, 2017, Agent Kliniske learned that Jimenez-Rivera had
driven the Aveo through the POE SENTRI lane at 9:59 a.m. and
had crossed northbound through the I-19 checkpoint 28 minutes
later. (Ex. 1 ¶¶ 19-21.) Agent Kliniske located
Jimenez-Rivera from his I-10 surveillance point and began
following her with air surveillance to Phoenix. (Ex. 1
¶¶ 22-23.) The surveillance team witnessed the Aveo
meet up at an industrial area with a red Crown Victoria,
which agents had previously seen parked in the driveway of
Castro-Valenzuela's residence. (Ex. 1 ¶¶ 24-25,
32.) The driver of the red Crown Victoria, later identified
as Castro-Valenzuela, retrieved a black tool bag from his
vehicle, placed it in the back seat of the Aveo, and switched
vehicles with Jimenez- Rivera. (Ex. 1 ¶¶ 25-28,
31.) Agents observed Castro-Valenzuela drive into a Planet
Fitness parking lot. He moved to the Aveo's passenger
seat and the driver of a black SUV got into the driver's
seat. (Ex. 1 ¶¶ 29-31.) When the Aveo reached a
housing area near South 71st Avenue, it began a
series of quick counter-surveillance turns through the
neighborhood before driving into a garage of a residence
located on 74th Drive. (Ex. 1 ¶¶ 33-34.)
Approximately
one hour and twenty minutes later (sufficient time for
unloading and reloading a hidden compartment), the Aveo
returned to the Planet Fitness parking lot. (Ex. 1
¶¶ 35-36.) The driver of the SUV returned to his
vehicle, while Castro-Valenzuela drove the Aveo east on I-10
until surveillance was lost. (Ex. 1 ¶¶ 36-38.)
Later that day, a license plate reader detected the Aveo
driving eastbound on I-10 near Eloy. Agent Kliniske located
the car, now being driven by Jimenez-Rivera, on I-10 near the
Prince Road Exit, and surveilled her until she drove into
Mexico through the POE. (Ex. 1 ¶¶ 39-41.)
Approximately 15 minutes later, Jimenez-Rivera was recorded
walking into the United States through the pedestrian lane of
the POE. (Ex. 1 ¶ 42.)
On
March 7, 2017, as a result of the above information, Agent
Kliniske applied for, and received, a warrant to obtain
physical location data for Defendant Castro-Valenzuela's
phone. (Ex. 1.) On April 6, 2017, Agent Kliniske obtained an
extension of the original warrant. (Ex. 2.) The affidavit for
the first extension included and incorporated all the
information in the original affidavit. (Compare Ex.
1 with Ex. 2.) In addition, the first extension
affidavit indicated that, within the 30-day time period, the
monitoring of physical location information led to numerous
investigative leads that would not have been obtained but for
the monitoring, and that Defendant Castro-Valenzuela
continued to travel to various suspicious locations that were
still under investigation by HSI as to potential involvement
with the DTO. (Ex. 2 ¶¶ 43-45.) Agent Kliniske went
on to explain that HSI had also initiated physical
surveillance on a number of occasions to include March 9,
2017, when an agent found Defendant Castro-Valenzuela at the
Mesa Motor Vehicle Department and overheard a telephone
conversation in which agents believed Defendant was talking
in code regarding potential narcotic
trafficking.[5] (Ex. 2 ¶¶ 46-49.)
In the
first extension affidavit, Agent Kliniske indicated that
Jimenez-Rivera had not crossed the border in the Aveo since
March 2, 2107. However, based on a detailed analysis of
Jimenez-Rivera's last 2 years of border crossings, he
believed based on his training and experience that she would
be crossing the border again soon in the Aveo and would
communicate with Defendant Castro-Valenzuela in the same
manner as on March 2, 2017, via his monitored cellphone. (Ex.
2 ¶¶ 50-51.)
A
second extension of the warrant was granted by Magistrate
Judge Ferraro on May 5, 2017. (Ex. 3.) The affidavit in
support of the second extension included and incorporated all
the information in the original affidavit and the first
extension affidavit. (Compare Ex. 1 with
Exs. 2, 3.) In addition, the second extension affidavit
indicated that the continued monitoring of Defendant
Castro-Valenzuela's telephone in April of 2017 showed a
different phone number. (Ex. 3 ¶ 50.) In order to verify
that the targeted telephone was still in Defendant
Castro-Valenzuela's possession, HSI agents traveled to
Phoenix and were able to determine that he was in possession
of the target device by physically tracking the pings and
verifying he was at the location of the pings. (Ex. 3 ¶
51.) Thereafter, Agent Kliniske contacted AT&T and
learned that Defendant Castro-Valenzuela had changed his
cellphone number but the International Mobile Subscriber
Identifier (IMSI) number remained the same. (Ex. 3 ¶
52.) Agent Kliniske avowed that, since the first extension,
HSI continued to monitor the movements of Defendant
Castro-Valenzuela and had identified locations of
investigative interest that would not be possible to identify
through traditional physical surveillance. (Ex. 3 ¶ 53.)
Identical
to the first extension affidavit, in the second extension
affidavit, Agent Kliniske indicated that Jimenez-Rivera had
not crossed the border in the Aveo since March 2, 2107. He
continued to believe, based on crossing records and his
training and experience, that she would cross the border
again soon in the Aveo, travel to Phoenix, and communicate
with Defendant Castro-Valenzuela via his monitored cellphone.
(Ex. 3 ¶ 54.) In granting each extension, Magistrate
Judge Ferraro found probable cause to believe that Defendant
Castro-Valenzuela's phone would continue to be used to
facilitate the transportation of narcotics and that he was
using the device in order to facilitate the transportation of
illegal drugs and/or laundering of bulk cash proceeds, and
that monitoring the cellphone location would provide further
evidence of such criminal activity, thereby justifying the
extension. (Exs. 2, 3.)
Information
regarding the CS's background and reliability was
not in Agent Kliniske's affidavits for
the warrant or extensions, but was included in a May 26, 2017
search warrant for various locations:
The CS mentioned in this affidavit has been signed up with
HSI or a partner agency and used as a confidential informant
since 2010. The CS has given HSI agents information in the
past that has proven to be 100% accurate and reliable. In the
past several years, information supplied by the CS has led
to, amongst other things, the seizure of over $250, 000 in
U.S. denomination currency (illicit proceeds), the seizures
of bulk marijuana and bulk methamphetamine, and the arrest of
multiple individuals for felony violations of federal and
state laws. The CS has also supplied information which has
led to multi-jurisdictional investigations involving numerous
federal and state law enforcement agencies. Many of these
investigations are on-going ...