United States v. Ortega-Yescas
| Decision Date | 30 May 2019 |
| Docket Number | CR 19-06-BU-DLC |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. VICTOR MANUEL ORTEGA-YESCAS, and CARMELO ENRIQUE RUIZ-MORALES, Defendant. |
| Court | U.S. District Court — District of Montana |
Before the Court is Defendant Victor Manuel Ortega-Yescas's Motion to Suppress. (Doc. 47.) The Court held a hearing on the motion on April 23, 2019, and the parties filed supplemental briefs on May 3, 2019. The Court denies the motion.
BACKGROUND
Ortega-Yescas was living in Gallatin Gateway, Montana, when the Missouri River Drug Task Force (the "Task Force")1 identified him as a person of interest in a methamphetamine distribution scheme. (Doc. 48-1 at 3.) Investigators believedOrtega-Yescas was supplying methamphetamine to his codefendant, Carmelo Enrique Ruiz-Morales, who was in turn distributing the drug more widely. (Id. at 4.) Members of the Task Force applied for and received two search warrants for records associated with Ortega-Yescas's cell phone number. (Id. at 4-5.) From the records received, the investigators noted that Ortega-Yescas takes quick trips to Lynwood, California, driving 15 hours each way but spending only a few hours in California. (Id.)
Hoping to catch Ortega-Yescas after making a methamphetamine run to California, the investigators next applied for a CSLI (cell-site location information) or "ping" warrant—a search warrant to track the location of Ortega-Yescas's cell phone in real time—on December 27, 2018. A member of the task force brought the affidavit to a state district court judge, Judge John Brown, who found probable cause to issue the warrant, which was in effect for 14 days. (Doc. 48-2.) The Task Force monitored the location of Ortega-Yescas's phone during that time, but it did not appear that he took any trips out of state.
A couple of weeks later, investigators discovered that they were no longer getting updates as to Ortega-Yescas's phone location information because the ping warrant had expired. A member of the Task Force, FBI Special Agent Colin Cialella, realized then that he had accidentally requested 60 days of cell phone location monitoring within the application but 14 days within the body of thewarrant itself, which he had drafted. (Doc. 63 at 23.) Cialella called Judge Brown, and he asked for suggestions on how to correct his error and resubmit. (Id. at 25.) Judge Brown told Cialella to submit a supplemental application; because he was familiar with the case, the judge said that he did not need to again see the entire probable cause statement used to support the first application. (Id.) Cialella prepared a supplemental application per Judge Brown's instructions, explaining that an error had been made in the first application and requesting an extension of 46 days, to bring the total number of monitoring days to 60. (Id. at 26.) Cialella brought the supplemental application to Judge Brown, who signed the amended warrant in front of Cialella. (Id. at 28.)
On February 8, 2019 at 3:30 p.m., the Task Force received ping alerts revealing that Ortega-Yescas's phone was moving south. Continued monitoring showed Ortega-Yescas in Lynwood, California in the early morning hours of February 9. The Task Force contacted a Los Angeles police force, which verified that Ortega-Yescas was at the location of the Lynwood ping alert, driving a vehicle registered to Ortega-Yescas in Montana. When Ortega-Yescas returned to Montana, Task Force investigators, with the assistance of other state and local law enforcement officers, pulled him over. Officers applied for and received a search warrant to search the vehicle, where they ultimately found approximately five pounds of methamphetamine.
ANALYSIS
Ortega-Yescas argues that the evidence found during the search of his vehicle must be excluded on two grounds. First, he claims that the ping warrant was invalid because Judge Brown lacked jurisdiction to issue the initial and supplemental warrants. Second, he contends that probable cause did not support the supplemental warrant when Cialella merely referenced, without restating, the information included in the initial application. In Ortega-Yescas's view, either deficiency necessary leads to suppression of the evidence gleaned from the physical search of his vehicle.
The Court disagrees. First, Judge Brown did not lack jurisdiction to issue the ping warrant because he was authorized to do so under Montana law, Mont. Code Ann. §§ 46-5-110 & 46-5-220, and the Task Force reasonably expected Ortega-Yescas would be prosecuted in state court. Second, the supplemental affidavit used to support the operative warrant incorporated the facts used to support the first warrant. Thus, probable cause supported the search warrant. However, even if the Court agreed with Ortega-Yescas's views of the constitutionality of the search under either theory, it would nonetheless deny the motion because suppression would neither prevent future police misconduct nor provide for just punishment for police behavior that was negligent at worst.
Ortega-Yescas argues that Judge Brown lacked jurisdiction to issue a ping warrant monitoring the location of his cell phone across state lines. Ortega-Yescas contends that the search was "federal in character" and that Rule 41 therefore applies. United States v. Martinez-Garcia, 397 F.3d 1205, 1213 (9th Cir. 2005). Although the Court agrees that the jurisdictional requirements of Rule 41 are not met, and that the state court-issued ping warrant therefore would not survive scrutiny under the Federal Rules of Criminal Procedure, it disagrees that Rule 41 applies in the first instance.
The issue here—whether the search of Ortega-Yescas's cell phone location information was federal in character such that Rule 41 applies—is simpler than Ortega-Yescas makes it out to be. "Rule 41 applies to a search conducted by state officers pursuant to a state warrant only if the search is 'federal in character.'" Martinez-Garcia, 397 F.3d at 1213. "Generally, a search is federal if from the beginning it was assumed a federal prosecution would result." United States v. Palmer, 3 F.3d 300, 303 (9th Cir. 1993). The issue is one of fact. Id.
Ortega-Yescas argues that the search was federal because the goal of the search warrant was to discover when Ortega-Yescas was traveling out of state, claiming "[i]t is difficult if not impossible to contemplate any constitutional role for a state court judge in this factual scenario." (Doc. 64 at 10.) The Court disagrees.
At the time that the ping warrant was issued, officers had probable cause to believe that Ortega-Yescas was transporting drugs into Montana, but they did not know whether charges, if brought, would be prosecuted in federal rather than state court. Crimes prosecuted in state court may well involve interstate travel—of course, Montana law prohibits possessing and distributing controlled substances that often come into the state from elsewhere. See Mont. Code Ann. §§ 45-9-101, 45-9-102, & 45-9-103. Although Cialella, the only federal agent on the Task Force, was heavily involved in the warrant application process, his involvement was driven by practical circumstances rather than the likelihood of federal prosecution—he was the unlucky member of the Task Force assigned to staff the office over the holidays. His work on the case before the search was "mere participation," and it does not render the search federal in character. Palmer, 3 F.3d at 303 (quoting Byars v. United States, 273 U.S. 28, 32 (1927)).
(Doc. 63 at 30.) The officers testified that the offense conduct would have been prosecuted in state court had a substantially smaller quantity of methamphetamine been involved. And, although it may seem unlikely that a defendant would travel 15 hours to get a small amount of methamphetamine, the Task Force had (Id. at 39.)
The Court finds that the search of Ortega-Yescas's cell phone location information was not "federal in character." Knowing what we know now—that five pounds of meth would be seized when Ortega-Yescas returned to Montana—it makes pragmatic sense that this case is now in federal court. But the members of the Task Force making the decision were reasonably unaware that Ortega-Yescas would ultimately be prosecuted under federal law. Indeed, if the U.S. Attorney's Office had passed on this case, Ortega-Yescas would almost certainly be prosecuted in state court using the same evidence.
Nonetheless, Ortega-Yescas contends that the search is necessarily federal under United States v. Henderson, 906 F.3d 1109 (9th Cir. 2018), and Carpenter v. United States, 138 S. Ct. 2206 (2018). In Henderson, the Ninth Circuit addressed the constitutionality of a warrant issued by a federal magistrate without jurisdictionunder Rule 41. Id. at 1117. Ortega-Yescas argues that Henderson "supports the contention that Rule 41 sets the contours of the real-time CSLI terrain" and that the warrant here did not comply with Rule 41, which only provides authority for federal...
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