United States v. Booker
| Citation | 561 F.Supp.3d 924 |
| Decision Date | 17 September 2021 |
| Docket Number | Case No.: 3:18-cr-02611-GPC |
| Parties | UNITED STATES of America, Plaintiff, v. Aaron A. BOOKER, Defendant. |
| Court | U.S. District Court — Southern District of California |
U.S. Attorney Cr, Assistant United States Attorney, U.S. Attorneys Office Southern District of California, Criminal Division, San Diego, CA, for Plaintiff.
Martha McNab Hall, DiIorio and Hall, San Diego, CA, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
[ECF No. 71.]
Defendant Aaron A. Booker ("Defendant") has moved to suppress the passcode to his iPhone 6 Plus, which was recorded by a Naval Criminal Investigative Service ("NCIS") agent during an interview on May 25, 2017, as well as any results of the subsequent searches of the iPhone 6 Plus using that passcode. ECF No. 71-1 at 3–4. Defendant alleges that the passcode was obtained in violation of his Fourth, Fifth, and Sixth Amendment rights as well as Miranda . Id. at 4. The Government opposes. ECF No. 73.
Based on the pleadings, evidence submitted at the evidentiary hearing and arguments of counsel, the Court GRANTS the motion to suppress.
On May 23, 2018, a federal grand jury returned an indictment charging Mr. Booker with the Possession of Stolen Explosives, to wit, twenty MK3A2 grenades, also known as G911 grenades, in violation of 18 U.S.C. §§ 842(h), 844(a)(1). ECF No. 15.
On May 24, 2019, Mr. Booker filed the instant Motion to Suppress Statements. ECF No. 71. The Government filed its original response in opposition on June 10, 2019, ECF No. 73, and a supplemental response on August 28, 2019, ECF No. 86. Mr. Booker filed a reply on January 8, 2020. ECF No. 100. On January 10, 2020, the Government filed an amended declaration supporting its response in opposition. ECF No. 101. An evidentiary hearing was held on January 16, 2020. ECF No. 103. On January 30, 2020, Mr. Booker filed a supplemental expert declaration supporting the motion. ECF No. 109.
The factual background of Mr. Booker's multiple interactions with NCIS agents has been recited at length in previous orders. The Court will therefore focus on the May 25, 2017 interview, at which NCIS agents obtained the passcode for Mr. Booker's iPhone 6 Plus.
On May 25, 2017, Special Agents Warpinski and Bell arranged with Mr. Booker's commanding officer to speak with Mr. Booker in Great Lakes, Illinois at the legal building, the same location where Mr. Booker had first been interviewed on March 13, 2017. ECF. No. 52 at 52–53. SA Warpinski testified at the January 16, 2019 hearing that Mr. Booker was notified that he needed to report to NCIS offices and a command representative drove Mr. Booker to the legal building. Id. at 53–54. There, the agents met with Mr. Booker in the same NCIS office where they had previously interviewed Mr. Booker. Id. Mr. Booker understood that attendance at the interview had been ordered by his commanding officer. Booker Declaration, ECF No. 42-1 at 2.
SA Warpinski began the interview by directing Mr. Booker not to say anything and to listen for a little while. ECF No. 54-1 at 1. He proceeded to inform Mr. Booker, among other things, that a backpack bearing his DNA was discovered near a highway in Arizona and was found to contain 18 of the missing grenades. Id. at 4. SA Warpinski then explained that the agents had an entire case against Mr. Booker and that Mr. Booker had two options when it came to acceptance of responsibility: he could refuse to acknowledge responsibility or he could acknowledge what happened, who was involved and account for the last two grenades. Id. at 4–5. SA Warpinski then read Mr. Booker his Article 31(b) rights, and Mr. Booker requested legal counsel. Id. at 5–6.
The agents left the room at approximately 8:57 on the video recording, and when they returned nine minutes later, they informed Mr. Booker that they were preparing to execute search warrants as follows:
9:06:38 [Agents return.]
Id. at 7. Mr. Booker stated that he believed that the agents had engaged in good cop/bad cop and that ultimately he wanted the agents to see that there was no evidence of any crime at his home or his car. This remark prompted the following exchange:
Id. at 7–8. At this point, Mr. Booker spoke about his backpack and explained why he would not be involved with stealing the grenades. Id. at 8–9. The agents responded that they could not speak with him since he invoked his right to counsel, and they could not consider anything he said without a waiver of his rights. At 9:11 in the interview, Mr. Booker stated that he wanted to talk about "my history of leaving stuff behind." Id. at 10. At this point, he advised the agents that he is on anxiety medication and would need to take it in a half hour. Id. The NCIS agent then reviewed Mr. Booker's Article 31(b) rights with him again and Mr. Booker signed a waiver of his Article 31(b) rights and spoke to the agents. Id. at 11–12.
After his waiver, SA Bell brought up Mr. Booker's need to obtain his anxiety medication, and Mr. Booker said he needed to take the medication no later than 10:30 a.m., or within approximately an hour and a half. Id. at 12. The agents proceeded to question Mr. Booker about a number of topics, including his backpack, his drive from San Diego to Illinois, and the grenades. The agents then emphasized to Mr. Booker that the evidence against him was strong and that others had named him and told Mr. Booker that if he doesn't tell them the whole story, he would be in a tough spot. Id. at 32–33. At approximately 9:15 in the recording, Mr. Booker said Id. at 33. SA Warpinski then proceeded to discuss the fact that two grenades had not yet been found and indicated that the FBI sought to take the case due to the fact that the other grenades were found in "domestic terrorism land." Id. at 34. After Mr. Booker said he had no more to tell, SA Warpinski then asked if the agents could look at his phone, and Mr. Booker refused and asked if they could get his medication soon. Id. at 35–36. SA Bell responded but continued the interview, informing Mr. Booker that they had a video recording of someone in what appears to be his car dropping off the backpack on Interstate 15. Id. at 36–39.
Shortly after 10:00:00 on the recording, in response to a question about the purported video, Mr. Booker said "now I know I need my medication and I don't, I don't want to do this anymore man." Id. at 39. The agents then asked Mr. Booker how they could get his medication, and Mr. Booker said it was in his unlocked locker. Id. at 40. The agents asked Mr. Booker who in his command they could call to retrieve the medication from his locker, and then gave Mr. Booker his iPhone 6 Plus, ostensibly to obtain the phone number, placing it on the table in front of him. After SA Warpinski turned on the phone, Mr. Booker picked up the phone. Within one or two seconds, SA Warpinski told Mr. Booker "You gotta keep it on the table, man I gotta be able to see what's going on." Id. Mr. Booker then put the phone on the table and entered the passcode to unlock it. At approximately 10:01 on the video recording, SA Warpinski is seen watching Mr. Booker as he enters the passcode and then writing something down in his notebook. Mr. Booker then used the phone to call someone in his command to ask them to bring his medication. Id.
At the time of the interview on May 25, 2017, the Government had not yet sought or obtained a search warrant for the iPhone 6 Plus. On June 2, 2017, the Government applied for and obtained a warrant to search the iPhone 6 Plus. ECF No. 39-2. On ...
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...phones with Android operating systems.” (Id.) Ms. Konrad's declaration did not specify the success rate of the technology. See Booker, 561 F.Supp.3d at 934 (noting that declaration upon which the government relied “provide[d] no details about the forensic tools such as their success rate”).......