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United States v. Bustos-Andrade

United States District Court, D. Maryland

December 29, 2017

UNITED STATES OF AMERICA
v.
FREDERICO BUSTOS-ANDRADE

          MEMORANDUM OPINION AND ORDER

          Paula Xinis, United States District Judge.

         Pending before the Court is Defendant Frederico Bustos-Andrade's (“Bustos”) motion to suppress evidence collected pursuant to a warrant issued on November 18, 2016 for prospective cell phone geo-location data, [1] as well as evidence collected during the warrantless stop and search of the vehicle driven by Bustos on November 22, 2016. ECF No. 40. A hearing was held on October 18, 2017 in which the Court heard evidence and oral argument. The Court permitted supplemental letter pleadings which were filed on October 23, 2017. For the following reasons, Bustos' motion is DENIED.

         I. PROCEDURAL HISTORY

         Bustos is charged with one count of conspiracy to distribute and possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846. This charge arises from the delivery of nearly eleven pounds of methamphetamine to the Maryland area. On July 14, 2017, Bustos moved to suppress all evidence, including all evidence obtained pursuant to a search warrant authorizing the government to track a target cell phone and the seizure of the target cell phone itself during a warrantless stop and arrest of Bustos. The Government has opposed the motion. On November 17, 2017, the Court held an evidentiary hearing and heard argument from the parties.

         II. OPERATIVE FACTS

         At the suppression hearing, the following facts were established. In mid-November 2016, a past proven reliable confidential source (CS) informed DEA agent Robert Zachariasiewcz (known to colleagues as Agent Zach) that individuals from Mexico and the Los Angeles area were planning to transport a large quantity of methamphetamine to Maryland. The CS quickly became the middleman between the suppliers on the West Coast and the Maryland recipients. Among the West Coast suppliers was an individual who contacted the CS from a Mexican phone number, and informed the CS that another person using a cell phone with the prefix “951” would call and set up the shipment.

         Law enforcement recorded the phone calls and text messages between “951” and the CS. During these conversations, the user of the “951” target cell phone contacted the CS to explain how the methamphetamine shipment would arrive in Bowie, Maryland. The caller explained that another conspirator, “Jose, ” would fly to Maryland to meet with the CS. Jose would also arrange for the narcotics to be shipped to Maryland, and would personally take possession of the drugs to ensure they reached the CS.

         Based on this information, agents applied to United States Magistrate Judge Timothy Sullivan for a warrant pursuant to the Stored Communications Act (SCA), 18 U.S.C. § 2703, to obtain geo-location data so that agents could track the target cell phone. Reciting in substance the above facts, the agents averred that the user of the target cell phone “is the coordinator of the illegal narcotics shipment, ” and affirmed that “probable cause exists to obtain the precise location data of the TARGET CELL PHONE. The requested information will assist law enforcement with investigating, identifying locating and arresting the individual using the TARGET CELL PHONE.” Gov't Ex. 1 at 4-5. To gather the requested geo-location data, the warrant sought to direct the cell phone provider, AT&T, to send signals to the “951” number in regular intervals to determine the physical location of the “951” cell phone. The warrant made clear that it “does not authorize the seizure of any tangible property” and that reasonable necessity exists for the seizure of the location information. Id., attachment B.

         After Magistrate Judge Sullivan issued the warrant, agents began to track the whereabouts of the target cell phone. The phone was initially located in the Los Angeles area near an Enterprise Rent-A-Car. The target cell phone then moved up the West Coast, ultimately coming to a stop at a Holiday Inn Express Hotel in Portland, Oregon. At the same time, agents kept regular contact with the suspected user of the target cell phone through calls with the CS. The CS also arranged to meet the other co-conspirator, “Jose” near Bowie, Maryland to retrieve the narcotics when the package arrived. Agent Zach led the team conducting the surveillance of the Bowie, Maryland location.

         Meanwhile, another set of agents and officers coordinated surveillance of the Portland Holiday Inn Express. Their surveillance began on November 21, 2016, the day before the shipment arrived in Maryland. During this surveillance, DEA Agent David Riley identified a large, newer model black Chevrolet Tahoe whose license plates returned to an Enterprise Rent-A-Car. Riley issued an administrative subpoena to Enterprise, which revealed that the signatory on the rental agreement was “Frederico Bustos.” Riley also learned that a Frederico Bustos was staying at the Holiday Inn where the target cell phone was presently located. Riley subsequently followed the Tahoe as it travelled northbound to the Washington State area and then returned to the Holiday Inn. Agents compared the physical travel of the Tahoe to the geo-location data of the target cell phone and further corroborated that the target cell phone was traveling in the Tahoe. At this point, agents considered the driver of the Tahoe - who they later learned was Bustos - a suspect in the impending drug trafficking transaction, and the phone as containing evidence of the same.

         The next morning, agents in Maryland set up surveillance in the area of the planned drug exchange and monitored the ongoing conversations between CS and the target cell phone user, Bustos, leading up to the deal. The CS arranged with Jose to meet at the Double Tree hotel in Largo, Maryland for the drug exchange. When the CS arrived and met with Jose, agents observed Jose hand the CS a Federal Express box. At this point, agents detained Jose and subjected the box to a canine sniff. The canine alerted to the presence of narcotics. Agents searched the box, found approximately eleven pounds of methamphetamine inside, and arrested Jose, later determined to be Jose Pena. Jose Pena was charged with the Defendant.

         At the time Pena was arrested, he received an incoming call from Bustos via the target cell phone. Simultaneously, agents observed Bustos on the phone while Bustos was driving the Tahoe. Pena did not answer. The Maryland agents immediately directed the CS to place a call to Bustos. While agents in Maryland observed the CS place that call, agents in Portland, including Agent Riley, also observed Bustos answer the phone and talk with the CS. Once Agent Riley confirmed with the Maryland agents that the CS was also on the phone, Riley ordered Task Force Officer, Ryan Derry, to execute a traffic stop on the Tahoe.

         Although Officer Derry was driving an unmarked vehicle, he activated his “light package” of red and blue flashing lights embedded in the vehicle grill and mounted in the front and rear windshields. The Tahoe stopped without incident. Officer Derry approached Bustos on the driver side and asked for his license and registration. The driver, eventually determined to be Bustos, was cooperative and calm. In the front passenger seat was Ms. Ortiz, later determined to be Bustos' wife. In the rear passenger seats were the couple's three young children and a man with the last name Galvan.

         Officer Derry asked Bustos for his driver's license and registration. Bustos gave Officer Derry some form of ID and informed him that the car was a rental. Bustos and Ortiz then began to look for the car's rental agreement. Officer Derry asked Bustos if he would step out of the car, and once he had exited, Officer Derry asked Bustos if he had any weapons and patted him down for officer safety. They then walked to the rear of the vehicle. Because it was cold and rainy, Officer Derry raised the hatchback of the Tahoe so that the men could stand under the ...


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