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United States v. Scott

United States District Court, E.D. Michigan, Southern Division

May 14, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
(1) ANDRE LEE SCOTT, (2) ADOLFO VERDUGO LOPEZ, (3) MANUAL ARNULFO BARAJAS, Defendants.

          ORDER DENYING DEFENDANTS' MOTIONS TO SUPPRESS (DKTS. 73, 86, 87, 88, 89, 90)

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.

         Defendants Andre Lee Scott, Adolfo Verdugo Lopez, and Manual Arnulfo Barajas are each charged with conspiracy to distribute controlled substances and possession with intent to distribute controlled substances (Dkt. 53). They now move to suppress evidence seized during the execution of a search warrant on a condominium in Novi, Michigan (Dkts. 73, 87, 89). Defendant Scott also moves to suppress location data collected from a cellular phone (Dkt. 86).[1] The Government responded to Defendants' motions (Dkts. 85, 100, 108) and the Court heard oral argument on March 8, 2018. For the reasons set forth below, Defendants' motions to suppress are DENIED.

         I. BACKGROUND

         A. Search Warrant for the Condominium on Joyce Lane

         On June 29, 2017, Drug Enforcement Administration (DEA) Special Agent Michael Reamer submitted to Magistrate Judge Anthony Patti an application for a search warrant of a condominium unit located at 42284 Joyce Lane, Novi, Michigan. The affidavit set forth the following information.

         On March 24, 2017, DEA agents seized 600 grams of heroin after a drug transaction that occurred in the parking lot of a Wal-Mart in Novi, Michigan. Agents were able to monitor this drug transaction in real time because they had a Title-III, court-authorized wiretap on the individual who received the heroin (hereafter, the “Arrestee”) and who was arrested shortly after driving away from the Wal-Mart.[2] The seized heroin was contained in an otherwise empty Sony PlayStation box. Following the March 24 seizure, agents sent a subpoena to Sony requesting any information concerning the serial number (MC712850856) printed on the PlayStation box. Sony responded that the PlayStation was purchased with cash at the same Novi Wal-Mart on March 15, 2017 (nine days before the heroin seizure). Agents then contacted Wal-Mart security, reviewed security video footage, and discovered that the purchaser of the PlayStation was an unknown black male, 20-30 years of age, driving a silver SUV (Affidavit, ¶ 5).

         The Sony subpoena response also stated that the PlayStation associated with that serial number was activated by a “James Clover” from Rialto, California. Id. Agents were unable to further identify or locate Clover. Sony also identified three credit cards (used to activate the PlayStation) for two additional individuals - Vincent Johnson (San Ber-nadino, California), and “Manjaro” (Victorville, California). The affidavit states that agents were unable to further identify or locate Johnson, and that they believed this was a false name. However, agents believed that “Manjaro” was Manjaro Chaka Johnson (Id. ¶¶ 6-7). The relevance of Manjaro's specific identity is not explained further in the affidavit.

         Sony also reported that the “IP address” utilized by the PlayStation was associated with internet service provider Brighthouse Network, LLC. An IP address, or Internet Protocol address, is a set of numbers that electronic devices such as computers and laptops use to connect to the Internet. During an Internet session, a unique IP address is assigned by an internet service provider for any device that is connected to the internet. SA Reamer subpoenaed Brighthouse, the provider who owned that IP number, and learned that the number was assigned to an internet account registered to a Matthew Maccage, and active at the Joyce Lane condo that was the target of the search warrant at issue (Id. ¶ 8). Agents were unable to further identify or locate Maccage, and believed that this was also a false name (Id. ¶ 9).

         After interviewing the Arrestee, reviewing the calls intercepted over the wiretap during the March 24 drug deal, and considering surveillance, agents subpoenaed the ride-sharing service Uber Technologies, Inc. (“Uber”), believing it was used by the person who delivered the heroin during the March 24 drug deal at the Wal-Mart (Id., ¶ 10). The returns from Uber linked Defendant Scott's Uber account[3] to the Joyce Lane condo and heroin delivery at the Wal-Mart on March 24, 2017. Specifically, Uber records indicated that, on March 24, Defendant Scott's Uber account listed two scheduled pick-ups (at 6:54 p.m. and 7:08 p.m.) from the Joyce Lane condo, although the records listed no corresponding drop-offs following these two pick-ups. Defendant Scott's Uber account records further showed a pick-up from the Wal-Mart (at 8:19 p.m.), and then a drop-off (at 8:30 p.m.) back at the Joyce Lane condo (Id., ¶¶ 10-12). These Uber trips match the time (approximately 7:20 p.m.) of the heroin delivery to the Arrestee in the Wal-Mart parking lot. Again, agents know the precise time of the exchange because of the wiretap on the Arrestee's phone, which intercepted conversations of the Arrestee discussing the drug deal as it was happening (Id. ¶ 13, FN1).

         Finally, another subpoena to Brighthouse (returned on June 9, 2017) confirmed that the previously identified IP address was still active at the Joyce Lane condo, and that IP address was linked to the same subscriber information it had on March 24 (Id., ¶ 13). On June 24, 2017, Magistrate Judge Patti authorized a search warrant for the Joyce Lane condo. The warrant authorized agents to seize: drug paraphernalia and packaging materials, drug notes and ledgers, cash, items identifying the condo's occupants, travel documents, cellular phones and computers, and safes and luggage. Notably, the list of items sought did not include controlled substances. The facts in the affidavit suggested probable cause that paraphernalia, packaging materials, drug ledgers, travel documents, cell phones and computers, safes and were likely to be present at the location, but not necessarily heroin.

         The warrant was executed on July 10, 2017 at approximately 9:30 a.m. Upon entering the Joyce Lane condo, agents discovered all three Defendants (Scott, Lopez and Barajas) inside (Dkt. 100; Ex. 1; DEA Report of Search). On a dining room table, agents found nine brick-shaped packages of suspected heroin. Id. In the bedroom closet, agents found 23 bricks of suspected heroin, one bag of suspected narcotics, and a very large quantity of cash. Id. Agents also searched a rental vehicle parked on the street in front of the condo, allegedly rented by Defendant Scott. In Scott's rental car they found one brick of suspected narcotics[4] under the front passenger seat. Id. Agents also found the PlayStation in the condo, with the same serial number that the search warrant affidavit identified as having been on the PlayStation box in which the heroin was delivered to the Arrestee on March 24, 2017. Id. Defendant Scott was carrying three cell phones, Defendant Lopez was carrying one cell phone, and Defendant Barajas was carrying one cell phone. Id. Agents also discovered an additional cell phone in a bathroom garbage can; Defendant Barajas was in that bathroom when agents first entered the condo. Id. In the kitchen, agents found a red digital scale. Id. Finally, agents seized numerous documents-both from the condo and from a red Dodge Charger (allegedly rented by Defendant Barajas) parked in an attached garage. Id.

         All told, agents seized a combined 30 kilograms of fentanyl, heroin, and cocaine, along with over $500, 000 cash, from the Joyce Lane condo. All three Defendants were arrested at the scene.

         B. Search Warrant for a Cellular Telephone

         On July 5, 2017, DEA agent Jeremy Fitch submitted an application for a search warrant to Magistrate Judge David Grand, seeking site-location data from an AT&T Wireless cell phone (480-678-7581) associated with Defendant Scott. This cell phone number was associated with Defendant Scott's Uber account, which was used at the time of the heroin delivery in March 2017. The affidavit set forth the same factual summary contained in the Joyce Lane condo warrant application (the chain of facts linking the Arrestee, PlayStation, Wal-Mart, Uber, Brighthouse, etc).

         This affidavit also included information that the AT&T subscriber for the target phone was Eileen Mata, from Mesa, Arizona and that as recently as June 28, 2017, the cell phone made a call to 248-313-8004, which is the number for “Brownstones Apartment Complex, ” the property management company for the Joyce Lane condo. Based on this information, Magistrate Judge Grand approved the warrant on July 5, 2017, for a period of thirty days.

         II. ...


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