ALBANY – U.S. Border agents, acting without a warrant, improperly downloaded information from the cellphones of two women they arrested near the Canadian border for aiding a man in the United States illegally, a federal judge ruled.
Judge Thomas McAvoy (See Profile) also determined that agents at the Champlain border crossing in northern New York violated the women’s constitutional rights by failing to have suspects sign statements acknowledging they were given their Miranda warnings and waived their rights before being interrogated.
Following McAvoy’s ruling in USA v. Alvarez, 8:13-cr-009 disallowing the cell phone records and the suspects’ statements, the Northern District U.S. Attorney’s Office dismissed the indictments against Yusdelmis Alvarez and Dianepsi Alvarez.
The women were stopped on Dec. 10, 2012 by agents at a Clinton County convenience store in Ellenburg, about 10 miles south of the U.S.-Canadian border, where Alexander Veloz-Lopez told the agents he expected his girlfriend to pick him up.
When the women arrived at the store, agents asked for identification and citizenship status. Though neither had proof of citizenship, both produced Florida driver’s licenses, according to McAvoy.
Yusdelmis Alvarez told the agents they had just visited the “mountains” and were on their way back to Florida, but agents took their driver’s licenses, cellphones and a global positioning system device from their vehicle. The agents asked the women to accompany them to the Champlain office, with one agent riding in an official vehicle ahead of their car and the other behind.
At the station, McAvoy said the agents opened the cellphones and extracted telephone numbers and messages. The agents acted without the women’s permission or warrants, the judge noted.
“These actions amounted to a search that was not justified by any exigent circumstance and not necessary to protect any officer’s safety,” the judge wrote.
According to McAvoy, the U.S. Court of Appeals for the Second Circuit has not yet ruled on the question of warrantless searches of cell phones. But he said the court held in United States v. Galpin, 720 F.3d 436 (2013), that the search of a computer hard drive was “akin to a residence in terms of the scope and quantity of private information it may contain” (NYLJ, July 3, 2013).
The Galpin court held that the potential for an “unbridled, exploratory search of a hard drive is enormous” and said warrant restrictions must be observed.
The same reasoning must be extended to searches of the smart phones McAvoy said, noting “Modern cell phones unquestionably qualify as computers.”
The judge said the manner in which the women were taken to the station and the loss of their car keys would lead a “reasonable person” to believe they could not “disobey the agents’ directions, terminate the interview, and leave.”
There was also insufficient evidence to show that the women were given Miranda warnings, as the border agents maintained, the judge said.
The court also questioned an interrogation technique used by Border Agent David Swan.
Swan acknowledged he sought to develop a “rapport” with suspects by chatting with them about general subjects before reading them their rights and asking them questions that produce inculpatory responses.
McAvoy said Swan’s testimony at a judicial hearing convinced him that “Swan used this tactic for more than the process of learning a little bit about a suspect, or even simply to put the suspect at ease.”
“Swan admitted that he worked for five to ten minutes with each of the Defendants in order to build ‘rapport,’ and then moved on to the questions to which he really wanted answers,” McAvoy wrote. “The Court is at a loss to understand how even five minutes of preliminary questioning could serve any purpose other than to move the Defendant towards answering questions that would establish guilt.”
That was especially the case with Alvarez, where the women’s relationship with Veloz-Lopez was crucial to their arrest, McAvoy said.
McAvoy ordered the women’s statements suppressed.
The judge declined the defendants’ attempt to suppress information from the GPS device. He said the suspects had only a “limited expectation of privacy’ with respect to the GPS because the information on it is “easily open to the public.”
“A GPS device found in a car, as this one was, is similar to a map found on the front seat of a car after an arrest,” McAvoy ruled. “The information is open and available to an officer’s observation, and was easily connected to the officer’s reasonable suspicions about the Defendants’ presence in the area.”
Each of the women were charged with one count of transporting an immigrant in the county illegally and one count of inducing illegal entry into the United States.
Veloz-Lopez told authorities that Yusdelmis Alvarez was his girlfriend. She acknowledged that, according to the ruling, but said she believed that he was in the United States legally.
Lawrence Elmen of FitzGerald Morris Baker Firth in Glens Falls and Heather Markette Brown Maure of the Wayne County Public Defenders Office represented Dianepsi Alvarez. Elmen said he believes cellphones were regularly seized and mined for information using the Cell-Brite program at the Champlain border agent station. He said he also believed a policy has been in force since at least June 2012 not to have people being questioned sign documents stating that they had been given their Miranda rights.
Assistant federal Public Defender Gene Primomo argued for Yusdelmis Alvarez. He predicted that revelations that border agents did not use written waivers of rights could prompt more litigation.
McAvoy, whose home chambers are in Binghamton, ruled from the bench in Albany on Feb. 13 and issued the written decision Feb. 18.
Assistant U.S. Attorney Edward Grogan, who prosecuted the case against the Alvarezes, filed a notice with the court on Feb. 17 indicating the government was dismissing the indictment .
@|Joel Stashenko can be reached at email@example.com.