Opinion
CRIMINAL 98-0164 (DRD)
May 3, 2002
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter is before the court on motion to reopen suppression hearing based upon newly discovered and material evidence, and request for enhanced discovery filed by co-defendant Luis Ginés-Pérez ("Ginés-Pérez") on April 4, 2001. (Docket No. 362.) The motion focuses on the good faith of the law enforcement agent(s) involved in his arrest on July 6, 1998. The defense has argued and continues to argue that United States Customs agents must have known that the defendant's car, the one stopped on that evening, was in fact his and not stolen. This conclusion is due to the fact that the agency had been actively investigating him and must have followed his vehicle, and therefore must have conducted a routine background and vehicle check.
After the vehicle was stopped by law enforcement officers, the same was searched. Among the items seized, heroin wrapped in duct tape and attached to a belt was found on the floor of the front passenger part of the vehicle. Co-defendant Efrén Andrades was a passenger in the vehicle driven by movant Ginés-Pérez on the evening of July 6, 1998. There were no other passengers.
After a fruitless in-camera inspection of documents which might have supported defendant's theory, additional discovery revealed that United States Customs personnel were aware that Ginés-Pérez drove a green Honda Civic license plate BMZ-287. A United States Customs Report of Investigation (ROI) dated July 21, 1998 reflects that on March 3, 1998, Special Agent Melvin de la Torre ("Agent de la Torre") interviewed a confidential source who advised that the defendant drove a green Honda Civic with a license tag BMZ-287. Another ROI dated June 6, 1998 reflected that on March 6, 1998 Task Force agents followed the defendant from a location known as Phone Home, a.k.a. Multiplix ("Multiplix"), in a green Honda Civic license plate BMZ-827. The agents followed him to his home. A routine computer check of the vehicle revealed that the vehicle was registered to Jazmín Monge Mojica, the defendant's then girlfriend. No report of stolen vehicle appeared. The defendant argues that consequently any good faith exception to the Fourth Amendment's requirements does not apply due to the government's blatant misconduct in concealing evidence.
The case has passed through three prosecutors. This discovery was supplied through the efforts of the last and present one.
The correct tag number was BMZ-827.
The hearing to reopen my previous determination was originally set for June 7, 2001 and then reset for August 7, 2001 in order to allow the parties to continue discovery. The United States sought a continuance. Exercising my discretion, I denied the request. The court directed me to set a new hearing date. (Docket No. 416.) The hearing was then set for September 18 and 19, if necessary. (Docket No. 424.) The defendant filed an emergency motion to continue and the hearing was reset for October 10, 2001, and again for October 23, 2001. (Docket Nos. 434 435.) At the hearing, the United States opposed the same and moved to quash the subpoena of Luis Torres-Pérez ("Torres"), a cooperating individual. I instructed defense counsel to submit an ex-parte sealed motion for my consideration detailing all possible questions which he expected to ask Torres. I would then decide whether to allow the testimony or not.
At the hearing held on October 23, 2001, Agent de la Torre testified that in 1998, when he was assigned to HIDTA, he had access to the Treasury Enforcement Communications System (TECS) which allowed investigators from the United States Customs Department and the United States Treasury Department to have access to collective intelligence. Agent de la Torre was the case agent involving several arrests conducted on January 18, 1998, and which also involved Torres, who then began cooperating with the authorities. Agent de la Torre was assigned to handle Torres and whenever he gave information to Agent de la Torre, an ROI would be issued. Those ROI should have been in the case file.
High-Intensity Drug Trafficking Area.
On February 24, 1998, the HIDTA group served a subpoena on the Cellular One Telephone Company, to receive information on a telephone number, 787-379-9928. Such information revealed that the telephone number belonged to Ginés-Pérez. Agent de la Torre knew about the phone number when he first spoke to Torres on January 18, 1998. To the best of the agent's recollection, Ginés-Pérez became a subject of an investigation in January, 1998, after Torres' arrest.
On March 3, 1998, four months before Ginés-Pérez was arrested, Agent de la Torre conducted a debriefing with Torres, now a confidential source. Referring to the ROI, Agent de la Torre noted that Torres told him on that day that Ginés-Pérez was driving a green Honda Civic, license tag BMZ-287. That information was entered into a database which was available to Customs and Treasury investigators, including Special Agent José Fernández ("Agent Fernández"). A query would have been made on the vehicle, and if such query reflected that the car had been stolen, such information would have been put in an ROI. The agent did not recall discussing Ginés-Pérez with Agent Fernández before July 1998. He clarified that in 1998, United States Customs agents were conducting three investigations, one of which targeted a place called Multiplix. Agent de la Torre was the case agent for the January 18, 1998 incident, Agent Fernández was the case agent for the Ginés-Pérez case, this one, and Associate Special Agent in Charge Leo Morales ("Agent Morales") was the case agent for the Multiplix case.
Task Force Agent Fidel Ramos testified that he was involved in HIDTA's Multiplix investigation in 1997. On March 6, 1998, he was involved in a surveillance at Multiplix. During that surveillance, someone who later became known as Ginés-Pérez was observed. Gin´s-Pérez was nervous as he entered the business establishment and even tripped on the stairs. He was carrying a sports bag. He came out about an hour later and entered a car he had arrived in, a green Honda Civic, license tag BMZ-872. Photographs were taken. The green Honda Civic was then followed to Ginés-Pérez' home in Encantada, Trujillo Alto. All of this information would have been relayed on that date to his HIDTA group supervisor. Agent Morales was the case agent. A report on the March 6, 1998 surveillance was produced on June 8, 1998, and Ginés-Pérez appeared as "f/n/u" (first name unknown). When the license tag was checked on March 8, 1998, the name Jazmín Monge Mojica appeared. Agent Fernández was never involved in this case and none of this information was given to him.
Agent Morales testified that he was the lead agent in the Multiplix investigation, which was led by United States Customs, until he left HIDTA in May 1999. He said that all of the agents worked together in this case and that a good deal of surveillance was performed. Surveillance agents followed people to their homes as often as possible. Agent Fernández had an active role in the investigation, as did Task Force Agent Domiciano Martínez ("Agent Martínez"). Agent Morales worked on the Multiplix investigation from November 1997 until May 1999 and Ginés-Pérez was never developed as a target or defendant in that case, and was never indicted. Only after his arrest did one of the agents realize that Ginés-Pérez was the person they had surveilled on March 6, 1998.
On May 11, 1998, Agent Fernández and Agent Martínez, who was involved in the arrest of Ginés-Pérez, surveilled a meeting between Edwin Cotto Santiago and Falú Jiménez, a suspected drug courier. They arrested Falú Jiménez, and seized some money from him. Falú Jiménez did not provide information to the investigators and did not cooperate with the government, although he was the person who was going to be surveilled on July 7, 1998, the day Ginés-Pérez was arrested. Agent Morales never informed Agent Fernández or Agent Martínez prior to July 6, 1998, that Ginés-Pérez had a green Honda Civic, tag number BMZ-827.
A main target in the Multiplix investigation.
Making reference to Ginés-Pérez' arrest, Agent Fernández noted that his arrest was not part of the Multiplix investigation and that the license tag was run in the ordinary course of the investigation, not because the car belonged to someone else, but because he was the target of an investigation, as recognized by Agent Martínez.
Torres testified that on the day he was arrested, January 18, 1998, he cooperated with Agent de la Torre and provided certain information to him. He did not mention Ginés-Pérez on that date. The first time he mentioned Ginés-Pérez' name was when the office was searched. On March 3, 1998, Torres did not tell Agent de la Torre that Ginés-Pérez drove a green Honda Civic, license tag BMZ-827. He did not know the license tag.
Torres also testified that while he was employed at Red Gecko, he became aware of the beginning efforts at launching a public Internet site. He was aware that an Internet service provider had been contacted and that preliminary steps had been taken to create a Web site. A photograph of all of the employees was to be posted on that site. The photograph included the witness and the defendant. The Web or home page never got published and Torres does not have access to the same. Ginés-Pérez and others could access the page and edit the same. Consequently, the only access to the site was through the Web page address.
In the defendant's supplemental filing in support of the motion to suppress physical evidence, he argues that after the recent evidentiary hearing, it became clear that law enforcement personnel only ran the license tag of the defendant's vehicle because Agent Martínez purportedly recognized the defendant from a photograph taken from the Internet that Agent Fernández had previously shown him. But for that photograph having been shown to him, the license tag would not have been checked, the stop would not have been made, and the arrest would never have been performed.
The photograph was supposedly downloaded by Agent Fernández based upon information received from a confidential informant from a private Internet site where the defendant arguably had a legitimate expectation of privacy. It is clear that Agent Fernández did not secure a search warrant to seize the photograph, and the defendant argues that there is no valid exception to the Fourth Amendment's warrant requirement for this search, an unlawful seizure caused by the accessing and then downloading a photograph from a private Web page. Consequently, the physical evidence seized from the defendant is the fruit of the poisonous tree.
The United States argues in the motion in Opposition filed on April 3, 2002, that the defendant did not have a reasonable expectation of privacy because access to the Web page was carried out originally through a private search which Agent Fernández merely confirmed. Moreover, the defendant has no reasonable expectation of privacy in either the Web page or the photograph because they were part of the World Wide Web and defendant never took preventive action to ensure privacy in the Web page and his photograph. The Web page address was also known to other, third parties, and thus defendant could not have a reasonable expectation of privacy. Furthermore the informant, who had joint access and control over the Web page, was a third-party with authority to consent to the search and seizure. And even if the third-party's authority to consent to the search was fictitious, the warrantless search was valid because law enforcement personnel relied on the informant's "apparent authority." Finally, defendant's allegation that "but for" Agent Martínez' prior viewing of the photograph he would not have checked the license tag is contradicted by evidence that given the nature of the investigation and the specific circumstances of the surveillance, defendant's license plate would have been checked independent of whom he was.
RIGHT TO PRIVACY
Defendant's Web-page-in-the-making theory attributes a Fourth Amendment right to privacy in a Web page and the photograph located upon it. Admittedly, I have found no case law that considers the presented issue. Although novel, the instant case does not involve the employment of innovative technological instruments by law enforcement personnel. See, e.g., Kyllo v. United States, 533 U.S. 27 (2001); Olmstead v. United States, 277 U.S. 438 (1928). Rather, this issue concerns the attraction of traditional Fourth Amendment principles to the technology provided by the World Wide Web through the lens of established police practices.
The Fourth Amendment's central requirement is one of reasonableness.Illinois v. McArthur, 531 U.S. 326, 330 (2001); see also Texas v. Brown, 460 U.S. 730, 739 (1983). The test for reasonableness requires "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as `reasonable.'" Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring). Although this two-part test focuses upon the individual, Fourth Amendment jurisprudence also substantially depends on reference to location and "the people."
For reference to location, see: Rakas v. Illinois, 439 U.S. 128, 143 (1978) ("capacity, to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place."); New York v. Class, 475 U.S. 106, 112 (1986) (". . . State's intrusion . . . cannot result in a Fourth Amendment violation unless the area is one in which there is a `constitutionally protected reasonable expectation privacy.'") (quotingKatz v. United States, 389 U.S. at 360)
As well as being the cornerstone for the second part of Justice Harlan's two part test, for reference to "the people," see: "The right of the people . . . ." U.S. Const. amend. IV; Oliver v. United States, 466 U.S. 170, 182-83 (1984) ("Rather, the correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment."); Cámara v. Municipal Court of City County of San Francisco, 387 U.S. 523, 528 (1967) ("The Fourth Amendment thus gives concrete expression to a right of the people which `is basic to free society.'") (citations omitted).
Defendant has exhibited an actual, subjective expectation of privacy in his Web page. At the time Agent Fernández accessed the Web page, it was maintained and operated by defendant as though it were, in fact, owned by him. Defendant did intend for the Web page to become a commercial Web page under the business name Red Gecko in the future. But defendant's Web page had not been finalized nor become a viable commercial entity on the World Wide Web at the time the agent accessed it. Instead, it was still being designed and was under construction. Thus, defendant had an actual, subjective expectation of privacy in the Web page owned by him at the time of Agent Fernández' access to it.
The remaining question then is whether defendant had an expectation of privacy that society is prepared to recognize as reasonable. The particular Web page the World Wide Web user encounters is a direct result of affirmative acts taken by him or her. Here, defendant's Web page was online at the time Agent Fernández' gained access to it. The Web page was not located on a secure network, but rather on an unsecure one, those accessible to and normally used by the public. This address could be used by the World Wide Web user, in this case Agent Fernaacute;ndez, to locate defendant's Web page from any computer with access to the World Wide Web. After locating this address, the World Wide Web user could then view the information contained on the Web page and, like the agent, download graphics from it. There is no evidence to conclude that the Web page stated: "Warning" or "Do not Copy." The Web page did not employ protective measures or devices that would have controlled access to the Web page or the photograph itself. The Web page was not protected with a password, which would have actually refused access by undesired or unknown visitors.
See Reno v. American Civil Liberties Union, 521 U.S. 844, 852 (1997) ("A user may either type the address of a known page or enter one or more keywords into a commercial `search engine' in an effort to locate sites on a subject of interest. . . . Users generally explore a given Web page, or move to another, by clicking a computer `mouse' on one of the page's icons or links.")
Meaning it was accessible through the World Wide Web.
It is sufficient for my present purpose to demonstrate that defendant could have placed protective measures onto his Web page. More succinctly, that installing protective measures for greater Web page security was an option for defendant. The relevant security or infirmity of such measures has no bearing on this inquiry.
Yet at the same time, defendant never publicized his Web page by promoting it through mass communication mediums, including the World Wide Web, displaying the address anywhere in public, or attempting to attract outside attention to it. He never registered his Web page with any search engines that would have allowed members of the public to find his Web page through designated World Wide Web searches. There is also no evidence that defendant employed META Tags or other promotive technologies on his Web page. In sum, while defendant did not take actions to ensure his Web page's security from unwanted access by a World Wide Web user, he too did not take steps to arouse public knowledge or elicit public scrutiny of it.
For example, www.yahoo.com, www.altavista.com, www.google.com.
A META Tag is a code attached to the top of the Web page invisible to normal visitors. The META Tag usually contains words that identify the content of the Web page. Some but not all search engines use these tags to more accurately list a Web page within their indexes.
Standing alone, these facts present a cognizable Fourth Amendment privacy interest in defendant's Web page. The World Wide Web is an innately open, public forum where maintaining absolute privacy of Web page content is at best tenuous and at worst non-existent. But by gently turning the examination's focus from substantive existent and normative matters to the defendant's assumption of risk and subjective expectations in peculiar circumstances, this inquiry would discretely bypass the recipient of Fourth Amendment reverberations — members of society. Losing this focus then when confronted with the technological innovation of the World Wide Web is to abdicate the essential ground staked out by the Fourth Amendment in our constitutional framework.
The placement of Fourth Amendment protections should not grow distant from its individual sources because of the invention and use of new technologies. Defendant exerted and maintained control over the Web page and its contents vis-a-vis members of the public. His actions sought to protect his "property as well as his privacy" in his Web page that resided in the medium of the World Wide Web. Soldal v. Cook County, Ill., 506 U.S. 56, 62 (1992). In fact, defendant kept the Web page concealed from public knowledge. The Fourth Amendment protects the liberty of the individual and recognizes his purposeful acts to maintain control over his own affairs. In short, defendant should not have to erect a fortress when he has already toiled to dredge and fill a moat.
But defendant's Fourth Amendment right to privacy ultimately becomes untenable because of his failure to protect his Fourth Amendment interest in the Web page from those closest to him and it — his employees. Defendant voluntarily exposed the World Wide Web address and access to his Web page to multiple employees. More particularly, the informant, a former employee, had knowledge of defendant's Web page address and also access to it. As evidenced, he communicated this knowledge to Agent Fernández who then used this proffered information to find the Web page and download a photograph from it. (Docket No. 482.)
It is well-settled that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Smith v. Maryland, 442 U.S. 735, 743-44 (1979); United States v. Miller, 425 U.S. 435, 442-45 (1976); Couch v. United States, 409 U.S. 322, 335-36 (1973); United States v. White, 401 U.S. 745, 752 (1971); Hoffa v. United States, 385 U.S. 293, 302 (1966); López v. United States, 373 U.S. 427 (1963).
Defendant's conduct in voluntarily revealing the World Wide Web address of his Web page to third parties undermines a reasonable expectation of privacy in the Web page. He freely offered the Web page address to third parties with knowledge that he ultimately could not control to whom they gave this information. That defendant gave his employees this information for a limited purpose, primarily fixing and updating the Web page itself, does not prohibit the informant (or any other Red Gecko employee) with knowledge of the World Wide Web address from revealing and conveying said information to government authorities. Smith v. Maryland, 442 U.S. at 443; United States v. Miller, 425 U.S. at 744.
Furthermore, these third parties also had joint access to the Web page and their use of it was not restricted in any manner. Although the informant did have joint access to the Web page, he did not have common authority over it sufficient to consent to a valid search and seizure.See, e.g., United States v. Matlock, 415 U.S. 164 (1974). The unrestricted access and use of the Web page by third parties, however, further erodes a legitimate Fourth Amendment privacy interest.
Finally, even though defendant acted to secure the privacy of his Web page from members of the public, the World Wide Web is a unique medium. It presents a public space where the recognition and expectation of privacy by both Web page owner and World Wide Web user begin at a diminished level. And when defendant revealed the address of the Web page to his employees, as well as granting them unfettered access to it, the seclusion of the Web page on the World Wide Web was effectively removed.See Note, Keeping in Secrets in Cyberspace: Establishing Fourth Amendment Protection for Internet Communication, 110 Harv. L. Rev, at 1603 (May 1997) ("simple obscurity is not enough to establish a reasonable expectation of privacy."). With the Web page so revealed, defendant did not have an expectation of privacy in his Web page that society would recognize as reasonable. Therefore, Agent Fernández' warrantless search of defendant's Web page and seizure of the photograph depicting defendant did not violate the Fourth Amendment prohibition against unreasonable search and seizures.
THE VEHICLE STOP
The law is clear. A police officer's act of stopping a vehicle and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979); United States v. Kimball, 25 F.3d 1, 5 (1st Cir. 1994). After approaching the vehicle, Agent Fernández noticed what he considered to be either heroin or cocaine wrapped in duct tape on the passenger, and thus ordered both defendants arrested. United States v. Meade, 110 F.3d 190, 198 (1st Cir. 1997).
Defendant's argument that "but for" Agent Martínez' recognition of defendant from a photograph that Agent Fernández had shown him, Agent Martínez would not have checked the license tag of defendant's car and thus the justification for stopping, arresting, and searching the defendant would not have existed is not persuasive. Agent Martínez testified that the vehicle was stopped because it appeared to be stolen. Moreover, law enforcement personnel were conducting a surveillance on an individual suspect at a particular location. Defendant's arrival and conduct at the location contributed to law enforcement's suspicion of defendant. It does not seem exceptional or extraordinary that law enforcement personnel would perform a license plate check on vehicles belonging to persons thought to be involved in the criminal activities or with the suspected individuals being surveilled at that time. To wit, other vehicles' license plates were also verified during the surveillance. (Docket No. 482.) Therefore, law enforcement personnel had other reasonable grounds to stop defendant at this time. See United States v. Alvarado-Rodríguez, 59 F. Supp.2d 329, 335 n. 3 (D.P.R. 1999). Although the identification from the photograph might have been one such cause, I do not believe that it alone lead law enforcement personnel to detain, arrest, and search defendant. As a result, items found upon search of the defendant were not "fruits of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 484-85 (1963).
According to plaintiff, defendant "park[ed] in front and enter[ed] the targeted restaurant and immediately exit[ed] it accompanied with a person that he was previously observed speaking with[.]" (Docket No. 482, at 17, ¶ 3.) At which point "[b]oth got inside the vehicle that was driven by Ginés. At some point agent Martinez observed that while Ginés was looking at the passenger, the passenger quickly lifted his shirt like showing some thing to Ginés. Thereafter, they took off in the car. Ginés drove again by the Vietnamese Restaurant but at this time did not stop. Agent Fernández instructed the agents to stop the vehicle." Id. ¶ 1.
In view of the above, I again recommend that the motion to suppress be denied.
Under the provisions of Rule 510.2, Local Rules, District of Puerto Rico, any party who objects to this report and recommendation must file a written objection thereto with the Clerk of this Court within ten (10) days of the party's receipt of this report and recommendation. The written objections must specifically identify the portion of the recommendation, or report to which objection is made and the basis for such objections. Failure to comply with this rule precludes further appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985), reh'g denied, 474 U.S. 1111 (1986); Davet v. Maccorone, 973 F.2d 22, 30-31 (1st Cir. 1992); Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988); Borden v. Secretary of Health Human Servs., 836 F.2d 4, 6 (1st Cir. 1987); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).