United States v. Soto

• Decision Date: 26 April 2011
• Docket Number: Criminal Action No. 09–CR–10253.
• Citation: 779 F.Supp.2d 208
• Parties: UNITED STATESv.Steven SOTO, Pedro Soto, Carmen Soto, and Kimberly Litwin.
• Court: U.S. District Court — District of Massachusetts

779 F.Supp.2d 208

UNITED STATES

v.Steven SOTO, Pedro Soto, Carmen Soto, and Kimberly Litwin.

Criminal Action No. 09–CR–10253.

United States District Court, D. Massachusetts.

April 26, 2011.

John A. Capin, United States Attorney's Office, Boston, MA, for Plaintiff.Peter C. Horstmann, Law Offices of Partridge, Ankner & Horstmann, LLP, James E. McCall, Robert Y. Murray, Ramsey & Murray, Robert L. Peabody, Nystrom Beckman & Paris LLP, Boston, MA, for Defendant.

MATERIAL FACTS, RULINGS OF LAW, AND ORDER ON DEFENDANTS' OMNIBUS MOTION TO SUPPRESS

STEARNS, District Judge.

Defendants Steven Soto, Pedro Soto, Carmen Soto, and Kimberly Litwin move to suppress evidence ¹ seized in May of 2007 pursuant to search warrants executed at residences located at 56 Lawrence Road and 14 Moulton Street in Lynn, Massachusetts, as well as the contents of the hard drive of a Gateway laptop computer seized in February of 2007. Defendants further seek to suppress recordings of monitored telephone calls made by Steven Soto in 2007 from the Essex House of Correction. Finally, they request a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), alleging that the affidavit supporting the 2007 residential search warrants contains intentionally false or recklessly untrue statements that are material to a finding of probable cause. A hearing on the motion was held on October 22, 2010. At the court's request, the parties filed supplemental briefing, which was completed at the end of December of 2010.

BACKGROUND

During the afternoon of April 28, 2006, a federal-state task force descended on 56 Lawrence Road in Lynn, Massachusetts, to execute arrest warrants for Steven Soto and his brother, Pedro Soto, Jr.² The Soto brothers had listed 56 Lawrence Road as their mailing address in various Registry of Motor Vehicles (RMV) documents, including vehicle registrations and drivers' licenses.³ Steven Soto did not live at 56 Lawrence Road, although he often spent the night visiting his brother and his father and mother, Pedro, Sr. and Carmen Soto. A neighbor told the officers when they arrived that Steven Soto's car was frequently parked at 56 Lawrence Road and had been seen there as recently as the previous day.

Several officers went to the front door of 56 Lawrence Road while others took up defensive positions around the house. Detective Michael Murphy entered the side yard through a gate in the fence. Peering through a window of the attached garage with the aid of a flashlight, Murphy was able to make out a motorcycle with a Massachusetts registration number SZ6659. Officers later learned that a motorcycle bearing that registration number had been reported stolen by its owner earlier in the month.

Finding no one at home at 56 Lawrence Road, the officers set up surveillance. Eventually, Pedro, Sr. appeared. He told the officers that Steven was on his way “home.” ⁴ While the officers waited, Detective Thomas Mulvey obtained a search warrant from the Lynn District Court. The affidavit submitted in support of the warrant relied heavily on Murphy's observation of the stolen motorcycle. During the subsequent search of 56 Lawrence Road, police seized the motorcycle and other evidence, including incriminating records stored on the hard drive of a Dell desktop computer. On August 20, 2009, Steven Soto was indicted by a federal Grand Jury for mail fraud, wire fraud, bank fraud, and aggravated identity theft (crimes for which he was ultimately convicted on December 20, 2010).

In an Order dated June 23, 2010, Judge Tauro suppressed the evidence seized during the search of the home and the desktop computer. Judge Tauro held that the officers lacked a reasonable belief that Steven Soto lived at 56 Lawrence Road or would be present when they arrived with the arrest warrants.⁵ The prosecution therefore could not rely on the arrest warrant for Steven Soto to justify Detective Murphy's trespass of the curtilage (the side yard) of the home. Because Murphy's illegal viewing of the stolen motorcycle was the only information Judge Tauro found to link Steven Soto's criminal activity to 56 Lawrence Road, once that information was excised from the affidavit, probable cause for issuance of the search warrant disappeared.⁶ The government did not appeal Judge Tauro's Order.

On March 30, 2007, a year after the initial search of 56 Lawrence Road, Magistrate Judge Hillman issued a warrant for the search of the contents of a Gateway laptop computer seized from a Chrysler automobile impounded by the Saugus Police Department.⁷ Trent Everett, an agent of the United States Secret Service, submitted the supporting affidavit. Everett, who had been a member of the Lawrence Road task force in 2006, alluded to Detective Murphy's espying of the stolen motorcycle through the garage window. The affidavit also related the seizure and subsequent search of the hard drive of the Dell desktop computer, as well as the evidence it contained implicating Steven Soto in bank fraud, identity fraud, and motor vehicle theft.⁸

The affidavit then described evidence gathered apart from and subsequent to the 2006 search of 56 Lawrence Road. On February 2, 2007, Agent Everett received a fraud alert from Eastern Bank informing him that Steven Soto had opened a checking account for a company called Aggressive Construction, identifying himself as its owner, “Gregory E. Bradley.” Everett quickly established that the real Bradley was then incarcerated at the Essex County House of Correction. Later that day, Steven Soto was arrested by Saugus police at a branch of Eastern Bank where he was attempting to cash a fraudulent check for $5,700 made out to Bradley. Soto had presented the teller with a driver's license and an American Express card in Bradley's name. As Soto was being escorted out of the bank by police, he gestured to a Hispanic woman (later identified as Yessica Amaro), who then drove off in the Chrysler. A record search indicated that the Chrysler had been purchased and registered in the name of “Gregory Bradley” in February of 2007.

According to the affidavit, Amaro later arrived at the Saugus police station in the Chrysler, accompanied by defendant Kimberly Litwin. Amaro attempted to retrieve a set of car keys from Steven Soto's impounded belongings. When officers confronted the women about the ownership of the Chrysler, they claimed that it had been purchased a few days earlier by Bradley (an impossibility given his incarceration). Police then impounded the Chrysler. An inventory of the contents disclosed the Gateway laptop.⁹

On May 16, 2007, Magistrate Judge Hillman issued search warrants for the Soto family residence at 56 Lawrence Road and for Kimberly Litwin's apartment at 14 Moulton Street.¹⁰ The affidavit in support of the warrant was again prepared by Agent Everett. The affidavit essentially tracked the contents of the March 30, 2007 affidavit, while offering greater detail about what was learned from the search of the Dell desktop computer, including Steven Soto's (and Amaro's) involvement in motor vehicle-related identity fraud, using the names of Bradley and a “Christine Escribano.” Everett also related his subsequent unearthing of a scheme in which Steven Soto used the forged signatures of Milagros Espinal, a notary, to fraudulently finance non-existent car sales through a fictitious automobile dealership. The affidavit then recited the events leading up to the search of the Gateway laptop. That search uncovered false pay stubs and W–2 forms, records of fraudulent vehicle purchases, records of fraudulent real estate purchases conducted by Steven and Pedro, Sr. in Bradley's name, rental receipts for a storage unit where in April of 2007, Steven Soto had hidden a Dodge Charger purchased in Bradley's name, ¹¹ and a website advertising an illegal lottery linked to 56 Lawrence Road and Paradise Real Estate, Pedro, Sr.'s real estate business.

The affidavit finally related incriminating telephone conversations placed by Steven Soto while he was incarcerated at the Essex County House of Correction from February through March of 2007.¹² At the time, the Essex County Sheriff's Department had a written policy governing the recording and retention of inmate telephone calls. As set out in the Inmate Orientation Handbook (which was distributed to every new inmate), “[a]ll inmate calls are subject to telephone monitoring and recording, except pre-authorized numbers for an attorney.” Before a call is connected, both the inmate and the recipient heard the following message: “Hello, this is a call from, [caller], an inmate at the Essex County Sheriff's Department. To accept charges, press [ ]. This call is subject to monitoring and recording.”

DISCUSSION

Standing

In Rakas v. Illinois, 439 U.S. 128, 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court overruled the “legitimately on the premises” standing theory of Jones v. United States.¹³ The Court rejected a Fourth Amendment challenge raised by passengers of a seized automobile who disclaimed any ownership interest in the car or its incriminating contents. Justice Rehnquist, the author of the majority opinion, dismissed a dichotomous standing analysis as redundant. He explained:

having ... reaffirmed the principle that the ‘rights assured by the Fourth Amendment are personal rights, [which] ... may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure,’ ... the question necessarily arises whether it serves any useful analytical purpose to consider this principle a matter of standing, distinct from the merits of a defendant's Fourth Amendment claim.Id. at 138–139, 99 S.Ct. 421. See also Minnesota v. Carter, 525 U.S. 83, 87–88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998).

In United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the Court turned to the second leg of Jones, finding that in light of Simmons v....