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United States v. Noriega

United States District Court, D. North Dakota

May 8, 2018

United States of America, Plaintiff,
v.
Mary Rodriguez Noriega and Robert Reynoso, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING MOTIONS TO SUPPRESS AND MOTIONS TO COMPEL

          Ralph R. Erickson, Circuit Judge

         INTRODUCTION AND SUMMARY OF DECISION

         Before the court are Mary Rodriguez Noriega's Motion to Suppress[1] and Robert Reynoso's Motion to Suppress Joining in Noriega's Motion to Suppress.[2] Noriega and Reynoso contend that real-time warrantless location tracking of a cell phone allegedly belonging to Noriega constituted an unreasonable search in violation of the Fourth Amendment. Specifically they challenge an order (the “Ping Order”) issued by an Arizona state judge, authorizing the use of mobile device ping and Signal Information Collection System (“S.I.C.S.”) tracking on the phone number (701) 781-2568 under the Stored Communications Act (SCA), 18 U.S.C. § 2703; and the Arizona pen register/trap and trace statute, A.R.S. § 13-3017. Noriega and Reynoso seek the suppression of all evidence obtained as a result of this real-time location tracking.

         The court concludes as an initial matter that Reynoso does not have standing to challenge the tracking of phone number (701) 781-2568. The court also concludes that the Ping Order was the functional equivalent of a warrant supported by probable cause and that, even if the search was warrantless, the Leon good faith exception applies. The motions to suppress are DENIED.

         Because Noriega's motions to compel[3] seek evidence related directly to the issues raised in her suppression motion, the court denies the motions to compel as MOOT. The motions for a hearing on the motions for compel[4] are also denied as MOOT.

         BACKGROUND

         On May 18, 2015, Drug Enforcement Administration (DEA) Special Agent Matthew Robl applied for “an order authorizing the installation and use of the [S.I.C.S.] and precision location of mobile device (Ping) over UF2568 and (701) 781-2568” for a period of sixty days. At the time, Agent Robl and Phoenix Police Detective Joe Marr were conducting an ongoing criminal investigation of the “[Jose Valdemar] Garcia-Moreno Drug Trafficking Organization.” Agent Robl and Detective Marr had already applied for and received authorization for Title III telephonic interception of (701) 781-2568. In an affidavit in support of his application for the Ping Order, Agent Robl provided a synopsis of five calls and one text message that were intercepted from (701) 781-2568:

5/14/15 2:49 p.m. Call: “UF2568 referred to Valdemar as her cousin. UF2568 said that they called the guy (believed to be the drug source in California), and they wanted to meet them at a park the night prior. UF2568 said that they did not want to meet there at night because everyone in California knew that park was hot (commonly referred to law enforcement presence). UF2568 said that her brother asked for the address of the house they were going to meet. They told him (UF2568's brother) that they were not going to meet at a house, so UF2568's brother asked to meet during the day due to their apprehension about meeting at the park at night. UF2568 said that she had her friend, Nacho, call them, and was told to go over around 3 PM. Nacho was told to tell them (California sources) that he was just sent to do a job, if they started asking questions. Valdemar said that he thought they were going for three (believed to be 3 units of an unknown drug), but would probably be given five (5 units of unknown drug). Valdemar said if they could not get those (believed to be drugs in California), then he had some (illegal drugs) in Phoenix. UF2568 asked if they should still pick those up (in California), and Valdemar told her to pick them up because the ones in Phoenix could wait. UF2568 said that they were going to go pick them (illegal drugs in California) up, and would be on their way. UF2568 said she would call Valdemar back when they picked them up.”
5/14/15 2:55 p.m. Call: “UF2568 asked Valdemar whose name the Honda was in. Valdemar told her it was in Marcos Amaya Aldaco. UF2568 asked Valdemar to send the name over a text message. UF2568 told Valdemar that she was asking so they would know how to answer if they were pulled over by the police. Investigators currently have judicial authorization to monitor a temporary GPS device on a white Honda Accord, bearing Arizona license plate A66B88, registered to Marcos Eduardo Amaya-Aldaco. GPS tracks indicate that the Honda was in the Fresno, CA area during this call.”
5/14/15 2:57 p.m. Text: “Marcos amaya aldaco”
5/14/15 5:50 p.m. Call: “Valdemar greeted UF2568 as cousin. UF2568 stated it was only two. UF2568 said that she weighed them, and in the background a male subject told her that they both weighed one pound. UF2568 relayed the weight to Valdemar and said that she received two. Valdemar confirmed that there were only two. Valdemar said that he would tell ‘them' that there were only two. Valdemar asked if she received any for herself, and she said that she was only going to take the type that she liked. Valdemar told her to come with those two, and when everything was good there she could go to Phoenix because he had more there (Phoenix). Valdemar said that he was going to clarify ‘that' with ‘him' so there was no confusion. U[F]2568 stated she was just packing everything so she could get on the road.”
5/15/15 4:11 p.m. Call: “UF2568 called Valdemar to say she was on the way. Valdemar asked if UF2568 was going to see him first, to which UF2568 acknowledged.”
5/17/15 1:09 p.m. Call: “UF2568 . . . called Valdemar and told him that she still had a day and a half left. UF2568 said that it depended on Cadenas (possibly a driver with UF2568) because he was tired. UF2568 said that she had been thinking, and believed that ‘Cartoon' and ‘'Miguel' were going to do something to Valdemar. Valdemar stated Miguel wasn't around anymore because he had a problem. Valdemar said Cartoon had told another individual to take down Valdemar so Cartoon wouldn't have to pay Valdemar. Valdemar then added that Cartoon was hidden but the other individual had told Valdemar right away.”[5]

         Based on these intercepted calls and text messages, Agent Robl and other investigators believed that “UF2568 [wa]s using (701) 781-2568 . . . to discuss the transportation of illegal drugs from California to Minnesota, and then return to the Phoenix area to pick up additional quantities of illegal drugs.”[6]

         On May 18, 2015, the Maricopa County (Arizona) Superior Court issued an order authorizing the Phoenix Police Department and the DEA to use “precision location of mobile device on the telephone(s) identified herein (GPS location), and use the signal information collection system to identify the locations of (701) 781-2568 (Target Line #1), and any/all phones in the possession of UF2568” for sixty days.[7] The court found that “there is probable cause to believe that the use of precision location of mobile device and the signal information collection system will aid the applicant by providing information tending to identify the area and user of the target telephone(s).”[8] The court further found that “there are clear and articulable facts sufficient to establish probable cause this telephone is being used in connection with this drug trafficking organization.”[9] The order was issued pursuant to 18 U.S.C. § 2703 and A.R.S. § 13-3017(B).

         At some point, Arizona law enforcement contacted the DEA's Fargo Resident Office to inform them that UF2568 was on her way to Minnesota to meet with Garcia-Moreno and provide him several units of an unknown drug. On May 26, 2015, the DEA's Phoenix District Office contacted the Fargo Resident Office to advise them that UF2568's phone was located in the vicinity of a strip mall at 2512 7th Ave. S. in Fargo, North Dakota. DEA agents in Fargo located a black Toyota Camry bearing California license plates in the parking lot of the strip mall.

         On May 27, 2015, the Fargo Resident Office was told that UF2568's phone was located in the vicinity of the Red River Lodge at 901 38th Street SW in Fargo. DEA agents in Fargo located the same black Toyota Camry in the hotel parking lot. A Hispanic man and woman entered the vehicle. The agents learned from Red River Lodge management that the Toyota Camry was registered to two guests staying in room 152: Mary Rodriguez Noriega and Robert Reynoso.

         Noriega and Reynoso were located in Fargo again on June 1, 2015, after the Phoenix office notified the Fargo Resident Office agents that UF2568's phone was located near the Wingate at 4429 19th Ave. S. Several applications for search warrants authorizing the collection of precision location data from phone numbers with Reynoso listed as subscriber were filed in the following months by the U.S. Attorney's Office in North Dakota. According to the applications, at least one of these phone numbers was allegedly used by Noriega.

         DISCUSSION

         1. Reynoso Lacks Standing to Challenge the Ping Order.

         In his motion, Reynoso joins in “the Motion to Suppress filed by Mary Noriega” and “the representations and legal arguments contained in the brief and support documents.”[10]Reynoso makes no assertions that he has any property interest in the target telephone. The target telephone was subscribed to by “Prepaid Customer, ” used by an unknown female, and then located near Noriega multiple times, suggesting that she was the unknown female. It is unclear what property interest or reasonable expectation of privacy Reynoso may have had in the phone. Because Fourth Amendment rights are personal rights that cannot be vicariously asserted, “[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.”[11] Reynoso lacks standing to challenge the Ping Order and benefit from the suppression of any evidence obtained as a result of the order.[12]

         2. Exclusion of the Evidence Obtained as a Result of the Ping ...


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