CA1: Govt proved independent source for SW; nexus to computer shown by its proximity to forged documents

Removing the information from the alleged illegal search from the affidavit for search warrant still shows probable cause from independent sources, and the motions to suppress were properly denied. Nexus to search one defendant’s computer came from his carrying it into the bank where fraudulent cashier’s checks were obtained and its proximity to forged documents. United States v. Santos-Soto, 2015 U.S. App. LEXIS 14964 (1st Cir. August 25, 2015):

Steven also argues that, even if Dessesaure is correct, the district court misapplied it. Our review of the district court’s decision is bifurcated: its determination on prong one — whether the agents’ decision to seek the warrant was prompted by the initial illegal search — is a factual finding subject to clear error review while its prong two determination — whether the information obtained during the illegal search affected the magistrate’s decision — is a legal conclusion reviewed de novo. United States v. Siciliano, 578 F.3d 61, 69 (1st Cir. 2009); Dessesaure, 429 F.3d at 365; United States v. Weidul, 325 F.3d 50, 51 (1st Cir. 2003).

Turning to prong one, we find no clear error with the district court’s conclusions. Before the illegal April 2006 search, law enforcement officials were already investigating Steven for fraud and identity theft. After being alerted by Eastern Bank in 2007 that Steven was once again trying to pass counterfeit checks, they arrested Steven and escorted him off the premises. While doing so, they observed Steven signal to a woman in a grey Chrysler and then later overheard Steven on the phone telling the listener not to bring the Chrysler to the police station. Thus, it is not at all surprising that when the Chrysler nevertheless showed up at the police station, the officers wanted to see what was inside. After validly seizing the Chrysler and conducting an inventory search, the officers found a power of attorney later determined to be forged, documentation that the vehicles were registered in Bradley’s name (also later determined to be fraudulent), and the Gateway laptop. With these forged documents located in close proximity to the laptop, and contained in a vehicle Steven did not want brought to the station, there is little doubt that any reasonable officer would have believed the laptop was involved in the fraud and would have wanted to search it. We thus agree with the district court’s conclusion that Everett’s decision to obtain the search warrant was not prompted by the 2006 search, and therefore there is no clear error.

We reach the same conclusion regarding the 2007 search of 56 Lawrence Road. The district court believed Agent Everett’s testimony that he would have wanted to search the residence even without the information learned in the 2006 search: (1) because there was ample evidence that Steven was engaged in fraud and identity theft; (2) because of his belief that those engaging in fraud often keep evidence of the fraudulent activity in their home; (3) because of the unauthorized “raffle” offering the Soto Family Residence as a “mortgage free” prize; and (4) because of the jail-house call between Steven and his parents openly discussing the fraud and thus suggesting that they, too, were either involved in or aware of the fraud and would thus likely provide a safe haven for evidence. Though this rationale is not as convincing as the rationale for obtaining a warrant for the laptop, it was not clearly erroneous for the district court to conclude as it did that Agent Everett would have still sought the search warrant for 56 Lawrence Road without the evidence seized during the 2006 search.

Steven counters that the district court failed to take into account all of the new leads and suspects uncovered during the 2006 search, which he claims “catapulted the investigation … light years ahead.” But even ignoring everything that happened prior to Steven’s attempt to pass fake checks at Eastern Bank in 2007, “the totality of the attendant circumstances” from February 2007 onward support Agent Everett’s assurances. See Dessesaure, 429 F.3d at 369. Similarly, Agent Everett’s candid acknowledgment that the 2006 evidence was a factor in his initial decision to seek the warrants does not undermine our conclusion. The question is not whether the evidence did influence the officer’s decision — how could it not?5 — but whether the same decision would have been made if the evidence had not been known. The district court concluded that it would have, and we are not “left with a definite and firm conviction” that this was a mistake. See United States v. Brake, 666 F.3d 800, 804 (1st Cir. 2011) (“[C]lear error exists only if, after considering all the evidence, we are left with a definite and firm conviction that a mistake has been made.” (internal quotation marks omitted)). Accordingly, prong one of the Murray / Dessesaure test is satisfied for both searches.

As for prong two, the district court correctly concluded that with the paragraphs containing the illegal evidence excised, there was still enough information to establish probable cause that both “(1) a crime has been committed (the ‘commission’ element), and (2) enumerated evidence of the offense will be found at the place to be searched (the ‘nexus’ element).” United States v. Strother, 318 F.3d 64, 67 (1st Cir. 2003). Steven only contests the nexus element, however, so that is where we focus our discussion. For probable cause to exist, “the facts presented to the magistrate need only ‘warrant a man of reasonable caution’ to believe that evidence of a crime will be found.” United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (plurality opinion)). They do not “demand showing that such a belief be correct or more likely true than false.” Id. (internal quotation marks omitted).

Regarding the search of the laptop, we have little doubt that a nexus was established. As discussed above, the laptop accompanied Steven on his trip to commit fraud on Eastern Bank and was discovered in a vehicle fraudulently registered to Bradley and which Steven had instructed Amaro not to bring to the police station. Located inside this vehicle was not only the laptop, but also a forged power of attorney and fraudulent registration records. Given the laptop’s proximity to the forged documents and its location in a fraudulently registered vehicle, it was reasonable to believe that the laptop might also be an instrument of Steven’s criminal activity and thus might contain additional evidence. See United States v. Scott, 270 F.3d 30, 59 (1st Cir. 2001) (adopting the rationale of United States v. Scott, 83 F. Supp. 2d 187, 197 (D. Mass. 2000), that “it is equally reasonable to suppose that someone allegedly engaged in bank fraud and producing false securities on his computer would have records of the bank fraud and false securities on that computer”). Indeed, Agent Everett stated as much in his affidavit. This is sufficient to establish the nexus element. See Feliz, 182 F.3d at 86.

This entry was posted in Independent source, Nexus. Bookmark the permalink.

Comments are closed.