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United States v. Wills

United States District Court, S.D. Texas, Corpus Christi Division

May 24, 2019




         Defendant David Keith Wills (Wills) is charged by superseding indictment with (1) one count of aiding and abetting sex trafficking of a child, in violation of 18 U.S.C. § 1591(a), and (2) one count of conspiracy to commit sex trafficking of a child, in violation of 18 U.S.C § 1594(c). D.E. 153. Before the Court is his motion to suppress evidence (D.E. 229) of Verizon cell phone records seized pursuant to a search warrant issued by a Texas district judge (the "Verizon Warrant”). He argues that the search violated his Fourth Amendment rights.[1] The Government filed a response (D.E. 262), asserting that the warrant was valid and regardless, the good faith exception to the exclusionary rule permits admission of the evidence. Defendant submitted additional briefing. D.E. 233; D.E. 285. A hearing on the motion was held on January 31, 2019. For the reasons set out below, the Court DENIES Defendant's motion to suppress (D.E. 229).


         The events leading to this motion began on April 8, 2015, when Detective Samuel Lucio (Detective Lucio) of the Brownsville, Texas Police Department went to Oliviera Middle School to investigate an outcry of sexual abuse by a student. A school counselor gave a sworn statement to Detective Lucio stating that 13-year-old Jane Doe (Doe) reported that she was sexually abused by Wills from the ages of 9 to 12 during visits arranged by Doe's mother. Doe was subsequently interviewed at Monica's House, a children's advocacy center. Detective Lucio was present for the forensic interview during which Doe gave a detailed account of the sexual abuse. Doe stated that the abuse occurred on almost a weekly basis at various locations. He asked Doe follow-up questions and later spoke to a nurse who examined Doe at Valley Baptist Medical Center.

         Shortly after, Brownsville police arrested Wills and Doe's mother for continuous sexual abuse of a young child under Texas law.[2] Search warrants were subsequently executed on each of their cell phones. The forensic analysis of Wills's phone conducted by an agent from United States Immigration and Customs Enforcement (ICE) revealed large gaps in the call history, indicating that it was not his primary phone. The search of Doe's mother's phone revealed a text message received on April 9, 2015, from a phone number associated with Wills.

         Based on this information, Detective Lucio prepared an affidavit in support of a search warrant for Wills's cell phone records. In his affidavit, he detailed his conversations with the school counselor and the nurse; and Doe's allegations of the sexual abuse, including the locations of where the abuse occurred, and that Wills contacted her mother by phone to arrange the visits, to speak to Doe, and to request nude photos of Doe, and that Wills paid her mother when Doe had sex with him. As he routinely did, Detective Lucio had the warrant reviewed by the Cameron County District Attorney's office before it was presented to a judge.

         Accompanied by an assistant district attorney, Detective Lucio presented his affidavit asserting probable cause to District Judge Janet Leal of the 103rd District Court of Cameron County on April 17, 2015. After reading the affidavit, Judge Leal signed the search warrant. Soon after, Detective Lucio faxed the warrant with his affidavit to Cellco Partnership dba Verizon Wireless in New Jersey to a number designated for use by law enforcement submitting search warrants. Listing Wills's cell phone number, the Verizon Warrant included a request for records of incoming and outgoing device call logs; incoming and outgoing logs for SMS (Short Message Service) and MMS (Multimedia Messaging Service) communications; Global Positioning System coordinates and cellular telephone tower usage information; and cell tower site locations used from July 1, 2011 to April 9, 2015.[3]


         A. Burden of Proof

         Wills moves to suppress the evidence obtained through the Verizon Warrant as fruit of the poisonous tree on the basis that (1) the search warrant was unlawful under state and federal law; (2) Detective Lucio's affidavit did not support a finding of probable cause; and (3) the warrant lacked particularity.

         Search Warrant.

         The party seeking suppression “has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights.” United States v. Smith, 978 F.2d 171, 176 (5th Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978)). The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Specifically, the items to be seized must be described with sufficient particularity so “as to leave ‘nothing . . . to the discretion of the officer executing the warrant.'” United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010) (quoting Marron v. United States, 275 U.S. 192, 196 (1927)). Ordinarily, a search warrant that fails to establish probable cause or meet the particularity requirement is unconstitutional. See Allen, 825 F.3d at 835.

         Exclusionary Rule.

         If the evidence supports a finding of an unconstitutional search, the burden is on the government to demonstrate why the evidence should not be excluded as fruits of the illegal search or seizure. United States v. Runyan, 275 F.3d 449, 456 (5th Cir. 2001) (citing United States v. Houltin, 566 F.2d 1027, 1031 (5th Cir. 1978)). One exception to the exclusionary rule applies “when the police act with an objectively reasonable good-faith belief that their conduct is lawful.” Davis v. United States, 564 U.S. 229, 238 (2011) (citing United States v. Leon, 468 U.S. 897, 918 (1984)); see United States v. Pope, 467 F.3d 912, 916 (5th Cir. 2006) (applying the good faith exception to a warrant issued by a state judge).

         B. Good Faith Exception

         Suppression is not in every instance the appropriate remedy for a violation of constitutional rights. Leon, 468 U.S. at 921. Rather, exclusion of evidence is a “last resort, not [the court's] first impulse.” Herring v. United States, 555 U.S. 135, 140 (2009) (citing Hudson v. Michigan, 547 U.S. 586, 591 (2006)). The sole purpose of the exclusionary rule is to deter future Fourth Amendment violations. Davis, 564 U.S. at 236-37. For that reason, the “good faith exception bars the application of the exclusionary rule to exclude evidence obtained pursuant to a warrant if law enforcement officers act under an objectively reasonable, good faith belief that the search warrant in question is valid-even if it, in fact, is not.” United States v. Jarman, 847 F.3d 259, 264 (5th Cir. 2017). The good faith inquiry asks “whether a reasonably well trained officer would have known that the search was illegal despite the [judge's] authorization.” Allen, 625 F.3d at 835 (quoting Leon, 468 U.S. at 923 n.23) (internal quotation marks omitted). ...

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