United States v. Cortez

108 F.4th 1

UNITED STATES, Appellee, v. Damian CORTEZ, Defendant, Appellant.

No. 23-1029

United States Court of Appeals, First Circuit

July 11, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Leo T. Sorokin, U.S. District Judge]

Sara E. Silva, with whom Silva Kettlewell & Pignatelli LLP was on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

Before Montecalvo, Lynch, and Rikelman, Circuit Judges.

LYNCH, Circuit Judge.

Following the denial of his two motions to suppress evidence seized pursuant to two different search warrants, Damian Cortez conditionally pled guilty, first, to conspiracy to distribute and to possess with intent to distribute controlled substances, and second, to possession with intent to distribute four hundred grams or more of fentanyl. The government was prepared to introduce evidence at trial that Cortez had participated in such a conspiracy as a member of a Massachusetts gang known as "NOB."

Cortez appeals from the district court's denial of his second motion to suppress evidence seized, pursuant to a warrant targeting a RICO conspiracy, from an apartment in which the government asserted Cortez was residing. The court rejected Cortez's contention that the affidavit supporting the warrant application did not establish probable cause either that Cortez was an associate in a RICO conspiracy or that Cortez was residing in the apartment (especially in light of an earlier warrant affidavit asserting it was likely he lived elsewhere). The court denied his request for a Franks hearing, which he also appeals. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We affirm.

I. Background

In May 2020, Detective Brian Ball of the Boston Police Department applied for a search warrant to search two cell phones believed to belong to Cortez. In his supporting affidavit, Ball said he had been "assigned to the Boston Police Youth Violence Strike Force (Gang Unit)," and he described a "multi-agency investigation into the criminal activities of a criminal organization known as the 'Wendover Street Gang' and a subset of the Wendover gang referred to as 'NOB.' " NOB/Wendover gang members and associated persons, including Cortez, were "being investigated for offenses involving, amongst others, racketeering conspiracy, . . . violent crimes in aid of racketeering, . . . possession of firearms in furtherance of crimes of violence, . . . and possession of firearms and ammunition by convicted felons . . . ." The affidavit stated:

NOB/Wendover members and associates have been involved in numerous shootings and violent altercations throughout the greater Boston area with rival gangs . . . . NOB/Wendover members and associates have admitted to law enforcement and others that they obtain illegal drugs and firearms from within the state of Massachusetts and other states. During this time period, numerous NOB/Wendover members and associates have been arrested for various crimes, including homicide, possession with intent to distribute illegal drugs, illegal possession of firearms and ammunition, robbery, assault and others.

The affidavit further stated that, on April 28, 2020, detectives had observed a man, later identified as Cortez, driving a white 2020 Chevrolet Malibu while illegally using his cell phone. The detectives attempted to conduct a traffic stop, but the driver "sped away at a high rate of speed, with the detectives following," and then "struck a parked vehicle," at which point the driver "fled the accident on foot." Law enforcement, based on a search of the Massachusetts Registry of Motor Vehicles License photo database and the discovery in the vehicle of a prescription bottle with Cortez's name on the label, identified Cortez as the operator who had fled. The officers found two cell phones in the car. A bag of off-white powder found in "C[ortez]'s flight path as he ran from the crashed Malibu the previous day" was reported by a neighborhood resident. The bag "tested positive for [f]entanyl."

Detective Ball's May affidavit stated that there was probable cause to believe Cortez was a member/associate of NOB/Wendover and that the cell phones would contain "evidence, fruits and instrumentalities of the" offenses targeted by the warrant, and described the previous incidents and investigations which supported this conclusion. Among these, "[i]nvestigators ha[d] monitored a pole camera placed near C[ortez]'s home . . . in Randolph," and had observed Cortez engaging in "quick encounters and frequently entering[ ] and exiting [the Randolph location] for short time periods," behavior that Ball stated "is consistent with someone engaging in drug distribution." The search of the cell phones and further investigation produced more evidence implicating Cortez. The warrant was issued by a Magistrate Judge on May 6, 2020.

In June 2020, Detective Ball sought a separate warrant to search an apartment in Attleboro, Massachusetts, where investigators had cause to believe Cortez was residing at the time. The application listed as the target offense of the search "RICO conspiracy," 18 U.S.C. § 1962(d). Ball's supporting affidavit repeated much of the information that was included in the May affidavit about the multi-agency investigation into NOB, and added that there was probable cause to believe that the Attleboro apartment "contains evidence, fruits, and instrumentalities of" Cortez's involvement in a RICO conspiracy with other NOB members/associates.

To support the assertion that Cortez was involved in a RICO conspiracy, the affidavit stated that, "[p]er the ongoing investigation, Cortez has been identified as working with NOB members/associates to commit crimes, including drug trafficking, sex trafficking, and arson." Ball described Cortez's arrest and charges in Maine with other NOB member/associates for sex trafficking, that "one of the sources of [drug] supply utilized by NOB members/associates . . . is . . . Cortez's brother," and that in February 2020,

Cortez and other NOB members/associates were observed in a black Honda Fit vehicle that has been associated with a[n] NOB-related murder . . . . [which] occurred on February 8, 2020[,] in Brockton, MA. The suspects in the murder were captured on surveillance video travelling in tandem to the crime scene and leaving the area of the crime scene in two vehicles, [one of which was] the black Honda Fit. The black Honda Fit was also observed parked at the home of Cortez's parents . . . in Randolph, MA, on February 25, 2020. Based on [his] training and experience, [Ball] believe[d] the vehicle was being kept at the Randolph location to avoid detection by law enforcement.

As further support, the affidavit stated that there was "probable cause to believe that Cortez [had] committed a gang-related arson in furtherance of NOB's criminal activities on or about February 25, 2020, in Abington, MA. Based on a review of video footage recovered by investigators, Cortez set fire to a silver Honda Accord," a vehicle that "had been stolen by NOB members/associates" earlier in the month, and whose theft had also involved the kidnapping of a five-year-old child. Ball stated that, "[b]ased on [his] training and experience, [he] believe[d] that Cortez destroyed the vehicle to hinder law enforcement efforts to recover forensic evidence from the vehicle which could be used to connect NOB members/associates to the carjacking/kidnapping."

Detective Ball additionally provided, as evidence of Cortez's involvement in a RICO conspiracy, information that had been gathered from the search of the two cell phones which had been authorized by the Magistrate Judge in May. Investigators had observed that

[m]any of Cortez's text messages were sent to drug suppliers, in efforts to obtain narcotics, and to buyers, in efforts to re-distribute narcotics. Many of these messages contained efforts to pay and collect drug debts from various individuals. In messages in mid-March 2020, Cortez communicated with NOB member Anthony Depina about obtaining marijuana. In addition, investigators also have identified numerous communications between Cortez and NOB member Moses Cabral. Included were communications between . . . Cortez and Cabral, dated April 28, 2020, which support that, prior to being involved in the [April 28] hit and run, . . . Cortez had met with Cabral and "re-upped," acquiring from Cabral the fentanyl found abandoned in the driveway along Cortez's flight path the following day.

As to the nexus to the Attleboro apartment sought to be searched, the affidavit stated that, based on law enforcement's continuing investigation of Cortez, "there is probable cause to believe that [he] is residing at the [Attleboro apartment], which is a location associated with Anthony Depina, an NOB member/associate, who is one of Cortez's close associates. Based on the investigation, Depina allows Cortez to stay at the [Attleboro apartment] . . . ."

To support that Cortez was "residing" then at the Attleboro apartment, Detective Ball stated that "GPS data for the phone which Cortez used for drug-related communications showed that the phone was regularly located at the [Attleboro apartment]." Indeed, that phone included photographs which the phone's metadata established "were taken from inside the [apartment] and showed the interior of the apartment," and the photographs revealed that "Cortez [was] resid[ing] on the top" apartment of the building, the apartment which was the target of the requested search. The affidavit stated:

Investigators conducting surveillance of the [apartment] have observed Cortez there on numerous occasions over an extended period of time. Cortez has frequently been observed entering and exiting [the building], usually through the rear door. Cortez was observed at [the building] within the last two weeks. Cortez's vehicle, a white Chrysler

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