United States v. Bowen

          ORDER

          Honorable Cindy K. Jorgenson United States Magistrate Judge

         On April 16, 2019, Magistrate Judge D. Thomas Ferraro issued a Report and Recommendation (“R&R”) (Doc. 57) in which he recommended that Defendant's Motion to Suppress Text Messages Obtained in Violation of the Fourth Amendment (Doc. 29) be denied in part and granted in part.

         Defendant filed an objection to the R&R on April 30, 2019 (Doc. 62) and the government filed a response (Doc. 73). The government filed an objection to the R&R on April 30, 2019 (Doc. 63) and Defendant filed no response.

         1. Standard of Review

         The Court has reviewed the Motion to Suppress (Doc. 29), the Response (Doc. 41), the Reply (Doc. 43), the R&R (Doc. 57), the Objections (Docs. 62 and 63), and the government's Response (Doc. 73). The R&R summarizes that Defendant seeks suppression of certain text messages seized from his cellular telephone. Defendant argues that the underlying search warrant and/or its execution were overly broad. The magistrate judge recommends this Court deny, in part, and grant, in part, the Motion to Suppress.

         The standard of review that is applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instruction.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”).

         2. Factual and Procedural Background

         Although a full recitation of the facts has been provided in the R&R, the Court will provide a brief summary of the relevant facts. On December 3, 2017, Border Patrol Agent (“BPA”) Matthew Bowen (“BPA Bowen” or “Defendant”) apprehended a suspected undocumented alien (“UDA”) by striking him with the front of his BPA vehicle (the “Incident”). On December 6, 2017, another BPA involved in the Incident, Matthew Jaseph (“BPA Jaseph”), was interviewed by Special Agent Miers, a criminal investigator with the Department of Homeland Security. BPA Jaseph testified that after the Incident, he exchanged text messages with BPA Bowen regarding the Incident and that the “tone” of BPA Bowen's text messages was “angry.” Special Agent Miers interpreted this to mean that BPA Bowen felt frustrated or bothered by the attention that the Incident was receiving from other employees.

         A search warrant for BPA Bowen's cellular telephone was issued in March 2018. That search warrant sought “a search of each device for the following items which pertain in any way to an alleged civil rights violation that occurred on December 3, 2017.” (Doc. 41-1, pg. 19). Affixed to the search warrant is an affidavit drafted by Jerome M. Gage (“SA Gage”), a Special Agent of the United States Customs and Border Protection Office of Professional Responsibility, describing the Incident and BPA Jaseph's exchange of text messages with BPA Bowen after the Incident occurred. That warrant lead to the discovery of troubling text messages sent by the Defendant both before and after the Incident. The messages sent before the Incident indicate Defendant's possible racial animus towards undocumented aliens. See e.g., (Doc. 63) (text message sent by Defendant referring to UDAs as “mindless murdering savages” and “[d]isgusting subhuman shit unworthy of being kindling for a fire.”).

         In February 2019, Defendant filed a Motion to Suppress Text Messages Obtained in Violation of the Fourth Amendment. (Doc. 29). In that Motion, Defendant sought to suppress text messages obtained from Defendant's phone on any date other than December 3, 2017 - the date of the Incident. After a hearing on March 14, 2019, the magistrate judge issued an R&R recommending that the Court grant Defendant's motion to suppress all text messages transmitted before December 3, 2017, but that the Court deny Defendant's request to suppress text messages transmitted on or after December 3, 2017.

         3. Defendant's Objection

         a. Broadness of Search Warrant

         Defendant argues the magistrate judge erred by concluding that the affidavit supporting the search warrant authorized agents to seize text messages sent after December 3, 2017 - the date the alleged civil rights violation occurred. Specifically, Defendant argues that the magistrate judge erroneously concluded that because Defendant exchanged text messages with BPA Jaseph and seemed “angry”, that “it was a fair probability the defendant would have communicated by text message with others about the incident.” (Doc. 57, pg. 9). The Court agrees with the magistrate judge's conclusion that based upon Defendant's exchange of text messages with BPA Jaseph on the day of the Incident and BPA Jaseph's interpretation of the text messages as “angry, ” there was a fair probability that the Defendant would have communicated by text messages with other about the Incident.

         In addition to BPA Jaseph and the Defendant, BPA Khalil Garcia also responded to the scene and witnessed all or part of the Incident. It is not unreasonable to presume that since the Defendant exchanged text messages with BPA Jaseph and discussed the Incident with him he also likely exchanged text messages with BPA Garcia discussing the Incident since BPA Garcia was also present. Furthermore, BPA Jaseph testified that his text messages with the Defendant on the day of the Incident consisted of the Defendant stating “that someone from the station had reported he (BPA Bowen) ran Lopez-Aguilar over, but that BPA Bowen described the vehicle strike in the text message as merely ‘tapping' [UDA] with the Subject Kilo Unit just prior to his arrest.” (Doc. 57, pg. 5). If the Defendant was aware that fellow BPAs or other ...