USA v. CANDELARIO, et al

1
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
)
)
v. 	)
) 	2:21-cr-00015-JDL
JASON CANDELARIO, et al., 	)
)
Defendants. 	)
ORDER ON THE DEFENDANT’S MOTIONS TO SUPPRESS
On February 25, 2021, Defendant Jason Candelario was indicted for: (1)
conspiracy to commit robbery in violation of the Hobbs Act (18 U.S.C.A. § 1951(a)
(West 2022)); (2) using or threatening violence in connection with a plan to commit
robbery in violation of the Hobbs Act; (3) discharging a firearm during a violent crime;
(4) brandishing a firearm; and (5) possession of ammunition after prior convictions.1
A Motion for Leave to Dismiss Counts III and IV (ECF No. 313) was granted on
November 1, 2022 (ECF No. 316).
As part of its investigation, the FBI issued two subpoenas pursuant to section
506 	of 	the 	Comprehensive 	Drug 	Abuse 	Prevention 	and 	Control 	Acts 	of 	1970
(“Controlled Substances Act”), 21 U.S.C.A. §§ 876 (West 2022), to obtain Candelario’s
cell phone records from electronic communications providers (ECF Nos. 274 and 275).
Subsequently, the FBI executed two search warrants for cell site location data and
call records from two additional cell phone numbers belonging to Candelario.
1 A superseding indictment (ECF No. 115) was filed on July 22, 2021, amending Count V to include
possession of firearms and ammunition.
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Candelario filed two Motions to Suppress on July 18 and July 21, 2022. 	The
first Motion to Suppress (ECF No. 271) challenges all of the evidence obtained
through subpoenas issued pursuant to the Controlled Substances Act, 21 U.S.C.A.
§ 876, which authorizes the Attorney General “[i]n any investigation relating to his
functions under this subchapter with respect to controlled substances . . . [to]
subp[o]ena witnesses, compel the attendance and testimony of witnesses, and require
the production of any records . . . which the Attorney General finds relevant or
material to the investigation.” 	21 U.S.C.A. § 876(a). 	Candelario argues that the
subpoenas were not statutorily authorized because neither he nor his co-Defendants
had been investigated or indicted for any violations under the Controlled Substances
Act, and thus any of the alleged evidence that was obtained would be immaterial to
an authorized investigation.2 He also argues that the subpoenas failed to specify the
materials to be produced with “reasonable particularity.” ECF No. 271 at 3.
Candelario’s second Motion to Suppress (ECF No. 277) seeks to suppress “all
evidence of the location of any cell phone associated with [Candelario] and all
evidence obtained pursuant to the search warrants dated September 6, 2019.” 	The
2 Candelario also argues that the subpoenas violated the Stored Communications Act, 18 U.S.C.A. §§
2701-2713 (West 2022) because the Government lacked a valid administrative warrant. The Stored
Communications Act allows the government to require an electronic service provider to disclose “a
record or other information pertaining to a subscriber . . . (not including the contents of
communications)” if the government seeks only the name, address, phone connection records, length
of service, and billing information and obtains a statutorily authorized subpoena. 	§ 2703(c)(1)-(2).
Even if I were to find that the investigation into the August 3, 2019, robbery was not an authorized
investigation under the Controlled Substances Act, suppression of evidence is not a remedy for
violations of the Stored Communications Act because the Act explicitly states that “remedies and
sanctions 	described 	in 	this 	chapter 	are 	the only judicial 	remedies 	and 	sanctions 	for
nonconstitutional violations of this chapter.” § 2708 (emphasis added).
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motion asserts that the probable cause used to support the warrants was based on
illegally obtained evidence from the subpoenas. ECF No. 277 at 1.
On September 26, 2022, Defendant Derek Daprato joined both motions to
suppress (ECF No. 303). 	A hearing on the motions was held on October 24, 2022.
(ECF No. 309).
I. FACTUAL BACKGROUND
The Affidavit of FBI Agent Patrick M. Clancy dated September 6, 2019,
describes the following timeline of events. On August 3, 2019, a 9-1-1 call to the York
Police Department reported a shooting at 3 Rowe Falls Lane, York, Maine. Video and
audio surveillance captured by the homeowner, who later told investigators that he
was “in the business of distributing marijuana,” showed footage of two masked
individuals entering the house at approximately 12:26 a.m. ECF No. 277 at 15, ¶11.
While the individuals were in the house, the surveillance captured sounds of “a
struggle . . . followed by a single gunshot,” and then the individuals fled down the
driveway at approximately 12:36 a.m. 	One of the individuals was carrying what
appeared to be a handgun. It was later discovered that the individuals left behind a
backpack containing duct tape, zip ties, and white plastic bags. Seven minutes after
the 9-1-1 call reporting the shooting in York, a police vehicle captured the license
plate of a passing car on a “not [] heavily traveled roadway” near the scene. ECF No.
277 at 16, ¶13. This vehicle was later connected to co-Defendant Luis Carpio.
Law 	enforcement 	became 	aware 	of 	a 	parallel 	investigation 	in 	Canton,
Massachusetts, involving a similar armed robbery, which was also captured on video,
that was allegedly perpetrated by Candelario on July 20, 2019. 	The Canton Police
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Department issued an arrest warrant for Candelario on August 2, 2019, one day
before the York, Maine incident. 	The first subpoena (the “July 31st subpoena”) of
Candelario’s 	cell 	phone 	records 	(978-323-1978) 	was 	issued 	on 	July 	31, 	2019,
purportedly in connection with the Canton robbery. 	The second subpoena (the
“August 7th subpoena”) of Candelario’s cell phone records (978-323-1978) was issued
on August 7, 2019 (ECF No. 274). Both subpoenas were limited to “[a]ll customer or
subscriber information, including name, address, billing address, and email address
if provided; all telephone connection records, including incoming and outgoing calls
and text messages (SMS); and length of service (activation/deactivation dates).”3
ECF No. 274 at 4.
Following the issuance of the two subpoenas of Candelario’s cell phone records
(for the number 978-323-1978), investigators subpoenaed Carpio’s call activity and
toll records on August 12, 2019. An analysis of Carpio’s toll records also showed that
Carpio had phone contact 126 times with two additional phone numbers associated
with Candelario, including on the day of the robbery in Massachusetts and on August
2 and 3, 2019. 	Following a separate incident involving Carpio on August 21, 2019,
the Manchester Police Department obtained cell site location data from his phone
records. 	The records showed that the cell phone had been in the area of the York
robbery starting at 12:09 a.m. and “remained in the area until approximately 3:30
[a.m.]-4:00 [a.m.]” on August 3, 2019. ECF No. 277 at 19, ¶¶27-28.
3 The July 31st subpoena contained similar language: “Customer or subscriber name, address of
service, and billing address; Length of service (including start date and end date); Local and long
distance telephone connection records (examples include: incoming and outgoing calls, push-to-talk,
and SMS/MMS connection records). ECF No. 275.
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Investigators then obtained and executed two search warrants on September
6, 2019, for records from two different cell phones belonging to Candelario. 	The
warrants 	for 	603-341-0159 	and 	603-716-1370 	sought 	“[h]istorical 	cell 	site 	and
sector/face information . . . for the period July 18, 2019, through August 10, 2019,
along with a listing of all control channels and their corresponding cell sites and an
engineering map showing all cell site tower locations, sectors, and orientations.” ECF
No. 277 at 10-11, 28-29.
II. LEGAL ANALYSIS
I first address Candelario’s argument that the warrantless subpoenas were
unlawful 	because 	they 	sought 	an 	unreasonable 	amount 	of 	information 	for an
unlimited period of time and were not authorized under the Controlled Substances
Act due to the nature of the investigation. I then address Candelario’s claim that the
use of the allegedly invalid subpoenas violated the Fourth Amendment.
1. 	Warrantless Subpoenas
Administrative subpoenas do not need to meet the probable cause standard
required for search warrants so long as they are related to an “investigation []
authorized by Congress . . . and the documents sought are relevant to the inquiry.”
Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 208-09 (1946). 	“[T]he Fourth
[Amendment], if applicable, at the most guards against abuse only by way of too much
indefiniteness or breadth in the things required to be ‘particularly described[]’ . . . .
The gist of the protection is in the requirement . . . that the disclosure sought shall
not be unreasonable.” 	Id. at 208. 	Contrary to Candelario’s first argument, the
challenged subpoenas specified a reasonable amount of basic user information and
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connection records, seeking no more than the name and address of the subscriber, the
billing address, telephone and text message call logs, and activation and deactivation
of service dates. The collection of this information was limited to time periods prior
to, during, and immediately following the two robberies, all of which would be
relevant to a criminal investigation, and the subpoenas did not seek the content of
any communications or request cell phone location data. Thus, the subpoenas were
reasonably limited in both scope and duration, and they were issued in good faith and
plainly 	relevant 	to the 	ongoing 	investigation. 	Moreover, 	the 	subpoenas 	were
statutorily authorized because the investigations involved a robbery and a conspiracy
to rob a marijuana distributor, and the potential distribution and possession of
controlled 	substances, 	which 	are 	prohibited 	acts 	explicitly 	addressed 	by 	the
Controlled Substances Act.4 See 21 U.S.C.A. § 841(a).
2. 	Allegedly Invalid Subpoenas
Candelario also contends that his Fourth Amendment right to privacy was
violated by the Government having obtained his basic cell phone user information
through the subpoenas issued to the third-party cellular carriers because the
subpoenas were not supported by a finding of probable cause by a judicial officer.
4 At the hearing held on October 24, 2022, Candelario clarified that the subpoena attached to the
second Motion to Suppress (ECF No. 277 at 43) was not one of the challenged subpoenas at issue in
the first Motion to Suppress. 	Regarding the two subpoenas (ECF Nos. 274 and 275) that were
challenged in the first Motion to Suppress, Candelario conceded that they had been issued in
connection with an ongoing criminal investigation in Massachusetts and not in connection with the
investigation in York Maine. Candelario further conceded that, based on the phone company records
and other information provided by the Government’s attorneys, the Government had obtained
Candelario’s cell site location information through the search warrants, and not from the earlier
subpoenas by which the Government had gained access to Candelario’s cell phone records.
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The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, 	houses, 	papers, 	and effects, 	against 	unreasonable 	searches 	and
seizures.” 	U.S. Const. amend. IV; see Mitchell v. Wisconsin, 588 U.S. __, 139 S. Ct.
2525, 2534 (2019). 	Standing to bring a claim for unlawful search and seizure in
violation of the Fourth Amendment requires that a person “claim a ‘justifiable,’ a
‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by
government action.” 	Smith v. Maryland, 442 U.S. 735, 740 (1979); United States v.
Sanchez, 943 F.2d 110, 112 (1st Cir. 1991) (“Because Fourth Amendment rights are
personal and may not be asserted vicariously, the first inquiry in examining a
[F]ourth [A]mendment claim is whether the defendant had a legitimate expectation
of privacy in the area searched or the item seized.”). The legitimacy of a defendant’s
expectation of privacy rests on a number of factors including “the existence or
nonexistence of privacy . . . and the objective reasonableness of such an expectancy
under the facts of a given case.” Sanchez, 943 F.2d at 113 (quoting United States v.
Aguirre, 839 F.2d 854, 857 (1st Cir. 1988)).
Here, Candelario alleges that he had a legitimate expectation of privacy in his
phone records, and that pursuant to Carpenter v. United States, 585 U.S.__, 138 S.
Ct. 2206 (2018), the Fourth Amendment provides protection when “the [G]overnment
seeks pervasive information that is automatically recorded (rather than voluntarily
shared)” from a cell phone. ECF No. 271 at 5. He argues that because the subpoenas
were executed without warrants supported by probable cause, they constituted an
unlawful search of “a substantial amount of [cell phone] data that was automatically
collected 	from 	a 	user 	[by 	a 	third-party 	provider]” 	in 	violation 	of 	the 	Fourth
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Amendment. Id. The Government argues that Candelario’s reliance on Carpenter is
misplaced, and that he does not have standing to challenge the validity of the
subpoenas because they were issued to third-party businesses and Candelario does
not have a “recognizable privacy interest” in his phone records. 	ECF No. 294 at 6.
The Government has the better argument.
In Carpenter, the defendant was charged with six counts of robbery and six
counts of carrying a firearm during a federal crime of violence. 	138 S. Ct. at 2212.
Pursuant to the Stored Communications Act, 18 U.S.C.A. §§ 2701-2713 (West 2022),
a court ordered two wireless carriers to disclose the defendant’s phone records,
including cell site location information from all incoming and outgoing calls in a four-
month period. 138 S. Ct. at 2212. The Government used this location data to place
the defendant near the location of four robberies, and, following his conviction, the
defendant was sentenced to more than 100 years in prison. Id. at 2212-13. The Sixth
Circuit held that the defendant had voluntarily shared his phone location records
with the wireless carriers and that the “resulting business records are not entitled to
Fourth Amendment protection.” 	Id. at 2213 (citing United States v. Carpenter, 819
F.3d 880, 888 (6th Cir. 2016), rev’d and remanded, 138 S. Ct. 2206 (2018)). 	The
Supreme Court reversed, finding that individuals have a legitimate expectation of
privacy in cell site location information due to its uniquely broad and invasive
character, and that the “acquisition of the cell-site records . . . was a search under the
[Fourth Amendment]” that required a warrant. Carpenter, 138 S. Ct. at 2223.
However, Carpenter addressed cell site location information and although its
rationale may extend to similarly intrusive types of data, the decision does not disturb
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the general rule that individuals do not have a reasonable expectation of privacy in
their basic user information and connection records. Smith, 442 U.S. at 744 (“When
he used his phone, petitioner voluntarily conveyed numerical information to the
telephone company and ‘exposed’ that information to its equipment in the ordinary
course of business. In so doing, petitioner assumed the risk that the company would
reveal to police the numbers he dialed.”). 	Although Carpenter does reference
“automatically” collected data that a user would be unable to prevent the wireless
carrier from collecting, the decision is referring specifically to cell site location
information, which generates large amounts of highly personal and invasive data.
Carpenter, 138 S. Ct. at 2220. 	Carpenter explicitly described “the unique nature of
cell phone location information,” and distinguished cell site location information from
“telephone call logs [which] reveal little in the way of ‘identifying information’” and
noted that “there are no comparable limits on the revealing nature of [cell site location
information].” 	Id. at 2219-20 (emphasis added). 	Although Candelario urges that
Carpenter’s holding should extend beyond cell site location information to encompass
additional customer information that a cellular carrier provides in response to a
subpoena, without having first sought its customer’s consent, he has offered no
convincing rationale for doing so, nor has he cited to any decisions that would support
this position.
Unlike 	the 	cell 	phone 	records 	considered 	in 	Carpenter, 	which 	involved
disclosure of cell site location data for all incoming and outgoing calls over a four-
month period, id. at 2212, the subpoenas challenged by Candelario did not include
any requests for cell site location information. 	Rather, the subpoenas sought basic
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user information and connection logs over a limited period of time. 	Accordingly,
because Candelario does not hold a legitimate expectation of privacy in his general
cell phone records, the subpoenas did not constitute a search for purposes of the
Fourth Amendment.
In addition, in his reply in support of the motions to suppress, Candelario
asserted 	that 	Agent 	Clancy’s 	“affidavit 	expressly 	relies 	on” 	cell 	site 	location
information obtained through the administrative subpoenas. 	ECF No. 298 at 3. 	In
fact, the cell site location information that Candelario refers to is from records
obtained 	through 	the 	subpoena 	of 	Carpio’s 	phone 	records—not 	Candelario’s.5
Moreover, at the hearing on the motions to suppress, Candelario acknowledged that
the affidavit supporting the search warrants did not rely on evidence obtained
through the two subpoenas related to his phone records. 	Accordingly, this facet of
Candelario’s argument lacks any factual basis.
III. CONCLUSION
For the foregoing reasons, Defendant Jason Candelario’s Motion to Suppress
(ECF No. 271) and second Motion to Suppress (ECF No. 277), both of which have been
joined by Defendant Derek Daprato, are DENIED.
SO ORDERED. 	Dated: November 2, 2022
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE
5 Because Candelario does not have a vicarious expectation of privacy in Carpio’s phone records and
the cell site location information contained in those records, he does not have standing to challenge
any evidence that the Government allegedly obtained from them. See United States v. Soule, 908 F.2d
1032, 1035-36 (1st Cir. 1990); United States v. Padilla, 508 U.S. 77, 81-82 (1993).
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