UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO, 03-20898-LENARD/SIMONTON UNITED STATES OF AMERICA, ) Plaintifé, ) vs. CARLOS REYES, Defendant. ) MOTION 0 SUPPRESS EVIDENCE BASED UPON UNLAWFUL WARRANTLESS SEARCH AND SEIZURE IN VIOLATION OF THE DEFENDANT'S FOURTH AMENDMENT RIGHTS AND LAW COMES NOW the Defendant, CARLOS REYES, by and through his undersigned CJA counsel, pursuant to Rule 12 of the Federal Rules of Criminal Procedure, and pursuant to the Fourth Amendment to the United States Constitution, and respectfully moves this Honorable Court to suppress evidence; to wit: data from GPS devices, data from cellular telephones, envelopes, pieces of paper and U.S. currency, as a result of unlawful warrantless searches and seizures in violation of the Defendant's Fourth Amendment rights, and in support therefor states as follows:Procedural History 1. The Defendant is charged in Count 1 of the Indictment with Conspiracy to Bring Aliens to the United States, for the purpose of commercial advantage or private financial gain, knowing or in reckless disregard of the fact that such aliens had not received prior official authorization to come to, enter and reside in the United States, in violation of Title 8 United States Code, Section 1324 (a) (2) (B) (44) - 2. The Defendant is charged in Counts 2 through 8 of the indictment with Attempt to Bring Aliens to the United States, for the purpose of commercial advantage or private financial gain, knowing or in reckless disregard of the fact that such aliens had not received prior officiel authorization to come to, enter and reside in the United States, in violation of Title 8, United States Code, Section 1324(a) (2) (B) (ii) and Title 18, United States Code, Section 2. Eacts 3. On September 22, 2003 at approximately 7:45 p.m., a 25' Parker pleasure craft (hereafter referred to as the vessel) -- operated but not owned by the Defendant--was picked up on radar by the United States Coast Guard (hereafter referred to as USCG). ‘Thevessel was on the high seas--eight (8) miles north of Bimini--in the direction of Miami. The vessel was traveling at a steady speed of ten (10) knots. At 8:35 p.m., a USCG cutter made attempts to raise the vessel on radio and activated its blue lights. The vessel did not immediately stop and/or respond to the radio. The vessel did not speed up or attempt to take any evasive action from the USCG cutter; instead, the vessel continued on the same heading and at the same speed. After three (3) minutes of following the vessel on the high seas, the USCG cutter pulled along side of the vessel. The USCG cutter's crew members yelled to the vessel and ordered it to stop. At that time--8:38 p.m.--the vessel promptly complied with the USCG's directive and stopped. 4. Nine (9) persons--including the Defendant and the co- Defendant--were located by the USCG aboard the vessel; none were hiding or otherwise concealed on the vessel. 5. Initial interviews by the Government and/or its agents xevealed that seven (7) of the nine (9) persons aboard the vessel were Cuban nationals with no documentation to enter the United States legally. 6. All nine (9) persons--the Defendant, the co-Defendantand the seven (7) alien witnesses--were transferred from the vessel to the USCG cutter and then taken to the USCG Sea Buoy located several miles off the coast of Miami 7, In general, the seven (7) alien witnesses advised the Government and/or its agents that they had traveled to Bimini from Cuba, that they wanted to come to Miami, that they got onto a small boat operated by an unknown individual from Bimini, that they were just off shore, that they attempted to flag down passing vessels, that they flagged down the vessel operated by the Defendant, that they told the Defendant that they were Cuban but lived in Miami, that they had boat problems, that they needed a ride back to Miami, that the Defendant brought them onto his vessel, that the Defendant did not ask them for money, that they did not pay any money to the Defendant and that they departed for Miami. 8. Pursuant to post-Miranda questioning, the Defendant corroborated the statements of the seven (7) alien witnesses and advised the Government and/or its agents that he and the co-Defendant went to Bimini to fish, that when they got to Bimini they were flagged down by a group of people who were in a boat just off shore, that the people told him that they were having boat problems, that the people told him that they needed a ride back to Miami, that the people told him that they were Cuban but that they had resident status in the United States, that he brought the people aboard his vessel, that he did not ask the people for money, that the people did not give any money to him and that they departed for Miami. 9. The Defendant and co-Defendant were subsequently arrested and charged with Alien Smuggling; the seven (7) alien witnesses were subsequently deported to Cuba. 10. A general consent search of the vessel and/or inventory search thereof revealed that it had modifications completed on its deck and fuel system fuel tanks and further revealed five (5) fishing rods/reels with bait on two (2) of them, several outriggers, a fish net, two (2) gaffs, a tackle box containing fishing hooks, lures, WD-40 and other fishing equipment, a largecooler containing some ice, several bottles of beer and water and some doritos, an inoperable VHF-FM radio, thirteen (13) life preservers, a fire extinguisher, engine parts, engine oil containers, one (1) satellite phone, two (2) cellular telephones, three (3) GPS devices, one (1) Glock .40 caliber handgun and ten (10) rounds of ammunition. 11. The vessel was dry-docked on the secured premises of an independent contractor, Maule Marina located in North Miami Beach, Miami-Dade County, Florida, which stores seized vessels that are to be used as evidence or subjected to forfeiture proceedings; the contents of the vessel were secured in a locked warehouse on the premises. 12. The two (2) cellular telephones and three (3) GPS devices were transferred to IO James Smith of USCG IC who, without a search warrant, obtained certain data therefrom. 13. A few days later, SA Angel Martinez of USCG MIC received an anonymous telephone call from someone inquiring about the status of one (1) of the alien witnesses. The anonymous caller advised SA Martinez that an alien witness named "Carlos" and other alien witnesses paid money to the operator of the vesseland that the money should be somewhere on the vessel. Based upon the foregoing anonymous tip, SA Martinez and SA Mackinaw of ASU responded to the vessel which was in Government custody in dry- dock at Maule Marina and, without a search warrant, conducted a second search of the vessel. The agents opened the cushion on the driver's bench seatback, tore some plastic and ripped out the foam padding. The agents then removed a plastic zip-lock baggie which appeared to contain several envelopes. The agents then opened the baggie and removed the contents: one (1) envelope--marked "2200" and "Gasolina 300" on one side and "$3500" and "Duny" on the other side--containing $2,200.00 in U.S. Currency; one (1) envelope-~ marked "5000" on it--containing $5,000.00 in U.S. Currency; one (1) envelope--marked "5000", "2400", " 20 "2000" and " 1,600" on it--containing nothing; one (1) piece of paper--marked "Carlos" and "2400" on it--wrapped around $2,400.00 in U.S. Currency; and one (1) piece of Bimini Bay letterhead stationary--marked "Bertha"--wrapped around $2,000.00 in U.S. Currency. 14, A photograph depicting the vessel's bench seatback with the seat cushion opened, plastic torn and foam padding ripped out is attached hereto.i Fic 15. The Defendant seeks suppression of the data obtained from the GPS devices, the data obtained from the cellular telephones, the three (3) envelopes, the two (2) pieces of paper and $11,600 in U.S. Currency on the grounds that said evidence was unlawfully and unconstitutionally seized without search warrants. Standing 16. The Fourth Amendment prohibits law enforcement officers from conducting unreasonable searches and seizures. 17. To have standing to challenge a search, a defendant must manifest a subjective expectation of privacy in the invaded area that "society is prepared to recognize as reasonable." Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1987). 18, "The individual's expectation, viewed objectively, (mast be) justifiable under the circumstances.” smith v.Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Bd.2d 220 (1979). The individual challenging the search bears the burdens of proof and persuasion. United States v. Eyster, 948 F.2d 1196 [11th Cir. 1991). 19. In the instant case, the Defendant borrowed the subject vessel from a friend who is the registered owner of the vessel; moreover, the Defendant was the operator of the vessel. 20. In United States v. Miller, 821 F.2d 546 (11th Cir. 1987), the Court held that a driver possessed a legitimate expectation of privacy in a borrowed car. 21. In United States v. Cooper, 133 F.3d 1394 (11th Cir. 1998), the Court held that a driver possessed a legitimate expectation in an overdue rental car. 22. Accordingly, by way of analogy, the Defendant--who was the operator of the vessel he borrowed from a friend--possessed a legitimate expectation of privacy in the vessel and thus has standing to challenge the searches and seizures. The Warrantless Searches of the GPS Devices and Cellular Telephones to Obtain Data Therefrom and the Warrantless Second Search of the Vessel Violates the Fourth Amendment to the U.S. ConstitutionA. Inventory Search 23. An inventory search is not a surrogate for investigation, and the scope of an inventory search may not exceed that necessary to accomplish the ends of the inventory. United States v. Laing, 708 F.2d 1568 (11th Cir.) (per curiam), cert. denied, 464 U.S. 896, 104 S.Ct. 246, 78 L.Ed.2d 235 (1983); United States v. Prescott 599 F.2d 103 (Sth Cir. 1979)? ("Inventory searches must be limited to effectuation of the recognized purposes for which they are conducted and they may not be used as a pretext for intrusive investigatory searches that would otherwise be impermissible 24, Affirming the suppression of evidence seized by police claiming an inventory search justification, the U.S. Supreme Court declared that: "The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that ‘The Eleventh Circuit, in the en banc decision of Bonner v. City of Prichard, 661 F.2d 1206 (ilth Cir. 1981), adopted as precedent the decisions of the former Fifth Circuit rendered prior to October 1, 1981.inventory searches are turned into a purposeful and general means of discovering evidence of crime." Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990). 25. Various drug-related conspiracy, aiding and abetting, and Travel Act offenses were involved in the multi-defendant drug importation case of United States v. Khoury, 901 F.2d 948 (11th Cir, 1990). In Khoury, when defendant Xluver was arrested, his car was seized by the DEA for forfeiture. The car was impounded. DEA Agent Simpkins conducted an inventory search of the contents of the car. Agent Simpkins removed a closed briefcase from the locked car trunk, took it to his office and inspected its contents which included a spiral notebook bearing a handwritten legend on its cover "Kluver 10-1-82." Agent Simpkins flipped through the pages of the notebook to identify any items of value that might have been concealed within its pages. Agent Simpkins determined that it was a diary of some sort but did not determine that it had evidentiary value. Subsequently, he further examined the notebook and decided that it did have evidentiary value. Defendant Kluver filed a motion to suppress which was denied by the district court. aOn appeal, the Eleventh Circuit recognized that Agent Simpkins’ initial inspection of the notebook was both necessary and proper to ensure that there was nothing of value hidden between its pages. However, having satisfied himself that the notebook contained no discrete items of value and having decided that the diary entries themselves would have intrinsic value to Kluver, the Eleventh Circuit noted that Agent Simpkins had satisfied the requisites of the inventory search and had no purpose other than investigation in further inspecting the notebook. The Court concluded that " uch a warrantless investigatory search may not be conducted under the guise of an inventory" and that “having conducted the inventory search and there being no exigent circumstances, the investigator was free to request a warrant from a magistrate if he wished to search further (but he) did not seek a warrant, however, but continued his search despite the absence of a valid inventory or exigent circumstances exception.” Thus the Court held that "the subsequent search of Kluver's diary violated his fourth amendment right (and) the district court committed constitutional error in denying Kluver's motion to suppress.” 1226. Several years later, in United States v. Cruz, 837 F. Supp. 1228 (United States District Court for the Southern District of Florida, 1993), the defendant was charged with narcotics and firearms offenses. At the time of his arrest, the defendant was driving a motor vehicle; a search of the vehicle resulted in the recovery of a firearm. A subsequent inventory search was then conducted by U.S. Customs Service Agent and, despite an earlier K-9 alert to the presence of narcotics in the vehicle, no narcotics were found during the inventory search. The vehicle was placed in the custody of a private contractor who again inventoried the vehicle and found no contraband. Approximately six (6) weeks later, Special Agent LeGasse of Customs received a telephone call from a previously reliable confidential informant who advised that the defendant had expressed concern as to whether a small quantity of cocaine secreted in his vehicle had been discovered. Based upon that telephone call, Agent LeGasse conducted another inventory search of the vehicle, which revealed a bag 13containing eleven (11) baggies of cocaine powder. The defendant filed a Motion to Suppress the eleven (11) baggies of cocaine powder, The District Court recognized that the existence of exigent circumstances; to wit: the mobility of the vehicle, ceased to exist upon the seizure of the vehicle. The Court further concluded that "the government desired to again search the defendant's vehicle because it felt that information received from a previously reliable informant would reveal the presence of contraband therein" and that "clearly the Government sought to obtain evidence of criminal activity, not merely to conduct an inventory." The Court ruled that the Government's claimed inventory of the vehicle was "a pretext for an actual search of the vehicle" and that such search "required a search warrant which could have been procured since the officers had a basis for showing the requisite probable cause for a search warrant, B. Consent Search 27. The scope of a consensual search is determined by the terms of the actual consent. United States v. Martinez, 949 F.2d 141117 (11th Cir. 1992); United States v, Strickland, 902 F.2d 937 (1ith Cir. 1990); United States v. Blake, 888 F.2d 795 (i1th Cir. 1989). 28. When an individual gives a general statement of consent without express limitations, the scope of a permissible search is not limitless. Rather, it is constrained by the bounds of reasonableness: what a police officer or agent could reasonably interpret the consent to encompass. United States v. Harris, 928 F.2d 1113 (11th Cir. 1991). 29. In United States v. Strickland, 902 F.2d 937 (11th Cir. 1990), the defendant consented to a search of his vehicle, including consent to search the trunk and luggage. The Court held that this did not, however, include permission to slash the vehicle's spare tire to investigate its contents. 30. In United States v. Elliott, 107 F.3d 810 (10th Cir. 1997), the police officer obtained the defendant's consent to "see how things were packaged." The Court held that this did not, however, include permission to unzip and look into bags. Argqument/Conclusion 15A. Data From GPS Devices/Cellular Telephones 31. The warrantless search of the three (3) GPS devices and two (2) cellular telephones for the express purpose of obtaining data therefrom clearly exceeded that necessary to accomplish the ends of an inventory search; moreover, such a search was nothing less than a purposeful and general means of discovering evidence of erime. Also, said warrantless search clearly exceeded the scope of the Defendant's general consent to search the vessel and was unreasonable. B. Envelopes, Pieces of Paper and U.S. Currency 32. Similarly, the warrantless second search of the vessel- -which was dry-docked and secured at a marina and which search was based upon an anonymous tip--clearly exceeded that necessary to accomplish the ends of an inventory search; moreover, such a second search was used as a pretext for an intrusive investigatory search which would otherwise be constitutionally impermissible. Also, the warrantless second search of the vessel--which involved ope! ig the cushion on the driver's bench seatback and removing 16the foam padding: = the Defendant's clearly exceeded the scope general consent to search the vessel and was unreasonable. WHEREFORE, based upon the foregoing facts and case law, together with the Fourth Amendment to United States Constitution, the Defendant, CARLOS REYES, requests that this Honorable Court suppress the data obtained from the GPS devices, the data obtained from the cellular telephones, the three (3) envelopes, the two (2) pieces of paper and $11,600 in U.S. Currency. Respectfully submitted, LAW OFFICE OF DAVID ALSCHULER 1503 N.W. 14th Street Miami, Florida 33125 Telephone: (305) 549-6565 Telefax: (305) 549-6610 DAVID ALSCHULER, ESQUIRE Florida Bar No. 561266 CERTIFICATE OF SERVICE a7I HEREBY CERTIFY that a copy of the foregoing Motion was served upon Jonathan Lopez, Assistant U.S, Attorney, 99 N.E. 4th Street, 6th Floor, Miami, FL 33132-2111 and upon Anne Lyons, Assistant Federal Defender, 150 W. Flagler Street, Suite 1500, Miami, FL 33130 on this day of January 2004. LAW OFFICE OF DAVID ALSCHULER 1503 N.W. 14th Street Miami, Florida 33125 Telephone: (305) 549-6565 Telefax: (305) 549-6610 DAVID ALSCHULER, ESQUIRE Florida Bar No, 561266 18