USA v. Gonzalez Hernandez

O
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
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V. 	CRIMINAL NO. 5:25-CR-00902-2
GABRIEL SILVA,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Gabriel Silva’s Motion to Suppress, (Dkt. No. 111),
which was referred to the Magistrate Judge Diana Song Quiroga, (Dkt. No. 112). The
Magistrate Judge held hearings on March 19, 2026, and April 1, 2026. (Min. Entry March
19, 2026; Min. Entry April 1, 2026). The Magistrate Judge issued a Report and
Recommendation. (Dkt. No. 132).1 The Magistrate Judge recommended that Silva’s
Motion to Suppress be denied. (Id. at 33).2 Silva filed objections to the Magistrate Judge’s
Report and Recommendation. (Dkt. No. 135).3 Considering the parties’ briefs, the record,
and the applicable authority, Silva’s objections are overruled. The Magistrate Judge’s
Report and Recommendation is adopted in part, as related to Silva. Silva’s Motion to
Suppress is denied.
I. BACKGROUND
Defendant 	Gabriel 	Silva 	was 	arrested 	on 	May 	19, 	2025, 	following 	a 	law
enforcement operation to apprehend suspects engaging in drug trafficking, using what is
referred to as a controlled buy. (Dkt. No. 150 at 26–27, 49). The lead agent on the case
was Homeland Security Investigations (HSI) Agent John Condon. (Id. at 24). Agent
Condon testified about the operation, the events leading up to it, and the subsequent
collection of evidence. According to Agent Condon’s testimony, Silva was communicating
1 The Report and Recommendation addressed Silva’s motion to suppress, as well as the motion to
suppress of his co-defendant, Alexis Gonzalez Hernandez.
2 When citing to the page numbers of any document in the record, the Court will cite to the page
numbering of the Court’s internal CM/ECF docket system, and not to the page numbers in the underlying
documents.
3 This Order will only address objections raised by Silva as they pertain to his Motion to Suppress,
(Dkt. No. 111).
United States District Court
Southern District of Texas
ENTERED
July 31, 2026
Nathan Ochsner, Clerk
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by cellphone with an undercover agent leading up to the controlled buy. (Id. at 34).
Because Silva used the cellphone to engage in the alleged drug trafficking, Agent Condon
believed that there was evidence of criminal activity on the cellphone. (Id. at 35).
As the controlled buy proceeded, the undercover agent gave a “takedown signal,”
alerting other agents that the suspects could be arrested. (Id. at 39). When agents
attempted to arrest Silva, he fled in his vehicle. (Id. at 40). Silva led law enforcement
officers on a high speed chase at speeds up to 120 miles per hour. (Id. at 106). Silva was
ultimately stopped 30 to 35 miles away and arrested by the Texas Department of Public
Safety. (Id. at 41).
When Silva was arrested, he exited his vehicle with his hands raised while holding
a black Apple iPhone 13 in his right hand. (Id. at 41–42, 109). Agent John Silvia testified
that when he seized the cellphone, the phone appeared to be recording. (Id. at 115). After
the phone was seized by law enforcement, Silva’s cellphone was stored with the Texas
Anti-Gang (TAG) Unit in Laredo, Texas, awaiting a warrant to conduct a forensic search.
(Id. at 42). Throughout Silva’s detention, he made no attempt to reclaim the cellphone
while it was being held at the TAG unit. (Id. at 45).
Following Silva’s arrest, there were several changes among the HSI personnel
handling the investigation. The lead case agent, Agent Condon, transferred from the
Laredo HSI office shortly after the operation, with the day of the operation marking his
final day in Laredo. (Id. at 48). The Laredo HSI field office was understaffed from May
through 	October 	2025 	because 	numerous 	agents 	were 	temporarily 	assigned 	to
immigration enforcement operations across the United States. (Id. at 129–30).
HSI Special Agent Garrett Tewey took over the case in June 2025 after Agent
Condon was reassigned, so Agent Tewey was the affiant on the application for the search
warrant for Silva’s cellphone. (Id. at 137). Agent Condon testified that he informed Agent
Tewey that a search warrant was needed for Silva’s phone, estimating that he did so
sometime between late May and June 2025. (Id. at 58–59). While assigned to the case,
Agent Tewey also had been assigned to several assignments lasting one to two weeks
each, unrelated to this case, from August 2025 through October 2025. (Id. at 131–32; see
also Dkt. No. 117-3). On October 16, 2025, a warrant was issued to conduct a forensic
examination of Silva’s cellphone. (Dkt. No. 117-1 at 2). A forensic extraction of the
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cellphone seized from Silva occurred that the next day, and the forensic extraction was
completed on October 18, 2025. (See Dkt. No. 111 at 4).
After Silva’s initial arrest and during his pre-trial detention in state custody, he
was charged federally in the Southern District of Texas. (Dkt. No. 32). A federal grand
jury returned a superseding indictment on August 19, 2025, charging Silva with
conspiracy to possess with intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). (Id.). On February 13, 2026, he
filed a motion to suppress evidence obtained from his cellphone. (Dkt. No. 111). His
asserted ground for suppression was “the Government’s failure to obtain judicial
authorization within a reasonable time after seizing the phone, combined with the
absence of any lawful justification permitting continued possession of the device.” (Id. at
4). The Court referred the motion to Magistrate Judge Diana Song Quiroga for a Report
and Recommendation. (Dkt. No. 112).
On May 14, 2026, Magistrate Judge Song Quiroga recommended that the Court
deny the motion to suppress, finding that: “Due to [Silva’s] negligible possessory interest
in the cellphone throughout its warrantless seizure and HSI’s efforts to navigate
circumstances beyond their control, the undersigned finds that the five-month delay in
obtaining a warrant to search [Silva’s] cellphone did not render the length of its seizure
by HSI unreasonable in violation of the Fourth Amendment.” (Dkt. No. 132 at 32).
On May 26, 2026, Silva filed timely objections to the Report and Recommendation.
(Dkt. No. 135). Silva objects to three of the Magistrate Judge’s findings: the conclusion
that his incarceration rendered his possessory interest in his cellphone nonexistent; the
conclusion the Government acted with sufficient diligence in obtaining a warrant; and
the conclusion that suppression is unwarranted under the exclusionary rule.
II. LEGAL STANDARDS
The district court may refer a motion to suppress evidence to a magistrate judge
for a recommendation. Fed. R. Crim. P. 59(b)(1). If a party objects to the magistrate
judge’s report, the district court reviews the objected-to portions of the report de novo. 28
U.S.C. § 636(b)(1)(C); Fed. R. Crim. P. 59(b)(3). Courts consider the record developed
before the magistrate judge and make their own decision based on that record. United
States v. Raddatz, 447 U.S. 667, 675 (1980). The Court “may accept, reject, or modify, in
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whole or in part, the findings or recommendations made by the magistrate judge.”
§ 636(b)(1)(C). The objecting party must identify the findings it objects to. Battle v. U.S.
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). The Court need not consider “frivolous,
conclusive, or general objections.” Id. (citation modified). Portions that are unobjected to
are not subject to de novo review, so the Court reviews those findings for clear error. See
§ 636(b)(1)(C); Fed. R. Crim. P. 59(b).
III. DISCUSSION
As a preliminary matter, the Court has reviewed the uncontested findings in the
Report and Recommendation as to Silva and finds that there is no clear error. Because
the Court finds no clear error, the Court adopts the uncontested findings and conclusions
of the Magistrate Judge as to Silva. See § 636(b)(1)(C); Fed. R. Crim. P. 59(b).
The Court next turns to Silva’s objections, which it must review de novo. Silva’s
objections to the Magistrate Judge’s recommended findings can be summarized as
follows: (1) Silva had a possessory interest in his cellphone, (2) the Government’s
diligence in obtaining a search warrant was insufficient, and (3) suppression would
provide deterrent value. After careful consideration of the filings, applicable law, and
record before the Court, the Court overrules Silva’s objections to the Report and
Recommendation and adopts the findings of the Magistrate Judge as to Silva. The Court
will explain how it reaches its conclusion for each objection below.
A. Silva’s Possessory Interest in His Cellphone Was Limited
Silva objects to the application of law relating to his possessory interest in his
cellphone. Specifically, Silva “objects to the Magistrate Judge’s conclusion that his
incarceration rendered his possessory interest in his cellular phone nonexistent and
thereby justified the Government's five-month delay in obtaining a search warrant.”
(Dkt. No. 135 at 2). Ultimately, Silva’s objection to this finding is overruled because any
possessory interest in the cellphone was limited by his pretrial custody.
The Fourth Amendment protects individuals from unreasonable searches and
seizures, and this protection extends to the digital contents of a cellphone. U.S. Const.
amend. IV; Riley v. California, 573 U.S. 373, 403 (2014). In determining whether a
seizure is reasonable under the Fourth Amendment, courts balance the nature and extent
of the intrusion against “the importance of the governmental interests alleged to justify
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the intrusion.” United States v. Place, 462 U.S. 696, 703 (1983). The Supreme Court has
held 	that “a seizure lawful at its inception 	can nevertheless violate 	the Fourth
Amendment because its manner of execution unreasonably infringes possessory interests
protected by the Fourth Amendment’s prohibition on ‘unreasonable seizures.’” United
States v. Jacobsen, 466 U.S. 109, 124 (1984).
Here, the relevant analysis is whether the seizure of the cellphone and the delay
in obtaining a warrant for the search of the contents of the phone unreasonably infringed
Silva’s possessory interest in it. The Court concludes that the Magistrate Judge did not
err in concluding that his possessory interests were virtually nonexistent. Silva argues
that the Magistrate Judge improperly relied on United States v. Jackson, 132 F.4th 1019
(7th Cir. 2025), and United States v. Sykes, 65 F.4th 867 (6th Cir. 2023), for the
proposition that Silva had no possessory interest in his cellphone during his time in
custody. The Court conducts a de novo review and finds that the Silva’s possessory
interest was in fact substantially diminished because he remained detained during the
entirety of the seizure before the warrant was issued. The Court further finds that the
delay in obtaining the warrant was not unreasonably prolonged and the seizure was not
unreasonable because the agents had probable cause to seize Silva’s cellphone at the
inception.
To assess reasonableness, courts in the Fifth Circuit consider “investigatory
diligence, the length of the detention, and whether there were circumstances beyond the
investigator’s control.” United States v. Martinez, 25 F.4th 303, 308 (5th Cir. 2022)
(quoting United States v. Beard, 16 F.4th 1115, 1119 (5th Cir. 2021)). In Martinez, the
closest Fifth Circuit case on point, the defendant moved to suppress evidence collected
from packages seized through the United States Postal Service (USPS). 25 F.4th at 305.
The packages were seized on March 12, 2019, and the investigator received them on
March 14, 2019. Id. On March 20, 2019, the investigator, suspecting that the packages
contained illegal controlled substances, contacted border patrol to coordinate a canine
sniff. Id. The canine alerted to the packages that day, establishing probable cause. Id.
The Fifth Circuit upheld the district court’s conclusion that the eight-day delay was not
unreasonable because those eight days included a weekend and the investigator “was
required to work on other cases and missed work due to illness.” Id. As such, the delay
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was reasonable.
While Martinez does not address the seizure of cellphones, other circuits provide
persuasive authority. In Jackson, the defendant was arrested with a cellphone on June
30, 2019. 132 F.4th at 1020. A warrant for the phone was not applied for and issued until
August 9, 2019, forty days after his arrest. Id. The defendant was detained in pre-trial
custody for those forty days. The Seventh Circuit held that the forty-day delay was not
unreasonable given the defendant’s custody during the delay. Id. at 1021. The court
reasoned that, because the phone remained in official custody between the arrest and the
warrant, the phone “contains exactly the same evidence today as it did the moment it
was seized.” Id. “A search in August 2019 created no greater risk of intruding on innocent
persons’ privacy than a search 40 days earlier would have done.” Id. The court in Jackson
further distinguishes this scenario from one where a defendant is released pre-trial.
There, “[t]he release presumptively entitles him to regain his possessions, for a phone
like a car may be essential to lawful activities.” Id. (citing Riley v. California, 573 U.S.
373, 134 (2014)). Further, the court noted that “[n]o jail or prison allows inmates to keep
and use cell phones,” and that the defendant never attempted to exercise any possessory
interest over the phone during this period. Id. The court concluded that the delay was
not unreasonably long. Id. at 1021–22 (collecting cases).
Similarly, in Sykes, the defendant was arrested and his cellphone was seized on
October 18, 2018. 65 F.4th at 873. A search warrant was executed on his cellphone on
November 29, 2018. Id. at 874. The defendant moved to suppress evidence collected from
the cellphone, and the district court denied the motion. Id. In considering the delay
between the seizure and the search of the cellphone, the Sixth Circuit held that the
district court properly denied the motion to suppress, noting that the defendant “had a
limited possessory interest in the phone because he was not permitted to have the phone
while he was in custody. In contrast, the government had a significant interest in
retaining possession of the phone, as well as excusable reason for delay.” Id. at 879. The
defendant’s interest in the phone was “virtually nonexistent” because his detention
facility was required to retain his phone and the defendant never requested his phone.
Id. The government had a significant interest in the phone because there was probable
cause 	to 	believe 	that 	there 	was 	evidence 	of 	child 	pornography. 	Id. 	Finally, 	the
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government had established that the delay was not “due to indecision or lack of diligence,
but instead to the demands of this and other cases.” Id. at 878.
Here, as in Jackson and Sykes, Silva remained detained during the entirety of the
time between the seizure of the phone and the warrant application. Inmates in state or
federal custody are not allowed to have cellphones. There is no evidence that Silva
requested access to his cellphone or that it be given to someone else. A possessory interest
is “[t]he present right to control property, including the right to exclude others, by a
person who is not necessarily the owner.” Possessory Interest, Black’s Law Dictionary
(11th ed. 2019). Silva’s possessory interest in the phone was limited because he did not
have the right to control the property by virtue of his pretrial custody. Silva’s objection
to the Magistrate Judge’s finding on his possessory interest is overruled.
B. The Government’s Diligence Was Sufficient
Silva objects to the conclusion that the Government acted with sufficient diligence
in obtaining a search warrant. Ultimately, Silva’s objection is overruled because the
record demonstrates that circumstances outside the investigator’s control led to delay in
obtaining a warrant, and the delay was not unreasonable.
The key determination here is whether the Government acted with sufficient
diligence to justify the delay in applying for the search warrant. Silva was arrested and
his phone was seized on May 19, 2025. The application for the search warrant was
submitted on October 16, 2025. Based on these dates, there was a five-month delay
between the seizure of the phone and the application for the search warrant.
As explained above, the Court weighs investigatory diligence, length of the
detention, and circumstances beyond the investigator’s control to assess reasonableness.
Martinez, 25 F.4th at 308. In Martinez, the eight-day delay was justified by the
investigator’s workload and illness. Id. In Jackson, the forty-day delay was found to be
reasonable without analysis of the government’s diligence. 132 F.4th at 1020. In Sykes,
the government had established that the delay was not “due to indecision or lack of
diligence, but instead to the demands of this and other cases.” 65 F.4th at 878.
Here, the five-month delay is beyond what other courts have found to be
reasonable, however, the Court finds that the Government has provided a sufficient
explanation for the delay. The delay in obtaining a warrant was due to issues outside the
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officer’s control. In 2025, the scale of HSI workload in Laredo increased immensely. (Dkt.
No. 150 at 129). HSI Special Agent Garrett Tewey took over the case in June 2025 after
Agent Condon was reassigned. (Id. at 137). After Agent Tewey received the case, three of
the more experienced agents in HSI Laredo left the unit between May 2025 and October
2025. (Id. at 129–30). This resulted in many cases being redistributed between the
Agents, adding to their caseload. (Id. at 131). In addition, Agent Tewey was assigned “[a]
lot of additional duty assignments where [he was] not doing [his] normal stuff to help
with [Information Collection Review Office].” (Id. at 129). This included Agent Tewey
being sent to multiple cities on short work assignments, such as Dallas, Atlanta, McAllen,
Memphis, and “a multi-day shooting competition in Ohio.” (Id. at 131–32). Agent Tewey
testified that these new responsibilities and work assignments impaired his ability to
handle Silva’s case. (Id. at 132). The demands of other cases are important in determining
whether the length of a warrantless seizure is reasonable. See Martinez, 25 F.4th at 308;
see also Sykes, 65 F.4th at 878.
Due to the unprecedented increase in workload, staff turnover, and the demands
of multiple trips, the Court finds that the delay cannot be attributed to a lack of diligence.
On the whole, the record shows circumstances outside the investigator’s control that led
to delay in obtaining a warrant. Accordingly, Silva’s objection to the Magistrate Judge’s
Report and Recommendation regarding diligence is overruled.
Based on the Court’s overruling of the first two objections, the Court concludes
that the five-month delay in applying for a search warrant while Silva was in custody
was not unreasonable and his Fourth Amendment rights were not violated by the seizure.
In considering investigatory diligence, length of the detention, and circumstances beyond
the investigator’s control, the Court finds that the delay was not unreasonable. As such,
the delay in obtaining the search warrant did not violate Silva’s Fourth Amendment
protections in light of his limited possessory interest in the cellphone.
C. Deterrent Value of Suppression
Silva objects to “the conclusion that suppression is unwarranted because the
agents’ conduct was not sufficiently deliberate to justify application of the exclusionary
rule.” (Dkt. No. 135 at 6). The Court has already found that Silva’s Fourth Amendment
rights were not violated, but the Court also addresses Silva’s objection to the Magistrate
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Judge’s findings on the deterrent value of suppression in the alternative. Silva’s objection
on this issue is overruled because the record does not establish that the Government
engaged in conduct warranting application of the exclusionary rule.
When applicable, the exclusionary rule prohibits the use of evidence obtained in
violation of the Fourth Amendment. Herring v. United States, 555 U.S. 135, 139–40
(2009). The sole purpose of the exclusionary rule is to deter Fourth Amendment
violations. Davis v. United States, 564 U.S. 229, 236 (2011). Courts focus on the efficiency
of the rule in deterring future Fourth Amendment violations and weigh those benefits
against the costs. Herring, 555 U.S. at 141. “Where ‘the exclusionary rule does not result
in appreciable deterrence, then, clearly, its use . . . is unwarranted.’” United States v.
Rodriguez-Rivas, 151 F.3d 377, 379 (5th Cir. 1998) (quoting United States v. Janis, 428
U.S. 433, 454 (1976)).
Here, the Court finds the Government did not violate any Fourth Amendment
protections in acquiring a search warrant. Even assuming there was an unreasonable
delay in procuring the warrant, the exclusionary rule would not apply. Agent Tewey has
presented evidence demonstrating circumstances outside his control that led to delay in
obtaining a warrant. If the Court were to apply the exclusionary rule to suppress evidence
from the cellphone, it would have little—if any—deterrent effect. Any deterrent benefit
would be minimal and outweighed by the social costs of excluding evidence lawfully
obtained under a search warrant. Accordingly, there is no appreciable deterrence, and
the exclusionary rule is unwarranted.
Even if the delay between the seizure of Silva’s cellphone and the issuance of the
search warrant was unreasonable, suppression of the evidence is not warranted. Thus,
Silva’s objection to the Magistrate Judge’s finding on the exclusionary rule is overruled.
IV. CONCLUSION
Having reviewed de novo the portions of the Report and Recommendation that
Silva objected to, the Court finds that the motion to suppress should be denied. Silva’s
possessory interest was greatly diminished by his pretrial detention. The Government
acted with sufficient diligence to obtain a search warrant given circumstances outside of
the investigator’s control. And finally, the record fails to establish that the exclusionary
rule justifies suppression. Finding no violations of the Fourth Amendment that warrant
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suppressing the evidence, the Court denies the motion to suppress.
Accordingly, Silva’s objections to the Report and Recommendation, (Dkt. No. 135),
are OVERRULED. The Magistrate Judge’s Report and Recommendation, (Dkt. No.
132), is ADOPTED IN PART, only as to Defendant Silva. Defendant Silva’s Motion to
Suppress, (Dkt. No. 111), is DENIED.
It is so ORDERED.
SIGNED on July 31, 2026.
John A. Kazen
United States District Judge
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