United States v. Cordero-Rosario

• Decision Date: 18 May 2017
• Docket Number: CASE NO. 11-556 (GAG).
• Citation: 252 F.Supp.3d 79
• Parties: UNITED STATES of America, Plaintiff, v. Hilton CORDERO–ROSARIO, Defendant.
• Court: U.S. District Court — District of Puerto Rico

252 F.Supp.3d 79

UNITED STATES of America, Plaintiff,

v.Hilton CORDERO–ROSARIO, Defendant.

CASE NO. 11-556 (GAG).

United States District Court, D. Puerto Rico.

Signed May 18, 2017

Marshal D. Morgan, San Juan, PR, Attorney(s) for Plaintiff.

Jose L. Nieto–Mingo, San Juan, PR, Attorney(s) for Defendant.

OPINION AND ORDER

GUSTAVO A. GELPI, United States District Judge

I. Background

On February 1, 2013, defendant Hilton Cordero–Rosario ("defendant "or "Cordero–Rosario") entered into a conditional agreement in which he pleaded guilty to count 21 of the superseding indictment charging him with possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). (Docket No. 80.)¹ Per the terms of said agreement, Cordero–Rosario reserved the right to challenge on appeal the Court's order denying his motion to suppress. Id. The Court sentenced Cordero to one hundred and twenty months imprisonment, the statutory maximum, followed by fifteen years of supervised release. (Docket No. 114.)

Cordero–Rosario subsequently appealed the Court's denial of his motion to suppress in which he moved to exclude all evidence seized from the two searches conducted by the Puerto Rico Police Department ("PRPD"), as well as the evidence that stemmed therefrom. The First Circuit vacated the Court's suppression ruling and remanded the case back to this Court. The appellate court found that the searches that took place on February 4 and February 26 were invalid because they lacked probable cause, thus violated Cordero–Rosario's Fourth Amendment Rights. See United States v. Cordero – Rosario, 786 F.3d 64, 68–72 (1st Cir. 2015). The court, however, remanded the matter for a hearing and determination on whether evidence obtained pursuant to the consent of defendant's former spouse was tainted by the prior unlawful searches. Cordero – Rosario, 786 F.3d at 77.

In light of the First Circuit's ruling, the Court must determine which evidence, if any, is tainted by the prior unlawful PRPD searches, pursuant to the "fruit of the poisonous tree" doctrine and the taint/attenuation test articulated in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) and United States v. Finucan, 708 F.2d 838 (1st Cir. 1983). Cordero – Rosario, 786 F.3d at 77.

Following remand, the Court ordered the government to inform if it had independent evidence to present its case. (Docket No. 129.) The Government in turn, listed the following evidence: A) images and other evidence found in the family desktop computer, to support Counts 1–20 of the Superseding Indictment (Production of Child Pornography), and Count 21 of the Superseding Indictment (Possession of Child Pornography); B) evidence obtained from the 320 GB Western Digital external hard drive, with serial number WMAM1543470 (hereinafter "320 GB External Hard Drive"), to support Count 22 of the Superseding Indictment (Possession of Child Pornography); and C) the live testimony of the then minor involved, referred throughout this Opinion as MMTH.²

The undersigned referred the pending admissibility issues to Magistrate Judge Silvia Carreño–Coll for a hearing and Report and Recommendation.³ (Docket No. 143.) A suppression hearing was held on April 13, 2016 before Judge Carreño–Coll.⁴ (Docket No. 161.) The Government presented the following witnesses: Agent Rebecca González Ramos, Agent Lillian Agudelo, Deborah Martorell and Idalia Hornedo, MMTH's mother.

Defendant Cordero–Rosario submitted to the Court his legal arguments after the hearing, in writing. (Docket No. 164.) The Government responded. (Docket No. 165.) Judge Carreño–Coll issued her report and recommendation, which is discussed in full below. (Docket No. 191.) Defendant Cordero–Rosario objected.⁵ (Docket Nos. 192 & 208). The Government responded in opposition to Cordero–Rosario's objections. (Docket No. 205.) Per leave of Court, Cordero–Rosario replied. (Docket No. 210.)

II. The Report and Recommendation

Judge Carreño–Coll recommends the suppression of the evidence obtained as a result of the computer search executed pursuant to the consent of defendant's former spouse, Deborah Martorell. As to the remaining evidence—320 GB External Hard Drive, the live testimony of MMTH and the Sony CyberShot Camera—she recommends admission. (Docket No. 191.)

The undersigned ACCEPTS and ADOPTS, Magistrate Judge Carreño–Coll's factual findings and legal conclusions regarding the suppression of evidence obtained as a result of the computer search, pursuant to Martorell's consent. (Docket No. 191 from 33 to 38.) Accordingly, the evidence found during the search of the family computer during the "federal investigation"—including the sexually explicit images of MMTH, and chat conversations between Cordero and MMTH contained therein—are suppressed.

Due to the fact-intensive nature of the issue before the Court, Judge Carreño–Coll shrewdly pieced together, in chronological order, the events relevant to Cordero–Rosario's Suppression. The undersigned ADOPTS the findings of fact in Judge Carreño–Coll's Report and Recommendation. (See Docket Nos. 191 from 9 to 27.) The Court will not retell the story, only the facts relevant to the Court's de novo review will be discussed.

Cordero–Rosario objects to the Report and Recommendation, arguing that the 320 GB External Hard Drive and MMTH's live testimony are tainted and therefore must be suppressed. Specifically, Cordero–Rosario argues that the record does not support the conclusion that the circumstances that led up to the discovery of the 320 GB External Hard Drive present ample indicia of attenuation from the initial taint. (Docket No. 201 at 6.) He raises the same argument as to MMTH's testimony. Id.

In response to Cordero–Rosario's objection, the Government argues that Martorell's testimony evinces the existence of intervening circumstances that were strong enough to break the chain and purge the taint of the initial illegality. (Docket No. 208.) The Government posits Martorell's decision to voluntarily surrender the 320 GB External Hard Drive can only be understood to be the product of her detached reflection and a desire to be cooperative with federal law enforcement authorities. Further, the Government notes that in her testimony, Martorell explained that her decision to turn over the hard drive "was driven by a sincere desire to see if there were any more victims of the defendant and to confirm the allegations that were raised by her daughter PCM prior to the PRPD searches." (Docket No. 208 at 13.) Hence, "her primary concern was that her daughter not be labeled a liar for having had the courage to come forward with allegations of sexual misconduct by her father; an interest and motivation that predates, and is otherwise unrelated to, the tainted PRPD searches." Id.

Upon Cordero–Rosario's objections, the Court reviews de novo the Magistrate Judge's factual findings and legal conclusions regarding the admissibility of the 320 GB External Hard Drive and the testimony of MMTH.

III. Standard of Review

The Court may refer motions to suppress to a United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See FED. R. CRIM. P. 59 ; see also L. Crim. R. 159; Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). An adversely affected party may contest the report and recommendation by filing its objections. FED. R. CRIM. P. 59. Moreover, 28 U.S.C. § 636(b)(1), in pertinent part, reads as follows:

[A]ny party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. 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. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

"Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate's recommendation." Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985). Additionally, "failure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objections are precluded upon appeal." Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir. 1992) ; see Henley Drilling Co. v. McGee, 36 F.3d 143, 150–51 (1st Cir. 1994) (holding that objections are required when challenging findings actually set out in a magistrate's recommendation, as well as the magistrate's failure to make additional findings); see also Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir. 1993) (stating that "[o]bjection to a magistrate's report preserves only those objections that are specified"); Borden v. Sec. of H.H.S., 836 F.2d 4, 6 (1st Cir. 1987) (holding that appellant was entitled to a de novo review, "however he was not entitled to a de novo review of an argument never raised"); see FED. R. CRIM. P. 59(d).

IV. Legal Analysis

The Court must determine which evidence, if any, is tainted by the unlawful PRPD searches. In doing so, the Court must define the outer limits of contamination following an illegal search.

Magistrate Judge Carreño–Coll ultimately concluded that the police obtained Martorell's consent to search the family computer by exploitation of the illegality:

When she gave consent, Martorell had already seen some of the images that were in the unlawfully seized computer. What is more, she had seen those crude images scarcely a month before she signed the consent form. The close temporal proximity between viewing the pictures and granting consent leads this court to the conclusion that the impression of seeing those pictures was fresh in her mind.

Martorell's emotional testimony confirms it. She described how, when she saw the pictures, she kept asking herself whether there could be pictures of her daughter or other victims in there. She also related how she went home

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