JEFFREY S. WHITE United States District Judge

ORDER DENYING MOTION TO SUPPRESS AND CONTINUING TO JUNE 23, 2020 FOR STATUS

Re: Dkt. No. 22

Now before the Court for consideration is the motion to suppress filed by Defendant Gilbert Scott Martinez ("Martinez"). The Court has considered the parties' papers, relevant legal authority, and the record in this case, and the Court concludes the motion can be resolved without oral argument or an evidentiary hearing. The Court VACATES the motion hearing scheduled for June 16, 2020 and it DENIES the motion to suppress.

BACKGROUND

On December 5, 2019, the Government charged Martinez with three counts of bank fraud in violation of 18 U.S.C. section 1344. These charges arise, in part, from evidence discovered during a search of Martinez's residence on Rock Creek Way in Pleasant Hill, California. The search was conducted on May 10, 2019 pursuant to a warrant issued by the Honorable Kandis A. Westmore on May 9, 2019, and the warrant was supported by an affidavit submitted by United States Secret Service ("Secret Service") Special Agent Daniel Kim ("Agent Kim"). (Dkt. No. 32, Def. Ex. A.)

Agent Kim has been employed with the Secret Service since October 2016, and he completed a Criminal Investigator Training Program at the Federal Law Enforcement Training Center and a Secret Service Special Agent Training Course at the James J. Rowley Training Center. He currently works with the Financial Crimes Task Force and also is assigned to the U.S. Marshals Pacific Southwest Regional Fugitive Task Force as a Special Deputy U.S. Marshal. (Affidavit, ¶¶ 1-2.)

Agent Kim attested that, in 2010, the Secret Service arrested and subsequently charged Martinez with bank fraud. Martinez was convicted, sentenced to 90 months imprisonment, and was released from custody on December 15, 2016. (Id., ¶ 11 (citing United States v. Martinez, 11-cr-15-JSW).) Agent Kim attests that, at some point in June 2017, Martinez contacted Joseph Cartagena, a rapper also known as "Fat Joe" and the president of Sneaker Addict Touring LLC ("Sneaker Addict"), through Cartagena's agent. Martinez expressed an interest in booking Cartagena for an event in Los Angeles.

Cartagena's agent provided Martinez with the mailing address, bank account, and routing number of Sneaker Addict and ACH/wire instructions for advance payment. (Id., ¶ 12.) Martinez provided Sneaker Addict with a business check in the amount of $56,000 that was drawn on a Bank of America account under "MTS Investments/The MTS Corp." However, on June 19, 2017, Iberia Bank received a notification that the check was fraudulent and was returned by Bank of America. According to Bank of America's investigators the account number on the check was valid, but it belonged to a different business: Ron Baker Chevrolet, a/k/a Cumming Chevrolet, located in National City, California. Cumming Chevrolet confirmed there had been an unauthorized attempt to deposit the check using its account and routing number. Martinez did not have authority to write checks for Cumming Chevrolet and did not have permission to use its bank account or routing numbers. (Id.)

On June 20, 2017, Iberia Bank received an overnight package from Martinez, which contained a different check in the amount of $56,000 payable to Sneaker Addict. That check was drawn on a Chase account under the name Optimize Solutions. Chase investigators determined the account was valid and belonged to a business in New York, Optimize Solutions, LLC, which was owned by an individual named Kyle Freedman. Martinez contacted Freedman in early 2017 to have Optimize Solutions build a mobile application for Martinez's business and, at that time, obtained Optimize Solutions' bank routing and account number. (Id., ¶ 13.) Iberia Bank did not process that check based upon suspicion of fraud. Between September 5, 2018 and September 20, 2018, Iberia Bank's security specialist identified eight additional fraudulent checks drawn on Sneaker Addict's account. Three of those checks were connected to a fraudulent scheme involving the purchase of a home in Fairfield, California. (Id., ¶¶ 14-15.) Martinez was not authorized to write checks for Sneaker Addict, and he did not have permission to use its bank account number in any capacity. (Id., ¶ 14.)

Martinez also used, without permission or authorization, one of Optimize Solutions' account numbers and used a fraudulent check to attempt to rent a suite for the Oakland Raiders' 2017 football season. (Id., ¶ 17.) Freedman also suspected that Martinez had used Optimize Solutions' bank account number to fraudulently open an account with AT&T, which was used to purchase various goods and services between May 30, 2017 and May 18, 2018. (Id., ¶ 17.)

Agent Kim also attested to two incidents in 2017 that involved lease buy-outs on vehicles. In those incidents, Martinez used fraudulent checks drawn on accounts belonging to companies with which he had no affiliation and no permission to use the accounts. As part of this alleged fraud, Agent Kim attests that Martinez responded to advertisements on Craigslist.com and a mobile application and sent text messages. In one of those transactions, the check was not identified as fraudulent and the title to the vehicle was released to Martinez. (Id., ¶¶ 18-23.)

In January 2019, Martinez was convicted of vehicle theft and a fraud scheme in Contra Costa County Superior Court and was sentenced to 364 days in county jail. Martinez failed to report to serve that sentence. After Martinez failed to appear for a restitution hearing, the judge in that case issued a bench warrant for Martinez's arrest. Agent Kim also attested that there was a federal warrant outstanding for Martinez. (Id., ¶ 24.) Martinez remained a fugitive until approximately April 2019, when he posted a video on Instagram that led Agent Kim to discover he was residing at the residence on Rock Creek Way. Agent Kim also discovered a post on Instagram from December 12, 2017, that suggested Martinez had an account containing just over $900,000 in cryptocurrency. (Id., ¶¶ 25-26.)

Agent Kim attested that part of his training and experience has included interviews with "criminals regarding the means of obtaining, storing and using people's Personal Identifying Information ['PII']." From those interviews, he has learned that "individuals involved in these crimes often utilize computers, electronic storage devices, email, and telephones to carry out their crimes or coordinate with co-conspirators." (Id., ¶ 5; see also id., ¶ 8.) Based on that experience and training, Agent Kim attests to his knowledge about how individuals involved in financial crimes and fraudulent activities conceal evidence of their activities, where such information may be located, including on personal computers and other electronic storage media, and the types of "contraband, evidence, instrumentalities, or fruits of crime" that may be located in such places. This section of Agent Kim's Affidavit does not contain information that is particular to Martinez.

Agent Kim also attached a description of Martinez's property, a description of the items to be seized, and a protocol for searching devices or media that store data electronically. (Id., ¶¶ 27-39, Exs. A-C.)

The Court shall address additional facts as necessary in its analysis.

ANALYSIS

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated...." U.S. Const. amend IV. The search at issue was conducted pursuant to a warrant, which is presumed to be valid. Franks v. Delaware, 438 U.S. 154, 171 (1978). Pursuant to the Warrant Clause, "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.

When determining whether probable cause exists, a magistrate judge considers the "totality of the circumstances" to determine if there is a "fair probability" that a crime has been committed and that "contraband or evidence is located in a particular place[.]" Illinois v. Gates, 462 U.S. 213, 230 (1983); see also United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (magistrate judge is only required to answer the "commonsense, practical question whether there is 'probable cause' to believe that contraband or evidence is located in a particular place" before issuing a search warrant.") (quoting Gates, 462 U.S. at 230). "A magistrate is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense." United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986).

The Court must afford the Magistrate Judge's decision "great deference", and if the Court determines the Magistrate Judge had a "substantial basis" to conclude the "search would uncover evidence of wrongdoing," suppression is not warranted. Gates, 462 U.S. at 236; see also United States v. Nguyen, 673 F.3d 1259, 1263 (9th Cir. 2012) (a court should not overturn a magistrate judge's decision to issue a warrant unless it is clearly erroneous).

Martinez does not dispute the information contained in the Affidavit set forth a fair probability that a crime had been committed. He argues that the warrant was stale and overbroad, and the focus of this argument pertains to the search and seizure of computer equipment and other electronic storage devices. The Court will address each argument in turn.

A. The Information in the Warrant is Not Stale.

Martinez argues the warrant was stale because the last incident described in the Affidavit occurred in September 2018, approximately eight months before the warrant issued. Martinez contends that, as a fugitive who had moved during the time in question, he had a "strong incentive" to get rid of any evidence of his fraudulent activity. "The mere passage 'of substantial amounts of time is not controlling in a question of staleness,'" especially where electronic evidence is concerned. United States v. Flores, 802 F.3d 1028, 1043 (9th Cir. 2015) (quoting United States v. Dozier, 844 F.2d 701, 707 (9th Cir. 1988)); cf. Gourde, 440 F.3d at 1071 ("Thanks to the long memory of computers, any evidence of a crime was almost certainly still on his computer, even if [the defendant] had tried to delete the images."). Instead, a court must consider "the particular facts of the case and the nature of the criminal activity and property sought." United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997) (quoting United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993)).

In Flores, the defendant moved to suppress evidence of drug smuggling obtained from her Facebook account, arguing the warrant was stale because the post at issue had been made three months before the government obtained a search warrant. The court rejected the defendant's argument, reasoning that the post had not likely been deleted in the interim, and even if it had been deleted, it "likely could have been recovered." 802 F.3d at 1043. Therefore, "there remained a fair probability that [the defendant's] account would contain evidence at the time it was searched. Id.; see also Gourde, 440 F.3d at 1071 (court concluded that information was not stale where four months elapsed between shutting down child pornography website and execution of warrant for search of evidence of child pornography on defendant's computers).

"[T]raining and experience are factors to be considered," as part of the probable cause determination. United States v. Cervantes, 703 F.3d 1135, 1139 (9th Cir. 2012). When a declarant relies on those facts, they must "explain the nature of [their] expertise or experience and how it bears upon the facts which prompted" them to search. Id. at 1139-40 (quoting 2 Wayne LaFave, Search and Seizure § 3.2(c), at 45 (4th ed. 2004) ("LaFave")). "Conclusory statements and a general claim of experience will not suffice." Id. (citing LaFave, § 3.2(c), at 45 and United States v. Thomas, 211 F.3d 1186, 1189-92 (9th Cir. 2000)). In addition, "if the government presents expert opinion about the behavior of a particular class of persons, for the opinion to have any relevance, the affidavit must lay a foundation which shows that the person subject to the search is a member of the class." United States v. Weber, 923 F.2d 1338, 1345 (9th Cir. 1990).

Agent Kim set forth his training and experience investigating financial crimes and how that experience informed his belief that evidence of the alleged crimes would be found in Martinez's home and on Martinez's computers and other electronic storage devices. Agent Kim also explained that even when information has been deleted from a computer, "lost evidence can often still be recovered from computers or other forms of electronic storage media." (See Affidavit ¶¶, 28-35.) Even if Martinez had a strong incentive to destroy any evidence of the alleged schemes, the Court concludes the information in the Affidavit provided the Magistrate Judge with a substantial basis to conclude that there was a fair probability that information would be in the residence and on computers and other electronic media, notwithstanding the passage of time.

A gap in time may not undermine the information contained in the warrant where "'a continuing pattern or other good reasons' suggest that the evidence sought remains in the location to be searched[.]" United States v. Grant, 682 F.3d 827, 835 (9th Cir. 2012) (quoting Lacy, 119 F.3d at 746). Agent Kim included information about Martinez' prior conviction for bank fraud and advised the Magistrate Judge that Martinez had been released from custody in December 2016. (Affidavit, ¶ 11.) The alleged criminal activity described in the search warrant began in June 2017, continued into 2018, and included a fraud conviction in 2019.

In evaluating the totality of the circumstances, a magistrate judge can consider reasonable inferences to determine whether an affidavit sets forth probable cause to believe that evidence of crime will be found at a particular location. See United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007). Although Martinez had been in fugitive status following his most recent conviction, based on the information about his prior charge and the continuing criminal conduct, it would have been reasonable for the Magistrate Judge to infer that evidence of that criminal activity would be found in Martinez's home. In addition, although Agent Kim's description of his experience with the modus operandi of individuals involved in fraudulent financial crimes is not directed specifically to Martinez, the Court also concludes there was a substantial basis for the Magistrate Judge to conclude there was a nexus between that general information and Martinez.

Based on the totality of the circumstances, and according the deference due to the Magistrate Judge's determination, the Court concludes the warrant was supported by probable cause. Accordingly, the Court DENIES the motion on that basis.

B. The Warrant Is Not Overbroad.

Martinez also argues the warrant was overbroad because "it authorized the seizure of all electronic data without time limitation and regardless of ownership." (Mot. at 4:5-6.) "The Fourth Amendment's specificity requirement prevents officers from engaging in general, exploratory searches by limiting their discretion and providing specific guidance as to what can and cannot be searched and seized." United States v. Adjani, 452 F.3d 1140, 1147 (9th Cir. 2006). "In order for a search to be reasonable, the warrant must be specific." In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 856 (9th Cir. 1991); see also United States v. SDI Future Health, Inc., 568 F.3d 684, 702 (9th Cir. 2009). The "specificity" requirement consists of "'two aspects': 'particularity and breadth.... Particularity is the requirement that the warrant must clearly state what is sought. Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based.'" SDI Future Health, 568 F.3d at 702 (quoting In re Grand Jury Subpoenas, 926 F.2d at 856-57).

To determine if a warrant is sufficiently particular, the Court considers "the particular circumstances and the nature of the evidence sought." Adjani, 452 F.3d at 1147. "[I]f a more precise description of the items subject to seizure is not possible," the fact that a warrant "describes generic items does not necessarily render it invalid." Id. at 1147-48 (internal quotations and citations omitted). There are several factors a court may consider to determine whether a warrant is overbroad:

(1) whether probable cause exists to seize all items of a particular type described in the warrant; (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not; and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.

A warrant is overbroad if it fails to establish "probable cause to seize the particular thing[s] named in the warrant," and courts will invalidate warrants "authorizing a search which exceeded the scope of the probable cause shown in the affidavit." In re Grand Jury Subpoenas, 926 F.2d at 857. For example, in the SDI Future Health case, the court found that certain categories of items to be seized were overly broad, because the warrant failed "to describe the crimes and individuals under investigation" and, as a result, "provided the search team with discretion to seize records wholly unrelated to the" defendants' finances. 568 F.3d at 705.

The Ninth Circuit also concluded a warrant was overbroad in Center Art Galleries-Hawaii, Inc. v. United States, 875 F.2d 747, 750-51 (9th Cir. 1989). In that case, the affidavit provided probable cause to search for evidence of mail and wire fraud involving the sale of forged Salvador Dali artwork. However, the court found that the "government ... failed to limit the warrants to items pertaining to the sale of Dali artwork despite the total absence of any evidence of criminal activity unrelated to Dali." Id. at 750. Because approximately 80% of the plaintiff's business concerned non-Dali art, the court also concluded that the "permeated-by-fraud" theory would not justify such a broad seizure of documents. Id.; see also United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) (generalized seizure of business records was not justified where affidavit failed to establish that business was permeated by fraud and "none of the ... categories of seizable documents was limited by reference to any alleged criminal activity").

Agent Kim attested that, as part of the activities giving rise to probable cause, Martinez responded to advertisements on Craigslist and on a mobile software application and that Martinez sent and received text messages. Agent Kim also stated that Martinez created a counterfeit check. (Affidavit, ¶¶ 20, 22-23.) Those facts, in combination with information Agent Kim provided about how individuals who engage in financial crimes store information, would have given the Magistrate Judge a reasonable basis to conclude that evidence of criminal activity would be found on computers and other electronic storage media. Therefore, those facts demonstrate probable cause to seize those types of items.

Martinez argues the warrant is overbroad because it contains no temporal limits, which pertains whether the warrant described with particularity the items to be seized. See Kow, 58 F.3d at 427. Although Agent Kim's Affidavit sets forth a time frame surrounding the alleged criminal activity, Attachment B to his Affidavit and the warrant does not include that time frame. In addition, Paragraph 7 of Attachment B does not explicitly reference the crimes at issue.

However, unlike the warrants at issue in SDI Future Health and Kow, the remaining paragraphs of Attachment B do specify that the types of evidence to be seized relate to bank fraud and access device fraud, and Martinez has not argued those paragraphs are overbroad. In addition, Paragraph 3 refers to Martinez and to entities that were alleged victims of those crimes. The reference to the "specific illegal activity" at issue would "provide substantive guidance for the [officers'] exercise of discretion in executing the warrant." Spilotro, 800 F.2d at 964. The Affidavit and the Warrant also included a "Protocol for Searching Devices or Media that Store Data Electronically." (Affidavit, Att. C; Warrant, Att. C.) Those Protocols would also "provid[e] executing officers with sufficient objective standards for segregating responsive material from" non-responsive material on Martinez's computers and electronic media. See Flores, 802 F.3d at 1044 (finding that procedures for electronically stored information attached to warrant suggested warrant was not overbroad). Therefore, although Attachment B did not include a specific time period, the Court concludes that does not render it facially overbroad.

Martinez also argues the warrant is overbroad because it did not place any limits on ownership of computers or electronic storage devices. The Court does not find this argument persuasive. In Adjani, the Ninth Circuit stated it had "never held that agents may establish probable cause to search only those items owned or possessed by the criminal suspect. The law is to the contrary." 452 F.3d at 1146. Rather, "[t]he critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought." Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978).

Accordingly, the Court concludes that the warrant is not overbroad, and it DENIES the motion to suppress on that basis as well.

C. Good Faith Exception.

In the alternative, if the warrant could be considered overbroad, the Court concludes the Government has met its burden to show suppression is not warranted based on the good faith exception set forth in United States v. Leon, 468 U.S. 897, 916 (1984). That exception is satisfied if an officer acts 'in objectively reasonable reliance' on the warrant." United States v. Underwood, 725 F.3d 1076, 1085 (9th Cir. 2013) (quoting Leon, 468 U.S. at 922).

The good faith exception is not available if an affidavit is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" or "where the warrant is 'so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid." Id. (quoting Leon, 468 U.S. at 923). The Court finds the Affidavit is not the type of "bare bones" affidavit for which the Leon good faith exception would not apply. See, e.g., Underwood, 725 F.3d at 1086 (finding good faith exception did not apply where, inter alia, affidavit contained no facts to support a conclusion that defendant was a drug trafficker and, therefore, affiant's opinions about drug traffickers in general could not be used to support finding of probable cause). The Court also concludes that although the warrant did not include a time limit in Attachment B, in light of the inclusion of the types of crimes at issue, it is not so facially deficient in its particularity that it would have been unreasonable for an executing officer to presume the warrant was valid. // //

CONCLUSION

For the foregoing reasons, the Court DENIES the motion to suppress, and it CONTINUES this matter to June 23, 2020 at 1:15 p.m. for a telephonic status conference with counsel to discuss scheduling. The parties shall dial by no later than 1:00 p.m., and the access number is 1-888-684-8825 (password 8583698#). If the parties believe the time between the date of this Order and the date of the status conference should be excluded from the Speedy Trial Act calculation, they shall submit a stipulation and proposed order to the Court by June 16, 2020.

If Defendant is not willing to waive his appearance at this status conference, the parties shall meet and confer and submit a stipulation and proposed order setting forth alternative dates and times for a telephonic or video appearance by 12:00 p.m. on June 16, 2020.

IT IS SO ORDERED. Dated: June 8, 2020

/s/_________

JEFFREY S. WHITE

United States District Judge