USA v. Medina et al

OCR transcription for search; preserved printed pages are authoritative

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

)
UNITED STATES OF AMERICA )
)
v. )
) oe QoeLIN
EDGAR MEDINA; ALIJAH ) No. 21-cr-62-JJM-PAS
PARSONS; ANDRES GARAY; IRVING )
MEDINA; and RONALD HALL, )
Defendants. )
)
MEMORANDUM AND ORDER

JOHN J. MCCONNELL, JR., United States District Chief Judge

Edgar Medina, Alijah Parsons, Andres Garay, Irving Medina, and Ronald
Hall are accused of kidnapping a United States Postal Service (“USPS”) employee
as part of an alleged conspiracy to distribute cocaine. ECF No. 81. Before the Court
are six Motions to Suppress cell phone data collected as part of the Government’s
year long investigation.! The Court has been asked to evaluate a tower dump order
(ECF No. 137), a warrant authorizing a search of five cell phones recovered during
the suspects’ initial arrest (ECF No. 134), three warrants authorizing home
searches that resulted in the search of five more cell phones (ECF Nos. 135, 181),

and multiple warrants for historical cell-site location information (“CSLI”) (ECF

1 The Court has previously ruled on two additional Motions to Suppress and a
Motion to Exclude. See ECF No. 164 (granted); text order from November 3, 2023
(denied); ECF No. 195 (denied); text order from August 22, 2023 (denied).

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Nos. 138, 215).2. The Court has also been asked to reconsider Edgar Medina’s
Motion to Suppress the warrants to search his home, car, and person. ECF No. 238.
I. | BACKGROUND:

On June 1, 2021, a USPS employee was abducted at gunpoint. Two masked
individuals—later alleged to be Edward Medina and Ronald Hall—kidnapped the
employee and questioned him about a package that had been delivered empty. The
employee was later released without incident. ECF Nos. 1, 81. The United States
Postal Inspection Service (“USPIS”) launched an investigation to track and identify
individuals connected to the kidnapping.

A. Initial Investigation

The initial inquiry was a study in “gumshoe” detective work, consisting of
package intercepts, address queries, and conventional surveillance techniques.
ECF No. 1-1. Based on queries of the initial package, USPIS identified other
packages that had been mailed from Puerto Rico with false names and addresses
and located the car that had allegedly been used to abduct the postal worker. Jd. at
3-10. USPIS intercepted three of the packages and obtained warrants to search

them. All three tested positive for cocaine. Jd. at 10-11.

2 This order initially included two geofence warrants and ten warrants for
Google Account Information (ECF No. 136), but the Government has since advised
the Court that they do not plan to introduce evidence from these warrants at trial
and did not use this information as a basis for subsequent warrants. ECF No. 240.

3 This is an incomplete timeline; the Court only highlights the events
necessary to discuss the challenged warrants. These facts are adopted from
affidavits and do not reflect official findings of the Court.

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Law enforcement set up an undercover operation and arrested Edgar Medina,
Ronald Hall, and Andres Garay when they tried to collect these packages. /d. at 11-
15. A motor vehicle inventory of the cars they were driving revealed two black
expandable batons, defense spray, a Taser, three black surgical masks, and a winter
hat that matched the description given by the USPS employee.4 Jd. at 15. The
Government obtained a search warrant for Mr. Medina’s home, which revealed a
printout of a USPS tracking number for the original parcel with three $100 bills
and a handwritten note that stated: “Need full name Physical + vehicle description
of carrier(s) on this very date You will be compensated someone will meet you on
Friday or Saturday.” Id, at 16.

Edgar Medina, Andres Garay, and Ronald Hall were indicted for kidnapping,
conspiracy, attempt, and possession with intent to distribute cocaine. ECF Nos. 10,
30, and 81.

B. Cell Phone Investigation

Concurrently, investigators pursued a wide-ranging inquiry into the
Defendants’ cell phones. ECF No. 175 at 4-14. The cell phone investigation began
with a Tower Dump Order and a geofence warrant seeking CSLI and Google
Location History for all users in the area. ECF No. 177-4 at 22-32 (21-sw-256-LDA);
ECF No. 177-1 at 72-103 (21-sw-260-LDA). The Government then conducted a
forensic search of five cell phones recovered during the initial arrests. ECF No. 177-

1 at 162-178 (21-sw-274-PAS). These searches revealed incriminating text

4 Five phones were also recovered and searched. ECF No. 177-1 at 168-69.

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messages to Alijah Parsons and Irving Medina, who were later indicted as co-
conspirators. ECF No. 175 at 7; ECF Nos. 30, 81.

Based on these text messages—as well as phone calls, handwriting samples,
and video surveillance that purportedly showed Alijah Parsons mailing fraudulent
packages—the Government requested three warrants for Alijah Parsons to search
real-time CSLI (seeking location data) for three cell phones believed to be in her
possession. ECF No. 177-1 at 218-290 (21-sw-303-LDA and 21-sw-304-LDA); ECF
No. 177-2 at 2°37 (21-sw-305-LDA). This evidence was used to justify a search of
Ms. Parsons’ home and person. ECF No. 177-2 at 39-150 (21-sw-321-PAS and 21-
sw-322-PAS). Multiple cell phones were recovered and forensically searched. ECF
No. 177-4 at 59°62. The Government then obtained warrants for historical CSLI for
four phones linked to Ms. Parsons, also seeking location data. ECF No. 177-1 at 9-
69 (21-sw-255-PAS); ECF No. 177-2 at 198-218, 289-305 (21-sw-526-LDA and 22-sw-
197-PAS); ECF No. 177-4 at 2-20 (22-sw-210-PAS); ECF No. 175 at 9.

A similar investigation was conducted for Irving Medina, with warrants
issued for real-time CSLI (21-sw-377-LDA, 21-sw-378-LDA, and 21-sw-433-LDA)
and a cell-site simulator to locate his phones (21-sw-427-LDA). ECF No. 148-1
at 10-12. Information obtained from these searches—as well as incriminating text
messages, phone records, and CSLI obtained from the tower dump—was used to
support a warrant to search Irving Medina’s home and person. ECF No. 148-1 at 6-

13 (21-sw-438-PAS). Two more phones were recovered and forensically searched.

5 Irving Medina was also indicted for possession with intent to distribute
fentanyl. ECF No. 81 at 5.

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Id. at 22-30; ECF No. 148-2 at 2. The Government then obtained warrants for
historical CSLI for Irving Medina. ECF No. 150 at 2-53 (21-sw-428-LDA); ECF
No. 150-1 at 2-45, ECF No. 150-2 at 1-54 (21-sw-554-PAS).

With ten phones in hand, the Government requested a second geofence
warrant five months after the first. ECF No. 177-2 at 232-287 (21-sw-556-PAS).
The Government also requested ten warrants for Google Account Information
seeking location history and content-based records (phone records, emails, photos,
address lists, video, and audio recordings) for the phones that had been seized
pursuant to earlier warrants. See, e.g., ECF No. 177-2 at 307-334 (22-sw-199-PAS).

C. Issues Presented

All told, there were fifty-eight warrants issued in the investigation, fourteen
of which—plus a Tower Dump Order under 18 U.S.C. § 2703(d)—have been
challenged in Motions to Suppress. ECF No. 176 at 5-6 n.1. Taken together, these
warrants offer a sobering tour of modern electronic surveillance techniques. Tower
dumps, geofences, cell-site simulators, warrants seeking real-time and historical
CSLI: these techniques are not only no longer new, but also are now a standard part

of an investigative repertoire.6 ECF No. 137 at 20.

6 As early as 2018, tower dumps were “a relatively routine investigative
technique.” Hon. Brian L. Owsley, The Fourth Amendment Implications of the
Government's Use of Cell Tower Dumps in Its Electronic Surveillance, 16 U. Pa. J.
Const. L. 1, 2 (2013) (citation omitted). Historical CSLI is “routinely used to
investigate the full gamut of state and federal crimes, including child abductions,
bombings, kidnappings, murders, robberies, sex offenses, and terrorism-related
offenses.” Evan Caminker, Location Tracking and Digital Data’ Can Carpenter
Build A Stable Privacy Doctrine? 2018 Sup. Ct. Rev. 411, 463 (2018) (citing Unrted
States v. Davis, 785 F.3d 498, 518 (11th Cir. 2015)).

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In light of law enforcement’s reliance on these techniques, courts are
increasingly asked to evaluate the rights a person has in their cell phone, which
contains near-infinite storage capacity and may contain “[t]he sum of an
individual’s private life,” and to consider how these rights may be protected without
knee-capping innovative law enforcement technologies out of the gate. Ailey v.
California, 573 U.S. 373, 394 (2014).

Defendants ask the Court to consider these issues: 1) whether the Supreme
Court’s holding in Carpenter v. United States, 138 S. Ct. 2206 (2018) establishes a
reasonable expectation of privacy in short-term CSLI; 2) in the alternative, whether
Defendants have a property-based interest such that a warrant is required for a
tower dump; 3) whether the affidavits supplying probable? cause were properly
incorporated; and 4) whether the Government’s forensic phone searches lacked
particularity. ECF Nos. 134 and 137. Separately, the Court evaluates whether the
Government had probable cause to search Defendants’ homes, persons, and
historical CSLI. ECF Nos. 131, 135, 188, 215, and 2388.

The Court examines each of these issues in turn.

7 To establish probable cause, the affiant must show why they “believe that
(1) a crime has been committed—the ‘commission’ element, and (2) enumerated
evidence of the offense will be found at the place searched—the . . . ‘nexus’ element.”
United States v. Lindsey, 3 F.4th 32, 39 (1st Cir. 2021) (citation omitted).

8 Particularity has two prongs: (1) the warrant “must supply enough
information to guide and control [the officer's] judgment in selecting where to
search and what to seize,” and (2) “cannot be too broad in the sense that it includes
items that should not be seized.” Lindsey, 3 F.4th at 40 (citation omitted); United
States v. Corleto, 56 F.4th 169, 176 (1st Cir. 2022).

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II. STANDARD OF REVIEW

The F ourth Amendment protects “persons, houses, papers, and effects” from
“unreasonable searches and seizures.” A warrant permitting a search or seizure
may not issue “but upon probable cause, supported by Oath or affirmation,” and
must “particularly describle] the place to be searched, and the persons or things to
be seized.” U.S. Const. amend. IV.
III. DISCUSSION

A. Tower Dump Order

Alijah Parsons was charged as a co-conspirator and initially moved to
suppress 21-sw-256-LDA (hereinafter the “Tower Dump Order”).2 ECF Nos. 137,
186. She argues that under Carpenter, cell phone users have a reasonable
expectation of privacy in their location data as revealed through short-term CSLI.
ECF No. 137 at 1. The Government argues that Ms. Parsons lacks standing and
that the Tower Dump Order was properly issued. ECF No. 175 at 2.

This argument is now moot as to Ms. Parsons, as the Government has said
that they do not plan to introduce this information against her. ECF Nos. 240, 241.
The Government acknowledged, however, that evidence from the Tower Dump
Order was incorporated into later warrants against Edgar Medina, Irving Medina,

and Andres Garay, who have since joined and challenge on the same grounds.!°

9 The Magistrate Judge granted the Tower Dump Order without a warrant
under 18 U.S.C. § 2703(d). ECF No. 177-4 at 28.

10 The Government has stated that they acquired CSLI for Edgar Medina,
Irving Medina, and Andres Garay based on their phones. ECF No. 240. Thus, the
Court finds that the Defendants have standing to challenge use of their own

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ECF Nos. 240, 242, 245, and 247. The sole issue is whether a search occurred, and
if so, whether this evidence should be suppressed as fruit of the poisonous tree.

The Court begins by exploring whether cell phone users have a reasonable
expectation of privacy in their short-term CSLI.

1. Background

The Fourth Amendment “seeks to secure ‘the privacies of life’ against
‘arbitrary power” by “placling] obstacles in the way of a too permeating police
surveillance.” United States v. Moore-Bush, 36 F.4th 320, 320-21 (1st Cir. 2022)
(Barron, J., concurring) (internal citations and quotations omitted). To assert a
Fourth Amendment right in their persons or effects, a defendant must show that
they have a “reasonable expectation of privacy in the area searched and in relation
to the items seized.” United States v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988).
They can do this by showing that they sought “to preserve [something] as private”
and “that society is prepared to recognize [this expectation] as [objectively]
‘reasonable.” Smith v. Maryland, 442 U.S. 735, 740 (1979) (citing Katz v. United
States, 389 U.S. 347, 351-52, 361 (1967)). Or a defendant may establish a Fourth
Amendment violation by showing a physical trespass on private property. See
United States v. Jones, 565 U.S. 400, 404-05 (2012).

The Court assumes that Defendants believed their CSLI to be private. The

question is whether the Government “contravened” a reasonable expectation of

location data, as obtained from those phones. See United States v. Ramirez, 471 F.
Supp. 8d 354, 361 (D. Mass. 2020) (“historical use of the phone numbers, which
produced the CSLI, necessarily satisfies the standing requirement for an individual
whose CSLI records have been seized”) (citation omitted).

8

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privacy by obtaining this data without a warrant. Moore-Bush, 36 F.4th at 328
(Barron, J., concurring). In Carpenter, the Supreme Court held that individuals
have a reasonable expectation of privacy in “the whole of their physical
movements,” whether obtained directly through GPS monitoring or indirectly
through third-party requests for historical CSLI.. 188 S. Ct. at 2217 (citing Jones,
565 U.S. at 430 (Alito, J., concurring in judgment); zd. at 415 (Sotomayor, J.,
concurring)). Incorporating some of its strongest language on cell phones to date,
the Court held that collecting third-party CSLI for seven days constituted a search
under the Fourth Amendment. Jd. at 2217 n.3. The Court held that requests for
long-term historical CSLI—like the long-term GPS tracking at issue in United
States v. Jones—were distinguishable from short-term surveillance that had
previously been upheld under the Fourth Amendment.!2 Jd. at 2215.

The Court took no position on real-time CSLI, tower dumps, conventional
surveillance techniques, searches related to national security, or the acquisition of
third-party records that might “incidentally” reveal location information, as these
issues were not before the Court. /d at 2220. The Court withheld judgment on

short-term searches. Jd. at 2217, n.8 (“[Wle need not decide whether there is a

11 Carpenter involved a warrantless search of historical CSLI for a phone
number associated with Timothy Carpenter, who was believed to be an accomplice
to a series of robberies. 138 S. Ct. at 2212. Police obtained a § 2703(d) order and
requested his location data going back seven days and 152 days, respectively.

12 See Jones, 565 U.S. at 430 (Alito, J., concurring) (cited in Carpenter, 138 S.
Ct. at 2215) (GPS monitoring for twenty-eight days violated the Fourth Amendment
because it tracked “every single movement” of the vehicle for close to a month);
contra Knotts, 460 U.S. at 285 (beeper monitoring did not violate the Fourth
Amendment because it was short-term and tracked a vehicle on public roads).

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limited period for which the Government may obtain an individual’s historical CSLI
free from Fourth Amendment scrutiny . . . It is sufficient for our purposes today to
hold that accessing seven days of CSLI constitutes a Fourth Amendment search.”).
Finally, the Court limited their holding to location tracking through CSLI,
upholding prior cases indicating that an individual has no reasonable expectation of
privacy in dialed phone numbers. /d. at 2220.

a. Tower Dumps v. Historical CSLI

Carpenter involved a request for long-term “historical CSLI,” which is
requested when the Government knows the identity of the suspect (or their cell
phone number) and asks service providers to disclose “a list of all calls to and from
[that] telephone number, along with the locations . . . of the cell towers through
which each call originated and terminated.” Jn re Application of the U.S.A. for an
Ord. Pursuant to 18 U.S.C. 27030), 2703) Directing AT & T, Sprint/Nextel, .-
Mobile, Metro PCS, Verizon Wireless, 42 F. Supp. 3d 511, 512 (S.D.N.Y. 2014)
(internal citation and quotation omitted). In a tower dump, by contrast, law
enforcement identifies the cell towers near the scene of a crime and seeks “[a list of]
the telephone numbers that connected to the cell towers during the pertinent time
period,” along with date, times, and telephone numbers for connecting calls.!8 Jd,

Tower dumps are used when law enforcement knows the time and place of

the crime but not the identity of the suspects. Cf United States v. Rhine, 652 F.

13 The term “historical CSLI” is a misnomer. Both types of requests involve
historical CSLI in that the data is retrospective, but Carpenter involved seven days’
worth of data for a single person, whereas a tower dump seeks minutes or hours of
data for everyone in the area—shorter, but broader in scope.

10

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Supp. 3d 38, 66 (D.D.C. 2023) (describing the same principle in the context of a
geofence). By requesting subscriber information for multiple locations, the
Government can cross-reference the data to identify who was present at the crime
scene.!4 Owsley, supra note 6, at 6; Sarah Bramley-Garoutte, Comment, Priv. After
Carpenter v. United States: Can A Tower Dump Warrant Meet the Warrant
Requirement? 56 Suffolk U. L. Rev. 65, 72 (2028).

Long-term historical CSLI is thus narrowly targeted—it infringes on the
privacy of an individual suspect—but is typically quite expansive as to that person,
allowing the Government to reconstruct their location for many days or months.
Carpenter, 138 S. Ct. at 2218 (“With access to CSLI, the Government can now
travel back in time to retrace a person’s whereabouts, subject only to the retention
[policies] of the wireless carriers.”). Tower dumps are narrow as to the individual
suspect—they typically seek location data, cell numbers, and_ subscriber
information—but are broad as to third-party data, collecting all phone numbers for
users who connected to the relevant cell towers. Com. v. Perry, 184 N.E.3d 745,
753-54 (Mass. 2022). Tower dumps routinely scoop up hundreds or thousands of
third-party records to pinpoint suspicious accounts. Matter of Tower Dump Data

for Sex Tratticking Investigation, No. 23 M 87, 2023 WL 1779775, at *2 (N.D. II.

14 Tn a geofence, law enforcement tries to narrow down and identify suspects
by canvassing Google Location History for everyone in the area. In a tower dump,
they do so by obtaining subscriber information for relevant cell towers. See
generally By. of Amicus Curiae Google LLC in Support of Neither Party Concerning
Defendant's Motion to Suppress Evidence from a “Geofence” General Warrant (Ecf
No. 29), United States v. Chatrie, 590 F. Supp. 3d 901 (E.D. Va. 2022) (No. 3:19-cr-
00130-MHL), 2019 WL 8227162.

11

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Feb. 6, 2023) (“Illinois Tower Dump”) (“in a dense urban city, it is fair to say that [a
tower dump could capture] hundreds, thousands, or hundreds of thousands [of
subscribers]”); Jn re Search of Cellular Tel. Towers, 945 F. Supp. 2d 769, 770 (S.D.
Tex. 2013) (“(alny order authorizing a cell tower dump is likely to affect at least
hundreds of individuals’ privacy interests”); Owsley, supra note 6, at 27-28 (citing a
case in which 150,000 telephone numbers were disclosed in order to identify two

users).

Here, the Tower Dump Order sought subscriber information for five cell
towers near the scene of the alleged surveillance and kidnapping. ECF No. 177-4
at 29-30. The application sought a little over four hours of data across three days.
Id. For each tower, the Government requested “all records and other information
(not including the contents of communications) about all communications, including
activations and data transfer information, made using the cell tower during the
corresponding timeframes,” including:

a. the telephone call number and unique identifiers for each
wireless device in the vicinity of the cell tower (“the locally
served wireless device”) that registered with the cell tower,
including Electronic Serial Numbers (“ESN”), Mobile
Electronic Identity Numbers (“MEIN”), Mobile Identification
Numbers (“MIN”), Subscriber Identity Modules (“SIM”),
Mobile Subscriber Integrated Services Digital Network
Numbers (“MSISDN”), International Mobile Subscriber
Identifiers (“‘IMSI”), and International Mobile Equipment
Identities (“IMEI”);

b. For each communication the “sector(s)” (i.e. the face(s) of the
tower(s)) that received a radio signal from the locally served
wireless device; and

c. The date, time, and duration of each communication

Id. at 30°31.

12

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The Government provided AT&T, Sprint/Nextel, Verizon Wireless, and T-
Mobile USA with the relevant locations (the five cell towers) and the service
providers returned subscriber information for devices that had connected to those
towers. This information was used to support warrants for Edgar Medina, Andres

Garay, and Irving Medina. ECF No. 240 at 1.

b. Carpenter Laid Out a New Framework for Analyzing Cell
Phone Location Searches

Prior to Carpenter, both short-term and long-term historical CSLI could be
obtained without a warrant under 18 U.S.C. § 2703(d), which allows the
Government to obtain non-content information from third-party carriers (including
names, addresses, phone numbers, and metadata) if they can show “reasonable
grounds” that the contents are “relevant and material to an ongoing criminal
investigation.” 18 U.S.C. § 2703(c)-(d).

Courts upheld these orders under the third-party doctrine, which held that
individuals have no reasonable expectation of privacy in information that is
voluntarily disclosed to a third party. See United States v. Miller, 425 U.S. 435,
440-41 (1976) (checks and deposit slips are not the defendant’s “private papers” but
are business records held by a third party and may thus be properly subpoenaed);
Smith, 442 U.S. at 742 Gndividuals have no reasonable expectation of privacy in

phone numbers they dial because they voluntarily “convey” those numbers to a

telephone switchboard).!5 Because cell phone users “voluntarily disclosed” the

15 Pyior to Carpenter, Fourth Amendment challenges were routinely struck
down under Smith and Miller. See, e.g., In re U.S. for Hist. Cell Site Data, 724 F.3d

13

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numbers they dialed, all forms of CSLI and other cell phone location data were
treated as a third-party business records and were freely searchable under the
“reasonable grounds” standard. See, e.g., United States v. Carpenter, 819 F.3d 880,
888 (6th Cir. 2016) (defendants have no reasonable expectation of privacy in
location information voluntarily disclosed to a third party), rev’d and remanded, 138
S. Ct. 2206 (2018).

Carpenter upended this paradigm and established that where an individual
has a reasonable expectation of privacy—here, in the “whole of their physical
movements’—their location data is protected under the Fourth Amendment. In
these cases, a § 2703(d) order is not enough, and a warrant supported by probable
cause is required, even when the data is held by a third party. 188 S. Ct. at 2221.

The Supreme Court included forceful language on cell phones, noting that “a
cell phone—almost a ‘feature of human anatomy’ [ ]—tracks nearly exactly the
movements of its owner [and] faithfully follows its owner beyond public
thoroughfares and into private residences, doctor’s offices, political headquarters,

and other potentially revealing locales.” Jd. at 2218 (quoting Riley, 573 U.S. at 385).

600, 611 (5th Cir. 2018) (historical CSLI is “clearly a business record”); United
States v. Thompson, 866 F.8d 1149, 1156-58 (10th Cir. 2017), cert. granted,
judgment vacated, 138 S. Ct. 2706 (2018) (historical CSLI is gathered by “third-
party service providers who create records for their own business purposes”); United
States v. Graham, 824 F.3d 421, 427-28 (4th Cir. 2016) (defendant assumed the risk
of disclosure by “exposling]” his CSLI to Sprint/Nextel); United States v. Davis, 785
F.3d 498, 511-12 (11th Cir. 2015) (court order for the production of MetroPCS's
business records did not violate the Fourth Amendment). Many challenges that
might have otherwise developed the caselaw on short-term searches v. long-term
searches were resolved under the third-party doctrine, thus short-circuiting the
underlying questions as to duration.

14

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“In light of the deeply revealing nature of CSLI, its depth, breadth, and
comprehensive reach, and the inescapable and automatic nature of its collection,
the fact that such information is gathered by a third party does not make it any less
deserving of Fourth Amendment protection. The Government’s acquisition of the
cell-site records here was a search under that Amendment.” Jd. at 2223.
The Court suggested that Smith and Miller were broadly abrogated as to
CSLI and other types of cell phone location data:
[W]hile the third-party doctrine applies to telephone numbers and
bank records, it is not clear whether its logic extends to the
qualitatively different category of cell-site records. After all, when
Smith was decided in 1979, few could have imagined a society in which
a phone goes wherever its owner goes, conveying to the wireless carrier

not just dialed digits, but a detailed and comprehensive record of the
person’s movements. We decline to extend Smith and Miller to cover

these novel circumstances.

Id. at 2216-17. The Court held that “[gliven the unique nature of phone location
records, the fact that the information is held by a third party does not by itself
overcome the user’s claim to Fourth Amendment protection.” Jd. at 2217. The
Court then emphasized that it was a narrow holding and that Smith and Miller
remain in effect for dialed phone numbers and bank records. Jd. at 2220. The
Court left open the question of short-term searches. Jd. at 2217 n.3.

To determine which cell phone records are protected under the Fourth
Amendment, the Court laid out a multifactor test, focusing on the “revealing nature
of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and
automatic nature of its collection.” Jd at 2223. When cell phone tracking

encompasses the “whole of [a person’s] physical movements” or captures time:
p p Y

15

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stamped data revealing “familial, political, professional, religious, and sexual
associations,” it is more likely to be protected. Jd. at 2217 (quoting Jones, 565 U.S.
at 415 (Sotomayor, J., concurring)). When the acquisition of that data is “easy,
cheap, and efficient” compared to traditional investigative tools, it is more likely to
be protected. Id. at 2217-18. When cell phone tracking achieves “near perfect
surveillance” and captures information in both public and private spaces, it is more
likely to be protected. Jd. at 2218. When a search is “retrospective,” allowing police
to reconstruct a timeline that would otherwise be limited by a “dearth of records” or
the “frailties of recollection,” it is more likely to be protected. /d. When tracking
“runs against everyone,” allowing police to access user data without knowing in
advance who they wish to investigate, it is more likely to be protected. Jd.
Long-term searches of historical CSLI passed this test with flying colors.

2. After Carpenter, Do Users Have a Reasonable Expectation of
Privacy in Short-Term CSLI? .

The First Circuit has not ruled on tower dumps but has echoed the Supreme
Court’s language on CSLI, noting that cell-site data may be effortlessly shared

without the user’s knowledge or intent:

[Elvery time a cell phone receives a call, text message, or email, the
cell phone pings CSLI to the nearest cell site tower without the cell
phone user lifting a finger. . . [T]hose pings are recorded every time a
cell phone application updates of its own accord, possibly to refresh a
news feed or generate new weather data... such that even a cell
phone sitting untouched in a suspect’s pocket is continually chronicling
that user’s movements throughout the day.

United States v. Hood, 920 F.3d 87, 92 (1st Cir. 2019) (a user makes an “affirmative

decision” to share their IP address by accessing a website, whereas disclosure of

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CSLI is involuntary) (citing Carpenter, 138 S. Ct. at 2220). The First Circuit has
not yet weighed in on reasonable expectation of privacy for short-term CSLI.1¢

Many other jurisdictions have held that there is no reasonable expectation of
privacy in short-term CSLI. See United States v. Adkinson, 916 F.3d 605, 610-11
(7th Cir. 2019) (distinguishing the tower dump on other grounds, but noting that
the Supreme Court declined to rule on the issue); United States v. Patterson,
No. 4:19CR8011, 2020 WL 6334399, at *3 (D. Neb. Aug. 5, 2020) (applying the good-
faith exception), report and recommendation adopted, No. 4:19-CR-3011, 2020 WL
6334406 (D. Neb. Oct. 28, 2020); United States v. Walker, No. 2:18-CR-37-FL-1,
2020 WL 4065980, at *8 (E.D.N.C. July 20, 2020) (no Fourth Amendment interest
and good faith applies); | United States v. Rhodes, No. 1:19-CR-0073-AT-LTW, 2020
WL 9461131, at *2-4 (N.D. Ga. June 18, 2020) (no Fourth Amendment interest),
report and recommendation adopted, No. 1:19-CR-73-AT-LTW, 2021 WL 1541050
(N.D. Ga. Apr. 20, 2021). Post- Carpenter, some courts have also continued to apply
the third-party doctrine. Matthew Tokson, Zhe Aftermath of Carpenter: An

Empirical Study of Fourth Amendment Law, 2018-2021, 135 Harv. L. Rev. 1790,

1836-38 (2022).

16 The First Circuit has addressed Carpenter in the context of IP addresses
(Hood, 920 F.8d at 92; United States v. Morel, 922 F.3d 1, 9 (1st Cir. 2019)), non-
location phone records (Johnson v. Duxbury, Massachusetts, 931 F.3d 102, 107 (1st
Cir. 2019)), pharmaceutical records (United States Dep’t of Just. v. Ricco Jonas, 24
F.4th 718, 737-40 (1st Cir. 2022)), and pole camera surveillance (United States v.
Moore-Bush, 963 F.3d 29 (1st Cir. 2020), reh'g en banc granted, opinion vacated,
982 F.3d 50 (1st Cir. 2020), and on reh'g en bance, 36 F.4th 320 (1st Cir. 2022)).
None of these cases involved tower dumps or cell phone location data, and in these
cases, the court has often been at pains to distinguish CSLI from other types of

records.

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The Court does not believe that Carpenter inevitably points to this
conclusion. First, the Supreme Court treats disclosure and duration as separate
issues, considering on one hand whether Mr. Carpenter’s CSLI was voluntarily
disclosed (answering in the negative), and asking on the other hand, whether the
Government’s acquisition of Mr. Carpenter’s long-term CSLI was invasive enough
to constitute a search (answering in the affirmative). Carpenter, 138 S. Ct. at 2217
(“Given the unique nature of cell phone location records, the fact that the
information is held by a third party does not by itself overcome the user’s claim to
Fourth Amendment protection.”). The Court distinguished between two different
lines of cases—cases about “what a person... shares with others” (citing Smith and
Miller) and cases involving “physical location and movements” (citing Knotts and
Jones). Id. at 2214-17. The facts in Carpenter, they held, fell squarely in the latter
camp. /d. at 2217.
The Supreme Court notes that Smith and Miller are ill-equipped to deal with
the unique issues posed by CSLI. Cell phone location data is a “qualitatively
_ different” type of record because unlike a dialed number, a cell phone “goes
wherever its owner goes, conveying... a detailed and comprehensive record of the
person’s movements.” Jd. at 2216-17. “At some point, the dissent should recognize
that CSLI is an entirely different species of business record—something that
implicates basic Fourth Amendment concerns about arbitrary government power

much more directly than corporate tax or payroll ledgers.” Jd. at 2222 (citing Riley,

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573 U.S. at 386 (“A search of .. . a cell phone bears little resemblance to the type of
brief physical search considered lin prior precedents].”)).

The Court takes these statements at face value. See United States v. Diggs,
385 F. Supp. 3d 648, 657 (N.D. Ill. 2019) (‘This court must take the Supreme Court
at its word as to the third-party doctrine’s pre- Carpenter reach”) (citing Mathis v.
United States, 579 U.S. 500, 514 (2016) (“[A] good rule of thumb for reading
[Supreme Court] decisions is that what they say and what they mean are one and
the same.”)). In Carpenter, the Supreme Court held that “an individual maintains a
legitimate expectation of privacy in the record of his physical movements as
captured through CSLI.” 1388 S. Ct. at 2217. Far from closing the book on tower
dumps, Carpenter instructs that Smith and Miller no longer bar the question. Jd.
The Supreme Court did not expressly exclude tower dumps; they simply declined to
weigh in on issues not before them. Jd. at 2220.

The issue is before this Court now, and Carpenter gives the Court a
straightforward framework to apply it. Under Carpenter, the Fourth Amendment
question is evaluated based on the “intimacy, comprehensiveness, expense,
retrospectivity, and voluntariness” of the search, not whether the cell phone
company happens to hold that data. Jd. at 2234 (Kennedy, J., dissenting). The
Court applies the factor-based test in Carpenter and finds that USPIS conducted a
search when they obtained Defendants’ CSLI.

Tower dumps are not long-term searches, and thus do not implicate “the

whole of [Defendants’] physical movements,” but they do obtain “near perfect

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surveillance” of a population at a moment in time. Jd. at 2217-18. Here, UPSIS
acquired data from five towers for over four hours across a densely packed
residential neighborhood in Pawtucket, capturing the subscriber information and
location history for everyone in the vicinity. ECF No. 177-4 at 29-30. Law
enforcement effectively took five snapshots of the entire area, collecting telephone
call numbers and unique identifiers “for each wireless device in the vicinity of the
cell tower ... that registered with the cell tower.” Jd. at 31. The order does not
distinguish between devices that affirmatively placed a call and devices that
passively pinged the towers. Jd. Nor is it limited to dialed numbers; rather, USPIS
sought “all records and other information (not including the contents of
communications) about all communications, including activations and data transfer
information,” for all devices in the area during the relevant period. /d. at 30.

This was a comprehensive search, and the data they acquired was intimate
and personal. The Tower Dump Order indicates that law enforcement may access
information for both sides of the conversation (“For each communication sent or
received via the wireless provider’s network, these records may include .. . the
telephone call number and unique identifiers for the wireless device that connected
to the provider’s cellular tower and sent or received the communication”). Jd. at 26.
This allowed police to access time-stamped data revealing “familial, political,
professional, religious, and sexual associations” for all persons in the area—
including Edgar Medina, Irving Medina, and Andres Garay. Carpenter, 138 S. Ct.

at 2217. The point was not only to capture who was present, but also to reconstruct

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a timeline of who the Defendants called, when they called, and how often. See, e.g,,
ECF No. 148-1 at 12-13 (relying on tower dump data to show not only that Irving
Medina was physically present, but also that he made multiple calls to Edgar
Medina).

The search was not limited to calls between Defendants; it would have
captured this information for all users in the area. And because the cell towers
were located in a residential neighborhood, the order would certainly have tracked
conversations being held in private homes, by people not under investigation. See
United States v. Karo, 468 U.S. 705, 714 (1984) (monitoring in a residence is subject
to the Fourth Amendment); United States v. Powell, 943 F. Supp. 2d 759, 775 (E.D.
Mich. 2013) (“If at any point a tracked cell phone signaled that it was inside a
private residence ... the only other way for the government to have obtained that
information would be by entry into the protected area, which the government could
not do without a warrant.”), affd, 847 F.3d 760 (6th Cir. 2017).

A tower dump is “easy, cheap, and efficient” compared to traditional
investigative techniques. Carpenter, 1388S. Ct. at 2218. To replicate these searches
with traditional surveillance, police would have had to cross-reference lists by hand
and knock on hundreds of doors to obtain the identities of all persons near the
kidnapping. To obtain call logs and duration information, they would have had to
search every phone individually. This type of search would be logistically
impossible without a § 2703(d) order. Moreover, it was a “retrospective” search,

allowing the Government to “travel back in time” to reconstruct Defendants’

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locations and identities. ECF No. 177-4 at 26; Carpenter, 138 S. Ct. at 2218. There
was no need for the Government to identify ahead of time who they wished to
search, because they could simply pull the records and use them identify the
suspects after the fact.

Finally, the tracking “runs against everyone,” allowing police to access a high
volume of user data in a way that would be impossible to do with traditional
surveillance. Carpenter, 138 S. Ct. at 2218. CSLI is “continually logged for all of
the 400 million devices in the United States—not just those belonging to persons
who might happen to come under investigation.” Jd The Government
acknowledged at oral argument that USPIS did not just acquire subscriber
information for Edgar Medina, Irving Medina, and Andres Garay. They acquired it
for everyone in the area for a period of over four hours. “There is no historic
analogue for the ability effortlessly to compile ... the locations, identities, and
associations of tens of thousands of individuals, just in case one might be implicated
in a criminal act.” Perry, 184 N.E.3d at 762 (holding that warrant is required for a
multi-day tower dump, even when it produces only three hours of CSLD.

Courts that have been asked to evaluate geofence warrants—which are
similar to tower dumps, and likewise implicate CSLI—have largely declined to
apply Smith and Miller and have further indicated that Carpenter should apply to
short-term searches. In United States v. Chatrie, the court noted that two hours of
Google Location History was akin to the historical CSLI at issue in Carpenter

because it was “detailed, encyclopedic, and effortlessly compiled.” 590 F. Supp. 3d

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901, 935-36 (E.D. Va. 2022) (citing Carpenter, 138 S. Ct. at 2216). Even when a
user affirmatively enables Google Location History, he “simply cannot forfeit the
protections of the Fourth Amendment for years of precise location information by
selecting ‘YES, I’M IN’ at midnight while setting up Google Assistant.” Jd. In
Chatrie, the court distinguished Smith and Mi//er and noted that a geofence request
might well require a warrant under the test outlined in Carpenter.’ Id. Likewise,
in Matter of Search of Info. Stored at Premises Controlled by Google, the court
observed that “there is much to suggest that Carpenters holding ... should be
extended to the use of geofences involving intrusions of much shorter duration.”
481 F. Supp. 3d 730, 737 (N.D. Ill. 2020).

In United States v. Moalin, the Ninth Circuit (analyzing the NSA’s bulk data
collection program) stated that Smith and Miller likely do not extend to metadata
such as originating or terminating phone numbers, IMSI and IMEI numbers (ie.,
unique identifiers associated with particular users or devices), or location data. The
court noted that “[i]f you have enough metadata you don’t really need content,” and
that “in recent years the distinction between content and metadata ‘has become
increasingly untenable.” 973 F.8d 977, 989-92 (9th Cir. 2020) (internal citations
and quotations omitted). For instance:

A woman calls her sister at 2:00 a.m. and talks for an hour. The record
of that call reveals some of the woman’s personal information, but

17 These cases deal in hypotheticals because Google requires a warrant before
disclosing subscriber information for a geofence request, so reasonable expectation
of privacy is typically not at issue. Matter of Search Warrant Application for
Geofence Location Data Stored at Google Concerning an Arson Investigation, 497 F.
Supp. 3d 345, 359-60 (N.D. Ill. 2020) (citation omitted).

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more is revealed by access to the sister’s call records, which show that
the sister called the woman’s husband immediately afterward. Or, a
police officer calls his college roommate for the first time in years.
Afterward, the roommate calls a suicide hotline. These are simple
examples; in fact, metadata can be combined and analyzed to reveal
far more sophisticated information than one or two individuals’ phone

records convey.

Id, The ability to cross-reference a large body of data makes it “relatively simple to
superimpose our metadata trails onto the trails of everyone within our social group
and those of everyone within our contacts’ social groups and quickly paint a picture
that can be startlingly detailed... identifyling] the strength of relationships and
the structure of organizations.” Jd. (citing Br. of Amici Curiae Brennan Center for
Justice et al. at 21, United States v. Moalin, 973 F.3d 977 (9th Cir. 2020) (No. 13-
50572), 2015 WL 6966514 (“Brennan Center Amicus Brief’)). A savvy investigator
does not need seven days of data to do this type of analysis: they could do it with
phone numbers collected over an hour or two—and notably, could conduct this type
of inquiry for anyone in the target location.

Even before Carpenter, some judges opted not to follow Smith and Miller and
required a warrant for a tower dump, citing the need to protect third-party
information. See, eg., In re U.S. ex rel. Ord. Pursuant to 18 U.S.C. Section 2703(d),
930 F. Supp. 2d 698, 700-02 (S.D. Tex. 2012) (denying a § 2703(d) request that
failed to safeguard third-party data); In re Search of Cellular Tel. Towers, 945 F.
Supp. 2d at 770-71 (granting a warrant for the same). After Carpenter, many law
enforcement agents have erred on the side of caution and simply gotten a warrant.

See, e.g., Matter of Search of Into. Associated with Cellular Tel. Towers Providing

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Serv. To [Redacted] Stored at Premises Controlled by Verizon Wireless, 616 F.
Supp. 3d 1, 8-9 (D.D.C. 2022) (“DC Tower Dump”) (following Carpenter's “murky”
ruling, the government chose to pursue a warrant “out of an abundance of caution”)
(internal quotation omitted); United States v. Foster, No. 3:21-CR-00114-SLG, 2023
WL 155442, at *1 (D. Alaska Jan. 11, 2023) (evaluating a tower dump warrant);
Illinois Tower Dump, 2023 WL 1779775, at *1 (granting a tower dump warrant that
included protocols for managing third-party information).

Smith and Miller do not apply here because this case involves CSLI, which is
not “voluntarily exposed” in the same way that a dialed number or a bank record is
shared with a third party. The Government seeks more than just a dialed number
when requesting a tower dump order: the goal is to associate that number with
subscriber information, identify a suspect, track their location, and reconstruct their
conversations. Owsley, supra note 6, at 17; see also Brennan Center Amicus Brief
at 7 (“Today, communications metadata easily reveals lawful, First Amendment-
protected activities in a way that was unimaginable when the Court decided Smith
in 1979.”). The disclosure of a single phone number may not implicate the Fourth
Amendment under Smith, but the aggregation of many numbers—paired with the
geolocation data linked to specific towers and the request for subscriber

_ information—surely does. Brennan Center Amicus Brief at 22.

Nor can the Court draw an easy comparison with the short-term search at

issue in Anotts, which was previously upheld by the Supreme Court. In United

States v. Knotts, police used a beeper to track a vehicle. 460 U.S. 276, 278 (1983).

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The Supreme Court held that this was not a search because it was essentially
“augmentled]” visual surveillance: police followed a car for a short distance, on
public roads, where the vehicle’s path was “voluntarily conveyed to anyone who
wanted to look.” Jd at 281-82 (cited in Carpenter, 138 S. Ct. at 2215). Tower
dumps, by contrast, identify a suspect by cross-referencing hundreds or thousands
of records collected from all users (whether physically located in public or private
spaces) in the target area. Bramley-Garoutte, supra, at 72. This is qualitatively
different from the type of search at issue in Knotts. Furthermore, whereas Knotts
involved tracking in public, here police had good reason to believe that the towers in
question served residential areas, for the simple reason that the crime took place
near the USPS employee’s home. See Karo, 468 U.S. at 714 (holding that the
Fourth Amendment is violated when a beeper is tracked into a private home).
Finally, the Tower Dump Order is not comparable to traditional methods of
surveillance, such as short-term video surveillance. It is true that, as with
traditional surveillance, a geofence or tower dump captures a person’s “movement
at a particular time.” Carpenter, 138 S. Ct. at 2220. But if a tower dump were
reimagined as a visual search, it would be one in which police could look at a few
minutes of video surveillance—a brief aerial snapshot of a city block, for instance—
and instantly derive the name, address, connecting phone records, length of service,
telephone number, and payment information for every person in the vicinity, as well
as their physical location. See 18 U.S.C. § 2703(c)(2) (describing what can be

retrieved in a § 2703(d) order). Carpenter's narrow application was meant to

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preserve traditional surveillance methods, not authorize sweeping mass
surveillance techniques for all users in the area. See, e.g., Leaders of a Beautitul
Struggle v. Baltimore Police Dep't, 2 F.4th 330, 341-42 (4th Cir. 2021) (Carpenter
“squarely applies” to an aerial surveillance program that “tracks every movement”
of every person outside in Baltimore City for forty-five days). A tower dump is not
the same as simply looking at a few minutes of surveillance tape, because the
ability to quickly associate vast amounts of data allows law enforcement to see far
more than what simple visual surveillance would reveal and extends effortlessly
into both public and private spaces. See Karo, 468 U.S. at 714; Ayllo v. United
States, 583 U.S. 27, 34 (2001) (holding that the Fourth Amendment is violated
where the government uses sense-enhancing technology not available to the public
to search a home).

The “basic purpose of [the Fourth] Amendment” is to “safeguard the privacy
and security of individuals against arbitrary invasions by government officials.”
Carpenter, 138 S. Ct. at 2213 (citation omitted). People quite reasonably assume
that the Government should not be able to use your cell phone to spy on you. Here,
the Government engaged in mass surveillance of an entire population for over four
hours. This was a violation of the Fourth Amendment.

The Court finds that Defendants have a reasonable expectation of privacy in

their short-term CSLI, and thus a warrant was required for the Tower Dump Order.

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3. After Carpenter, Do Users Have a Property-Based Right in their
Short-Term CSLI?

Defendants—through Ms. Parsons—also argue that their CSLI constitutes
“papers and effects,” and they thus have a property-based interest under the Fourth
Amendment based on 47 U.S.C. § 222, which prohibits telecommunications carriers
from disclosing user information without consent.18 ECF No. 187 at 13-15 (noting
that § 222 classifies CSLI as “customer proprietary information”).

The Court need not reach this argument, having determined that the
Defendants have a reasonable expectation of privacy in their CSLI. They also have
not provided enough information to determine whether the CSLI is “[theirs] under
law.” Carpenter, 188 S. Ct. at 2267-68, 2272 (Gorsuch, J., dissenting). They have
not articulated which provisions in their provider’s privacy policy would support the
argument that CSLI is protected, or which provisions of the law—beyond a bare
reading of § 222(f)—support a property-based interest. Without more information, a
property-based claim to these records is speculative.

4, Good-Faith Exception

The Government argues that even if Defendants have a_ reasonable

expectation of privacy, the Court should uphold the Tower Dump Order under the

good-faith exception. ECF No. 175 at 29-31; ECF No. 246 at 2-3.

18 This argument has been developed elsewhere by the Brennan Center for
Justice, the American Library Association, the Electronic Privacy Information
Center, and others. See Brennan Center Amicus Brief at 22-25 (“Communications
metadata...demands Fourth Amendment protection, no less than pamphlets or
hard copy letters.”). It was also raised by Justice Gorsuch in Carpenter, who argued
that users may retain property rights in metadata even when this information is
stored and held by a third party. 138 S. Ct. at 2272 (Gorsuch, J., dissenting).

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Under United States v. Leon, a warrant that violates the Fourth Amendment
may still be upheld unless (1) the affidavit is “so lacking in indicia of probable cause
as to render official belief in its existence entirely unreasonable”; (2) the warrant is
“so facially deficient—1.e., in failing to particularize the place to be searched or the
things to be seized—that the executing officers cannot reasonably presume it to be
valid”; (3) the Magistrate Judge “wholly abandoned his judicial role”; or (4) the
judge was “misled by information in an affidavit that the affiant knew was false or
would have known was false except for his reckless disregard of the truth.” 468
U.S. 897, 923 (1984) (citations omitted).

When police rely on binding appellate precedent that explicitly authorizes a
given practice but is later held to be unconstitutional, the good-faith exception
applies. Davis v. United States, 564 U.S. 229, 249-50 (2011); see also Illinois v.
Krull, 480 U.S. 340, 349-50 (1987) (good-faith exception applies to a warrantless
search where law enforcement relied in good faith on a statute that was later held
to be unconstitutional). Less clear is how it applies to areas where the law is simply
unsettled. As Justice Sotomayor has noted, “when police decide to conduct a search
or seizure in the absence of case law... specifically sanctioning such action,
exclusion of the evidence obtained may deter Fourth Amendment violations.”
Davis, 564 U.S. at 251 (Sotomayor, J., concurring). The First Circuit has
emphasized that “where judicial precedent does not clearly authorize a particular

practice, suppression has deterrent value because it creates an ‘incentive to err on

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the side of constitutional behavior.” United States v. Sparks, 711 F.3d 58, 64 (1st
Cir. 2013) (citation omitted).

Here, no warrant was acquired, and any discussion of whether it would have
been sufficient on these facts is entirely speculative. The issue is whether USPIS
believed in good faith that they could obtain short-term CSLI through a § 2703(d)
order rather than a warrant. Given that the Supreme Court expressly declined to
rule on tower dumps, was it reasonable to assume that a § 2703(d) order was
sufficient? Or did the holding in Carpenter effectively put USPIS on notice that
other forms of electronic surveillance—tower dumps, cell-site simulators, and real-
time CSLI—might also require a warrant going forward? There is no First Circuit
case on point, and the Supreme Court’s guidance is less than clear.

So, the Court will fall back on the touchstone of “reasonableness” in its
analysis. Ailey, 573 U.S. at 381-82 (citation omitted). The Court finds that on these
facts, it was reasonable for USPIS to rely on the judge’s order. The plain language
of Carpenter does not obviously put law enforcement on notice that tower dumps
are constitutionally suspect. 138 S. Ct. at 2220. And the plain language of 18
U.S.C. § 2703(c) permits the Government to obtain CSLI using either a warrant or
an order. 18 U.S.C. § 2703(c) (a service provider must disclose a record “when the
governmental entity—(A) obtains a warrant... [or] (B) obtains a court order for
such disclosure under subsection (d)”). The fact that some officers have sought a
warrant out of an “abundance of caution” does not suggest that everyone is required

to do the same. DC Tower Dump, 616 F. Supp. 3d at 8-9.

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Importantly, USPIS didn’t hide the ball: they flagged the issue for the
Magistrate Judge, who approved the order. ECF No. 177-4 at 22-28, n.1. In his
§ 2703(d) application, USPIS Inspector Richard Atwood acknowledged that tower
dumps were something of an open question but distinguished the tower dump order
from the long-term search at issue in Carpenter. Id. The Court does not agree that
tower dumps are wholly novel or that the good-faith exception should automatically
apply when a case involves unsettled law. ECF No. 246 at 3 (citing United States v.
Levin, 874 F.3d 816, 323 (1st Cir. 2017)). But here, USPIS acknowledged the
ambiguity upfront and put the issue to the judge to decide.!9

Finally, in the wake of Carpenter, USPIS would have been hard-pressed to
find clear guidance in lower court rulings. Post-Carpenter, tower dump warrants
are increasingly common and are routinely evaluated by district courts. See, e.g.,
DC Tower Dump, 616 F. Supp. 3d at 8-9; Foster, 2023 WL 155442, at *1; Z//inois
Tower Dump, 2023 WL 1779775, at *1. But these cases have largely involved
warrants that were voluntarily sought. Few courts have required a warrant, and
the Government cites ample precedent that goes the other way. See, e.g., Adkinson,
916 F.3d at 611; Rhodes, 2020 WL 9461181, at *2. Here, the good-faith exception
should apply.

The Court does not reach this conclusion lightly. Applying the good-faith
exception means upholding a search that was conducted without probable cause. 18

U.S.C. § 2703(d) (an order merely requires “specific and articulable facts showing

19 Nothing suggests that the Government sought a Tower Dump Order to
circumvent the requirements for particularity and probable cause.

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that there are reasonable grounds to believe [that the records] are relevant and
material to an ongoing criminal investigation.”). It also relieves the Government of
the obligation to show particularity. U.S. Const. amend. IV. But in this case, the
Government was operating in a context where the Supreme Court expressly
declined to rule, the statute does not require a warrant, precedent points in both
directions, and a judge approved the order. It was thus reasonable for USPIS to
assume that they could rely on the § 2703(d) order. The Leon good-faith exception
applies.

For these reasons, the Court DENIES Defendants’ Motion to Suppress
evidence from the Tower Dump Order. ECF Nos. 187, 242, 245, and 247.

B. “Five Phones Warrant”

The Court turns to Ronald Hall’s challenge—joined by Edgar Medina and
Andres Garay—seeking to suppress evidence obtained from five phones recovered
during the initial arrests (21-sw-274-PAS, hereinafter “Five Phones Warrant”).20
ECF No. 134. Mr. Hall argues that the affidavits accompanying the search warrant
were not attached when the application was presented to the Magistrate Judge, and
so the application failed to establish probable cause. Jd. at 1. He also argues that

the warrant is overbroad.2! /d. -The Government acknowledges that the affidavits

20 This warrant uncovered voluminous evidence against these three
Defendants—including call logs, contacts, internet searches, photographs, videos,
and user attribution data—as well as incriminating text messages that implicated
Irving Medina and Alijah Parsons as co-conspirators. ECF No. 176 at 9.

21 Mr. Hall also initially sought a Franks hearing, which was denied because
there was no showing of any false or reckless statement in the warrant application.

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were not attached but argues that the warrant should be upheld under the good-
faith exception. ECF No. 176 at 12. They also challenge standing.2? Jd. at 11.

The Court turns to the first issue, incorporation.

1. Incorporation of Affidavits

The Five Phones Warrant relied on two affidavits to show probable cause,
Exhibits A and B, that were not attached to the warrant application.23 The section
on probable cause begins, “As set forth in Exhibits A and B, I believe MEDINA,
GARAY, HALL and others are responsible for arranging the shipments of large
amounts of controlled substances.” ECF No. 177-1 at 168. But as the Government
acknowledges, “[nJeither the U.S. Attorney’s Office, nor the Court, has any record of
Exhibits A and B having been submitted to the Court with the 21-SW-274
application packet.”24 Jd. at 3-4.

Mr. Hall correctly notes that because 21-sw-274-PAS relied on the
unattached affidavits to show probable cause (“As set forth in Exhibits A and B”),
the warrant is invalid as lacking in demonstrable probable cause. ECF No. 134

at 3. The law in this Circuit is that an attached affidavit may supply probable

22 Regarding standing, the Defendants acknowledge that they own the
phones. ECF No. 188 at 8. To the extent that they seek to challenge their own text
messages, the Defendants thus have standing to challenge a search of these phones.
See Aguirre, 839 F.2d at 856-57 (a defendant has standing if they can show
ownership, possession, control, historical use, or the ability to regulate access).

23 Wxhibit A described facts related to the kidnapping, including the fact that
one of the suspects was observed using a phone in the victim’s driveway. ECF
No. 184-1 at 40-51. Exhibit B refers to the complaint affidavit, which notes that
Edgar Medina was seen using a phone on the day of his arrest. Jd. at 58-75.

24 The record suggests that there are at least four other instances where
affidavits were referenced but not attached, and up to fifteen where the affidavit
was attached but not incorporated. ECF No. 183-1 at 2; ECF No. 177-1 at 2-4.

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cause “if the affidavit accompanies the warrant, and the warrant uses suitable
words of reference which incorporate the affidavit.” United States v. Sheehan, 70
F.4th 36, 50 (1st Cir. 2028).

Sheehan involved a child pornography investigation in which an officer—
having failed to show probable cause in the primary affidavit—sought to search a
cache of devices based on an underlying affidavit that was neither expressly
incorporated nor attached. Jd. at 48-50. The Government tried to argue that the
affidavit was “implicitly incorporated” because it was issued consecutively and
referred to by. docket number, so the authorizing clerk would presumably have been
aware of the facts. /d. at 49. The First Circuit rebuffed these arguments, noting
that “[uJnder...established circuit precedent, incorporation [requires] both
suitable words to that effect and the attachment of the affidavit.” Jd. at 50 (citing
United States v. Moss, 986 F.3d 52, 59 n.9 (1st Cir. 2019); United States v. Klein,
565 F.2d 183, 186 n.3 (1st Cir. 1977)). “Submitting a warrant application so
deficient in probable cause such that no officer could reasonably rely upon it is
exactly the kind of police conduct the exclusionary rule was meant to deter.” Jd.
at 54. Therefore, when the primary affidavit lacks probable cause, an unattached
affidavit cannot be relied on to supply it. /d at 50-51.

a. Good Faith

The Government pleads good faith, arguing that this was merely a “filing

error,” that there was no misconduct, and that the error should be attributed to the

Assistant United States Attorney who filed the application rather than the affiant.

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ECF No. 176 at 12-18. They argue that under Herring v. United States, only
“purposeful conduct” may trigger the exclusionary rule. /d, at 14. They note that
the warrant packet was prepared separately and in haste, and that it was
reasonable—in the heat of the moment—for Inspector Atwood to file it without
checking, and to assume that the Magistrate Judge knew the facts. Jd. at 16-17.

This argument contradicts the plain language of Sheehan, which emphasizes
that failing to attach the affidavit showing probable cause goes to the “core
competency of a police officer.” 70 F.4th at 54. It also contradicts Leon, which holds
that suppression is appropriate where an officer “could not have harbored an
objectively reasonable belief in the existence of probable cause.” 468 U.S. at 926.
The operative question is not whether Inspector Atwood was reckless, but whether
an officer objectively acts in good faith when relying on a warrant that is wholly
lacking in probable cause. Sheehan, 70 F.4th at 54-55. The First Circuit explained
that “[t]he expansion of the good-faith exception in Herring v. United States, [555
U.S. 185 (2009)] to cases involving police negligence does not alter our
analysis... Nothing in Herring suggests an expansion of the good-faith exception to
circumstances that Zeon previously held to be beyond the pale—such as the
issuance of a warrant based on an affidavit ‘so lacking in indicia of probable cause’
as to render any reliance on it ‘entirely unreasonable.” Sheehan, 70 F.4‘h at 54
(citing Leon, 468 U.S. at 928).

The Government emphasizes that the Court should look at “all of the

circumstances” when assessing good faithh ECF No. 176 at 15. But here, as in

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Sheehan, the error lies with the Government. It matters little whether the error
was committed by the affiant, the Assistant United States Attorney, or the
paralegal tasked with uploading the file. ECF No. 177-1 at 2-4. The issue of “who
prepared the warrant application” was explored exhaustively at oral argument, but
under Leon, good faith is required of all of the officers, whether they executed the
warrant, applied for it, or provided material information. 468 U.S. at 923 n.24.

Nor was Inspector Atwood entirely blameless. The record indicates that
“InJeither the U.S. Attorney’s Office, nor the Court, has any record of Exhibits A and
B having been submitted to the Court with the 21-SW-274 application packet.”
ECF No. 177-1 at 4. Nevertheless, he swore out the application and attested to
their existence. /d. at 3. It was thus objectively unreasonable for him to rely on the
Magistrate Judge’s issuance of that warrant.25 Sheehan, 70 F.4th at 51 (“[Blecause
petitioner himself prepared the invalid warrant, he may not argue that he
reasonably relied on the Magistrate’s assurance that the warrant [was valid].”)
(citing Groh v. Ramirez, 540 U.S. 551, 563-65 (2004)). The affiant is responsible for
the materials he submits and a judge’s failure to catch the error does not mitigate
an officer’s unreasonable conduct in failing to establish probable cause. Jd.

The Court has every reason to believe this was an unintentional mistake. As

the Government points out, “no officer has an incentive to deliberately make [this

25 It is irrelevant that the Magistrate Judge may have been apprised of the
facts because a judge may not consider unattached, external materials to a warrant.
Sheehan, 70 F.4th at 50. Here, moreover, the Magistrate Judge could not have
simply looked back through the file to identify “Exhibit A,” because there were nine
previous affidavits it could potentially have referenced. ECF No. 176 at 8.

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type of] error.” ECF No. 176 at 18. But where the error results in a warrant wholly
lacking in probable cause, there is no need to conduct “an additional or
individualized assessment of the deliberateness and culpability of police conduct.”26
Sheehan, 70 F.4th at 54. “Submitting a warrant application so deficient in probable
cause such that no officer could reasonably rely upon it is exactly the kind of police
conduct the exclusionary rule is meant to deter... If the good-faith exception is to
have any limits, it cannot encompass the police conduct that occurred here.” Jd.
at 54°55. The good-faith exception does not save the Government’s error.
b. Probable Cause

The Government argues, in the alternative, that the primary affidavit (even
absent the Exhibits) contained sufficient facts to show probable cause. ECF No. 176
at 20. They argue that the affidavit “reminded the Judge that. she had found
probable cause to arrest the defendants the day before” and that the bare facts—
including the fact that an investigation was ongoing and that five phones had been
recovered from Defendants’ cars—are enough to show probable cause. Jd. at 23°24.

When evaluating a warrant, the Court looks to the “four corners of the

affidavit.” United States v. Lindsey, 3 F.4th 32, 39 (1st Cir. 2021) (citation omitted).

26 The Court notes that the same conclusion would be reached under Herring,
since here there is evidence of “systemic error.” 555 U.S. at 147-48; see ECF
No. 183-1 at 2; ECF No. 177-1 at 2-4. The Court is particularly concerned that, in
canvassing the fifty-eight warrants in this case, the Government failed to identify

_ and disclose at least one additional warrant that lacked probable cause due to an
incorporation error. ECF No. 215; see infra Part D. Such errors go to the “core
competency of a police officer, disrupt the public’s faith in the justice system, and
compromise the reliability of the Government’s investigation. Sheehan, 70 F.4th
at 54. Under either standard, it would be appropriate to suppress the evidence.

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Here, Inspector Atwood begins with express words of incorporation (“I hereby
incorporate all background facts from [Exhibits A and B]”) and purports to establish

probable cause by reference:

As set forth in Exhibits A and B, I believe MEDINA, GARAY, HALL
and others are responsible for arranging the shipments of large
amounts of controlled substances, to wit, cocaine, from individuals in
Puerto Rico. The controlled substances were sent to the Providence
area for distribution of those drugs-.in the Providence area. An
investigation is ongoing into a June 1, 2021 armed abduction of a
United States Postal employee who, in the course of the abduction, was
asked about the contents of one such shipment. Information gleaned
in the course of the investigation reveals that the suspects utilized cell
phones to both conduct surveillance on the Postal employee before
abducting him, and to communicate on the dates of suspect parcel
deliveries.

ECF No. 177-1 at 167-68. Taken as a whole, this paragraph states that 1) someone
sent drugs to Providence; 2) a kidnapping is being investigated; 3) “lilnformation
gleaned in the course of the investigation” suggests that the Defendants used cell
phones to commit these crimes. The affidavit thus establishes that crimes were
committed (drug trafficking and armed abduction) but fails to connect the
Defendants to either crime or show a nexus to the phones in question.

The application then states that the five phones were recovered from the
Defendants’ cars after they “attempted to retrieve suspect parcels.” Jd. at 168-69.
No facts are included as to what parcels they attempted to retrieve or why they
were suspect. It goes on to state general facts about drug trafficking based on
Inspector Atwood’s “training and experience,” including the observation that drug
traffickers often maintain records and communicate by cell phone, and that “it is

common for drug traffickers to own multiple phones of varying sophistication and

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cost.”27 Jd. at 169-70. The relevant facts connecting the Defendants or their phones
to the crimes in question are “set forth in Exhibits A and B,” which are not
attached. Jd. at 168.

This is far less than the probable cause showing in Sheehan, which was
roundly struck down by the First Circuit.28 70 F.4th at 47. Here, there are no facts
that an officer could reasonably rely on to show probable cause, and no nexus
between the alleged crime (kidnapping and drug trafficking) and the place to be
searched (the phones in question). The warrant application is entirely conclusory,
and an affidavit that is conclusory as to nexus “is not sufficient to establish the
necessary probable cause.” J//inois v. Gates, 462 U.S. 2138, 239 (1983).

Without Exhibits A and B, there is no “substantial basis” from which the
Magistrate Judge could infer that relevant evidence would be found on the phones.
Id. Inspector Atwood’s beliefs as to Defendants’ involvement are relevant but are
not sufficient to show probable cause. Jd. (a magistrate cannot solely rely on the
affiant’s sworn statement that he “has cause to suspect and does believe” that

Defendants committed a crime) Gnternal quotation omitted). The fact that he

27 The recovery of multiple phones, paired with the officer’s “training and
experience,” can be enough if there is “substantial evidence [of drug trafficking] in
the warrant application.” See Lindsey, 3 F.4th at 39-40. But here the warrant
application lacks such facts and relies on conclusory observations as to the
Defendants’ involvement in these crimes.

28 In Sheehan, the warrant included a “cursory” description of the allegedly
pornographic images, a statement that Sheehan had previously been arrested for
indecent assault and battery of a minor, and an explanation of how police had
obtained the devices. 70 F.4th at 47. The First Circuit held that this provided
“almost no basis, never mind a substantial basis, from which the magistrate could
infer that Sheehan’s phone contained child pornography.” Jd.

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intended to rely on Exhibits A and B to supply probable cause makes the omission
all the more glaring.

For these reasons, the Government’s argument that the primary affidavit

(even absent the Exhibits) contained sufficient facts to show probable cause fails.
2. Overbreadth

Having already determined that the warrant is invalid for lack of probable
cause, the Court declines to evaluate particularity and overbreadth. ECF No. 184.

That said, the Court is skeptical of the Government’s position that a
“computer-assisted [scan] of the entire medium” was justified at this early stage in
the investigation, when at best, there was probable cause to believe that Defendants
used their cell phones to make phone calls. ECF No. 177-1 at 175. The Court is
concerned, likewise, that the Five Phones Warrant did not include the search
protocols adopted in earlier and later searches to ensure that the inquiry was
appropriately limited to items for which the Government had probable cause.?9 See,
e.g. ECF No. 177-2 at 49-51 (“Search Procedure for Digital Device(s)”).

But in the First Circuit, “[t]he remedy in the case of a seizure that casts its
net too broadly is... not blanket suppression but partial suppression.” United
States v. Aboshady, 951 F.3d 1, 9 (1st Cir. 2020) (citation omitted). Even if the
scope of the warrant was too broad, “[Defendants] would only be entitled to

suppression of those [materials]... that reasonably fell outside the scope of the

29 At oral argument, the Government argued that these protocols were not
required and did not limit these searches in any way. See, e.g., ECF No. 252 at 3-5.
Suffice it to say, this position does not alleviate the Court’s concerns.

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warrant.” Jd. To date, Mr. Hall has not specified what evidence, if any, was outside
the scope of the warrant, and the Court has not been presented with any evidence
showing the Government’s intended use of evidence that is unsupported by probable
cause. As such, the Court declines to consider the warrant on these grounds. If
Defendants point to any specific evidence that the Government seeks to use that
was not supported by probable cause, the Court will entertain that motion.

The Five Phones Warrant is invalid because it failed to incorporate Exhibits
A and B and was otherwise lacking in probable cause. As such, it was objectively
unreasonable for Inspector Atwood to rely on it. Leon, 468 U.S. at 923. There is no
need for the Court to consider overbreadth.

For these reasons, the Court GRANTS the Motion to Suppress the Five
Phones Warrant. ECF No. 134.

C. Search of Home and Person

The Five Phones Warrant revealed incriminating text messages between
multiple Defendants. These messages were used with other evidence to justify the
seizure of five more phones, which were taken pursuant to home searches for Alijah
Parsons and Irving Medina and forensically searched according to a detailed search
protocol. See, eg., ECF No. 177-2 at 53-96.

Irving Medina and Alijah Parsons write separately to challenge the searches
of their homes and persons, including the searches of five cell phones recovered.

ECF Nos. 131, 148, 1385. Edgar Medina further asks the Court to reconsider the

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search of his home, person, and vehicle. ECF Nos. 129 (denied), 238 (renewed). The
Government objects. ECF Nos. 170, 172, 243.
1. Standard for a Home Search

A warrant to search a home—like any other warrant—must be supported by
probable cause, determined based on the totality of the circumstances, considering
the “type of crime [and] the nature of the items sought.” Gates, 462 U.S. at 230-31;
United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979). The affidavit must
show that “(1) a crime has been committed—the ‘commission’ element, and (2)
enumerated evidence of the offense will be found at the place searched—
the... ‘nexus’ element.” Lindsey, 3 F.4th at 39 (citation omitted). To establish
nexus, the Government needs to show why they believed there was a “fair
probability” that phones (or other evidence of drug crimes) would be recovered at
the Defendants’ residences. Gates, 462 U.S. at 238.

A judge may base this determination on circumstantial evidence. United
States v. Gonzalez-Arias, 946 F.3d 17, 24 (1st Cir, 2019) (probable cause may exist
to search for drugs in a home even if “agents or their informants never spotted the
illicit objects at the scene”). But mere knowledge that a defendant is a drug dealer
is not enough, and the First Circuit has “expressed skepticism that probable cause
can be established by the combination of the fact that a defendant sells drugs and
general information from police officers that drug dealers tend to store evidence in
their homes.” United States v. Roman, 942 F.3d 48, 51-52 (1st Cir. 2019) (citation

omitted). For this reason, “generalized observations” must be “combined with

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specific observations” that link drug activity to the home. Jd. at 52 (citation
omitted). Where these facts exist, probable cause may be shown. See, e.g., United
States v. Ribeiro, 397 F.3d 48, 50-52 (1st Cir. 2005).
2. Irving Medina

Irving Medina argues that the warrant to search his home was not supported
by probable cause. ECF Nos. 181, 148 (challenging 21-sw-438-PAS). The warrant
application alleged that Irving Medina participated in the kidnapping by conducting
surveillance of the USPS employee prior to his abduction, that he used two cell
phones to arrange surveillance, and that the phones in question, Phone-5346 and
Phone-5288, would be found in his home. ECF No. 148-1 at 6-15, 22. Mr. Medina
argues that there is no evidence of knowledge to support an accomplice theory and
no “nexus” to the home because the Government has not shown that drug activities
took place there. ECF No. 148 at 16; ECF No. 251.

When the Court is reviewing a warrant, “great deference” should be paid to
the magistrate’s determination of probable cause, and the warrant will be upheld if
the Court determines that the magistrate had a “substantial basis” for believing
that the search would reveal evidence of a crime. Gates, 462 U.S. at 236 (citation
omitted). To support the claim that Irving Medina agreed to conduct surveillance
(and thus was involved in the commission of a crime), the warrant points to a text
exchange involving Phone-5288 dated May 28, four days before the kidnapping:

GARAY: “Are you comfy taking the Taurus to the bucket?2 — 1:34:59 pm
I. MEDINA’s phone no.: 5288: “I don’t’ see why not” — 1:35:12 pm

30 A derogatory nickname given to the City of Pawtucket.

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GARAY: “Cool” — 1:36:17 pm

GARAY: “When can you head there?” — 1:36:37 pm

I. MEDINA’s phone no.: 5288: “Right now if you want” — 1:38:18 pm

GARAY: sends a photo of an aerial satellite photo of the Pawtucket Post
Office, located at 40 Montgomery Street. — 1:38:26 pm

GARAY: “OK cool” — 1:38:26 pm

I. MEDINA’s phone no.: 5288: “WTH is that” — 1:38:46 pm

GARAY: “Read the streets” — 1:38:57 pm

I. MEDINA’s phone no.: 5288: “Go there” — 1:39:04 pm

GARAY: “Try to park in there” — 1:39:08 pm

I. MEDINA’s phone no.: 5288: “I did” — 1:39:09 pm?!
ECF No. 148-1 at 9. This exchange was discovered during a search of Andres
Garay’s phone shortly after his arrest.32 It suggests that Irving Medina was aware
that he was being asked to conduct surveillance, and that he agreed to do it.

Another exchange involving Phone-5346, dated June 8 (the date of the
package deliveries), further supports this inference:

GARAY: “Lmk when you’re shot to head there” — 10:11:37 am

I, MEDINA’s phone no.: 5346: “T’'ll be there in minute” — 10:12:51 am
GARAY: “Remember to post up with good distance” — 10:13:14 am

Id. at 6.

The affidavit goes on to list other incriminating facts: Phone-5346 was
registered to “Semaj Prince,” who does not exist, but was later linked to Irving
Medina. Jd. at 7. CSLI from the Tower Dump Order placed Irving Medina near the
alleged victim’s home on May 28 and May 29 when the Defendants were alleged to

have been conducting surveillance and showed multiple calls with Edgar Medina

31 21-sw-438 gives two dates for this exchange, May 28 and June 28, 2021.
No one has challenged his discrepancy, and the Court assumes it is a typo.

32 The suppression of the Five Phones Warrant does not preclude the
Government’s use of these messages against Irving Medina, because he does not
have a reasonable expectation of privacy in Andres Garay’s phone. United States v.
McDowell, 918 F.2d 1004, 1007 (1st Cir. 1990).

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during this period. Jd. at 12-13. The warrant also pointed to numerous calls
between Edgar Medina, Andres Garay, and Irving Medina before and after the
kidnapping. /d at 7. The affidavit notes that Irving Medina has a criminal history
and was being held on an outstanding warrant. /d. at 7-8. While in jail, he
allegedly asked his girlfriend to keep his two cell phones “safe.” Jd. at 8.

Under Aoman, a warrant to search a home must provide “specific
observations” linking criminal activity to the residence and must allege some
connection beyond the fact that the Defendant is a known drug dealer. 942 F.3d
at 51°52. Here, the text messages, paired with other evidence, suggest that Irving
Medina was an accomplice and that he used these phones to arrange surveillance
prior to the kidnapping of the USPS employee and during the package deliveries.
Even without deference to the magistrate, the warrant provides a substantial basis
to believe that he knowingly participated in these crimes. Gates, 462 U.S. at 236.

As far as nexus to the home, real-time CSLI placed both phones at 75 Moore
Street, which was identified as Irving Medina’s address. ECF No. 148-1 at 10-12.
It was thus highly likely that the phones would be recovered from the house. See
United States v. Corleto, No. 19-cr-76-1-PB, 2020 WL 406357, at *8 (D.N.H. Jan. 23,
2020) (finding that probable cause to search a home existed where a “chain”
connected a user account to an IP address, and the IP address to a
residence), affd, 56 F.4th 169 (1st Cir. 2022). There was no need for the

Government to further show that drug dealing was taking place in the home.

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For this reason, the Court DENIES Irving Medina’s Motion to Suppress

evidence from the search of his home and person. ECF No. 181.
3. Alijah Parsons

Alijah Parsons makes a similar argument, challenging 21-sw-321-PAS and
21-sw-322-PAS. ECF No. 135 (search of home and person). Here, the warrants
alleged that Alijah Parsons used a cell phone to book a plane ticket to Puerto Rico,
where she mailed packages containing cocaine to the United States and texted with
Edgar Medina to arrange their pickup in Rhode Island. See, e.g., ECF No. 155 at 4-
7. The Government points to text messages with Edgar Medina’s phone and real-
time-CSLI that placed the relevant phones at her home. /d. at 7-8. The warrant
authorized a forensic search of three cell phones in her possession, as well as the
seizure of handwriting samples, weapons, drugs, currency, financial records, travel
documents, and other evidence. Jd. at 19-26.

Ms. Parsons’ argument proceeds on slightly different grounds. She argues
that there is no “nexus” to her home or to the phones in question. ECF No. 135 at 6
(“the Government conducted no surveillance ...no statement of any activity at her
home... [nJo hallmarks of a stash house”). She raises an incorporation challenge,
arguing that the complaint affidavit was missing and that the affidavit showing
probable cause was not attached to the warrant. Jd. at 14-18; ECF No. 182 at 3-4.
Finally, she argues that these warrants were overbroad and not particularized

under the Fourth Amendment. ECF No. 1385 at 18-20.

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a. Probable Cause

As above, the affidavit must show probable cause to believe that (1) a crime
has been committed, and (2) enumerated evidence of the offense will be found at the
place searched. Lindsey, 3 F.4th at 89 (citation omitted). Both requirements are
met here.

The underlying affidavit establishes probable cause of the commission of a
crime by reciting basic facts about the kidnapping (thus obviating the need to attach
these in a separate affidavit). ECF No. 155 at 4-5. As far as nexus goes, the
affidavit notes that Ms. Parsons contacted USPS on three phones—Phone-5364,
Phone-4884, and Phone-5289—to ask about Edgar Medina’s wallet after he was
arrested. Jd. at 5. Phone-5289 was linked to a trip that Ms. Parsons had taken to
Puerto Rico.33 Jd. at 5-6. USPIS subsequently obtained video surveillance from this
trip showing Ms. Parsons mailing packages with fraudulent return addresses that
were later found to contain cocaine. /d. at 6. The affidavit pointed to text messages
between Alijah Parsons and Edgar Medina involving package deliveries and USPS
receipts. Jd. at 5-7. Real-time CSLI showed that all three phones—including the
phone that Ms. Parsons used to arrange her trip to Puerto Rico—were located at her
home. Jd. at 7-8.

This clears the standard set by United States v. Roman. 942 F.3d at 51-52

(where the court required “specific observations” linking purported drug activity to

33 The warrant application incorrectly listed this as Phone-5364. See ECF
No. 155 at 6; ECF No. 177-4 at 65-69. The Government acknowledged the error,
and it does not change the Court’s analysis. ECF No. 175 at 7-8 n.13.

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a home to justify a search of the residence). In addition to the text messages, the
affidavit shows that (1) Ms. Parsons used a phone to arrange her trip to Puerto
Rico; (2) where she was observed mailing packages later found to contain cocaine;
and (3) the phone was later identified as being at her home. ECF No. 155 at 5-8.
Probable cause does not “demand proof beyond a reasonable doubt,” but only
enough to “support a fair probability” that a crime was committed, and that
evidence is likely to be found in the place to be searched. United States v. Coombs,
857 F.3d 439, 446 (1st Cir. 2017) (citations omitted). These warrants meet the

probable cause standard.

b. Incorporation

Nor is incorporation fatal to these warrants. Sheehan holds that a warrant is
invalid where an affidavit fails to show probable cause and relies on an underlying
affidavit that is neither incorporated nor attached. 70 F.4th at 50°51. Sheehan
borrows the standard for incorporation from an earlier line of cases that deal with
particularity in the execution of a warrant. See, eg., Groh, 540 U.S. at 557-58;
Klein, 565 F.2d at 186 n.38. In Groh, the Supreme Court emphasized that the
Fourth Amendment requires particularity in the executed warrant. 540 U.S. at 563
(striking down a warrant that was presented to the defendant without particularly
describing the items to be seized). “The fact that the application adequately
described the ‘things to be seized’ does not save the warrant from its facial

invalidity. The Fourth Amendment by its terms requires particularity in the

warrant, not in the supporting documents.” Jd. at 557. In Sheehan, by contrast, the

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First Circuit considered whether a Magistrate Judge can find probable cause based
on an unattached, unincorporated affidavit. 70 F.4th at 50-51.

Here, the affidavit was supported by probable cause and properly reviewed by
the Magistrate Judge.34 ECF No. 155 at 4-8; ECF No. 155-1 at 4-8. Ms. Parsons
was able to access the warrant application in discovery, thus allowing her to
challenge these determinations. Jd There is also no issue with particularity
because the record shows that the executed warrants—as delivered to
Ms. Parsons—included a detailed list of the places to be searched and the items to
be seized.85 ECF No. 155 at 95-108; ECF No. 151-1 at 91-99. See Attachments A
and B. Therefore, the Court finds unpersuasive Ms. Parsons’ incorporation
arguments.

c. Overbreadth and Particularity

Finally, the Court turns to overbreadth and particularity. 21-sw-321-PAS
and 21-sw-322-PAS authorize comprehensive searches. In addition to the three cell
phones, the warrants sought handwriting samples, weapons, controlled substances,
drug paraphernalia, currency, financial records, “liltems showing unexplained

wealth,” documents and records indicating customers and co-conspirators (including

34 As for the complaint affidavit, this was attached and was properly
incorporated. See ECF No. 155 at 5, 29-46. The Government does not use the
words “I hereby incorporate,” but does expressly direct the reader’s attention to the
affidavit. Sheehan, 70 F.4th at 50. And even if there was an incorporation error,
the primary affidavit shows probable cause as to Ms. Parsons’ involvement.

35 The Court notes that as to 21-sw-322-PAS, Attachments A and B are not
included with the Government’s exhibit list (see ECF No. 177-2 at 98-99) but a full
review of the record shows that it was presented to her on execution. See 21-sw-

322, ECF No. 5.

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emails, text messages, photos, and videos stored on digital devices), travel
documents, call log information, and more. See, e.g., ECF No. 155 at 19-23.

The Court acknowledges that these are broad searches. But in the First
Circuit, “[t]he remedy in the case of a seizure that casts its net too broadly is... not
blanket suppression but partial suppression.” Aboshady, 951 F.3d at 9 (citation
omitted). Because Ms. Parsons has not identified any specific evidence she wishes
to suppress, there is no need to review the issue at this time. Jd. If she wishes to
bring such a motion in future, the Court will consider it at that time.

For these reasons, the Court DENIES Ms. Parsons’ Motion to Suppress
evidence found during the search of her home and person. ECF No. 185.

A, Edgar Medina

Edgar Medina asks us to reconsider his Motion to Suppress evidence obtained
in the search of his home, person, and automobile. ECF No. 129 (challenging 21-sw-
263-PAS, 21-sw-264-PAS, and 21-sw-265-PAS). The Court denied this motion,
noting that the affidavit established “a fair probability (perhaps even overwhelming
likelihood)” that evidence of drug dealing or kidnapping would be found in these
places. See text order from August 22, 2023. Mr. Medina asks us to reconsider.
ECF No. 238. The Government objects. ECF No. 243.

Mr. Medina argues that the affidavit fails to establish probable cause. ECF
No. 238 at 2 (“[alffiant does not make a substantial showing... that Mr. Medina
was selling drugs; possessing drugs; mailing drugs or receiving drugs” such that

searches of his home, person, and vehicle were justified). He argues that the

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evidence is speculative, that the affidavit is “strictly based on assumptions,” and
that knowledge of drug dealing, paired with the officer’s training and experience, is
not enough to justify a search of a home. /d. at 2-3. “The evidence needed to
establish probable cause is more than a mere suspicion [or] rumor.” Jd. (citing
United States v. Han, 74 F.3d 587, 541 (4th Cir. 1996)).

Mr. Medina correctly notes that courts have “rejected a per se rule
automatically permitting the search of a defendant’s home when he has engaged in
drug activity.” Roman, 942 F.3d at 51. But this is not a case in which Mr. Medina
is alleged to be involved in drug trafficking, generally. Nor is it a case in which the
warrant relies solely on the officer’s “training and experience.” Azbeiro, 397 F.3d
at 52. The affidavit states that a parcel addressed to “Mr. Medina 262 George
Waterman Rd Johnston, RI 02919” tested positive for cocaine, and that other
parcels were mailed to the same address. ECF No. 151 at 10, 12-14. It states that
Mr. Medina’s car—which matched the description of the vehicle used for the
kidnapping—was parked at this address, and it provides evidence to show that he
lived at this address. /d. at 10. The affidavit states that “[dlrug traffickers often
keep drugs in places where they have ready access and control, such as at their
residence,” but this was hardly the only piece of evidence (and certainly not the
most persuasive). Jd. at 15.

Probable cause is not a high bar, and the Government has easily cleared it.

United States v. Adams, 971 F.3d 22, 32 (1st Cir. 2020). For this reason, the Court

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DENIES Edgar Medina’s renewed Motion to Suppress evidence from the search of
his home, car, and person. ECF No. 238.

D. Historical CSLI

Following the home searches for Alijah Parsons and Irving Medina, the
Government issued a series of warrants for historical CSLI, seeking to reconstruct
Defendants’ location data for various periods of time from May to June 2021. Irving
Medina, Alijah Parsons, and Andres Garay have raised individual challenges to the
acquisition of their historical CSLI. ECF Nos. 188, 149, 186, 187, and 215. All
these searches lasted for more than seven days, and the Government obtained
warrants for all of them, as required under Carpenter. 138 S. Ct. at 2217. The sole
issue is whether these warrants are valid.

The Court addresses each of these challenges in turn.

1, Irving Medina

Irving Medina challenges two warrants for historical CSLI for Phone-5346,
which sought retrospective location data for fifteen days and thirty-eight days,
respectively. ECF Nos. 138, 149. The warrants in question—21-sw-554-PAS and
21-sw-428-LDA—were properly issued under Carpenter. Irving Medina argues that
these warrants were not supported by probable cause and that the evidence linking
him to criminal activity is speculative at best. ECF No. 149 at 4-5.

The affidavit for 21-sw-428-LDA states that a USPS employee was abducted
at gunpoint, and that Edgar Medina, Andres Garay, and Ronald Hall were

subsequently arrested in connection with the kidnapping. ECF No. 150 at 34. It

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notes that Andres Garay had been corresponding with Phone-5346 by text since
2020, and that these texts were “mostly just general conversations,” except for the
following exchange on June 8, 2021 (the date of the package deliveries):

GARAY: “Lmk when you're shot to head there” — 10:11:37 am

SUBJECT PHONE: “T'll be there in a minute” — 10:12:51 am

GARAY: “Remember to post up with good distance” — 10:13:14 am
Id. at 34°35. The affidavit states that Garay was present at 102 Congress Ave at
approximately 10 a.m. but includes no information as to whether the user was
present. Jd. The affidavit goes on to note that Phone-5346 was registered to “Semaj
Prince” (a false name) and later identified as belonging to Irving Medina, who had a
criminal history and had called Andres Garay and Edgar Medina numerous times
during the relevant period. Jd. at 35-36. It states that Irving Medina was being
held on a different charge, and that he had asked his girlfriend to keep his phones
“safe.”36 Jd, at 36.

Reasonable minds can differ as to whether receiving and acknowledging this
text message suggests that Irving Medina agreed to conduct surveillance. But
where reasonable minds can differ, the Court is required to give deference to the
magistrate. United States v. Barnard, 299 F.3d 90, 98 (Ist Cir. 2002) (“In a
doubtful or marginal case, the court defers to the issuing magistrate’s
determination of probable cause”). As to “commission,” there was probable cause to

believe that a crime was committed because the application laid out the bare facts

36 21-sw-428-LDA sought location data for fifteen days. 21-sw-554-PAS
properly incorporated the affidavit from 21-sw-428-LDA as to probable cause but
expanded the time frame to thirty-eight days. ECF No. 150-1 at 6-7.

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of the kidnapping and linked these facts to the phone in question. Lindsey, 3 F.4th
at 39. As to “nexus,” a search of historical CSLI was likely to reveal the identity of
the user, and his location. Jd.

Probable cause does not require “proof beyond a reasonable doubt [or even]
preponderance of the evidence.” Gates, 462 U.S. at 235. “[O]nly the probability,
and not a prima facie showing, of criminal activity is the standard of probable
cause.” Jd. (citation omitted). The Government has established that here.

As such, the Court DENIES Irving Medina’s Motion to Suppress CSLI from
Phone-5346. ECF No. 138.

2. Alijah Parsons

Ms. Parsons challenges the Government’s efforts to acquire her location data
in two instances—first, in her Motion to Suppress evidence from the geofence
warrants (ECF No. 136), and second, in her Motion to Suppress evidence from the
Tower Dump Order (ECF No. 137).37 She also challenges the Government’s search
of historical CSLI in her reply brief for the Tower Dump Order. ECF No. 186 at 7.

These motions are broadly written and incorporate “any unspecified warrant
as to Google” and “any other process, order, or warrant accomplishing essentially a
tower dump not specified herein.” ECF No. 186 at 2, n.1; ECF No. 137 at 1, n.11.

The Government obtained four warrants for historical CSLI for relevant phone

37 Ms. Parsons acknowledged that these challenges are now moot but
reserved her right to challenge historical CSLI. ECF No. 241 at 3 (“Defendant
Parsons reserves any part of the foregoing motions addressing the separate search
and seizure of her individual cellphone accounts historical CSLI data which she

continues to challenge.”).

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numbers associated with Alijah Parsons. ECF No. 175 at 9 (citing 21-sw-526-LDA,
21-sw-255-PAS, 22-sw-197-PAS, and 22-sw-210-PAS). As noted above, a Tower
Dump Order is distinct from a search for historical CSLI; they seek different types
of information, and thus cannot be attacked on the same grounds. Supra Part A.
Likewise, the overbreadth arguments for historical CSLI are not analogous to those
involving forensic phone searches and cannot be raised here. Supra Part C.

Even if the Court assumed that the Motions to Suppress geofence and tower
dump records encompassed historical CSLI for a specific user, Ms. Parsons would
still need to show that the warrants lacked probable cause. She would have a hard
time doing so based on the affidavits in question. The warrant applications for 21-
sw°526-LDA and 21-sw-255-PAS state that Ms. Parsons used one of these phones to
book a trip to Puerto Rico with Spirit Airlines where she was later seen mailing
fraudulently addressed packages found to contain cocaine. See ECF No. 177-1 at 9-
69 (21-sw-255-PAS); ECF No. 177-2 at 198-218 (21-sw-526-LDA). These affidavits
include a host of new, highly incriminating details, such as deleted photos recovered
from her phone showing USPS employees at work and receipts for the target
packages. Jd.

Affidavits supporting 22-sw-197-PAS and 22-sw-210-PAS are more
ambiguous, pointing to incriminating text messages and phone calls made to alleged
co-conspirators. ECF No. 177-2 at 289-305 (22-sw-197-PAS); ECF No. 177-4 at 2-20
(22-sw-210-PAS). But these warrants are not before the Court, and Ms. Parsons

has not independently briefed these in her Motions to Suppress.

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For these reasons, the Court takes no position on Ms. Parsons’ challenge to

historical CSLI at this time.
3. Andres Garay

Andres Garay challenges the search of historical CSLI for Phone-9050 on the
grounds that the supporting affidavits were not properly incorporated. ECF
No. 215. His argument is similar to the objection to the Five Phones Warrant: the
affidavits were not attached, so the warrant lacks probable cause. ECF No. 134.

Mr. Garay notes that the instant search warrant (22-sw-177-LDA) relied on
the affidavit from an underlying warrant (21-sw-552-PAS), which in turn relied on
an affidavit from an underlying warrant (21-sw-498-LDA), which supplied probable
cause for all three. Each affidavit was expressly incorporated, but the affidavit for
21-sw-498-LDA was not attached to the final warrant.3? ECF No. 215-1 at 2-3. 22-
sw-177-LDA recites the foregoing travel and states: “I thus submit this affidavit
with updated IMSI and further ESN information and hereby incorporate by
reference the entire affidavit I previously submitted in support of that search
warrant to establish probable cause. See Exhibit 1.”. ECF No. 215-2 at 42
(attaching and incorporating the intermediary affidavit, but not the original).

The Government argues that this error should be disregarded because unlike
the Five Phones Warrant, the previous warrants—21-sw-498-LDA and 21-sw-552-

PAS—were valid. ECF No. 231 atl. They argue that the second warrant was

38 21-sw-498-LDA includes an account of text messages recovered from
Andres Garay’s cell phone following the initial arrest. It was reissued multiple
times to correct errors and because AT&T failed to produce the requested data.

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reissued to correct a typographical error, and thus good faith should apply. Jd. at 5-
7. Alternatively, the Government argues that all three should be treated as a single
warrant. Jd. at 6 (“[t is a mistake to view Warrants 498, 552 and 177 as three
separate warrants... Warrants 552 and 177 are more appropriately viewed as
under-oath corrections to Warrant 498.”). Finally, they argue that there is no
evidence of a systemic problem and good faith should rule the day. Jd. at 8-11.

It is generally true, as the Government argues, that minor clerical errors do
not invalidate a warrant. See, eg., United States v. McMillian, 786 F.8d 630. 640
(7th Cir. 2015) Gncorrect street number did not invalidate a warrant where there
was no chance another location could be searched by mistake). But Mr. Garay is
not arguing that the affidavit included a factual error: he is pointing out that it was
not included at all. Without the affidavit, 22-sw-177-LDA reflects the travel of the
case but does not include probable cause to support a search of his phone.2? ECF
No. 215-2 at 42. The warrant application for 22-sw-177-LDA may have been
reissued to correct a typographical error—but as presented to the Magistrate Judge,
it was devoid of probable cause.

This matter is resolved by Sheehan, which instructs that where | an
underlying affidavit is the sole source of probable cause, it must be expressly
incorporated and attached. 70 F.4th at50. The Court acknowledges that here,
unlike the Five Phones Warrant, there may have been a valid underlying warrant

further back in the chain. But 22-sw-177-LDA was the warrant that was approved,

39 The intermediary affidavit notes that Mr. Garay was indicted but includes
no other information and relies on the original affidavit to supply these facts.

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executed, and ultimately used to obtain Mr. Garay’s historical CSLI, and it did not
include the relevant affidavit. Jd. at 47 “laln affidavit must provide the magistrate
with a substantial basis for determining the existence of probable cause.”) (citing
Gates, 462 U.S. at 239). The good-faith exception does not apply where a warrant is
“so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable.” Jd. at 51 (citing Leon, 468 U.S. at 923).

As noted above, the Government acknowledged that there were four other
warrant applications that cited an exhibit that was not attached, suggesting that
the omission was not a “one-off.” ECF No. 183-1 at 2; Herring, 555 U.S. at 147-48
(distinguishing simple negligence from “systemic error or reckless disregard of
constitutional requirements.”). This warrant was not on the list and was only later
found to be missing an affidavit. ECF No. 183-1 at 2. The fact that the Government
made the same error multiple times—and then was unable to quickly locate all
instances of the error—gives the Court pause in blessing a warrant that was devoid
of probable cause.

Sheehan tells us that it is “objectively unreasonable” to submit a single
warrant application that is wholly lacking in probable cause, let alone two or more.
70 F.4th at 54°55. It does not matter that the magistrate failed to catch the error: it
was unreasonable for law enforcement to rely on it, and it was their responsibility
to ensure that it was properly filed. Jd. at51 (“[A]n officer’s reliance on a

magistrate’s approval of a facially deficient warrant is especially unreasonable

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when those ‘deficiencies arise from the failure of the [officer] conducting the search

39)

to provide the required supporting information.”) (citation omitted).

As Mr. Garay notes, proper data management is an essential law
enforcement function, as “[tlhere are few criminal cases in the modern age that do
not involve some form of electronic information either as actual evidence or in the
documentation of the investigation.” ECF No. 215-1 at 7. The Court agrees, and
thus finds that the benefits of suppression outweigh the costs. Herring 555 U.S.
at 147 (“[T]he deterrent effect of suppression must be substantial and outweigh any
harm to the justice system.”). By excluding the evidence, the Court hopes to
encourage better practices that meet the constitutional standard going forward.

For these reasons, the Court GRANTS Mr. Garay’s Motion to Suppress CSLI
from Phone-9050. ECF No. 215.

IV. CONCLUSION

For the reasons above, the Court GRANTS Defendants’ Motion to Suppress
evidence from the Five Phones Warrant. ECF No. 134. The Court GRANTS Andres
Garay’s Motion to Suppress historical CSLI from Phone-9050. ECF No. 215.

- The Court DENIES Defendants’ Motions to Suppress the Tower Dump Order
under the good-faith exception (ECF Nos. 137, 242, 245, and 247), The Court finds
that all remaining challenged warrants are supported by probable cause and thus
DENIES Alijah Parsons’ Motion to Suppress a search of her home and person (ECF

No. 135), Irving Medina’s Motions to Suppress the search of his home, person, and

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historical CSLI (ECF Nos. 131 and 138), and Edgar Medina’s Motion for

Reconsideration (ECF No. 238).

IT IS SO ORDERED [

John J. McConnell, Jy.
United States District Chief Judge

January 23, 2024

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