United States v. Espudo

• Citation: 954 F.Supp.2d 1029
• Decision Date: 19 July 2013
• Docket Number: Case No. 12–CR–236–IEG.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, v. Rudy ESPUDO et al., Defendants.

954 F.Supp.2d 1029

UNITED STATES of America,

v.Rudy ESPUDO et al., Defendants.

Case No. 12–CR–236–IEG.

United States District Court, S.D. California.

July 19, 2013.

Fred A. Sheppard, U.S. Attorneys Office Southern District of California, San Diego, CA, for Plaintiff.

ORDER DENYING DEFENDANT GRADO'S MOTION TO SUPPRESS CELL SITE AND SIMULATED CELL SITE EVIDENCE

[Doc. No. 1002]

IRMA E. GONZALEZ, District Judge.

Presently before the Court is the motion of Defendant Miguel Grado (“Defendant” or “Defendant Grado”) to suppress cell site and simulated cell site evidence. [Doc. No. 1002, Def.'s Mot.] For the following reasons, the Court DENIES the motion.

BACKGROUND

This case involves charges of conspiracy, racketeering, illegal drug distribution, extortion, and money laundering in connection with the Mexican Mafia prison gang and several affiliated Sureno street gangs operating in northern San Diego county. Defendant Grado filed the present motion to suppress on April 8, 2013. [ Id.] Defendant Grado seeks to suppress cell site and simulated cell site evidence which he believes was obtained by the Government in violation of Title III of the Electronic Communications Privacy Act of 1986 (“ECPA”) and the Fourth Amendment. [ Id. at 1–2.] The Government filed a response in opposition to the motion on May 3, 2013. [Doc. No. 1033.] Defendant Rudy Espudo (“Defendant Espudo”) subsequently filed a reply memorandum. [Doc. No. 1056, Def.'s Reply.]

On April 30, 2013, Defendant Grado had a change of plea hearing before Magistrate Judge Skomal, where all pending motions were withdrawn as to Defendant Grado only. [Doc. No. 1024.] On May 23, 2013, Defendant Espudo had a change of plea hearing before this Court, where all pending motions were withdrawn. [Doc. No. 1083.] At oral argument on May 16, 2013, the Court deemed all parties joined in Defendant Grado's motion. [Doc. No. 1061.] Accordingly, the present motion remains pending as to the remaining Defendants.

DISCUSSION

The Fourth Amendment protects the “right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. In order to invoke the protections of the Fourth Amendment, an individual must have “a justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (internal quotation marks omitted).

Federal Rule of Criminal Procedure 41 “is the codified expression of Fourth Amendment law.” In re App. of U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F.Supp.2d 526, 566 (D.Md.2011) (hereinafter “2011 D. Md. Application ”). Rule 41 states: “After receiving an affidavit or other information, a magistrate judge ... must issue the warrant if there is probable cause to search for and seize a person or property....” Fed.R.Crim.P. 41(d)(1) (emphasis added). Rule 41 provides a general default procedure that governs searches and seizures, but it “does not modify any statute regulating search or seizure....” Fed.R.Crim.P. 41(a)(1); 2011 D. Md. Application, 849 F.Supp.2d at 566.

ECPA outlines an elaborate statutory scheme which governs electronic surveillance. Pub. L. No. 99–508, 100. Stat. 1848 (1986). ECPA addresses various areas of electronic surveillance including wire taps, tracking devices, stored wire and electronic communications, transactional records, pen registers, and trap and trace devices. Id.; see also 2011 D. Md. Application, 849 F.Supp.2d at 571. The Court discusses the relevant portions of ECPA below.

A portion of Title I of ECPA concerns mobile tracking devices which may move across district lines. Pub. L. No. 99–508, Title I, § 108(a), 100 Stat. 1858 (Oct. 21, 1986) (codified at 18 U.S.C. § 3117); 18 U.S.C. § 3117(a). Title I of ECPA defines the term tracking device as “an electronic or mechanical device which permits the tracking of the movement of a person or object.” 18 U.S.C. § 3117(b); see also In re App. for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F.Supp.2d 747, 751–52 (S.D.Tex.2005) (hereinafter “2005 S.D. Tex. Application ”). The government must obtain a probable cause warrant under Federal Rule of Criminal Procedure 41 to install and use a mobile tracking device. See United States v. Karo, 468 U.S. 705, 720, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984); 2005 S.D. Tex. Application, 396 F.Supp.2d at 751–52.

The Stored Communications Act (“SCA”), Title II of ECPA, covers the government's requests for access to stored records. The SCA permits a governmental entity to “require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or a customer of such service (not including the contents of communications) only when the governmental entity ... obtains a court order for such disclosure.” 18 U.S.C. § 2703(c)(1)(B). The SCA mandates that a court order may only issue “if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d) (emphasis added). This “specific and articulable facts” standard is a significantly lower legal hurdle than probable cause. See In re App. of the U.S. Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 620 F.3d 304, 313–315 (3d Cir.2010).

Title III of ECPA covers pen registers and trap and trace devices. Pub. L. No. 99–508, 100 Stat. 1848, 1873 (1986) (codified as amended at 18 U.S.C. §§ 3121–27) (“Pen/Trap Statute). A pen register is “a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted ....” 18 U.S.C. § 3127(3). A trap and trace device is “a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication.” 18 U.S.C. § 3127(4). To install a pen register or trap and trace device, the government only needs to certify “that the information likely to be obtained [from a pen register] is relevant to an ongoing criminal investigation ” being conducted by a law enforcement agency. 18 U.S.C. § 3122(b) (emphasis added). This standard is also significantly lower than probable cause.

In 1994, Congress passed the Communications Assistance of Law Enforcement Act (“CALEA”), which explicitly prohibits service providers from disclosing the physical location of the subscriber when the government seeks the information only on the basis of the Pen/Trap Statute. 47 U.S.C. §§ 1001–1002. Section 1002 provides, in relevant part, as follows:

a telecommunications carrier shall ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of—

...

(2) expeditiously isolating and enabling the government, pursuant to a court order or other lawful authorization, to access call-identifying information that is reasonably available to the carrier—

(A) before, during, or immediately after the transmission of a wire or electronic communication (or at such later time as may be acceptable to the government); and

(B) in a manner that allows it to be associated with the communication to which it pertains, except that, with regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices (as defined in section 3127 of Title 18), such call-identifying information shall not include any information that may disclose the physical location of the subscriber (except to the extent that the location may be determined from the telephone number) ...

47 U.S.C. § 1002(a)(2) (emphasis added).

I. Motion to Suppress Cell Site Location Data

Defendants' argue that the cell site location data acquired by the Government in the present case must be suppressed because it was obtained in violation of Title III of ECPA and the Fourth Amendment. Defendant Grado first argues that the Government was required to obtain a warrant issued on the basis of probable cause before acquiring cell site location data. [ Id. at 5–7.] Defendant Grado also contends that “[w]hen the government is seeking cell site location information, they are actually seeking tracking device information.” [ Id. at 7.]

A. Scope of the Motion: Historical vs. Real–Time Cell Site Location Data

The Court first addresses whether Defendants' motion pertains to historical and/or real-time cell site location data, as this was initially a matter of some confusion amongst the parties and the Court.

Cell site data in the present case refers to the physical location of the single primary cell site/sector at call origination and call termination for each incoming and outgoing call. [ See, e.g., Doc. No. 1033–1, App. for Pen Register at 8; Doc. No. 1033–1, Order for Pen Register at 22–23.] As commonly used, “historical” cell site data refers to the acquisition of cell site data for a period retrospective to the date of the order, whereas “prospective” or “real-time” cell site data refers the acquisition of data for a period of time going forward from the date of the order.¹See, e.g., In re U.S. for an Order Authorizing the Disclosure of Prospective Cell Site Information, 412 F.Supp.2d 947, 949 (E.D.Wisc.2006) (hereinafter “ E.D. Wisc. 2006 Application ”) aff'd,06–MISC–004, 2006 WL 2871743 (E.D.Wis. Oct. 6, 2006). In the present case, the Government applied for orders requesting real-time cell site data pursuant to 18 U.S.C. § 3123 of...