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United States v. Navarro

United States District Court, D. Arizona

July 12, 2019

United States of America, Plaintiff,
v.
Eduardo Soloman Navarro, Defendant.

          REPORT AND RECOMMENDATION

          ERIC J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is the defendant Eduardo Navarro's Motion to Suppress Evidence seized from his cell phone. [Doc. 76] The defendant alleges the following grounds for suppression of this evidence: (1) there was an unreasonable delay between the seizure of the phone and obtaining the search warrant; (2) the search warrant lacks probable cause because the affidavit refers to unnamed Border Patrol Agents, which is akin to using anonymous sources; (3) defects in the search warrant's return - i.e., failing to identify each and every item seized from the phone and listing an inaccurate date of the search of the phone; (4) the manner in which the warrant was executed, that is, extracting all information from the phone and not merely the items the warrant authorized to be seized; (5) the search warrant's overbreadth and failure to state with particularity the items to be seized; and (6) the warrant would have lacked probable cause if the affidavit had included certain information about the defendant's background.

         The Court concludes that all of the defendant's arguments are without merit except one. The Court concludes that there was an unreasonable delay between the seizure of the cell phone and obtaining the search warrant. As such, the Court recommends that the District Court grant the motion to suppress evidence seized from the phone on this ground.

         FACTUAL BACKGROUND

         A. The Criminal Charges

         On September 23, 2018, the defendant was arrested and charged with alien smuggling in violation of 8 U.S.C. § 1324. A criminal complaint sets forth the defendant's alleged involvement in the offense.

On or about September 23, 2018, at or near Sasabe, in the District of Arizona, United States Border Patrol Agents (BPA) observed a white Mercedes sedan that appeared to have multiple subjects in the backseat of the vehicle, after being observed going southbound with no occupants in the backseat approximately 30 minutes prior. The vehicle pulled over to the side of the road on its own before the agent pulled behind and activated his emergency equipment. The Mercedes executed a sharp U-Turn, almost hitting another car. The agent caught the Mercedes several miles later and identified himself as a Border Patrol Agent. Alyssa Mauret Wongseng was identified as the driver of the vehicle. Edwardo Soloman Navarro was identified as the front seat passenger.
Agents located foot tracks heading north from where a bag that appeared to have fallen from the car was located. A group was apprehended nearby and the individuals confirmed that they were in the Mercedes. The individuals were later identified as Fidel Enrique Gomez-Guerra, Jacobo Martinez-Severiano, Omar Valenzuela-Valdez, Isaac Diaz-Perez and Jose Enrique Mateo-Santos. It was determined that they all entered into the United States illegally.
In a post-Miranda statement, Wongseng said that she and Navarro were going to Sasabe, AZ, to pick up someone and they would get a couple hundred for it. She stated that when they arrived near Sasabe, AZ, Navarro told her where to stop and she honked the horn. She stated that five people came out of the bushes and ran to her vehicle. Wongseng stated that she ‘realized that the subjects were undocumented and that there was no turning back.'

(Doc. 1.)

         On October 17, 2018, a federal grand jury sitting in Tucson, Arizona returned a six-count indictment charging him with the following offenses: (1) one count of conspiracy to transport illegal aliens for profit, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I); and (2) five counts of transportation of illegal aliens for profit, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). (Doc. 33.)

         B. The Search Warrant for the Cell Phone at Issue

         On January 16, 2019, Magistrate Judge Lynnette Kimmins signed a Search Warrant authorizing law enforcement officers to search an “Apple iPhone 7, IMEI 353075091908363" and seize the contents of the phone by or before January 30, 2019. Attachment B to the Search Warrant, titled “DESCRIPTION OF ITEMS TO BE SEARCHED FOR, ” provides as follows:

1. Data and/or digital files stored on or accessed through Target Phone 1 (as described in Attachment A) relating to alien smuggling, wherever it may be stored or found, specifically including:
a. lists of customers and related identifying information;
b. types, amounts of money obtained, received, exchanged, deposited, withdrawn, or delivered as well as dates, places, exchange rates, and amounts of specific transactions;
c. any information related to sources of money (including names, addresses, phone numbers, or any other identifying information);
d. all bank records, checks, credit card bills, account information, and other financial records.
2. Electronic correspondence stored on or accessed through the Target Phone relating to alien smuggling, to include emails and attached files, text messages, and instant messaging logs.
3. Information related to incoming calls, outgoing calls, missed calls, and duration of calls stored on or accessed through the Target Phone.
4. Contact lists stored on or accessed through the Target Phone, to include telephone and email contact names, telephone numbers, addresses, and email addresses.
5. Evidence of persons who used, owned, or controlled the Target Phone.
6. Logs, registry entries, configuration files, saved usernames and passwords, documents, browsing history, user profiles, email, email contacts, instant messaging logs, photographs, electronic correspondence, and telephone contact lists stored on or accessed through the Target Phone.

(Ex. 21.)

         In support of the search warrant application, Border Patrol Agent Cody Snyder submitted an affidavit which set forth the following relevant facts:

On September 23, 2018, Border Patrol Agents observed a White Mercedes sedan bearing Arizona license plate ‘CYF0939' travel southbound on State Route (SR) 286 near Sasabe, AZ without occupants in the backseats, and then return traveling northbound approximately 23 minutes later carrying occupants in the backseat.
Border Patrol Agents then observed the Mercedes travel eastbound on Arivaca Road near mile marker 6 at a high rate of speed. A Border Patrol Agent responded and followed the vehicle. The agent had to travel at a speed well above the posted speed limit to catch up to the Mercedes. As the agent caught up to the Mercedes, the driver of the Mercedes pulled over on their own at mile marker 16.
The Border Patrol Agent activated his emergency equipment, to include lights and siren. Upon the activation of the Agent's emergency equipment, the driver of the Mercedes quickly made a “U Turn, ” traveling westbound on Arivaca Road, disregarding the Agent's emergency equipment. In making the “U Turn, ” the driver of the Mercedes nearly hit a vehicle traveling eastbound on Arivaca Road.
Once the Agent was able to safely pull back onto Arivaca Road and follow the Mercedes, the Agent regained visual of the vehicle with its break (sic) lights activated. The Mercedes appeared to have fully stopped at mile marker 15. The Agent then observed the Mercedes pull back on to Arivaca Road, and continue eastbound. As the Agent passed mile marker 15 where the Mercedes had come to a stop, the Agent observed a bag on the north side of the road and movement consistent with what the Agent perceived to be persons fleeing into the desert. The Agent also noted that the bag at mile marker 15 had not previously been there moments before when he had passed that same spot.
The Agent still had all his emergency equipment activated while pursuing the Mercedes, and the Mercedes finally yielded at mile marker 14. Agents removed the driver, identified as Alyssa WONGSENG (DOB: xx/xx /1992), and passenger, identified as Edwardo NAVARRO (DOB: xx/xx/2000) from the vehicle. The Agent then informed other agents that he had observed the bag and perceived movement of fleeing people into the desert at mile marker 15.
Agents responded to mile marker 15, and subsequently tracked and apprehended five (5) illegal immigrants. The illegal immigrants subsequently admitted to being passengers in the white Mercedes sedan[.] WONGSENG and NAVARRO were placed under arrest for 8 USC 1324(a)(1)(A)(ii). All subjects and property were transported to the Tucson Border Patrol Station for processing.
Border Patrol seized one phone from WONGSENG's personal possessions, and one phone from the center consul [sic] of the Mercedes, including an Apple iPhone A1778 Black 7 (“Target Phone 1"), and an Apple iPhone X (10) Black.
At the Tucson Station WONGSENG and NAVARRO were read their Miranda Rights.
WONGSENG acknowledged her Miranda Rights and agreed to answer questions without the presence of an attorney. WONGSENG stated that she was talking to NAVARRO about financial concerns, and NAVARRO stated his brother could help them out with some money. WONGSENG stated that she knew NAVARRO's brother was into selling drugs and or transporting drugs.
WONGSENG stated that NAVARRO called his brother on the cellphone, and inquired what they could do to earn some money. WONGSENG stated she did not want to know the details, but was willing to let NAVARRO borrow her car to do whatever his brother had asked him to do. WONGSENG stated that once she realized NAVARRO did not have any identification on him, she volunteered to drive.
WONGSENG stated she drove to Sasabe, AZ to pick someone up, and that NAVARRO was going to receive a couple hundred dollars. WONGSENG stated she drove to mile marker 3 on SR 286, and NAVARRO instructed her to stop. WONGSENG stated she honked the horn of the Mercedes and approximately four (4) people exited the brush and entered the Mercedes sedan. WONGSENG stated that she was told to drive to mile marker 13 on SR 286 and drop the individuals off that she was transporting, but that she drove back [to] the mile marker when she noticed that she was being followed. WONGSENG ...

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