United States v. Bash
| Decision Date | 28 July 2021 |
| Docket Number | 1:20-cr-00238-NE-SKO-1 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. KENNETH BASH, Defendant. |
| Court | U.S. District Court — Eastern District of California |
ORDER DENYING DEFENDANT'S MOTIONS TO SUPPRESS AND TO DISMISS (DOC. NOS. 189, 195)
Presently before the court are defendant Kenneth Bash's motions to suppress evidence and dismiss multiplicitous conspiracy counts. (Doc. Nos. 189, 195.) A hearing on those motions was held on June 24, 2021, at which time the motions were taken under submission for decision. Assistant U.S. Attorney Stephanie Stokman appeared at the hearing on behalf of the United States and W. Scott Quinlan appeared on behalf of defendant. Having reviewed the parties' briefing and heard their arguments, for the reasons set forth below defendant's motions will be denied.
Before and during the pendency of this action, defendant has been incarcerated at Salinas Valley State Prison. (Doc. No. 189 at 3.) On July 27, 2020, a California Department of Corrections and Rehabilitation (“CDCR”) officer observed defendant walking out of his cell with a black iPhone 7 in his hand and seized the cellphone. (Attach. 2, Quinlan Decl Doc. No. 190-2 at 2.) A forensic download of the cellphone was subsequently conducted by a California Highway Patrol (“CHP”) officer assigned to the California Department of Justice, Fresno Regional Office, High Impact Investigation Team. (Id.)
On August 11, 2020, Special Agent Anthony Gonzales from the United States Bureau of Alcohol, Tobacco, Firearms and Explosives submitted an application for a federal warrant authorizing the search of the contents extracted from the cellphone. (Id. at 3; see also Attach. 1 Quinlan Decl., Doc. No. 190-1 (sealed).) In his affidavit in support of his search warrant application, Special Agent Gonzales stated that the forensic download was completed in good faith, he had not reviewed the contents of that download, and no references to those contents were made in his warrant application. (See Attach. 1, Quinlan Decl., Doc. No. 190-1 at 11 n.4 (sealed).) The reviewing magistrate judge signed the search warrant on the same day identifying the that the item to be searched was the black iPhone 7 and authorizing the search of all records on that phone “that include evidence of the commission of the offense described below, contraband, the fruits of crime, and things otherwise criminally possessed and property designed or intended for use in, or which is or has been used as the means of committing, 21 U.S.C. §§ 846, 841 (Conspiracy to Possess with the Intent to Distribute Controlled Substances) and 18 U.S.C. § 1961(1) and § 1962 (RICO conspiracy) . . .” (Attach. 1, Quinlan Decl., Doc. No. 190-1 at 21-26 (sealed).) The USB drive containing the original forensic download of the cellphone was then forwarded to an investigative team and the contents of that download were searched and subsequently used in support of a wiretap application submitted to a judge of the Fresno County Superior Court as part of the overall investigation. (Attach. 2, Quinlan Decl., Doc. No. 190-2 at 3; Doc. No. 189 at 5; see also Attach. 3, Quinlan Decl., Doc. No. 190-3 ().)
On December 10, 2020, the grand jury for the Eastern District of California returned an indictment in this action charging defendant Bash with the following:
(Doc. No. 130 at 1-2, 2-3, 7, 8.) In his pending motions defendant Bash moves to suppress the evidence seized from his cellphone (i.e. the downloaded contents of that phone) and moves to require an election by the government and to dismiss what he contends are the multiplicitous conspiracy counts of the indictment brought against him. (Doc. Nos. 189, 190, 194, 195, 198.) The government has opposed both motions (Doc. Nos. 199, 200), and defendant has replied (Doc. Nos. 201, 208). Defendant also requests the court take judicial notice of two documents in support of his motion to suppress. (Doc. Nos. 203, 204.)
Defendant moves to suppress the forensic download of his cellphone's contents, arguing that law enforcement “had no right to search or seize the contents of that phone without a search warrant.” (Doc. No. 201 at 3.) In other words, defendant claims that the officers should not have downloaded any contents from the phone until a search warrant was issued or, alternatively, “the government, armed with a search warrant to search the cell phone, should have obtained a new forensic download, and searched that untainted download.” (Id. at 7.) Because the forensic download by was completed by a CHP officer before the issuance of the federal search warrant, defendant maintains that the download was tainted and thus any evidence obtained from that original download should be suppressed as fruit of the poisonous tree. (Doc. No. 189 at 6.)
The government first argues that defendant lacks standing to seek suppression of evidence based on an alleged violation of the Fourth Amendment because he has no reasonable expectation of privacy in the cellphone's contents given that defendant was incarcerated in state prison and prohibited from possessing a cellphone due to that status. (Doc. No. 199 at 4.) Alternatively, the government asserts that a valid federal search warrant was in fact issued for the cellphone's contents. As for the CHP officer downloading those contents from the phone before a search warrant was issued, the government argues that “[t]he download of the phone prior to the warrant being sought is inconsequential to the contents of the phone, which remain the same whether downloaded one day or two weeks after the phone was recovered.” (Id. at 6-7.)
A defendant bears the burden of establishing that he had a reasonable expectation of privacy in the place being searched in order to establish standing to challenge a search or seizure under the Fourth Amendment. See United States v Reyes-Bosque, 596 F.3d 1017, 1026 (9th Cir. 2010); United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005); see also Minn. v. Olson, 495 U.S. 91, 95-96 (1990) (...
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