United States v. Chaka Castro , 881 F.3d 961 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0028p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellant, │
│
> No. 17-1590
v. │
│
│
CHAKA CASTRO and JUAN OLAYA, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
2:15-cr-20200—Laurie J. Michelson, District Judge.
Argued: February 1, 2018
Decided and Filed: February 7, 2018
Before: SUTTON, KETHLEDGE, and LARSEN, Circuit Judges.
_________________
COUNSEL
ARGUED: Andrew Goetz, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for
Appellant. James C. Thomas, JAMES C. THOMAS, P.C., Sterling Heights, Michigan, for
Appellee Castro. Kenneth R. Sasse, Lake Orion, Michigan, for Appellee Olaya. ON BRIEF:
Andrew Goetz, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellant.
James C. Thomas, JAMES C. THOMAS, P.C., Sterling Heights, Michigan, for Appellee Castro.
Kenneth R. Sasse, Lake Orion, Michigan, for Appellee Olaya.
_________________
OPINION
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SUTTON, Circuit Judge. In December 2014, a string of home invasions struck Dallas,
Texas. Law enforcement focused their investigation on Chaka Castro and Juan Fernando Olaya.
No. 17-1590 United States v. Castro, et al. Page 2
Texas courts issued warrants to search their phones. Consistent with the warrants, state officers
conducted detailed searches of Castro’s phones and a cursory search of Olaya’s phone, and the
FBI conducted a full search of Olaya’s phone. Each search turned up potentially incriminating
evidence that the individuals had violated federal racketeering laws. The district court granted
each defendant’s motion to suppress. Because each search complied with the Fourth
Amendment, we reverse.
I.
Over a three-day period in December 2014, a spate of robberies occurred in and around
Dallas. The crimes fit a pattern. The robbers broke into the home, rounded up the occupants at
gunpoint, and bound them with duct tape. Then they searched the home for valuables and took
what they found.
On December 7, police interrupted a robbery attempt that fit this pattern. The robbers
fled on foot. Later that day, police arrested Juan Fernando Olaya after finding him in a stolen
vehicle with a suspected accomplice. The police inventoried the vehicle’s contents and took
custody of a Samsung Galaxy cell phone. Suspecting that Olaya was one of the robbers involved
in the crime spree, the police obtained a warrant to search the phone from a state magistrate
judge. The warrant incorporated a police affidavit, which explained why the cell phone probably
contained evidence about the robberies.
An officer reviewed the contents of the phone by hand. He found potentially
incriminating evidence and took screen shots of it, after which he stored the seized phone at an
evidence storage facility.
In January 2015, Texas officials merged their investigation with a federal investigation
based in the Eastern District of Michigan focused on a multistate criminal enterprise. Later that
year, Texas officers transferred the Samsung Galaxy to the FBI for a more detailed analysis. The
Bureau searched the phone based on the state court warrant.
Meanwhile, Texas officers came to suspect that Chaka Castro had organized the
robberies. They followed a signal coming from a stolen cell phone to a house where Castro
No. 17-1590 United States v. Castro, et al. Page 3
lived. Officers watched the home, searched it twice, and conducted a brief search of Castro’s
cell phones after obtaining her consent. Based on this evidence, a different Texas judge issued
search warrants for Castro’s two phones. Both warrants used the same language, save for the
description of the phone. In relevant part, each said:
Proof having been made before me under oath by [the investigating officer] that
there is probable cause to believe that evidence of violations of Texas Penal Code
29.03 (Aggravated Robbery), exists on named phone device . . . , you are hereby
COMMANDED to execute a search for but not limited to the following pieces of
evidence:
Subscriber information, cell phone location data, business records, photographs,
images, depictions[,] correspondence, notes, paper, ledgers, personal telephone
and address books, voice messages, text messages, memoranda, telexes,
facsimiles, or other documents (in any form printed or digital) which reflect the
receipt, purchase, transmission, and/or communication of a crime or any other
electronic, magnetic, optical, electrochemical, or high-speed data processing
device performing logical arithmetic, or storage functions; hard disk, drum, CD
ROM or scanner; communication facilities directly relating to or operating in
conjunction with such device, or any other files, deleted or not involved in this or
any other unlawful activities.
R. 169-1 at 7; R. 169-2 at 7.
Officers searched each phone and found incriminating evidence about the robberies.
The federal government charged Castro and Olaya with violating the Racketeer
Influenced and Corrupt Organizations Act. The defendants moved to suppress the cell-phone
evidence on the ground that the searches violated the Fourth Amendment. The district court
granted the motions, and the federal government appealed.
II.
Castro. The Fourth Amendment demands that a search warrant “particularly describ[e]”
the places law enforcement may search and the things they may seize. U.S. Const. amend. IV.
Warrants empower and constrain. Riley v. California, 134 S. Ct. 2473, 2485 (2014).
In attacking the (two nearly identically worded) warrants, Castro claims that they flubbed
the particularity requirement because they permitted searches for evidence of “a crime,”
No. 17-1590 United States v. Castro, et al. Page 4
seemingly allowing the police to look at her phone in search of evidence of any crime rather than
evidence of the robberies. A catch-all phrase at the end of the warrants made things worse, she
adds, as it permitted officers to look for “any other files, deleted or not involved in this or any
other unlawful activities.” Neither concern requires suppression.
Start with “a crime.” Castro claims that the officers should have used “the” rather than
“a,” which would have cured the warrants’ overbreadth. But that wording would have created
problems of its own, as more than one armed robbery prompted the warrants. The affidavit lays
out evidence of probable cause that Castro participated in several armed robberies. That is why
the warrants mention “violations of Texas Penal Code 29.03 (Aggravated Robbery).” The
officer wanted the search to cover all of the robberies listed in the affidavit. A general article
(“a”) rather than a specific one (“the”) served that end.
The rest of the language in the warrants reinforces this interpretation. A warrant that
empowers police to search for something satisfies the particularity requirement if its text
constrains the search to evidence of a specific crime. See Andresen v. Maryland, 427 U.S. 463,
480–81 (1976); United States v. Raglin, 663 F. App’x 409, 413 (6th Cir. 2016); United States v.
Christie, 717 F.3d 1156, 1165–66 (10th Cir. 2013). Castro’s warrants did just that. The first two
lines of each warrant noted that they were based on “probable cause to believe that evidence of
violations of Texas Penal Code 29.03 (Aggravated Burglary)” would be found on the phones.
That language served as a “global modifier” that limited the scope of the warrant to evidence of
aggravated burglary. United States v. Willoughby, 742 F.3d 229, 233 (6th Cir. 2014); see
Andresen, 427 U.S. at 480–81. Read as a whole, the warrants told officers they could search
only for evidence related to aggravated burglary.
Andresen v. Maryland considered a warrant that permitted the seizure of “fruits,
instrumentalities and evidence of crime at this (time) unknown.” 427 U.S. at 479. The word
“crime,” the Court held, should not be read in isolation to encompass all crimes but to refer only
to the crime of false pretenses mentioned earlier in the warrant. Id. at 480–81. A similar
conclusion fits this case. See United States v. Johnson, 690 F.2d 60, 64–65 (3d Cir. 1982)
(upholding a warrant for “a crime” and “a criminal offense”).
No. 17-1590 United States v. Castro, et al. Page 5
This interpretation also respects another imperative in reading warrants: They need not
meet the rigors of Roget, Merriam, Webster, Strunk, and White. A commonsense contextual
reading usually suffices, and usually gets the point the magistrate and officer sought to express.
See Illinois v. Gates, 462 U.S. 213, 235–36 (1983).
Consider an analogy. Suppose a mother gave her teenager a grocery list that said:
“I checked the pantry and we are out of Cheerios. Please go to the market and buy a box of
cereal.” The mother would be irritated if the teenager came home with a box of barley. Sure,
barley is a cereal—of sorts—and, sure, it comes in a box, but the full statement and the context
in which it was made would inform a reasonable person that the mother meant a box of breakfast
cereal. So also today: Context shows that “a crime” refers only to the list of crimes already
mentioned.
The catch-all phrase tacked onto the operative sentence in each warrant—“any other files,
deleted or not involved in this or any other unlawful activities”—does not alter this conclusion.
The government (to its credit) concedes that this phrase sweeps too broadly. But an “infirmity
due to overbreadth does not doom the entire warrant.” United States v. Greene, 250 F.3d 471,
477 (6th Cir. 2001). The remedy is to sever the offending phrase from the warrant, suppress any
evidence collected under it, and admit the evidence collected under the valid portions that
remain. Id.; see also 2 Wayne R. LaFave et al., Search and Seizure § 4.6(f) (5th ed. 2017); cf.
Cassady v. Goering, 567 F.3d 628, 649 (10th Cir. 2009) (McConnell, J., dissenting) (recognizing
that “every federal court to consider the issue has adopted the doctrine of severance”). Both
warrants are good candidates for this remedy. In each warrant, the invalid section appears at the
end of the operative sentence and can be severed without changing the meaning of the valid
sections of the warrant. The remaining valid sections are “sufficiently particularized,
distinguishable from the invalid portions, and make up the greater part of the warrant.” United
States v. Sells, 463 F.3d 1148, 1151 (10th Cir. 2006). Nothing in the record shows that any
evidence was seized under this section.
Castro makes several contrary arguments, all unconvincing. She points to three decisions
from sibling circuits that invalidated warrants based on the use of the phrase “a crime.” But none
tracks Castro’s case. In United States v. George, 975 F.2d 72 (2d Cir. 1992), the Second Circuit
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held that the warrant swept too broadly after finding that “[n]othing on the face of the warrant
tells the searching officers for what crime the search is being undertaken.” Id. at 76. The Tenth
Circuit did much the same thing in Cassady v. Goering, noting that “the warrant did not confine
the scope of the search to any particular crime.” 567 F.3d at 635. The same goes for Center Art
Galleries-Hawaii, Inc. v. United States, 875 F.2d 747 (9th Cir. 1989), which said that “[t]he
warrants’ provision for the almost unrestricted seizure of items which are ‘evidence of violations
of federal criminal law’ without describing the specific crimes suspected is constitutionally
inadequate.” Id. at 749–50. In visible contrast to each of these cases, Castro’s warrants describe
the targeted crimes: aggravated robberies.
Even if we reached a contrary conclusion about the validity of these warrants, the good-
faith exception to the exclusionary rule would apply. United States v. Leon, 468 U.S. 897, 918–
21 (1984). For the reasons just given, this is not a case in which a “simple glance” at the warrant
would reveal deficiencies glaring enough to make reliance on it unreasonable. United States v.
Watson, 498 F.3d 429, 432 (6th Cir. 2007) (quoting Groh v. Ramirez, 540 U.S. 551, 564 (2004)).
The relevant officer in fact limited his search to evidence of robbery, just as he thought the
warrant commanded. All in all, this was not the kind of “deliberate, reckless, or grossly
negligent disregard for Fourth Amendment rights” that triggers suppression. Davis v. United
States, 564 U.S. 229, 238 (2011) (quotations omitted).
Olaya. Olaya claims that these Texas warrants did not permit federal agents to conduct a
full forensic search months after the state officers conducted a cursory search. We disagree.
Two Fourth Amendment rules apply. One relates to timing. Officers may conduct a
more detailed search of an electronic device after it was properly seized so long as the later
search does not exceed the probable cause articulated in the original warrant and the device
remained secured. United States v. Evers, 669 F.3d 645, 650–52 (6th Cir. 2012). That is true
even if the officers conducted an initial search soon after the device’s seizure but waited months
or years to conduct a more intensive search. See United States v. Johnston, 789 F.3d 934, 941–
43 (9th Cir. 2015) (five years). It is sometimes the case, as it was the case here, that law
enforcement officers have good reason to revisit previously seized, and still secured, evidence as
new information casts new light on the previously seized evidence.
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The other rule relates to federal-state investigations. At the same time that the
Constitution permits the federal government and the States to pursue dual investigations and dual
charges, see Heath v. Alabama, 474 U.S. 82, 89 (1985), it also permits the two sovereigns to
coordinate law enforcement efforts. No one here claims that the Constitution bars federal
officers from helping their state counterparts execute a state warrant. In our circuit, federal
officers may help state officials search for evidence of a crime in connection with a state warrant
so long as they are searching for the same evidence as the state officers and the same evidence
authorized by the state warrant. See United States v. Garcia, 496 F.3d 495, 509–10 (6th Cir.
2007).
Thus: federal officers may use a state warrant to conduct a follow-up search of a seized
cell phone without obtaining a second warrant so long as the search does not exceed the probable
cause articulated in the original warrant.
In this instance, the second search did not exceed the scope of the warrant or the
explanation for it. After the state officers seized the phone, they kept it in secure storage until
sending it to the FBI for a detailed forensic search. The state warrant and its incorporated
affidavit established probable cause to believe that the phone contained evidence of aggravated
robbery. The affidavit specified the cell phone by serial and phone number. It described why
the officer thought there was probable cause to believe that the phone contained evidence of
aggravated robbery. It gave officers authority to seize all “physical and digital evidence” stored
within the phone. And it described the information that could be seized, including “all electronic
information stored or maintained on the phones’ memory.”
The federal officers were looking for the same evidence that the state warrant targeted
because the same evidence showed violations of state and federal law. According to the FBI’s
Exam Service Request, the federal agents sought information about “[a] group of individuals
committi[ng] armed home invasions across the country.” R. 157-2. The assisting federal
officers sought the same information that the state warrant authorized state officers to collect.
Evidence proving that Olaya committed state aggravated robbery showed that he committed a
predicate act for a RICO violation. 18 U.S.C. §§ 1961(1), 1962. And evidence that Olaya
No. 17-1590 United States v. Castro, et al. Page 8
belonged to a home invasion organization showed he participated in a criminal enterprise under
RICO. See id. § 1962. The same information supported state and federal charges.
Olaya tries to head off this conclusion by noting that the federal officers looked for
evidence of additional criminal conduct: robberies in other States, the relationship between the
predicate acts of a RICO violation, and the threat of further criminal activity. During a search,
“evidence not described in a search warrant may be seized if it is reasonably related to the
offense which formed the basis for the search warrant.” Evers, 669 F.3d at 652. The state
warrant authorized a search for evidence of aggravated robbery and the existence of an
organization coordinating home invasions. Evidence of robberies carried out by suspected
members of the organization elsewhere in the country was reasonably related to whether the
organization existed and whether its members committed aggravated burglary in Texas. So was
evidence of the connection between the aggravated robberies, evidence of whether a risk existed
that more robberies might occur in the future, and evidence of what a suspected organization did
with any proceeds. Evidence of any acts of violence, intimidation, or use of a deadly weapon
would support the aggravating elements of the Texas law. See Tex. Penal Code § 29.03. The
state warrant permitted a federal officer acting under it to seize any such evidence because it all
related to the crimes identified in the warrant.
Olaya argues that the “general rule” is “that a warrant authorizes only one search,”
United States v. Keszthelyi, 308 F.3d 557, 568–69 (6th Cir. 2002), which happened when the
police conducted a cursory search of the phone after they seized it. Beyond that, he claims,
officers could search the phone again only if the second search was a “reasonable continuation”
of the original warrant—that is, it must be a “continuation of the original search” and
“reasonable under the totality of the circumstances.” Id. at 569.
But this veneer on Keszthelyi removes the decision from its setting: home searches.
Residents, even residents suspected of a crime, need to be able to return to life as usual. When
they do, the reasonable continuation rule stops the government from committing “disturbance[s]
or destruction of the peaceful enjoyment of the home” repeatedly without a new warrant. Id. at
568. A repeated search of an electronic device removed from the home and permissibly secured
by the police as evidence of a crime differs in degree and kind. After law enforcement seizes a
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device and finds that it contains incriminating information, a suspect loses the device to police
custody, as the phone and its contents become evidence for a future prosecution. Olaya never
regained custody of the phone after the state officers found incriminating evidence on it during
the first search, while most people subjected to a search remain in custody of their home. A
comparison of the two settings—a repeat search of an occupied home and a repeat search of a
phone that remains in police custody—gives analogy a bad name.
Olaya persists that “the scope of the search is limited by the terms of its authorization.”
Walter v. United States, 447 U.S. 649, 656 (1980) (plurality opinion). State warrants are
creatures of state law, which (he claims) barred state officers from seeking federal assistance.
But the opening line—directing the search warrant to Texas officers—tells us nothing about
whether the warrant allowed federal assistance. Plus, Olaya misreads state law—namely Article
18.08—in claiming that it limits who can help with, and therefore whose assistance falls within
the scope of, the warrant. Article 18.08 is a positive provision; it empowers state officers to call
upon county citizens to aid the execution of a warrant. Tex. Code Crim. P. art. 18.08. Nothing
in it limits a state officer’s authority to seek assistance from other sources. The Texas Code even
contemplates federal assistance, as Article 2.122 gives FBI agents “the powers of arrest, search,
and seizure under the laws of the state as to felony offenses.” Id. art. 2.122.
Olaya says that the end of the warrant’s execution period and the return of the warrant
foreclosed the forensic search. But Texas law allows searches after the execution period expires.
It says that, “[n]otwithstanding any other law, any data or information contained in or on a
device seized may be recovered and analyzed after the expiration of the time allowed.” Id. art.
18.07(c).
Olaya notes that the state officers returned the warrant after they executed it and suggests
that any power to search the phone ceased then. But Texas law says only that state officers
“shall execute the warrant without delay and forthwith return the warrant to the proper
magistrate.” Id. art. 18.06(a). The return of the warrant does not end an officer’s authority to
carry out later searches within the warrant’s scope. Id. art. 18.07(c).
 No. 17-1590 United States v. Castro, et al. Page 10
Even if we were wrong, even if the Fourth Amendment prohibited this later search, the
good-faith exception to the exclusionary rule would apply. See Leon, 468 U.S. at 918–21.
Nothing on the face of the warrant suggests that the federal search exceeded its scope. See
Watson, 498 F.3d at 432. Both the state and federal rules of criminal procedure give law
enforcement the authority to conduct searches of lawfully seized phones after they are seized.
See Fed. R. Crim. P. 41(e)(2)(B); Tex. Code Crim. P. art. 18.07(c). And we have permitted
federal officers to rely on state warrants while assisting state officers before. See Garcia,
496 F.3d at 509. The good-faith exception applies.
For these reasons, we reverse the district court’s suppression rulings.