United States v. Foster

1

UNITED STATES OF AMERICA, Plaintiff, v. LUKE EDWARD FOSTER, Defendant.

No. 3:21-CR-000114-SLG-MMS

United States District Court, D. Alaska

November 17, 2022

FINAL REPORT AND RECOMMENDATION ON MOTION TO SUPPRESS [DKT. 36]

MATTHEW M. SCOBLE CHIEF U.S. MAGISTRATE JUDGE

I. MOTION PRESENTED

The indictment, filed in December 2021, charges Luke Edward Foster with one count of distribution of controlled substances,^[1]one count of possession of controlled substances with intent to distribute,^[2]and one count of possession of firearms in furtherance of a drug-trafficking crime.^[3]Foster moves to suppress all the evidence following a June 2021 search warrant on several bases: (1) a tower dump is a search under the Fourth Amendment; (2) tower dumps should be subject to constitutional safeguards; (3) the search warrant was an unlawful search “of historical cell site location information (CSLI) of all individuals whose phones connected to several cell-phone towers during designated periods”; because the search warrant was (4) stale; (5) lacked particularity; (6) the evidence following the tower dump is fruit of the poisonous tree; and (7) Leon's good-faith exception does not apply. See generally Dkt. 36.

The government responds that (1) a warrant was not required for the tower dump because there was no search under the Fourth Amendment; (2) the search warrant established probable cause; (3) the search warrant “described a narrow and specific group of records”; (4) Foster's constitutional rights were safeguarded; (5) Foster lacks standing to challenge law enforcement activity on behalf of others; and (6) the Leon good-faith exception would nonetheless apply. See generally Dkt. 42.

This Court, in September 2022, denied Foster's request for an evidentiary hearing, and instead held oral argument. Dkt. 44; Dkt. 45. The facts are drawn from law enforcement reports, from the search warrant, and from the parties' briefs. Dkt. 36; Dkt. 36-1 to 36-4; Dkt. 42.

This Court hereby issues its Final Report and Recommendation regarding Foster's Motion to Suppress. Dkt. 36. For the reasons below, Foster's Motion to Suppress should be DENIED. 28 U.S.C. § 636(b)(1)(B).

II. FACTUAL HISTORY

A. Swastika Stickers

A lasting symbol of the Nazi regime has been the swastika. As the Ninth Circuit has noted, “[r]egardless of its ancient or historic origins, the swastika today is a potent symbol of intolerance, hatred, and violence.” Dickinson v. Austin, 942 F.2d 791 (9th Cir. 1991); see also https://www.adl.org/resources/hate-symbol/swastika (“Since 1945, the swastika has served as the most significant and notorious of hate symbols, anti-Semitism, and white supremacy ... In the United States, the swastika is overwhelmingly viewed as a hate symbol.”).

Perhaps motivated by the anniversary of George Floyd's murder, an individual, now identified as Foster, placed swastika stickers at different locations around Anchorage in the early morning hours of May 25, 2021. Dkt. 36-2 at 12-18; Dkt. 42 at 4.

The first location was the Alaska Jewish Museum. Dkt. 36-1 at 1-2; Dkt. 36-2 at 1214. A review of the museum's video cameras showed that around 2:00 a.m., a “Toyota RAV4 [drove] erratically” through the parking lot before Foster mounted a one-wheeled scooter to place three to four swastika stickers around the museum. Id.; Id. The video camera showed Foster wearing sandals and dark-colored clothing. Dkt. 36-2 at 11-12. Foster, at one point, “raise[d] a middle finger to the surveillance camera. The surveillance footage” showed Foster “using a cell phone to possibly take photographs of some of the stickers after they were placed and to send what appear to be text messages.” Dkt. 36-1 at 2; Dkt. 36-2 at 12-13. The Alaskan Jewish community felt “threatened” and in fear for their lives. Id. at 14-15.

The second location was the Planned Parenthood Clinic. Dkt. 36-1 at 6; Dkt. 36-2 at 15. From 2:21 a.m. to 2:26 a.m., Foster was recorded on surveillance video, alleged to be driving the same RAV4 and in the same clothing, “appearing] to be aware of the locations of surveillance cameras and made gestures towards them several times.” Id.; Id.

The third location was the University of Alaska. Id. at 8; Id. at 17. Although video cameras did not capture Foster's every movement, it appears that Foster placed about six stickers from 2:29 a.m. to 2:35 a.m. Id.; Id.

The fourth location was a bank, with traffic cameras recording Foster, or someone similar to Foster, placing stickers around the bank. Id.; Id.

The fifth location was a LGBTQ+ friendly bar. Id. at 2-3; Id. at 16. In the same clothing and on the same one-wheeled scooter, Foster placed about four swastika stickers around 2:47 a.m. Id.; Id. It is alleged that Foster “executed a Nazi-style salute, raised a middle finger to the security camera, and rode away.” Id.; Id. The bar's manager believed that the stickers were explicit threats of intimidation because Nazis have historically persecuted LGBTQ+ members. Id.; Id. at 16-17. A local politician also phoned the Federal Bureau of Investigation to report the stickers as “a potential hate incident.” Dkt. 36-1 at 2.

The sixth location was at an intersection at Old Seward Highway and Dimond Boulevard. Dkt. 36-1 at 5; Dkt. 36-2 at 17. There was no video recording of the sticker placement. Id.; Id.

On May 27, the FBI opened an investigation to inquire into whether federal hate crimes had been violated, as there was “an articulable factual basis that an unknown male subject defaced religious property because of the ethnic characteristics of individuals associated with that religious property and obstructed by threat of force [ sic ] individuals' enjoyment of religious beliefs. Dkt. 36-1 at 1-3 (internal quotations omitted).

The last location occurred that same day, May 27. Dkt. 36-2 at 18. It was alleged that a swastika sticker was placed on a vehicle while the vehicle's owner was at a local park. Id. After noticing the sticker, and aware of the previous sticker incidents, the vehicle's owner notified law enforcement. Id.

B. Tower Dump Search Warrant

In June 2021, FBI Special Agent Kirk Oberlander applied for three 18 U.S.C. § 2703(c)(1)(A) warrants for “[r]ecords and information associated with communications to and from cellular antenna towers (“cell towers”) that service the identified addresses on the identified dates and timeframes [ sic ] that are within the possession, custody, or control of [telephone companies].” Dkt. 36-2 at 3; Dkt. 36-3 at 3; Dkt. 36-4 at 3.^[4]SA Oberlander believed there was probable cause that several statutes had been violated: 18 U.S.C. §§ 245, 247, and 248. Dkt. 36-2 at 9. Otherwise known as “tower dumps,” such warrants are a “download of information on all the devices that connected to a particular cell site during a particular interval.” Carpenter v. United States, 138 S.Ct. 2206, 2220 (2018). The tower dump information here consisted of: (1) a cell phone number and unique identifiers for each cell phone that were within the area of the cell tower; (2) the sector of the relevant tower that catalogued a radio signal from “the locally served wireless device”; and (3) “the date, time, and duration of each communication.” Dkt. 36-2 at 4-5, 9-10; Dkt. 42 at 3-4; see also Carpenter, 138 S.Ct. at 2211-2212 (describing cell site data). SA Oberlander's application, in other words, sought identifying information for all phones within the geographical ambit of eight cell towers, near the seven vandalized locations, for limited identified hours on May 25 and May 27:

Service Location

Date

Time frame

Alaska Jewish Museum

May 25, 2021

1:50 a.m. - 2:10 a.m.

Planned Parenthood

May 25, 2021

2:10 a.m. - 2:30 a.m.

University of Alaska

May 25, 2021

2:20 a.m. - 2:45 a.m.

University of Alaska

May 25, 2021

2:20 a.m. - 2:35 a.m.

Bank

May 25, 2021

2:26 a.m. - 2:46 a.m.

LGBTQ+ Bar

May 25, 2021

2:36 a.m. - 2:57 a.m.

Old Seward Hwy. And Dimond Blvd. Intersection

May 25, 2021

1:15 a.m. - 3:45 a.m.

Local Park

May 27, 2021

10:00 p.m. - 11:30 p.m.

Id. at 3.

After describing his qualifications and law enforcement experience, SA Oberlander stated that he generally understood that cell phones are used for criminal activity, including logistics, and that cell phones are generally used while a crime is being committed. Id. at 7-9. This was relevant for probable cause purposes because “the surveillance video depict[ed] [Foster] using a cellular telephone at the Anchorage Jewish Museum.” Id. at 19. SA Oberlander attested that the tower dump information had a minimized scope, was limited in time frames, and the commercial nature of the locations would also lessen the amount of third-party data collection. Id. at 19-20.

This Court, in June 2021, granted the three warrants. Dkt. 36-2 to 36-4.

C. Further Investigation into Foster

Using information derived from these three warrants, law enforcement identified Foster as a potential suspect because Foster's cell phone, registered under his parent's name, had connected to all eight cell towers. Dkt. 36-1 at 13-14. Of the cell phone numbers provided by the tower dumps only Foster's had connected to all eight towers in the relevant time frames. “[T]wo numbers [also] hit on six of the towers and an additional 10 numbers hit on five of the towers.” Id. There was reason to believe that Foster used that particular cell phone because a 2018 police report filed by Foster had the cell phone number listed as contact information. Id. at 18-19. Further investigation revealed that Foster owned a Toyota RAV4. Id. at 18-19. More swastika stickers were placed at the Alaska Jewish Museum in September 2021. Id. at 41. There was also a public intersection vandalized with swastika graffiti. Id. at 40. Video...