UNITED STATES OF AMERICA, Plaintiff, v. JULIA BEATRICE KELEHER [1], Defendant.
Criminal No. 20-019 (FAB)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
January 28, 2021
Besosa, J.
Co-defendant Julia Beatrice Keleher (“Keleher“) moves to suppress evidence obtained or derived from her two email accounts. (Docket Nos. 71-72.) As discussed below, the motion is DENIED.
I. Background
The government alleges that Keleher and her co-defendant, Ariel Gutierrez-Rodriguez (“Gutierrez“), engaged in a bribery scheme.1 See Docket No. 3. In short, the indictment charges that Keleher agreed to, and did, take official action to cede public land to the owner of an apartment complex in exchange for discounted living arrangements at the complex. See id. The indictment charges conspiracy to commit honest services fraud, six counts of wire fraud, and federal program bribery. Id. The
The emails were obtained pursuant to two warrants. (Docket No. 72 at p. 1; Docket No. 149 at p. 6.) The warrants were issued based on allegations of probable cause associated with two other schemes. (Docket No. 72, Exs. 1-2.) According to the government‘s probable cause affidavits, those schemes generally involved the awarding of two contracts by the Puerto Rico Department of Education (“DOE“). Id., Ex. 1 at pp. 11-27; id., Ex. 2 at pp. 11-27.
Before concluding the affidavits, the government‘s affiant stated, “A taint team will initially review the data if there is a reason to believe there may be privileged communications. The taint team will only provide the case agent with data that falls within the scope of the warrant.” Id., Ex. 1 at p. 26; id., Ex. 2 at p. 26.
In addition, each of the government‘s applications included two attachments. “Attachment A” stated the email addresses from which the government sought information. Id., Ex. 1 at p. 28; id., Ex. 2 at p. 28. “Attachment B” stated that the government wanted emails and other data from each email account from July 1, 2016, through the date of the warrant applications. Id., Ex. 1 at pp. 29-30; id., Ex. 2 at pp. 29-30. Attachment B also stated that the government would seize emails and other data that constitute
The warrants incorporated those materials by reference. Id., Ex. 1 at p. 6; id., Ex. 2 at p. 6. To describe the property to be searched and its location, the warrants referenced Attachment A. Id., Ex. 1 at p. 6; id., Ex. 2 at p. 6. In stating what the person or property was believed to conceal, the warrants referenced Attachment B. The warrants also stated that “the affidavit(s) . . . establish probable cause to search and seize the person or property.” Id., Ex. 1 at p. 6; id., Ex. 2 at p. 6.
II. Discussion
A. Seizure Pursuant to the Warrants
The first question raised by the suppression motion is whether the warrants permitted law enforcement to seize the emails which form the basis of the charges in this case. The Court answers that question in the negative.
The
The warrants did not authorize the officers to seize the emails upon which the charges in this case are based. The warrants’ probable cause and their description of items believed to be concealed were based on allegations of the two schemes concerning DOE contracts, not the alleged scheme at issue here. Where a warrant is based on probable cause of one scheme, the warrant does not authorize seizure of emails pertaining to another scheme. Marron, 275 U.S. at 196; United States v. Lustyik, 57 F. Supp. 3d 213, 231 (S.D.N.Y. 2014).
B. Seizure Pursuant to the Plain View Doctrine
There is an exception to the warrant requirement applicable here. The exception is known as the plain view
1. Legal Standard
The First Circuit Court of Appeals has articulated at least three tests for applying the plain view doctrine. The Court analyzes these tests to ascertain the appropriate test here.
One test has two elements. It requires “that the officer did not violate the
The second test has three elements. According to this test, the plain view doctrine “permits the warrantless seizure of an item if the officer is lawfully present in a position from which the item is clearly visible, there is probable cause to seize the item, and the officer has a lawful right of access to the item itself.” United States v. Hernandez-Mieses, 931 F.3d 134, 140 (1st Cir. 2019) (internal quotation marks omitted); see United States v. Gamache, 792 F.3d 194, 199 (1st Cir. 2015); United States v. Antrim, 389 F.3d 276, 283 (1st Cir. 2004).
Those two tests are similar for purposes of this case. “The term ‘immediately apparent’ has been defined as
A third test, by contrast, subtracts one element (lawful right of access to the item) and adds another (inadvertent discovery). This test requires that “(1) the officers’ presence
Keleher advocates for the third test. She argues that the government has shown neither that the incriminating character of the emails was immediately apparent nor that the emails were discovered inadvertently. (Docket No. 72 at p. 25; Docket No. 157 at pp. 6-7.)
The third test does not accurately state the law. Inadvertent discovery is not a necessary element to the plain view exception. In Horton v. California, 496 U.S. 128, 130 (1990)—a case Keleher cites repeatedly, see Docket No. 72 at pp. 23, 26; Docket No. 157 at p. 6—the Supreme Court held that “even though inadvertence is a characteristic of most legitimate ‘plain-view’ seizures, it is not a necessary condition.” 496 U.S. at 130; see also United States v. Robles, 45 F.3d 1, 6 n.3 (1st Cir. 1995) (“[T]he Supreme Court has stated that ‘inadvertence’ is not a necessary condition of a plain view seizure.“). A lawful right of access to the item, however, is required. Collins v. Virginia, 138 S. Ct. 1663, 1672 (2018); Dickerson, 508 U.S. at 375.
The government bears the burden of establishing entitlement to the plain view exception. United States v. Ribeiro, 397 F.3d 43, 53 (1st Cir. 2005). This “does not mean, however, that it must disprove all of the defendant‘s alternative theories, no matter how speculative or implausible.” Id.
The burden for obtaining an evidentiary hearing on a motion to suppress is on the defendant. “The test for granting an evidentiary hearing in a criminal case [is] substantive: did the defendant make a sufficient threshold showing that material facts were in doubt or dispute?” Allen, 573 F.3d at 50 (alteration in original) (internal quotation marks omitted).
To obtain an evidentiary hearing on a motion to suppress physical evidence, a defendant must make a sufficient showing that the seized evidence was the product of a warrantless search that does not fall within any exception to the warrant requirement. The burden is on the defendant to allege facts, sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented.
Id. at 51 (internal quotation marks omitted). District courts have “considerable discretion in determining the need for, and the
2. Were the officers lawfully in a position from which the incriminating nature of the items was clearly visible?
To be lawfully in a position from which the incriminating nature is clearly visible, “the police must have a prior justification for being in a position to see the item in plain view.” United States v. Giannetta, 909 F.2d 571, 578 (1st Cir. 1990) (internal quotation marks omitted). “Phrased another way, the police must not have exceeded the permitted scope of their search in uncovering the item.” Id.
The government argues that the investigating agents were lawfully in a position to see the emails at issue in this case because the warrants authorized them to search the email accounts within a certain date range. (Docket No. 149 at p. 6.) According to the government, it “was authorized to look not only for the involvement of [Keleher], but seven other person[s]/entities ‘as well as other individuals/corporations.‘” Id.
The Court agrees with the government. The warrants allowed the government to search Keleher‘s emails for evidence of the schemes involving the awarding of the two DOE contracts. The warrants did not require any particular search methodology, like
Keleher makes two arguments on this point. Her primary argument is that the officers were not lawfully in a position to view the emails at issue in this case because the government‘s affiant stated that the taint team would only forward emails within the scope of the warrants. She believes that, pursuant to the taint team provision in the probable cause affidavits, “the prosecution team would only receive data that could provide information about the criminal conduct under
Keleher misunderstands the taint team provision. The provision did not require the taint team to only forward to investigating agents the emails which could be seized pursuant to the warrant. Rather, the provision obligated2 the taint team to only forward the emails which could be searched pursuant to the warrant. The warrants authorized the government to search emails and data from two specified email addresses within a certain date range. See Docket No. 72, Ex. 1 at pp. 6, 28-30; id., Ex. 2 at pp. 6, 28-30. Pursuant to the taint team provision, if the taint team received information that could not be searched, it would be filtered out and not sent to the investigating agents.
Other courts, however, take a different approach. Two circuit courts of appeal have held that law enforcement could search all the data to find responsive information. United States v. Williams, 592 F.3d 511, 523 (4th Cir. 2010); United States v. Burgess, 576 F.3d 1078, 1094 (10th Cir. 2009). District courts in the second circuit have reached the same result. United States v. Lebovits, Crim. No. 11-134, 2012 WL 10181099, at *22 (E.D.N.Y. Nov. 30, 2012), adopted by United States v. Gutwein, Crim. No. 11-134, 2014 WL 201500, at *1 (E.D.N.Y. Jan. 16, 2014); United States v. Bowen, 689 F. Supp. 2d 675, 681 (S.D.N.Y. 2010).
District courts in this circuit have held that ex ante restrictions in a warrant on how law enforcement may search an email account are not required. In United States v. Tsarnaev, 53 F. Supp. 3d 450, 463 (D. Mass. 2014), the government obtained duplicates of all the information associated with two email accounts. The warrant permitted the government to search the produced information for certain categories of evidence. Id. The defendant argued that “the government should have been required to implement some mechanism to minimize unauthorized intrusion by, for example, having a filter or taint team conduct the search.” Id. at 463-64. The Tsarnaev court disagreed and stated that “[f]iltering or other procedures, however salutary such approaches might be, were not required as a matter of law.” Id. at 464.
The court in Taylor, 764 F. Supp. 2d at 236-37, reached a similar conclusion. There, the government obtained a defendant‘s entire email account. Id. at 232. After privileged information was culled, the government searched the account. Id. at 236-37. The defendant argued that the warrant was insufficiently particularized because it allowed the government to search information beyond that associated with websites identified
In addition, courts in this circuit recognize the rarity of ex ante search restrictions in a warrant. Warrants “rarely” “prescribe methods of recovery or tests to be performed.” United States v. Upham, 168 F.3d 532, 537 (1st Cir. 1999). “The warrant process is primarily concerned with identifying what may be searched or seized—not how . . . .” Id. (emphasis in original). “[I]n the absence of a specific applicable requirement, it is ‘generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant.‘” Tsarnaev, 53 F. Supp. 3d at 464 (emphasis added) (quoting Dalia v. United States, 441 U.S. 238, 257 (1979)).
A commonsense and realistic interpretation of the probable cause affidavits in this case, United States v. Ventresca,
Keleher separately argues that the law enforcement officers were not permitted by the warrants to look at the emails in this case because the persons involved in these emails were not part of the schemes alleged in the warrants. This argument is easily dispensed.
The warrants here authorized the government to seize emails and data “that constitute[] . . . evidence . . . of violations of
“[T]he ultimate touchstone of the
3. Was the Incriminating Nature of the Emails Immediately Apparent?
Whether the emails’ incriminating nature was immediately apparent is an objective inquiry. “Evidentiary value is immediately apparent if there are enough facts for a reasonable person to believe that the items in plain view may be contraband or evidence of a crime.” United States v. Perrotta, 289 F.3d 155, 167 (1st Cir. 2002) (internal quotation marks omitted). The inquiry does not require “an unduly high degree of certainty as to the incriminatory character of evidence” or “any showing that such
In the Court‘s review of the emails, there are enough facts for a reasonable person to believe that the emails may be evidence of a crime. Keleher sent an email confirming that she would receive a $12,000 bonus when she purchased an apartment for which she was signing a lease. (Docket No. 180, Ex. 1.) She also received an offer from Gutierrez to help her secure a bank loan. (Docket No. 175, Ex. 6.) Meanwhile, Keleher executed documents at Gutierrez‘s request which purported to authorize the cession of public land to the owner of the apartment complex where she would lease and purchase the apartment. (Docket No. 176, Exs. 1-4.) A reasonable person may believe that these emails indicate honest services fraud or bribery.
Keleher argues that the government has not shown that the incriminating character of the emails was immediately apparent. According to Keleher, “[t]he emails here have nothing
Keleher misapprehends this element of the plain view doctrine. Probable cause is not measured at the time an officer first views an item. United States v. Johnston, 784 F.2d 416, 420 (1st Cir. 1986). “The executing officers are not limited by the fortuity of which officer first happened upon the evidence.” Id. Probable cause is measured at the time of seizure. Id.; Lustyik, 57 F. Supp. 3d at 231. And, for plain view purposes, the
Those principles militate against Keleher‘s arguments. It is sufficiently immediately apparent for the incriminating nature of the emails to become apparent during the search of the emails.
III. Conclusion
For the reasons discussed above, Keleher‘s suppression motion, (Docket Nos. 71-72,) is DENIED.
IT IS SO ORDERED.
San Juan, Puerto Rico, January 28, 2021.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE