DEFENDANT PHILIP ESFORMES MOTION TO SUPPRESS EVIDENCE OF WARRANTLESS SEIZURES AND INCORPORATED MEMORANDUM OF LAW

Transcription

1 Case 1:16-cr JAL Document 261 Entered on FLSD Docket 04/07/2017 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO CR-LENARD/OTAZO-REYES(s)(s) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) PHILIP ESFORMES, et al., ) ) Defendants. ) ) DEFENDANT PHILIP ESFORMES MOTION TO SUPPRESS EVIDENCE OF WARRANTLESS SEIZURES AND INCORPORATED MEMORANDUM OF LAW The defendant, PHILIP ESFORMES, rough undersigned counsel, respectfully moves is Court, pursuant to Rule 12(b)(3)(C) of e Federal Rules of Criminal Procedure and e Four Amendment to e United States Constitution, for an order suppressing all evidence, direct and derivative, from e warrantless seizures from e Defendant s home following his arrest ere on July 22, 2016, including but not necessarily limited to: (1) ree cellular telephones and eir contents; (2) a black note book; and (3) a page from a note pad. The Defendant furer moves for an evidentiary hearing on is motion. In support of ese requests, e Defendant states e following: 1. On July 22, 2016, e government arrested Mr. Esformes at is home, Collins Avenue, Sunny Islands, Florida. 2. After arresting Mr. Esformes, law enforcement officers seized from anoer room in his residence (a) ree cellular telephones; (b) a black appointment book (which e Prosecution

2 Case 1:16-cr JAL Document 261 Entered on FLSD Docket 04/07/2017 Page 2 of 9 Team now characterizes as Mr. Esformes work book ); and (c) a note pad wi hand-written notations. 3. The Prosecution Team did not have a search warrant for Mr. Esformes residence, even ough e day before, on July 21, 2016, e Prosecution Team obtained a search warrant for Eden Gardens, one of e Assisted Living Facilities associated wi Mr. Esformes. 4. To is day, e Prosecution Team has never sought or obtained search warrants for e Collins Avenue residence or for any of Mr. Esformes previous residences. 5. There were no exigent circumstances to support ese warrantless seizures. See generally Riley v. California, 134 S. Ct (2014) (holding at warrantless seizures of cell phones and data were not justified as searches incident to arrest because e phones could not be used as weapons to harm arresting officers and endangered no one). See also United States v. Zavala, 541 F.3d 562 (5 Cir. 2008). 6. On August 12, 2016, e Prosecution Team belatedly applied for and obtained a warrant to search e contents of e phones and e work book. The Application asserted at e warrantless seizures were justified under e plain view doctrine because e phones and book 1 were lying in plain view on top of a desk located in e [home] office. See Exhibit 1, at p The fact at Mr. Esformes used cellular telephones, however, did not justify e warrantless seizures under e plain view doctrine. An officer may seize evidence at is in plain view despite e failure to obtain a search warrant if two elements are satisfied: (1) lawful access to e object seized, and (2) e incriminating nature of e object seized is immediately apparent. United States v. Hromada, 49 F.3d 685, 690 n. 11 (11 Cir.1995) (citing Horton v. California, In its Application for e warrant, e Prosecution Team did not claim at e seizures were justified under an incident to arrest eory. Nor could it have done so under Riley. -2-

3 Case 1:16-cr JAL Document 261 Entered on FLSD Docket 04/07/2017 Page 3 of 9 U.S. 128, (1990)). Even if e phones and book were located in a place where e officers were lawfully present an assumption Mr. Esformes does not concede e incriminating nature of e phones could not have been immediately apparent. As e Supreme Court correctly observed in Riley, modern cell phones... are now such a pervasive and insistent part of daily life at e proverbial visitor from Mars might conclude ey were an important feature of human anatomy. Riley, 134 S.Ct. at 2484; see also id. at 2489 (citing a poll showing at nearly ree-quarters of smart phone users report being wiin five feet of eir phones most of e time, wi 12% percent admitting at ey even use eir phones in e shower ) (citation omitted). 8. The immediately apparent requirement is a vital constraint on e plain view doctrine exception to e Four Amendment warrant requirement. United States v. Garcia, 496 F.3d 495, 510 (6 Cir. 2007). This constraint prevents law enforcement officers from engaging in a general exploratory search, obviating e Four Amendment requirement of a particularized warrant. Id., citing Horton, 496 U.S. at ; Arizona v. Hicks, 480 U.S. 321, 334 (1987) (O Connor, J. dissenting) ( The purpose of e immediately apparent requirement is to prevent general, exploratory rummaging in a person s belongings ). Accordingly, courts should avoid diminishing e streng of is requirement at e risk of jeopardize[ing] fundamental Four Amendment principles. Id. 9. The incriminating nature of an item is immediately apparent if e officers have probable cause to believe at e item is eier evidence of a crime or contraband. United States v. Buchanan, 70 F.3d 818, 826 (5 Cir. 1995) (citing Hicks, 480 U.S. at If, however, e police lack probable cause to believe at an object in plain view is [evidence of a crime or] contraband wiout conducting some furer search of e object i.e., if its incriminating character -3-

4 Case 1:16-cr JAL Document 261 Entered on FLSD Docket 04/07/2017 Page 4 of 9 [is not] immediately apparent e plain-view doctrine cannot justify its seizure. United States v. Lall, 607 F.3d 1277, 1291 (11 Cir. 2010) (quoting Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)); accord Hicks, 480 U.S. at In e August 2016 search warrant Application, e Prosecution Team asserted at at e time of e seizures, [l]aw enforcement ha[d] not searched, analyzed, or reviewed e phone in any way. See Exhibit 1, at pp That assertion, however, was contradicted by e Application itself, as e Prosecution Team claimed at it had probable cause to seize e phones because e agents discovered at e serial numbers of two of e phones were registered to Mr. Esformes wi eier Verizon or AT&T. Id. at When Mr. Esformes was arrested, his phones were lying flat wi e screen side facing up. Serial numbers on his phones are etched on e back side, in print so small at it is barely legible wiout a magnifying glass. Agents would have had to pick up e phones, turn em over, and view and analyze e backs to detect e minuscule serial numbers (perhaps using a magnifying glass). In oer words, e only way at e agents could have known e serial numbers of e phones was by search[ing], analyz[ing], or review[ing] em. Accordingly, e serial numbers cannot be used to justify e seizures. See United States v. Jackson, 155 F. Supp. 3d 1320, 1333 (S.D. Fla. 2014) (suppressing cell phones where ere was no evidence point[ing] to e incriminating nature of e cell phones and e contents of backpack, since e plain view doctrine cannot be applied to allow e admission of e contents of e backpack beyond what was plainly visible to e officers during e protective sweep ), aff d, 618 Fed. Appx. 472 (11 Cir. 2015) (per curiam). -4-

5 Case 1:16-cr JAL Document 261 Entered on FLSD Docket 04/07/2017 Page 5 of The Application attempted to bootstrap additional facts in support of e allegation of probable cause by observing at on June 8, 2015, Gabriel Delgado contacted Esformes on cellular telephone number (224) at 9:51 and had an allegedly incriminating conversation. See Exhibit 1, at p. 15. However, at call was made by Delgado at e Prosecution Team s request for e very purpose of soliciting such statements. The Prosecution Team cannot concoct an incriminating phone call and later attempt to use at as proof at it knows at Mr. Esformes uses his phones to talk wi alleged co-conspirators. In any event, e Prosecution Team had no evidence at any of e ree phones found in Mr. Esformes home were e same as e one used by Mr. Esformes to answer Delgados government-instigated call. 13. An analogous situation occurred in Hicks, where law enforcement officers searched e defendant s apartment after learning at a bullet was fired rough e defendant s floor, injuring his downstairs neighbor. Hicks, 480 U.S. at 323. As e search was justified only by e exigent circumstances surrounding e gunshot, its scope was limited to a search for e shooter, victims, or weapons. Id. at However, upon entering e apartment, e officers noticed expensive stereo equipment, out of place in e oerwise ramshackle apartment. Id. at 325. Suspecting at e property might have been stolen, e officers moved e stereo equipment to expose e serial number. The Supreme Court held at by doing so, officers produced a new invasion at must itself be justified by probable cause. Id. at [T]aking action, unrelated to e objectives of e auorized intrusion, which exposed to view concealed portions of e apartment or its contents, did produce a new invasion of [e defendant s] privacy unjustified by e exigent circumstances at validated e entry. Id. at 325. The incriminating nature of e stereo equipment was not -5-

6 Case 1:16-cr JAL Document 261 Entered on FLSD Docket 04/07/2017 Page 6 of 9 immediately apparent. Finding at no probable cause existed to conduct is new search of e equipment, e Court affirmed e decision to suppress e evidence. Id. 14. Since e steps taken in Hicks to find and analyze e serial numbers could not be used to justify e seizure under e plain view doctrine, e steps taken by e agents in is case to identify e serial numbers of e phones could not be used to justify eir seizure eier. 15. The Application also alleges at before seizing e phones, e agents observed at two of e ree phones contained e same text message e contents of which was not alleged to have been incriminating. The Affidavit claims at e message came from someone wi e same last name as a person identified only as a Patient Recruiter who allegedly was known by agents to refer patients to Esformes and his network of facilities in exchange for illegal bribes and kickbacks. Exhibit 1, at p. 17. Since e Application does not claim at e message itself was incriminating, we fail to see how at observation amounts to anying. 16. In any event, e agents did not even know at e identity of e sender was e same person as e alleged Patient Recruiter. Just e last names (not identified in e Application) allegedly matched. However, even assuming arguendo at e person who sent e text message was, in fact, e Patient Recruiter a fact which e agents had not confirmed before seizing e phones e only reason e agents believed at e Patient Recruiter was a criminal patient recruiter at all came only from a tip originating from an unidentified complaining physician stating at Patient Recruiter 1 recruited patients to serve as purported patients at Esformes ALFs and SNFs. Id. In addition to not even identifying e physician in question, ere was no indication in e Application at e tip had ever been corroborated or at e tipster-physician was known -6-

7 Case 1:16-cr JAL Document 261 Entered on FLSD Docket 04/07/2017 Page 7 of 9 to be reliable. Thus, e observation of e last name alone did not create probable cause to seize e two phones. 17. No additional relevant information was alleged as to e ird phone. The Application just lumped e ird phone wi e oer two The incriminating character of e so-called work book was even less readily apparent. In United States v. Silva, 714 F. Supp. 693 (S.D.N.Y. 1989), e court found at e incriminating nature of e contents of a notebook was not apparent until law enforcement officers opened e notebook and inspected its contents. 714 F. Supp. at 696 (citing Hicks, 480 U.S. at ). Any act on e part of an agent beyond merely viewing what is already exposed would clearly constitute a search. Id. at 696 (emphasis added). As probable cause to open e notebook did not exist, e seizure of e notebook was improper. Id. at In e instant case, e Application alleged at e notebook was already open. The actual writing in e appointment book, however, was not visible to e naked eye because it was covered by oer ings on e desk. Accordingly, for e pages in e appointment book to have 2 The Application attempted to bolster e probable cause showing wi events at allegedly occurred long after e warrantless seizures had taken place. Thus, e Application asserted at while being transported to jail, Mr. Esformes --asked to use his ree Apple iphones to contact various family members and his attorney. Agents agreed to e request. Agents observed Esformes enter ree different passwords into each Cellular Phone 1, Cellular Phone 2, and Cellular Phone 3. Esformes unlocked each of e ree devices, and placed a variety of phone calls on em while in custody. Id. at p. 18 (emphasis added). We fail to see how calls made to family members and his attorney added anying to e probable cause calculus even if post-seizure activity could be used to justify an already-completed seizure and it cannot. At most, ese facts merely support an inference at e phones belonged to Mr. Esformes, an inference at already existed by virtue of e location of e phones in Mr. Esformes residence. -7-

8 Case 1:16-cr JAL Document 261 Entered on FLSD Docket 04/07/2017 Page 8 of 9 been in plain view, e agents would have had to first remove e materials on top. Thus, contrary to e allegations in e Application, e appointment book s pages were not in plain view at all. 20. Additionally, any purported incriminating nature of e pages in e work book was certainly not readily apparent. The entire workbook was turned over in discovery. Bo e book and e note pad contain handwritten scribbles which are virtually undecipherable. Noing incriminating could possibly be readily apparent. 21. The Application contained no justification at all for seizing e note pad and did not acknowledge at e note pad contained privileged material (perhaps because no one from e Prosecution Team could decipher e handwriting). CONCLUSION The warrantless seizure of e ree phones, e notebook, and e note pad, violated e Four Amendment. The seizures cannot be excused under eier e incident-to-arrest or plain view doctrines. Accordingly, e Court should suppress at evidence as well as any derivative evidence obtained as a result of e unconstitutional seizures. CERTIFICATION PURSUANT TO LOCAL RULE 88.9 Pursuant to e Local Rule 88.9, in a good fai effort was made to resolve e issues raised in e instant motion but opposing counsel indicated at e Government opposes e relief sought. CERTIFICATE OF SERVICE WE HEREBY CERTIFY at on April 7, 2017, is pleading was electronically filed wi e Clerk of Court using e CM/ECF and at is document is being served on all counsel of record by transmission of Notices of Electronic Filing generated by CM/ECF. -8-

9 Case 1:16-cr JAL Document 261 Entered on FLSD Docket 04/07/2017 Page 9 of 9 Respectfully submitted, CARLTON FIELDS 100 S.E. 2nd Street 4200 Miami Tower Miami, Florida Telephone: (305) Facsimile: (305) By: s/michael Pasano MICHAEL PASANO Florida Bar No TACHE, BRONIS, CHRISTIONSON & DESCALZO, P.A. nd 150 S.E. 2 Avenue, Suite 600 Miami, Florida Tel: (305) By: s/marissel Descalzo MARISSEL DESCALZO, ESQ. Fla. Bar. No Permanent Appearances for Philip Esformes BLACK, SREBNICK, KORNSPAN & STUMPF, P.A. 201 Sou Biscayne Boulevard Suite 1300 Miami, FL Tel: (305) Fax: (305) By: /s/ Roy Black ROY BLACK, ESQ. Fla. Bar No HOWARD SREBNICK, ESQ. Fla. Bar No JACKIE PERCZEK, ESQ. Fla. Bar No G. RICHARD STRAFER, ESQ. Fla. Bar No Limited Appearances for Philip Esformes -9-