United States v. Rivers

UNITED STATES OF AMERICA, Plaintiff, v. KAI RIVERS, Defendant.

Case No. 19-20492

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

June 3, 2021

Hon. Mark A. Goldsmith

OPINION & ORDER DENYING DEFENDANT'S MOTION TO COMPEL (Dkt. 213)

This matter is before the Court on Defendant Kai Rivers's motion to compel discovery pursuant to Federal Rule of Criminal Procedure 16 (Dkt. 213). The motion concerns partially redacted affidavits in support of two different search warrants. The first warrant was issued on May 17, 2019 and authorized the installation of a GPS tracker on a blue Hyundai. See GPS Warrant (Dkt. 213-2). The second warrant was issued on May 24, 2019 and authorized a search of Rivers's cell phone records for location information. See Cell Phone Warrant (Dkt. 213-3). Data from the GPS tracker were among the sources of information used to secure the cell phone warrant. See Cell Phone Warrant Aff. ¶ 14 (Dkt. 213-3).

Rivers argues that the GPS warrant affidavit "is so heavily redacted that Rivers cannot fairly assess whether the affidavit established probable cause." Mot. at PageID.1048 (Dkt. 213). Rivers seeks to determine whether the GPS warrant was unsupported by probable cause in order to determine whether he has a basis to seek exclusion of the fruits of the GPS warrant, i.e., the location information discovered through the subsequent cell phone warrant. Id. at 1048-1049. Rivers thus requests an order compelling the Government to produce the redacted portions of the search warrant affidavits.

In its response, the Government argues that Rivers is not entitled to the redacted information at this time due to the need to protect the identities of confidential informants. Resp. at 14-16 (Dkt. 220). Further, the Government argues, (i) Rivers lacks a reasonable expectation of privacy in the blue Hyundai to challenge the GPS warrant and (ii) the affidavit for the cell phone warrant supplied probable cause even without the information from the GPS tracker. Id. at 6-14. The Government is correct that, even without the information from the GPS tracker, the cell phone warrant affidavit supplied probable cause for authorization of the cell phone warrant. Consequently, Rivers would not be successful in bringing a motion to suppress information discovered as a result of the cell phone warrant insofar as such a motion were based on a lack of probable cause for issuance of the warrant. Rivers's motion to compel is, accordingly, denied.¹

I. BACKGROUND

As of May 2019, the FBI was investigating over 30 smash-and-grab robberies of jewelry stores that had occurred since August 2018 across the United States; each fit a similar description and involved the same modus operandi. GPS Warrant Aff. ¶ 5 (Dkt. 213-2); Cell Phone Warrant Aff. ¶ 6. In one such incident, on April 10, 2019, two males entered a Jared's Galleria of Jewelry store located in Columbia, South Carolina and used sledgehammers to smash the glass of the diamond case and steal diamonds therefrom. GPS Warrant Aff. ¶ 6. On May 8, 2019, another jewelry robbery occurred in Baton Rouge, Louisiana. Cell Phone Warrant Aff. ¶ 8.

The FBI's investigation revealed that many of the robberies were planned and coordinated from the Detroit area. GPS Warrant Aff. ¶ 5; Cell Phone Warrant Aff. ¶ 6. The FBI learned that for each of these robberies, typically two groups would drive to the robbery location from Detroit in two separate vehicles, one in a "clean" vehicle that was either properly registered or lawfully rented, and one in a stolen vehicle that could be ditched immediately after the robberies. Cell Phone Warrant Aff. ¶ 7.

An anonymous tipster provided information that an individual named Darrell Reed was coordinating the jewelry store robberies from Detroit. Id. ¶ 9. The tipster also provided that Rivers was the getaway driver of the clean vehicle for multiple out-of-state robberies, including the Baton Rouge robbery. Id. The tipster's information was corroborated by a cooperating witness, whom the cell phone warrant affiant, an experienced FBI Special Agent named Michael Baumgartner, described as "credible and reliable." Id. ¶¶ 9, 12. The cooperating witness also provided FBI agents with additional information. Id. ¶ 10. Specifically, he told agents that Reed, Rivers, and another individual, Devon Manquil Newby, were planning another out-of-state robbery in which a blue Hyundai would be used as the clean vehicle. Id. The cooperating witness also provided agents with Rivers's cell phone number. Id. ¶ 11. A search in the FBI database confirmed that this number belonged to Rivers; specifically, that Rivers had used that number during a money transfer scheme investigated by the FBI's San Francisco office. Id. ¶ 20.

The day after speaking to the cooperating witness, FBI agents conducted direct surveillance of the blue Hyundai. Id. ¶ 13. A teletype check of the vehicle's license plate revealed that it was registered to Enterprise. GPS Warrant Aff. ¶ 14. The agents were spotted surveilling the blue Hyundai. Cell Phone Warrant Aff. ¶ 13. On the same day, the renter of the blue Hyundai—unidentified in the redacted cell phone warrant affidavit—contacted Enterprise and asked to switch vehicles. Id.

On May 18, 2019, Magistrate Judge Elizabeth Stafford signed a search warrant authorizing the FBI to place a GPS tracker on the blue Hyundai. Id. ¶ 14; see also GPS Warrant. After the tracker was placed on the blue Hyundai, data from the tracker resulted in the identification of several locations of interest, including 9685 Woodbine in Redford, Michigan, Cell Phone Aff. ¶ 14, which is Rivers's address listed on his driver's license, id. ¶ 17.

On May 20, 2019, an Enterprise employee contacted one of the investigation agents and told him that the blue Hyundai was going to be exchanged for another vehicle. Id. ¶ 15. FBI agents went to the Enterprise rental location and saw the blue Hyundai being exchanged for a maroon Ford Escape. Id. Magistrate Judge David Grand issued a separate tracker warrant for the maroon Ford on May 20. Id. FBI agents conducted surveillance of this vehicle and observed it parked one house north of Rivers's 9685 Woodbine address. Id. ¶ 17.

The FBI sought a search warrant for Rivers's phone. In the affidavit in support of the warrant, Baumgartner attested that, based on the statements of the cooperating witness, surveillance by the FBI, and further investigation, he believed that Rivers had been involved and was continuing to be involved in the smash-and-grab robberies. Id. ¶ 21. Based on this information, Baumgartner attested, there was probable cause to believe that historical cell site information and call detail records going back to December 2018, when Rivers began participating in the smash-and-grabs, would provide evidence of these crimes. Id. ¶ 22. Magistrate Judge Anthony Patti signed the cell phone warrant on May 24, 2019. See Cell Phone Warrant at PageID.1097.

On July 24, 2019, Rivers was indicted for assisting Reed in the smash-and-grab robberies by helping to coordinate the robberies and driving to some of the Jared store locations outside of Detroit to supervise the robberies, in violation of 18 U.S.C. § 1951(a). See Indictment (Dkt. 27). Reed was indicted for leading the smash-and-grab robberies. Id. Subsequently, on September 25, 2019, Newby was also indicted for assisting Reed in the robberies by helping to coordinate the robberies and driving to some of the Jared store locations outside of Detroit. See 2d Superseding Indictment (Dkt. 76).

II. DISCUSSION

Rule 16 "delineates the categories of information to which defendants are entitled in pretrial discovery in criminal cases, with some additional material being discoverable in accordance with statutory pronouncements and the due process clause of the Constitution." United States v. Llanez-Garcia, 735 F.3d 483, 493 (6th Cir. 2013) (punctuation modified). Among other things, Rule 16 enables a defendant to obtain "books, papers, documents, data, photographs, [or] tangible objects" in "the government's possession, custody, or control," as long as the items are either material to preparing the defense or will be used in the government's case-in-chief at trial. Fed. R. Crim. P. 16(a)(1)(E).

"A defendant does not satisfy [the] requirement that an object be 'material to the preparation of the defendant's defense' by means of merely conclusory arguments concerning materiality." United States v. Phillip, 948 F.2d 241, 250 (6th Cir. 1991) (citation omitted). Rather, a defendant must make a prima facie showing of materiality. Id. The Supreme Court has determined that "defense" within the meaning of Rule 16 means the "defendant's response to the Government's case in chief." United States v. Armstrong, 517 U.S. 456, 462 (1996). Therefore, the rule only allows a defendant to obtain information "that 'refute[s] the Government's argumentsthat the defendant committed the crime charged.'" United States v. Robinson, 503 F.3d 522, 532 (6th Cir. 2007) (quoting Armstrong, 517 U.S. at 462). It follows that information that does not counter the Government's case or bolster a defense is not material "merely because the government may be able to use it to rebut a defense position." United States v. Lykins, 428 F. App'x 621, 624 (6th Cir. 2011) (punctuation modified).

Here, Rivers argues that the redacted portions of the two warrant affidavits are critical to the determination of whether the cell phone warrant is supported by probable cause and, therefore, are material to the preparation of his defense. Mot. at 7.² The standard that governs a reviewing court's assessment of a search warrant affidavit is "whether the magistrate had a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited." United States v. Loggins, 777 F.2d 336, 338 (6th Cir. 1985). "The courts should not undertake a de novo review of the sufficiency of an...