United States v. Keleher
| Citation | 516 F.Supp.3d 162 |
| Decision Date | 28 January 2021 |
| Docket Number | Criminal No. 20-019 (FAB) |
| Court | U.S. District Court — District of Puerto Rico |
| Parties | UNITED STATES of America, Plaintiff, v. Julia Beatrice KELEHER [1], Defendant. |
Alexander L. Alum, Jose Capo-Iriarte, U.S. Department of Justice, Scott H. Anderson, United States Attorneys Office, San Juan, PR, for Plaintiff.
Carlos J. Andreu-Collazo, Dominguez, Micheo, Ramos & Andreu Law LLC, Maria Dominguez-Victoriano, Javier Micheo-Marcial, DMRA Law LLC, Guaynabo, PR, Lanny Jesse Davis, Pro Hac Vice, Washington, DC, for Defendant.
Co-defendant Julia Beatrice Keleher ("Keleher") moves to suppress evidence obtained or derived from her two email accounts. (Docket Nos. 71–72.) As discussed below, the motion is DENIED .
The government alleges that Keleher and her co-defendant, Ariel Gutiérrez-Rodríguez ("Gutiérrez"), engaged in a bribery scheme.1 See Docket No. 3. In short, the indictment charges that Keleher agreed to, and did, take official action to cede public land to the owner of an apartment complex in exchange for discounted living arrangements at the complex. See id. The indictment charges conspiracy to commit honest services fraud, six counts of wire fraud, and federal program bribery. Id. The conspiracy and wire fraud counts are associated with emails of Keleher and Gutiérrez. Id. at pp. 8–10.
The emails were obtained pursuant to two warrants. (Docket No. 72 at p. 1; Docket No. 149 at p. 6.) The warrants were issued based on allegations of probable cause associated with two other schemes. (Docket No. 72, Exs. 1–2.) According to the government's probable cause affidavits, those schemes generally involved the awarding of two contracts by the Puerto Rico Department of Education ("DOE"). Id., Ex. 1 at pp. 11–27; id., Ex. 2 at pp. 11–27. Before concluding the affidavits, the government's affiant stated, Id., Ex. 1 at p. 26; id., Ex. 2 at p. 26.
In addition, each of the government's applications included two attachments. "Attachment A" stated the email addresses from which the government sought information. Id., Ex. 1 at p. 28; id., Ex. 2 at p. 28. "Attachment B" stated that the government wanted emails and other data from each email account from July 1, 2016, through the date of the warrant applications. Id., Ex. 1 at pp. 29–30; id., Ex. 2 at pp. 29–30. Attachment B also stated that the government would seize emails and other data that constitute evidence of violations of 18 U.S.C. sections 371, 666, 1341, 1343, and 1346 involving Keleher, other named persons, "as well as other individuals/corporations." Id., Ex. 1 at p. 30; id., Ex. 2 at p. 30.
The warrants incorporated those materials by reference. Id., Ex. 1 at p. 6; id., Ex. 2 at p. 6. To describe the property to be searched and its location, the warrants referenced Attachment A. Id., Ex. 1 at p. 6; id., Ex. 2 at p. 6. In stating what the person or property was believed to conceal, the warrants referenced Attachment B. The warrants also stated that "the affidavit(s) ... establish probable cause to search and seize the person or property." Id., Ex. 1 at p. 6; id., Ex. 2 at p. 6.
The first question raised by the suppression motion is whether the warrants permitted law enforcement to seize the emails which form the basis of the charges in this case. The Court answers that question in the negative.
The Fourth Amendment commands that no warrants shall issue except those "particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. This is known as the particularity requirement.
The particularity requirement "makes general searches under ... [warrants] impossible and prevents the seizure of one thing under a warrant describing another." Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927). It "circumscribe[s] the discretion of the executing officers" by "supply[ing] enough information to guide and control the executing agent's judgment in selecting where to search and what to seize." United States v. Kuc, 737 F.3d 129, 133 (1st Cir. 2013) ; United States v. Tiem Trinh, 665 F.3d 1, 15 (1st Cir. 2011) (internal quotation marks omitted).
The warrants did not authorize the officers to seize the emails upon which the charges in this case are based. The warrants’ probable cause and their description of items believed to be concealed were based on allegations of the two schemes concerning DOE contracts, not the alleged scheme at issue here. Where a warrant is based on probable cause of one scheme, the warrant does not authorize seizure of emails pertaining to another scheme. Marron, 275 U.S. at 196, 48 S.Ct. 74 ; United States v. Lustyik, 57 F. Supp. 3d 213, 231 (S.D.N.Y. 2014).
There is an exception to the warrant requirement applicable here. The exception is known as the plain view doctrine. The Court concludes that the doctrine permitted the seizure of the emails at issue in this case.
The First Circuit Court of Appeals has articulated at least three tests for applying the plain view doctrine. The Court analyzes these tests to ascertain the appropriate test here.
One test has two elements. It requires "that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed" and "that the evidence's incriminating character be immediately apparent to the officer."
United States v. Hamie, 165 F.3d 80, 82 (1st Cir. 1999) (internal quotation marks omitted).
The second test has three elements. According to this test, the plain view doctrine "permits the warrantless seizure of an item if the officer is lawfully present in a position from which the item is clearly visible, there is probable cause to seize the item, and the officer has a lawful right of access to the item itself." United States v. Hernández-Mieses, 931 F.3d 134, 140 (1st Cir. 2019) (internal quotation marks omitted); see United States v. Gamache, 792 F.3d 194, 199 (1st Cir. 2015) ; United States v. Antrim, 389 F.3d 276, 283 (1st Cir. 2004).
Those two tests are similar for purposes of this case. "The term ‘immediately apparent’ has been defined as sufficient to constitute probable cause to believe it is evidence of criminal activity." Hamie, 165 F.3d at 83 ; see also Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (). So, the second elements of the two tests are effectively interchangeable here. Meanwhile, the third element of the three-element test—"lawful right of access to the item itself"—"asks not whether the officer was lawfully in a position to see the contraband (the first element of the plain view analysis), but whether he could lawfully seize it without committing a trespass." United States v. Allen, 573 F.3d 42, 51 n.4 (1st Cir. 2009). The seizure of the emails at issue in this case would not constitute a trespass because they were already in the government's possession. Keleher does not argue that a trespass occurred. See Docket Nos. 72, 157; cf. Docket No. 72 at p. 18 ().
A third test, by contrast, subtracts one element (lawful right of access to the item) and adds another (inadvertent discovery). This test requires that "(1) the officers’ presence at the point of discovery is lawful; (2) the discovery of the seized item is inadvertent; and (3) the item's evidentiary value is immediately apparent." United States v. Henry, 827 F.3d 16, 28 (1st Cir. 2016) ; see United States v. Rutkowski, 877 F.2d 139, 140–41 (1st Cir. 1989).
Keleher advocates for the third test. She argues that the government has shown neither that the incriminating character of the emails was immediately apparent nor that the emails were discovered inadvertently. (Docket No. 72 at p. 25; Docket No. 157 at pp. 6–7.)
The third test does not accurately state the law. Inadvertent discovery is not a necessary element to the plain view exception. In Horton v. California, 496 U.S. 128, 130, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) —a case Keleher cites repeatedly, see Docket No. 72 at pp. 23, 26; Docket No. 157 at p. 6—the Supreme Court held that "even though inadvertence is a characteristic of most legitimate ‘plain-view’ seizures, it is not a necessary condition." 496 U.S. at 130, 110 S.Ct. 2301 ; see also United States v. Robles, 45 F.3d 1, 6 n.3 (1st Cir. 1995) (). A lawful right of access to the item, however, is required. Collins v. Virginia, ––– U.S. ––––, 138 S. Ct. 1663, 1672, 201 L.Ed.2d 9 (2018) ; Dickerson, 508 U.S. at 375, 113 S.Ct. 2130.
The Court applies the test articulated in Hernández-Mieses, 931 F.3d at 140. The Court only considers the first two elements of the Hernández-Mieses test because, as noted, a trespass is not at issue here.
The government bears the burden of establishing entitlement to the plain view exception. United States v. Ribeiro, 397 F.3d 43, 53 (1st Cir. 2005). This "does not mean, however, that it must disprove all of the defendant's alternative theories, no matter how speculative or implausible." Id.
The burden for obtaining an evidentiary hearing on a motion to suppress is on the defendant. "The test for granting an evidentiary hearing in a...
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