UNITED STATES OF AMERICA v. DIEGO FERNÁNDEZ SANTOS (2024)

OPINION AND ORDER

Before the Court is defendant Diego Fernández-Santos (“Fernández”)’s objection to the report and recommendation (“R&R”) issued by Magistrate Judge Marcos E. López (“the magistrate judge”) (Docket No. 131), regarding Fernández's motion to suppress the contents of a cellphone seized by federal agents executing an arrest warrant at his home. (Docket No. 140.) The United States opposed the defendant's objections but did not object to the magistrate judge's R&R. (Docket No. 143.) For the following reasons, the Court ADOPTS the magistrate judge's R&R, (Docket No. 131), and DENIES defendant Fernández's second motion to suppress. (Docket No. 121.)

I. Relevant Background

The magistrate judge recommended findings of fact based on evidence presented during several suppression hearings held for defendant's first and second motions to suppress. (Docket Nos. 73, 82.) The Court has already adopted the magistrate judge's factual findings (Docket No. 117) and summarizes the pertinent parts as follows.

On February 14, 2023, at approximately 3:00 a.m., the Puerto Rico Police Department (“PRPD”) executed an arrest warrant at the defendant's residence. PRPD's Special Arrest Unit, led by Sergeant Rafael Gómez-Águila (“Sgt. Gómez-Águila”), conducted a forced entry and began sweeping the first floor. After clearing the first floor, the Special Arrest Unit proceeded up the stairway to the second floor. Both the defendant and his mother, the only occupants of the residence, were arrested on the second floor. Later, Sgt. Gómez-Águila and his team conducted a security sweep of the second floor.

While conducting the sweep, Sgt. Gómez-Águila found what appeared to be a rifle in plain sight within a bedroom closet. Once the sweep of the second floor was completed, Sgt. Gómez-Águila notified Agent Gómez of the rifle found upstairs in the bedroom closet. As agent Gómez examined the rifle, he noticed the handle of what appeared to be a second rifle protruding from a blue backpack. Agent Gómez proceeded to check the first rifle and determined it was not a real rifle. Next, Agent Gómez checked the second rifle that was protruding from the blue bag and verified that it was a real rifle. Agent Gómez also testified that as he removed the second rifle from the blue bag, he observed various types of ammunition within the bag.

Agent Gómez further testified that he told TFO Edwin Guzmán (“TFO Guzmán”), the case agent, that two cellphones were also seized: one found on the defendant at the time of the arrest, and the other on the bed of the bedroom where the rifle and ammunition were found (“the bedroom”). On closer inspection, however, the evidence does not show the second phone on the bed where Agent Gómez claimed to have found; instead it shows a cellphone inside the blue backpack that held the real rifle.

II. Legal Standard

A district court may refer a pending motion to a magistrate judge for a R&R. See 28 U.S.C. § 636(b)(1)(B); Local Rule Dist. P.R.R. 72(a). Any party adversely affected by the R&R may file written objections within fourteen days of being served with the magistrate judge's report. See 28 U.S.C. § 636(b)(1); Local Rule Dist. P.R.R. 72(d). A party that files a timely objection is entitled to a de novo determination of “those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Failure to comply with this rule precludes further review. See Davet v. Maccorone, 973 F.2d 22, 30-31 (1st Cir. 1992).

In conducting its review, the Court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985); Álamo Rodríguez v. Pfizer Pharmaceuticals, Inc., 286 F. Supp. 2d 144, 146 (D.P.R. 2003) (Domínguez, J.). The Court may accept those parts of the R&R to which the parties do not object. See Hernández-Mejías v. General Elec., 428 F. Supp. 2d 4, 6 (D.P.R. 2005) (Fusté, J.) (citation omitted).

III. Discussion

A. Motion to Suppress and Recommendations.

Defendant Fernández moved to suppress evidence stemming from the seizure of his second cellphone. In support of his motion, Fernández argued that the warrantless seizure of his second cell phone was unlawful because the phone was not in plain view and no other exception to the warrant requirement existed. (Docket No. 121 at 4.) Alternatively, the defendant requested that the Court set a Franks hearing because he believes he has made a substantial preliminary showing that the search warrant affidavit contained a materially false statement, specifically that Agent Gómez had found Fernández's cell phone on top of the bed. See Franks v. Delaware, 438 U.S. 154, 156 (1978).

The magistrate judge recommended that the motion to suppress be denied and based his recommendations on the following conclusions:

1. Agent Gómez's testimony regarding the location of the second cellphone was not credible.

2. The second cellphone was found in the blue backpack and not on the bed as Agent Gómez testified.

3. The search incident to arrest exception to the warrant requirement did not apply.

4. Exigent circumstances do not exist to justify the seizure of the cellphone.

5. The phone was validly seized pursuant to the plain view doctrine.

The magistrate judge also determined that a Franks hearing was not necessary because the record had been adequately developed over four days of hearings such that the Court could make a determination on Fernández's Franks challenge without additional hearings. (Docket No. 131 at 17.) Ultimately, the magistrate judge determined that defendant's Franks challenge failed because while TFO Guzman acted in reckless disregard for the truth by failing to review the photographic evidence of the phone's location or question Agent Gómez about his testimony, probable cause still existed to justify the search of the cellphone even when the false portions of the statement were removed from the search warrant affidavit. Id. at 20.

In response to the magistrate judge's findings, Fernández makes two arguments: (1) the magistrate judge wrongly determined that the cellphone found in the backpack was the same cellphone that Agent Gómez testified was on the bed, and (2) the magistrate wrongly determined that the warrant provided sufficient probable cause even when Agent Gómez's misleading statements were removed from the warrant affidavit. (Docket No. 140.)

B. Location of the Second Cellphone.

Fernández argues that the R&R erroneously determined that the cellphone Agent Gómez alleged was on top of the bed was recovered in plain view inside of the blue backpack. (Docket No. 140 at 3.) The defendant contends that there is no credible testimony to support the magistrate judge's finding that the cellphone pictured in the blue backpack is the same phone that Agent Gómez alleged was recovered from the bed. Id. Fernández highlights Agent Gómez's credibility issues and requests the Court reject the magistrate's finding regarding the location of the second cellphone given the serious problems with Agent Gómez's testimony. Id. at 4. The government for its part urges the Court to adopt the magistrate judge's recommendations and argues that the photographs shown in government's exhibit 6 (Docket No. 71), along with the magistrate judge's credibility determinations, support the finding that the second cellphone was found in plain view in the blue backpack. (Docket No. 140.)

“[T]he plain view doctrine permits the warrantless seizure of an item if the officer is lawfully present in a position from which the item is clearly visible, there is probable cause to seize the item, and the officer has a lawful right of access to the item itself.” United States v. Gamache, 792 F.3d 194, 199 (1st Cir. 2015) (citing United States v. Sánchez, 612 F.3d 1, 4–5 (1st Cir. 2010); United States v. Jones, 187 F.3d 210, 219–221 (1st Cir. 1999)). “In the ‘plain view’ context, this means that probable cause exists when the incriminating character of an object is immediately apparent to the police.” Sánchez, 612 F.3d at 5; see also Riley v. California, 573 U.S. 373, 401 (2014) (acknowledging that cellphones found with contraband can have an incriminating character because they are “important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals.”).

It is undisputed that there were two cellphones recovered during Fernández's arrest, one that was taken off his person which is not the subject of defendant's motion to suppress, and a second phone that is in dispute. (Docket No. 131.) We also know that a cellphone was found in plain view inside the backpack shown in government's exhibit 6. (Docket No. 71, Ex. 6.) The defendant does not allege that there was a third cellphone, and while Fernández believes this to be immaterial because, in his telling, no testimony links the phone in the backpack to the search warrant affidavit, the Court disagrees.

Defendant alleges in his motion to suppress that the second phone was not recovered from the bed. To assess defendant's claim, the magistrate judge necessarily had to make a determination about the second phone's location. If the Court accepts the premises that were two phones recovered and that the first phone was found on the defendant's person, then it follows that the second phone must be the one shown in the backpack in government exhibit 6 since, to the Court's knowledge, no other phones were recovered from the home. The only alternative is that law enforcement agents took Fernández's phone off his person and placed in in the backpack in time for a picture to be taken. As the magistrate judge noted, this scenario is “nonsensical” to say the least. (Docket No. 131 at 3.)

Because the Court accepts the magistrate judge's conclusion that the second phone was recovered from the blue backpack, it follows that the plain view exception to the warrant requirement applies. Government exhibit 6 shows the second phone in plain view alongside a firearm and multiple rounds of ammunition which made its incriminating nature apparent, providing law enforcement with the necessary probable cause for the search. Gamache, 792 F.3d at 199 (1st Cir. 2015).

C. Franks Hearing.

Fernández next argues that the magistrate judge erroneously determined the search warrant affidavit still provided sufficient probable cause for the search even after the false statements were removed. (Docket No. 140.) The magistrate judge provided the following edits to the search warrant affidavit in response to defendant's Franks challenge:

The other cellphone (the DEVICE) was found on top of the bed of the bedroom where the rifles were found.

․

The Device was found on top of the bed in the room where the rifles were found during a security swee[p] of the TARGET RESIDENCE.

(Docket No. 131 at 20.)

Fernández believes that the statement claiming the cellphone was “in the room where the rifles were found” should also be removed because there is no testimony to suggest the phone found in the blue backpack is the same phone Agent Gómez claimed to have seen on the bed. Id. at 5.

The Fourth Amendment requires that an application for an arrest warrant contain sufficient information to allow the magistrate judge to “make a practical, common-sense decision whether, given all the circumstances set forth in the [application] before him ․ there is a fair probability that a crime has been committed.” United States v. Barbosa, 896 F.3d 60, 67 (1st Cir. 2018) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). An application “supporting a ․ warrant is presumptively valid.” United States v. Gifford, 727 F.3d 92, 98 (1st Cir. 2013). A defendant is able “to rebut this presumption and challenge the veracity” of the warrant application at a pretrial hearing, typically referred to as a “Franks” hearing. United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015).

The Franks Court held that if a defendant can show, by a preponderance of the evidence, that there were false statements included in the warrant affidavit and that, with the “false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the ․ warrant must be voided and the fruits ․ excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Barbosa, 896 F.3d 60, 67 (1st Cir. 2018) (quoting Franks v. Delaware, 438 U.S. 154, 156 (1978)). In other words, to prevail on a Franks challenge, the defendant must show by a preponderance of the evidence both (1) “that an affidavit in [the] warrant application contains false statements or omissions, made intentionally or with reckless disregard for the truth,” and (2) “that a finding of probable cause would not have been made without those false statements or omissions[.]” United States v. Arias, 848 F.3d 504, 511 (1st Cir. 2017) (citing United States v. Tanguay, 787 F.3d 44, 49 (1st Cir. 2015)).

As an initial matter, the Court agrees with the magistrate judge that the defendant has made a showing that Agent Gómez's claim that the cell phone was found on the bed is false. (Docket No. 131 at 20.) Additionally, the Court agrees that the record developed over four days of hearing is more than adequate to resolve Fernández's Franks challenge without further hearings. Id. To prevail in his challenge then, the defendant must satisfy the second Franks prong and show that a finding of probable cause would not have been made without Agent Gómez's false statements. Arias, 848 F.3d 511 (1st Cir. 2017).

As discussed above, the Court finds the magistrate judge's conclusion that the second phone was found in the blue backpack to be entirely reasonable and grounded in the evidence. See (Docket No. 71, Ex. 6.) The blue backpack was found in the same bedroom as the rifles, indeed, one of the rifles was found in that very backpack. Accordingly, the portion of the affidavit that claims to have found the phone in the bedroom with the rifles is true and should not be removed. Taken together, the totality of the affidavit with the false statements removed still provides probable cause to search the contents of the cellphone. See Riley, 573 U.S. 401 (2014) (acknowledging that cellphones found with contraband can have an incriminating character). For this reason, defendant's Franks challenge fails at the final step.

IV. Conclusion

For the reasons discussed above, the Court ADOPTS the magistrate judge's R&R, (Docket No. 131), and DENIES defendant Fernández's second motion to suppress. (Docket No. 121.)

IT IS SO ORDERED.

San Juan, Puerto Rico, July 8, 2024.

FRANCISCO A. BESOSA SENIOR UNITED STATES DISTRICT JUDGE