United States v. Magana
| Decision Date | 14 September 2022 |
| Docket Number | 1:18-cr-00068-DAD-BAM |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. RAMON DEJESUS MAGANA, et al. Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER DENYING DEFENDANT MAGANA'S MOTION TO SUPPRESS
This matter is before the court on defendant Ramon DeJesus Magana's motion to suppress all evidence obtained by the government as a result of its search of his cellular telephone, including data that recovered from that cell phone approximately two years after it was first seized by law enforcement during a traffic stop of defendant. (Doc. No 55.) Defendant filed the pending motion on May 13, 2022 pursuant to Federal Rules of Criminal Procedure 12 and 41(g) and the Fourth Amendment of the Unites States Constitution. (Id. at 6.) The government filed an opposition to that motion to suppress evidence on July 5, 2022 (Doc. No 61), and defendant filed his reply thereto on August 12, 2022 (Doc. No. 64).
A hearing on defendant's motion was held on August 15, 2022, at which Assistant Federal Defender Reed Grantham appeared on behalf of defendant Magana and Assistant United States Attorney Jessica Massey appeared on behalf of the government. (Doc. No. 65.) At the conclusion of the hearing, the court took defendant's pending motion under submission. For the reasons set forth below, the court will deny defendant's motion to suppress evidence.
BACKGROUND
The facts pertinent to the pending motion are not in dispute. Defendant was arrested during a traffic stop on February 21, 2018 in connection with an undercover operation conducted by the Drug Enforcement Agency (DEA) and other agencies. (Doc. No. 55 at 7-8.) During the traffic stop, officers searched the vehicle in which defendant was a passenger and recovered five kilograms of fentanyl and one kilogram of 4-ANPP, an analog to fentanyl, in the trunk. (Id. at 8; Doc. No. 55-1 at 6.) Officers also found four electronic devices in the vehicle-three cellular telephones and one iPad. (Doc. No. 55 at 8.) One of the electronic devices was a black LG cellular telephone with a black protective cover located in the front passenger seat where defendant was sitting, and which was identified as “N-3” in the DEA's property seizure report. (Id.) Defendant Magana, along with the driver of the vehicle, co-defendant Maurillo Serrano Cardenas, were both arrested and charged by way of a federal criminal complaint on March 8, 2018, with conspiracy to distribute fentanyl in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A). (Doc. No. 1.) A federal indictment later was later returned by the grand jury for this district on April 5, 2018, charging co-defendants Cardenas and Magana in Count 1 with conspiracy to distribute fentanyl and aiding and abetting, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2; and in Count 2 with possession of fentanyl with intent to distribute and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2.[1] (Doc. No. 13.)
On the same day the indictment was returned, the government applied for and obtained a search warrant authorizing agents to search the four electronic devices that had been recovered during the February 21, 2018 traffic stop (the “first search warrant”). (Doc. Nos. 55 at 8; 55-1 at 36-41.) This first search warrant “authorize[d] the search and forensic examination of [] electronic devices . . . for the purposes of identifying the electronically stored information described” and was to be executed on or before April 19, 2018 (i.e., execution was not to exceed 14 days from the signing of the search warrant). (Doc. No. 55-1 at 36-41.) The first search warrant further stated in its Attachment B describing the items to be seized under the heading “nature of examination” that “[p]ursuant to Fed. R. Crim. P. Rule 41(e)(2)(B) . . . this warrant permits the examination of [the four electronic devices seized on February 21, 2018] . . . [and] may require authorities to employ techniques, including but not limited to computer-assisted scans of the entire medium . . . .” (Id. at 40.) On April 9, 2018, all four of the seized electronic devices were searched, and logical extractions created, but the extraction report for device N-3 contained no data.[2] (Id. at 9.) The government has conceded, however, that it never filed a return of the first search warrant so reflecting with the court. (Doc. No. 61 at 7.)
Approximately one year later, on March 27, 2019, the government applied for and obtained a second search warrant to search N-3 and another cellular telephone (N-2) (the “second search warrant”). (Doc. No. 55 at 9.) In the government's application for this second search warrant, it stated that the first search warrant had been executed on four electronic devices on April 9, 2018, but that the data extracted from two of those devices, N-3 and N-2, “reported minimal information” because the search “was limited by the technology available.” (Doc. No. 55-1 at 58.) The government reported it was seeking the second search warrant “[d]ue to the advanced software and technology now available” and because the government “believe[d] that a search today may be more successful at extracting evidence than on April 9, 2018.” (Id.) Like the first search warrant, the second search warrant was to be executed within 14 days of its issuance and sought the search for and seizure of the same categories of information, which were to be obtained “[p]ursuant to Fed. R. Crim. P. Rule 41(e)(2)(B).” (Id. at 88, 92.) In the affidavit submitted in support of the application for the second search warrant-and in contrast to the affidavit submitted in seeking the first search warrant-the issuing magistrate judge interlineated in handwriting the following language: “If an original device does not contain any data falling within the list of items to be seized pursuant to this warrant, the government will return the original device to its owner within 90 days if it can be lawfully possessed; seal any image made and not review sealed image.” (Id. at 65.)[3] After the second search warrant was issued on March 27, 2019, it was purportedly executed on April 1, 2019 at the DEA's Sacramento district office, however, again no additional data or information was successfully extracted from N-3.[4] (See Doc. Nos. 55 at 10-12; 61 at 8.)
Over seven months later, on November 25, 2019, a DEA agent indicated in a report of the investigation that the but that there were “continuing efforts to gain access to [] N-3 and perform the search.” (Doc. No. 55-1 at 75.) Finally, in a subsequent DEA report of the investigation dated April 24, 2020, a DEA agent reported that in “[e]arly 2020 . . . an updated software [became] available for the phone data transfer device” and that on April 7, 2020, DEA Investigative Technology Specialist (ITS) Jeremy Look “successfully downloaded the phone data from [] N-3.” (Id. at 76.) The extracted data from N-3 was later produced to defendant's counsel in discovery on July 1, 2020. (Doc. No. 55-1 at 78.) According to the government's opposition to the pending motion, defendant Magana's cellular telephone, N-3, has remained in the custody of the DEA since its initial seizure on February 21, 2018, but the government again never filed a return following the execution of the second search warrant, even after the successful extraction of data from N-3 occurred on April 7, 2020. (Doc. No. 61 at 6, 8.)
Defendant Magana has moved to suppress all evidence obtained as a result of the purportedly unlawful search of his cell phone (N-3), specifically the evidence derived from the successful April 7, 2020 extraction of data from N-3. (Doc. No. 55.)
ANALYSIS
Defendant Magana makes two principal arguments in moving to suppress all evidence recovered from N-3: (1) the government's execution of the second search warrant violated the warrant's terms by not being conducted within 14 days of its issuance, which thereby rendered the search conducted on April 7, 2020, a warrantless search; and (2) the government's retention of N-3 for over two years violated the terms of both search warrants and was unreasonable in violation of the Fourth Amendment to the United States Constitution.
Federal Rule of Criminal Procedure 41(e) generally requires that a warrant to search for and seize property must direct law enforcement officers to “execute the warrant with a specified time no longer than 14 days.” Fed. R. Crim P. 41(e)(2)(A)(i). Rule 41(e) also provides that a warrant “may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information.” Fed. R. Crim. P. 41(e)(2)(B). In such cases, “[u]nless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant” because “[t]he time for executing the warrant . . . refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.” Id.; see also United States v. Cleveland, 907 F.3d 423, 431 (6th Cir. 2018) (). “This rule acknowledges the need for a two-step process: officers may seize or copy the entire storage medium and review it later to determine what electronically stored information...
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