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United States v. Tolbert

United States District Court, D. New Mexico

May 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD ALVIN TOLBERT, Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter is before the Court on three separate motions to suppress filed by the Defendant: (1) Defendant's Motion to Suppress Evidence Seized Pursuant to September 20, 2012 Search Warrant at Defendant's Residence and Request for Evidentiary Hearing Under Franks v. Delaware [Doc. 136], (2) Defendant's Motion to Suppress Evidence Seized Pursuant to September 19, 2012 Search Warrants on America Online for Two E-Mail Accounts [Doc. 137], and (3) Defendant's Motion to Suppress Evidence Seized Pursuant to September 30, 2016 Search Warrants for Dell Dimension and eMachine Computers and Request for Evidentiary Hearing Under Franks v. Delaware [Doc. 138]. In each motion, Defendant asks the Court to suppress evidence from a different aspect of the investigation in this case.

         After reviewing each motion, the corresponding responses and replies, and the evidence cited by the parties, the Court concludes that all of the motions to suppress should be denied.

         DISCUSSION

         I. DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED PURSUANT TO SEPTEMBER 20, 2012 SEARCH WARRANT [DOC. 136]

         In this motion to suppress, Defendant Donald Tolbert (“Tolbert”) argues that evidence that was discovered pursuant to a September 20, 2012 warrant to search his residence and possessions at 1021 4th Street SW (“The Dorm”), Albuquerque, New Mexico, should be suppressed because the warrant relied on an affidavit that contained recklessly false or misleading statements, as well as material omissions of fact, that undermine a finding of probable cause. Citing the Supreme Court's decision in Franks v. Delaware, Tolbert contends that there was no constitutional authority for the warrant. After reviewing the motion, response, and reply as well as the evidence provided by the parties, the Court concludes that the motion should be denied.

         A. The Nature of a Franks Challenge

         Under Franks v. Delaware, 438 U.S. 154 (1978), a Fourth Amendment violation occurs if (1) an officer's affidavit supporting a search warrant application contains a reckless misstatement or omission that (2) is material because, but for it, the warrant could not have lawfully issued. See id. at 155-56; United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997). To win an evidentiary hearing to prove a Franks violation, a defendant must do more than allege a problem with the warrant. The Supreme Court has directed that a defendant's allegations “must be accompanied by an offer of proof.... Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” Franks, 438 U.S. at 171; see also Kennedy, 131 F.3d at 1376. A court must strike any intentional, knowing, or reckless misstatements in the warrant application affidavit and assess the affidavit without them. 438 U.S. at 155-56. If instead the affidavit contains intentional, knowing, or reckless omissions, a court must add in the omitted facts and assess the affidavit in that light. Stewart v. Donges, 915 F.2d 572, 582-83 (10th Cir. 1990).

         B. Franks Does Not Apply

         Tolbert's motion to suppress the evidence seized pursuant to the September 20, 2012 search warrant presents a different scenario than a typical Franks challenge. Usually, a defendant making a challenge under Franks asserts that the affiant who asked for the warrant placed false or misleading statements in the warrant affidavit in order to improperly induce a judicial officer to issue a search warrant. Here, Tolbert contends that the investigator first misled a grand jury in order to obtain a subpoena duces tecum to acquire evidence from third parties, and then relied on the improperly obtained evidence from those third parties in his affidavit in support of search warrant.

         The warrant affidavit in question [Doc. 136-1] was signed by Special Agent Owen E. Pena of the New Mexico Attorney General's Office, Internet Crimes Against Children Task Force.[1]Tolbert contends that Pena gave false and misleading testimony before the state court's grand jury, which led the grand jury to issue subpoenas duces tecum for CenturyLink and America Online (“AOL”). See Doc. 136-3. The subpoena served on CenturyLink requested subscriber information for a particular IP address, “[i]ncluding the names(s) and addresses of the person(s) who opened the account, the date the account opened, detailed method of payment, telephone number(s) used to access the Internet, email addresses, connection address, current/recent IP addresses, and any identifying information, which would tend to identify the person(s) subscribing to the service.” Doc. 136-3 at 2. The subpoena duces tecum to AOL requested all the above information for the email addresses ddt123abc@aol.com and donnieisagod@aol.com (and their associated AOL screen names), as well as IP connection logs and “buddylist information.” Id. at 1. Tolbert argues that Pena recklessly misled the grand jury into believing that Tolbert had committed a crime, Doc. 136 at 9-10, thereby causing the grand jury to issue subpoenas. He asserts that because Pena misled the grand jury, the information obtained through those subpoenas was obtained in violation of his constitutional rights. Tolbert argues that the information later obtained through the search warrants should be suppressed because the affidavit in support of the search warrant relied on information acquired through improperly obtained subpoenas.

         Tolbert's argument fails because there is no authority to support an argument that Franks applies to testimony given before a grand jury or the resulting subpoenas. Tolbert cites no decisions in which a court has extended Franks beyond the context of a warrant affidavit, and the Court can find no case in which any federal court has applied a Franks analysis to grand jury testimony or to a subpoena. Perhaps this is because “the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time of the subpoena is issued.” United States v. Miller, 425 U.S. 435, 444 (1976).

         To counter this argument, Tolbert relies upon Carpenter v. United States, 138 S.Ct. 2206 (2018). However, his reliance is misplaced. As the Court noted in its prior Memorandum Opinion and Order [Doc. 127 at 20-21], in Carpenter the FBI identified the cell phone numbers of several robbery suspects, and prosecutors were granted court orders to obtain the suspects' cell phone records under the Stored Communications Act. These included a time-stamped record known as cell-site location information (CSLI) that is generated each time a phone connects to a cell site. These records generate an extremely detailed log of the phone's (and therefore the defendant's) physical locations and movements. Carpenter moved to suppress the data, arguing that the Government's seizure of the records without obtaining a warrant supported by probable cause violated the Fourth Amendment. The Court agreed, noting that there is a reasonable expectation of privacy in one's physical location. Id. at 2217. “Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.” Id. at 2216. The Supreme Court reasoned that before cell phones, police could follow a suspect for a short while, but doing so for an extended period of time was impractical and expensive, and therefore rare. Id. at 2217. As a result, Americans have come to expect that law enforcement would not and could not secretly monitor their movements for a long period of time. “Allowing government access to cell-site records contravenes that expectation, ” and “[m]apping a cell phone's location over the course of 127 days provides an all-encompassing record of the holder's whereabouts” that provides the government with “an intimate window into a person's life.” Id. Thus, the Carpenter court held that the government could not obtain such comprehensive, private information without a warrant. Id. at 2221.

         The records that the grand jury in this case subpoenaed from CenturyLink and AOL are not like the CSLI records in Carpenter. The records in this case do not provide a detailed chronology of Tolbert's past movements over a period of time. Rather, they are more like the traditional business records in United States v. Miller, 425 U.S. 435 (1976) (no expectation of privacy in financial records held by a bank) and Smith v. Maryland, 442 U.S. 735 (1979) (no expectation of privacy in records of dialed telephone numbers conveyed to telephone company)) because they contain information about who the company's customers are, how long they have been using the company's services, and where they reside. This case is similar to the recently issued opinion in United States v. Hood, 920 F.3d 87 (1st Cir. 2019), in which the First Circuit concluded that a defendant did not have a reasonable expectation of privacy in his IP address data acquired without a warrant from a smartphone messaging application and two internet service providers. The Hood court distinguished Carpenter, observing that an internet user generates the IP address data acquired in that case “only by making the affirmative decision to access a website or application. By contrast, as the Supreme Court noted in Carpenter, every time a cell phone receives a call, text message, or email, the cell phone pings CSLI to the nearest cell tower without the cell phone user lifting a finger.” Id. at 92. See also United States v. Contreras, 905 F.3d 853, 857 (5th Cir. 2018) (concluding that Carpenter analysis does not apply to IP address information obtained via grand jury subpoena from a smartphone messaging application). The information gathered in the grand jury subpoenas in this case does not provide comprehensive, detailed information about Tolbert's movements over an extended period of time. Rather, they are the type of records about a subscriber that are akin to the types of records kept by many businesses regarding the identities and locations of their customers. Further, the subpoenaed data appears to have been generated from Tolbert's own affirmative actions in utilizing CenturyLink and AOL, and in this way is distinguishable from the CSLI data in Carpenter. Thus, the information obtained from CenturyLink and AOL did not require a warrant.

         In summary, Tolbert has failed to show that he has a reasonable expectation of privacy in the data that law enforcement obtained from CenturyLink and AOL. He has also failed to demonstrate that Franks and its progeny apply to grand jury testimony and grand jury subpoenas. For these reasons, his motion to suppress will be denied.

         C. The Stored Communications Act

         Tolbert argues that certain information requested by the grand jury subpoenas and then relied upon by Pena in his affidavit in support of search warrants was “outside the scope of what Congress authorized for disclosure by AOL in the Stored Communications Act (“SCA”), 18 U.S.C. § 2703(c)(2) . . .” Doc. 136 at 10. Specifically, Tolbert alleges that “IP connection logs and buddylist information” exceed the scope of the statute-specifically, § 2703(c)(2)(E), which concerns the “instrument number of other subscriber number or identity, including any temporarily assigned network address.” Id.; Doc. 151 at 3. Tolbert provides no explanation, reasoning, precedent, or authority for his position. Even if Tolbert is correct in his assertion that the Government violated the SCA, he provides the Court with no authority stating that suppression is the appropriate remedy. Further, he argues that IP connection logs and buddylists are more akin to the CSLI data in Carpenter. According to Tolbert, ...


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