United States v. Castro-Valenzuela

          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 71^st Avenue, it began a series of quick counter-surveillance turns through the neighborhood before driving into a garage of a residence located on 74^th 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 ...