Summary
holding that the defendant had no reasonable expectation of privacy in his mobile phone records
Summary of this case from In re U.S. for an Order for Authorization to Obtain Location Data Concerning an atOpinion
Criminal No. 03-221(1),(2) ADM/AJB
August 27, 2003
Andrew R. Winter, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Plaintiff.
Gary R. Bryant-Wolf, Esq., Bryant-Wolf Law Office, Minneapolis, MN, on behalf of Defendant Jose Perez-Alonzo.
Virginia Villa, Esq., Assistant Federal Public Defender, Minneapolis, MN, on behalf of Defendant Juan Jose Bolanos.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to the Objections of Defendant Jose Perez-Alonzo ("Perez-Alonzo") [Docket No. 44] and Defendant Juan Jose Bolanos ("Bolanos") [Docket No. 46] to the July 31, 2003 Report and Recommendation ("RR") by Magistrate Judge Arthur J. Boylan [Docket Nos. 42, 43]. The RR recommends that Perez-Alonzo's and Bolanos' Motions to Suppress Evidence [Docket Nos. 30, 31, 24, 25] be denied. The factual background in this matter is set forth in the RR and is incorporated by reference for purposes of the present Objections. For the reasons set forth below, the Objections are denied and the RR is adopted.
Bolanos' Objections were not filed until August 20, 2003. The RR specified that written objections were to be filed with the court before August 12, 2003.
II. DISCUSSION
The district court must undertake an independent, de novo, review of those portions of a RR to which objection is made and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. LR 72.1(c)(2).
A. Defendant Perez-Alonzo's Objections
Perez-Alonzo objects to Judge Boylan's conclusion that the search of his vehicle was supported by probable cause. Additionally, he contests the RR's suggestion that suppression of his mobile phone records be denied.
1. Search of the Pontiac
Perez-Alonzo alleges law enforcement officers' search of his car lacked probable cause and that the cocaine found therein is therefore inadmissible. As stated in the RR, this search and seizure falls within the automobile exception to the general warrant requirement. Officers "may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained."California v. Acevedo, 500 U.S. 565, 582 (1991); see also United States v. Booker, 186 F.3d 1004, 1006 (8th Cir. 1999). The existence of probable cause is determined based upon the totality of the circumstances.Illinois v. Gates, 462 U.S. 213, 238 (1983).
The facts of the instant case establish probable cause for the search of Defendant's vehicle. The conversations between the undercover officer and Perez-Alonzo regarding arrangements to purchase cocaine and the surveillance of him traveling in the blue Pontiac Sunbird to the location of the planned drug transaction supply probable cause to believe the Pontiac Sunbird contained the contraband subsequently discovered.
2. Subpoena
Perez-Alonzo next challenges the RR's conclusion that cellular telephone records secured pursuant to an administrative subpoena should not be suppressed. He claims the subpoena ordering Qwest Wireless to produce subscriber records was issued in violation of Minn. Stat. § 388.23. This statute, however, explicitly provides that "the county attorney . . . has the authority to subpoena and require the production of any records of . . . cellular phone companies," if the records "are relevant to an ongoing law enforcement investigation." Minn. Stat. § 388.23 subd. 1. Defendant's argument that this section pertains only to welfare fraud investigations is flatly foreclosed by the clear text of the statute.
Additionally, Perez-Alonzo argues that by obtaining his mobile phone records without a warrant supported by probable cause, the government violated his Fourth Amendment rights. He asserts a reasonable expectation of privacy in these records. A defendant seeking suppression has the burden of establishing a reasonable expectation of privacy, which the court assesses by evaluating such factors as ownership, possession and use of and ability to control the place searched or the item seized.United States v. Pierson, 219 F.3d 803, 806 (8th Cir. 2000). Here, Defendant has failed to produce any evidence bearing on these considerations, but offers only the bald assertion that the records in question constitute personal effects. Objections at 2. Given the Supreme Court precedent, established in several contexts, that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties," this contention is without merit. Smith v. Maryland, 442 U.S. 735, 743 (1979) (upholding installation of pen register to track defendant's calls because use of one's telephone is a voluntary conveyance to the phone company of the numbers dialed); see also California v. Greenwood, 486 U.S. 35, 41 (1988) (declining to find a reasonable expectation of privacy in one's discarded trash); United States v. Miller, 425 U.S. 435, 442-43 (1976) (respondent had no legitimate expectation of privacy in financial information "voluntarily conveyed to the bank . . . in the ordinary course of business"). Defendant has not met "the burden showing a legitimate expectation of privacy" in the records in question. Pierson, 219 F.3d at 806. The telephone records are not suppressed.
B. Defendant Bolanos' Objections
Bolanos objects to the recommendation that his Motion to Suppress Statements be denied. The conclusion of the RR is that the brief, exculpatory statements, made in response to questioning by a police officer while seated in the officer's vehicle, were voluntary and therefore admissible for purposes of impeachment. See RR at 9-10;Michigan v. Harvey, 494 U.S. 344, 350-51 (1990) (stating that voluntary statements taken in violation of Miranda may be admitted to impeach defendant's conflicting testimony). The context of the statements does not suggest that law enforcement officials elicited Bolanos' comments through coercion or overbearing his will. See Dickerson v. United States, 530 U.S. 428, 433-34 (2000) (discussing test for voluntariness). Accordingly, Bolanos' Objections are denied.
III. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Perez-Alonzo's Objections [Docket No. 44] are DENIED,
2. Bolanos' Objections [Docket No. 46] are DENIED,
3. The RR [Docket Nos. 42, 43] is ADOPTED,
4. Perez-Alonzo's Motion to Suppress Evidence Seized from Vehicle KNC-737 [Docket No. 30] is DENIED,
5. Perez-Alonzo's Motions to Suppress Evidence Seized by Administrative Subpoena [Docket No. 31] is DENIED,
6. Bolanos' Motion to Suppress Fruits of Unlawful Search and Seizure [Docket No. 24] is DENIED, and
7. Bolanos' Motion to Suppress Statements [Docket No. 25] is DENIED to the extent that Defendant seeks to preclude use of his statements for purposes of impeaching his credibility.