United States v. Ramirez, CRIMINAL ACTION NO. 19-10072-DPW

• Decision Date: 10 July 2020
• Docket Number: CRIMINAL ACTION NO. 19-10072-DPW
• Citation: 471 F.Supp.3d 354
• Parties: UNITED STATES of America, Plaintiff, v. Rigoberto RAMIREZ, Defendant.
• Court: U.S. District Court — District of Massachusetts

471 F.Supp.3d 354

UNITED STATES of America, Plaintiff,

v.Rigoberto RAMIREZ, Defendant.

CRIMINAL ACTION NO. 19-10072-DPW

United States District Court, D. Massachusetts.

Filed July 10, 2020

Robert E. Richardson, United States Attorney's Office, Boston, MA, for Plaintiff.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

The Defendant, Rigoberto Ramirez, has been charged in a multi-count indictment in connection with a series of convenience store armed robberies, which occurred between late 2017 and early 2018. Mr. Ramirez has moved to suppress (A) historical cell site location information the Government obtained pursuant to a February 23, 2018 court order; and (B) statements he made to law enforcement on March 13, 2018.

I. BACKGROUND

A. Relevant Facts¹

1. The Application for the February 23 Court Order

On February 23, 2018, the Government submitted an application under the Stored Communications Act, 18 U.S.C. § 2703(d), for a court order to obtain certain telephone records from AT&T for three cell phone numbers. [Dkt No. 59, Ex. B].² As relevant here, the Government sought disclosure of "historical records reflecting the location of cellular towers (cell site and sector/face) related to the use of [the three numbers] for the period from November 15, 2017 through February 21, 2018." Id. Ex. A ¶ 1. This type of record is commonly referred to as historical cell site location information ("CSLI").

On February 23, 2018, Magistrate Judge Hennessy ordered disclosure of the CSLI on the basis of the Application as amended. Id. Ex. D. Magistrate Judge Hennessy found that "the applicant has offered specific and articulable facts showing that there are reasonable grounds to believe that the records and other information sought are relevant and material to an ongoing criminal investigation." Id. (emphasis added).

Some four months later, on June 22, 2018, the Supreme Court determined that the "reasonable grounds" standard under § 2703(d) with respect to CSLI was inadequate under the Fourth Amendment. Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018). The Court held that "[t]he Government must generally obtain a warrant supported by probable cause before acquiring such records." Id. at 2221 (emphasis added).

In support of the Application, the Government averred the following on the basis of an FBI investigation.

At least fourteen convenience store armed robberies occurred around the greater Boston area between December 28, 2017 and February 13, 2018. [Dkt No. 59, Ex. A. ¶ 3]. Through its investigation, the FBI found that the robberies appeared to be committed by the same suspects based on the use of similar clothing, weapons, and patterns of operation. Id. ¶ 3–4. The FBI also concluded that the suspects used cell phones in the course of the robberies for coordination. Id. ¶ 5.

The FBI identified a suspect named Luis Cintron by tracing the rental vehicles used in the robberies. Based on witness descriptions and surveillance videos, the FBI believed a Nissan Murano was used in the robberies. Id. ¶¶ 11, 14, 15, 21. Mr. Cintron was the driver of the vehicle during the relevant time period. Id. ¶¶ 21, 22 & 25. Mr. Cintron was later found to be driving another rental vehicle used in some of the later robberies. Id. ¶¶ 26–27. His appearance also fit the witness description. Id. ¶ 24.

The FBI identified Mr. Ramirez, the defendant before me, from the cell tower records. As a result of a January 26, 2018 court order, which is not challenged here, the Government had obtained cell tower log records that showed all wireless devices that registered with, or "hit off," cell towers near the locations and during the general timeframes of the robberies. Id. ¶ 23. Two of the three phone numbers at issue ("Phone-5761" and "Phone-0730") hit off cell towers near six robbery locations, and the other number ("Phone-0257") hit off cell towers near four robbery locations. Id. Only Phone-5761 was described in the Application as subscribed to by Mr. Ramirez.³ Id. The Government did not state in the Application how the other two numbers were related to Mr. Ramirez, if at all.

Finally, the FBI connected Mr. Ramirez to Mr. Cintron. It found that in an "Inmate Web," Mr. Ramirez had listed Mr. Cintron as a "friend," and that an obituary of Mr. Ramirez's brother had reported Mr. Cintron as Mr. Ramirez's uncle. Id. ¶ 24. Moreover, the Government obtained records that showed Mr. Cintron's phone was in contact with Phone-5761 approximately 154 times between November 15, 2017 and February 19, 2018. Id. ¶ 28. Mr. Cintron's phone was also in contact with Phone-0257 approximately 26 times between January 2 and January 13, 2018. Id. It was not in contact with Phone-0730. Id. There is no other information in the Application that touched upon the issues raised by Mr. Ramirez in his motion to suppress.

Mr. Ramirez has conceded possession of two of the above phone numbers in an affidavit filed in support of his Reply to the Government's Opposition to his motion to suppress. [Dkt No. 69-1]. His affidavit states that he obtained, possessed, and used both Phone-5761 and Phone-0257 "intermittently following [their] activation on December 31, 2017 until [his] arrest in early February 2018." Id. His affidavit does not address Phone-0730.

Mr. Ramirez further contends in his Reply memorandum that he could not have been using the two cell phones during a considerable portion of the time period specified in the Application because of his drug treatment. [Dkt. 69 at 7]. The Government has not contested this contention. The Application requested CSLI for the period from November 15, 2017 through February 21, 2018. It appears Mr. Ramirez was placed in Gosnold Treatment Center's Miller House from September 18, 2017 through December 4, 2017.⁴ Memorandum by U.S. Probation Office, United States v. Ramirez , Case No. 10-cr-10008-WGY, Dkt. No. 204 (D. Mass. Jan. 9, 2018). This information was not known to the Assistant United States Attorney in this case at the time the Application was made. [Dkt. 64 at 14 n.5].

2. March 13, 2018 Statements to Law Enforcement

On March 13, 2018, two Massachusetts State Police Troopers interviewed Mr. Ramirez when he was in custody as a result of a supervised release revocation proceeding then pending on the docket of my colleague, Judge Young. United States v. Ramirez , Case No. 10-cr-10008-WGY, Dkt. No. 137 (D. Mass. Feb. 25, 2016) (sentencing the defendant to time served followed by 3 years of supervised release). He was represented at that time by counsel appearing for the supervised release revocation proceeding. Id. There was as yet no occasion for any counsel to enter an appearance for Mr. Ramirez in this matter.

The troopers filed a report regarding statements Mr. Ramirez made during the interview. [Dkt No. 59, Ex. E]. They reported that they first read Mr. Ramirez his rights "off of a MSP Miranda Rights Form," and that Mr. Ramirez "refused to sign." Id. They then told Mr. Ramirez that they were investigating a series of armed robberies. The report described Mr. Ramirez as immediately becoming "loud and defensive." Id. After the troopers informed him that they knew about Mr. Cintron, Mr. Ramirez stated that he "hangs out" with Mr. Cintron. The troopers reported that Mr. Ramirez further stated that the government agents would not find his fingerprints at any robbery or put him holding a gun. Id. The troopers had not mentioned a gun in speaking with Mr. Ramirez. Id. When the troopers showed Mr. Ramirez pictures of suspects for the robberies, Mr. Ramirez denied he was among them. Id. Asked about his cell phone, Mr. Ramirez stated that he "always has his phone on him" but he did not know his number. Id. The interview ended when Mr. Ramirez stood up and asked to talk to a lawyer. Id.

B. Procedural History

Mr. Ramirez was indicted in this matter on February 28, 2019 and charged with two counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951. [Dkt. 1]. He was arrested on March 28, 2019. The Government filed a superseding indictment [Dkt. 29] on October 24, 2019, charging Mr. Ramirez with eleven counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Counts 1-11), one count of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count 12), and one count of using, carrying, and discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count 13), referencing the robbery charge in Count 7. Mr. Ramirez moved [Dkt. 57] on January 31, 2020 to suppress (A) the CSLI the Government obtained pursuant to the February 23, 2018 court order; and (B) the statements he made to the state police on March 13, 2018.

II. ANALYSIS

A. Historical Cell Site Location Information ("CSLI")

When Magistrate Judge Hennessy issued the February 23, 2018 court order authorizing the Government to obtain the historical CSLI of the three phone numbers under the Stored Communications Act, the statute by terms allowed courts to order disclosure of cell phone records from service providers if "the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that [the records sought] are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d). The Supreme Court decided four months later that this "reasonable grounds" standard⁵ is inadequate under the Fourth Amendment as applied to CSLI. Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 2221, 201 L.Ed.2d 507 (2018). The Court held that "the Government must generally obtain a warrant supported by probable cause before acquiring [CSLI]." Id. (emphasis added).

Mr. Ramirez contends that the CSLI at issue here must be suppressed because the Application did not demonstrate probable cause as required under Carpenter . Id. He further argues that the Application failed to satisfy even the lower § 2703(d) "reasonable grounds" standard as to the CSLI prior to ...