United States District Court, D. Arizona
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 ...