UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 24-cr-026-SE Opinion No.

José Luis Guerrero Nuñez, et al.

ORDER

After a lengthy drug-trafficking investigation, Drug Enforcement Administration agents

and New Hampshire police officers arrested José Luis Guerrero-Nuñez at an apartment in

Lowell, Massachusetts pursuant to an arrest warrant. Shortly after the arrest but while the

officers were still in the apartment, DEA agents dialed two cell phone numbers used to arrange

drug purchases during the investigation. The agents followed the sound of the ringing to the

locations of the phones. At least one of the phones was in the bedroom closet where the agents

had found Guerrero-Nuñez hiding. The agents seized the phones and subsequently obtained a

warrant to search their contents.

Guerrero-Nuñez moves to suppress all of the evidence derived from the entry into the

apartment, including the two cell phones, arguing that the entry into the apartment and seizure of

the phones violated his Fourth Amendment rights. The government argues first that Guerrero-

Nuñez does not have standing to challenge the entry and seizure. Second, the government argues

that the officers1 lawfully entered the apartment pursuant to an arrest warrant and after another

occupant consented to the entry. Third, the government argues that the seizure of the cell phones

1 For ease of reference, if not discussing specific individuals, the court will use “officers” to describe both the New Hampshire police officers and the DEA agents who arrested Guerrero- Nuñez and seized the cell phones. was permissible under the plain view and exigent circumstances exceptions to the Fourth

Amendment’s warrant requirement. Lastly, the government argues that, even if the court finds

that the seizure of the cell phones violated Guerrero-Nuñez’s constitutional rights, it should not

suppress evidence that the officers heard the two cell phones ring in the apartment when they

called the numbers during Guerrero-Nuñez’s arrest.

The court held an evidentiary hearing on Guerrero-Nuñez’s motion on January 13, 2025.

For the following reasons, the court finds that the officers lawfully entered the apartment to

arrest Guerrero-Nuñez. Likewise, the evidence that the cell phones rang in the apartment is

admissible. Because no exceptions to the warrant requirement apply, however, the officers

violated Guerrero-Nuñez’s Fourth Amendment rights when they seized the cell phones.

Background2

In 2023, the Seabrook police department notified the DEA of a suspected drug

distribution network in its area. The department provided the DEA with a phone number, ending

in 5540, associated with an individual in the network. Based on that information, undercover

DEA agents began arranging narcotics purchases by calling the 5540 number and speaking with

an individual who identified himself as Erik. In 2023, the DEA orchestrated purchases of

fentanyl, methamphetamine, or both, on 12 separate occasions using the 5540 number.

Although the phone calls to arrange the drug buys occurred at various times, the

transactions usually occurred between 11:00 a.m. and 2:00 p.m. Over the course of the 12 buys,

the undercover agents met and purchased narcotics from three different people. They did not

2 The court makes these factual findings based on the testimony and other evidence offered at the suppression hearing.

2 believe that any of those individuals was Erik because the individuals would not negotiate

purchases during transactions and instead directed the undercover agents to contact the 5540

number.

On January 24, 2024, an undercover agent contacted Erik at the 5540 number to arrange

an in-person meeting at a restaurant in Portsmouth, New Hampshire. Erik arrived at the meeting

in a red Jeep Grand Cherokee with Massachusetts license plates. He was a passenger in the

vehicle. During the meeting, a DEA surveillance team placed a phone call to the 5540 number.

Immediately, the agents observed Erik silence a call on his phone.

After Erik and his companion left the meeting in the Jeep, New Hampshire state police

executed a traffic stop. The officers learned that the Jeep was registered to Mirtha Lara Lara at

478 Riverside Drive, Apartment 204 in Lawrence, Massachusetts. The DEA subsequently

learned that Erik, who was identified as Guerrero-Nuñez, had been in the same car when police

pulled it over in December 2021.3 The car was at that time registered to someone other than Lara

Lara, though it was not registered to Guerrero-Nuñez.

At or after the January 24, 2024 meeting, the undercover agents received another number

to use to contact Guerrero-Nuñez, ending in 2361. Undercover agents continued to arrange drug

buys with Guerrero-Nuñez using both the 5540 number and the 2361 number. In the days and

weeks following the meeting, undercover agents arranged four or five drug buys with Guerrero-

Nuñez using the 2361 number.

3 The evidence was unclear as to whether Guerrero-Nuñez was the driver or the passenger of the Jeep during the December 2021 traffic stop.

3 In February 2024, the government indicted Guerrero-Nuñez and four others on charges of

conspiracy to distribute and to possess with the intent to distribute controlled substances. The

DEA obtained arrest warrants for Guerrero-Nuñez and the other alleged co-conspirators. On

March 14, 2024, the agents set out to effectuate all five arrests.

The DEA planned to arrest the five alleged co-conspirators at three separate locations.

The first was in Portsmouth, New Hampshire. On March 13, 2024, the undercover agents had

arranged to complete a narcotics purchase of three pounds of methamphetamine and a kilogram

of fentanyl at this location over several conversations with Guerrero-Nuñez at the 2361 number.

The undercover agents continued those conversations on that same number beginning at 10:00

a.m. on March 14, 2024. They planned to purchase the narcotics and then arrest the sellers.

The second location was an apartment at 30 Danbury Drive in Methuen, Massachusetts.

Undercover agents had previously completed several narcotics purchases at that address, which

they also had under surveillance.

The third location was an apartment complex at 478 Riverside Drive in Lawrence,

Massachusetts. The DEA agents planned to effectuate arrests at two different apartments in the

building. They planned to arrest Guerrero-Nuñez in Apartment 204 and his son in Apartment

103.

The DEA pinpointed Apartment 204 as Guerrero-Nuñez’s address for several reasons.

First, on December 5, 2023, the DEA obtained a search warrant for GPS ping data related to the

5540 number. That data, which covered a roughly two-week period from November 20, 2023, to

December 5, 2023, showed that the 5540 number was in the area of 478 Riverside Drive several

times a day.

4 Second, on January 30, 2024, the DEA received authorization to utilize a pen register for

the WhatsApp account associated with the 5540 number.4 From that date through March 2024,

the 5540 number used Wi-Fi signals from six unique Comcast identifications. The DEA

subpoenaed records from Comcast for the three IP addresses most frequently associated with

those signals. The top two came from Apartment 204 at 478 Riverside Drive.

Finally, the Jeep in which Guerrero-Nuñez arrived at the January 24, 2024 meeting with

the undercover agents was registered to Apartment 204. As mentioned above, police had also

encountered Guerrero-Nuñez in that vehicle during a traffic stop in December 2021. His

presence in the Jeep on both occasions more than two years apart led the officers to associate

Guerrero-Nuñez with both the Jeep and its registered address.

The DEA set up surveillance at the apartment complex on the morning of March 14,

2024. Based on that surveillance, they believed that Guerrero-Nuñez was in Apartment 204 that

day. Undercover agents had been communicating with Guerrero-Nuñez on the 2361 number

several times that morning to arrange the narcotics purchase in Portsmouth. Based on the

location data discussed above, the DEA believed that Guerrero-Nuñez completed calls arranging

drug buys from that apartment, especially midday when most of the monitored transactions took

place. In addition, the surveillance team observed Lara Lara return home with groceries in the

Jeep, and had not observed Guerrero-Nuñez leave the apartment building at all that day.

After Lara Lara went inside with the groceries, the officers approached the apartment

complex to effectuate the arrests of Guerrero-Nuñez and his son. They entered the building with

4 “[T]he term ‘pen register’ means a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication . . . .”

.

5 assistance from the Lawrence Fire Department. Roughly eight to ten officers went to the second

floor to Apartment 204. At least two of the agents turned on their body cameras. The time was

approximately 12:23 p.m.

The officers were dressed in plainclothes, but each wore external body armor with police

markings. The officers’ firearms were all holstered. Officer John Hannigan knocked on the

apartment door. He said “hello” and, as a ruse to get Lara Lara to come to the door, said that he

believed that she had dropped some groceries. Lara Lara came to the door and, with the door still

closed, had a brief conversation with Officer Hannigan. He asked if she spoke English, to which

Lara Lara replied “Español.” Officer Hannigan then identified himself in Spanish as a police

officer, and Lara Lara opened the door.

Officer Hannigan then spoke English for the remainder of his brief interaction with Lara

Lara at the doorway. He testified that he did so because his ability to speak Spanish is limited

and that it seemed clear from their conversation that Lara Lara could understand him. Officer

Hannigan asked if anyone else was home, to which Lara Lara replied “yes.”5 He asked if Erik

was home and Lara Lara repeated the name as if she were asking a question and suggesting that

she did not know him. Officer Hannigan then asked if he and his fellow officers could enter the

apartment. Lara Lara stepped aside out of the doorway and may have said “okay.”

Upon entering, Officer Hannigan again asked if anyone else was in the apartment and

asked Lara Lara to bring them out. She led the officers to a bedroom in the back of the

5 There was conflicting evidence as to Lara Lara’s answer to Officer Hannigan’s question of whether anyone else was home. The DEA-6 Form, which is a report of the arrests written by another agent at the scene, states that Lara Lara said that no one else was home. Officer Hannigan and Special Agent Andrew Frigon testified that Lara Lara said that there was someone else home, and their testimony is consistent with the audio from the body camera footage. Regardless, Lara Lara’s answer to that question does not change the court’s analysis as to whether a Fourth Amendment violation occurred.

6 apartment. After opening the door to the bedroom, Lara Lara asked in English, “What is the

name?” Officer Hannigan responded with “Erik,” and Lara Lara again repeated the name as a

question.

While Officer Hannigan and an agent walked through the bedroom door Lara Lara had

opened, Special Agents Frigon and Michael Dunn entered a second bedroom on the left. Along

the wall was a closet with a partially-closed folding door. As Special Agent Dunn opened the

door, Special Agent Frigon saw Guerrero-Nuñez hiding, wearing only his underwear. The two

agents ordered him to come out of the closet, placed him in handcuffs, and led him to the living

room where he was directed to sit on a chair. One of the agents briefly checked the remainder of

the closet, which was cluttered with clothes and other items, to make sure no one else was

hiding.

The officers conducted a protective sweep of the apartment, during which they saw

prescription medication bottles with Guerrero-Nuñez’s name on them. In addition to

coordinating with the officers carrying out the arrest in Apartment 103, the officers in Apartment

204 began preparing Guerrero-Nuñez for transport to Boston, Massachusetts. They explained the

process and next steps to Lara Lara and had her get Guerrero-Nuñez some clothes. Their

conversation with Lara Lara was primarily in English.

After the protective sweep, while still in the apartment preparing Guerrero-Nuñez for

transport, Special Agent Frigon called both the 5540 and 2361 numbers. Although Special Agent

Frigon could not recall which number he called first, the first phone rang and was found by

Special Agent Brian Silvestro in the bedroom closet where Guerrero-Nuñez had been hiding. The

second phone also rang, and Special Agent Silvestro found it somewhere in the same bedroom,

though he could not recall whether he found it in the closet. The agents seized the phones, both

7 of which were manufactured by Samsung. Eventually, after obtaining a warrant, the agents

searched both phones.

Standard of Review

A defendant who moves to suppress evidence bears a threshold burden of showing that a

Fourth Amendment violation has occurred. United States v. Young,

(1st Cir.

2016). This includes the burden of showing that he was subjected to a warrantless search or

seizure. United States v. Fields,

(1st Cir. 2016). Once the defendant establishes

that a warrantless search or seizure occurred, the burden shifts to the government to prove by a

preponderance of the evidence that the search or seizure was lawful. See United States v.

Matlock,

, 178 n.14 (1974); United States v. Manubolu,

(1st Cir.

2021).

Discussion

Guerrero-Nuñez argues that the warrantless seizure of the two cell phones violated his

Fourth Amendment rights for two reasons. He first argues that the officers did not lawfully enter

the apartment, and so any evidence obtained during the course of his arrest must be suppressed.

Second, he contends that even if the officers were lawfully in the apartment, the circumstances

did not present an exception to the warrant requirement that would have allowed the officers to

seize the phones. The government responds that Guerrero-Nuñez lacks standing to challenge the

seizure of the cell phones because he has not alleged any facts that would establish a reasonable

expectation of privacy in either the apartment or the phones. It also contends that even if

Guerrero-Nuñez does have standing, the officers were lawfully in the apartment and had grounds

8 to seize both cell phones under either the plain view or exigent circumstances exception to the

warrant requirement. Finally, the government argues that even if the officers were not entitled to

seize the cell phones, the act of calling the phones was not a search and the court should not

suppress the evidence that the phones rang in the apartment after Special Agent Frigon called

them.

I. Standing

The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

The “capacity to claim the protection of the Fourth Amendment depends . . . upon whether the

person who claims the protection of the Amendment has a legitimate expectation of privacy” in

the area searched and in relation to the items seized. Rakas v. Illinois,

(1978).

The burden to show this reasonable expectation of privacy, commonly referred to as Fourth

Amendment “standing,”6 is on the defendant, and it “must be carried at the time of the pretrial

hearing and on the record compiled at that hearing.” United States v. Aguirre,

(1st Cir. 1988).

In determining whether the defendant has met his burden, courts consider the following

factors: “ownership, possession, and/or control; historical use of the property searched or the

thing seized; ability to regulate access; the totality of the surrounding circumstances; the

existence or nonexistence of a subjective anticipation of privacy; and the objective

6 “[T]he Supreme Court has made clear that ‘definition of [Fourth Amendment] rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.’” United States v. Bain,

(1st Cir. 2017) (quoting Rakas,

). Nevertheless, because both the government and courts within the First Circuit refer to “standing” in the context of the Fourth Amendment, the court will use that nomenclature.

9 reasonableness of such an expectancy under the facts of a given case.” Aguirre, 839 F.2d at 856–

57. “The Aguirre factors provide a framework for analyzing standing, but ‘[n]o single factor

determines whether an individual’ has a protected Fourth Amendment expectation of privacy.”

United States v. Bates,

(D. Mass. 2015) (quoting Oliver v. United States,

(1984)).

The government argues that Guerrero-Nuñez failed to allege any facts in his motion to

suppress that are pertinent to the Aguirre factors and that, if anything, he has tried to distance

himself from the apartment. At the evidentiary hearing, Guerrero-Nuñez argued that the evidence

adduced at the hearing supported his reasonable expectation of privacy in both the apartment and

the two cell phones. The court agrees.

Regarding the apartment, location data showed that the 5540 number, through which the

undercover agents communicated with Guerrero-Nuñez, was near or at 478 Riverside Drive

several times a day from November 20, 2023, to December 5, 2023. The pen register showed a

WhatsApp account associated with that phone number using the Wi-Fi in Apartment 204 several

times in February. Guerrero-Nuñez was pulled over on two separate dates, more than two years

apart, in a Jeep that was registered to that address. Guerrero-Nuñez was in his underwear when

officers entered the apartment. There were adult male clothes in the closet that appeared to

belong to him, and there were bottles of prescription medication with his name on them in one of

the bedrooms. These facts sufficiently establish that Guerrero-Nuñez historically used the

apartment and had a subjective anticipation of privacy therein. Looking at the totality of the

circumstances, the evidence demonstrates that Guerrero-Nuñez either resided in the apartment

with Lara Lara or, at the very least, was a frequent overnight guest. As such, he has standing to

assert a Fourth Amendment challenge to the officers’ entry into the apartment. See Bain, 874

10 F.3d at 13 (“Under Supreme Court precedent, Bain’s ‘status as an overnight guest is alone

enough to show that he had an expectation of privacy in the home that society is prepared to

recognize as reasonable.’” (quoting Minnesota v. Olson,

(1990))).

The evidence also supports Guerrero-Nuñez’s right to challenge the seizure of the cell

phones. The undercover agents communicated with Guerrero-Nuñez on those phones and

arranged numerous drug buys over the course of several months. They observed him silence a

call that they placed to the 5540 number, and they were given the 2361 number to contact him,

which they frequently did. They had geolocation data connecting the 5540 phone to the

apartment and found at least one of the phones in the closet in which they found Guerrero-Nuñez

hiding. On these facts, the court finds that Guerrero-Nuñez had possession and control of the

phones, historically used them, and, given the nature of his communications with the undercover

agents, subjectively expected those communications to remain private.

In addition, the government offered this evidence to support its contention that the agents

had probable cause to connect the phones to Guerrero-Nuñez and to seize them on the day of his

arrest. It cannot offer that evidence to support the seizure of the phones and prevent Guerrero-

Nuñez from using these facts to support his standing. See United States v. Cardona,

, 115 n.1 (D. Mass. 2019). The record evidence is sufficient to establish his standing to

challenge the seizure of the phones.

II. Entry Into the Apartment

Guerrero-Nuñez argues that the officers unlawfully entered the apartment. He contends

that the warrant for his arrest did not give the officers authority to enter Apartment 204, and,

11 separately, that Lara Lara did not give the officers valid and voluntary consent to enter the

apartment. He is wrong on both accounts.

A. Entry Pursuant to Arrest Warrant

“[P]olice officers attempting to execute an arrest warrant have ‘limited authority to enter

a dwelling in which the suspect lives when there is reason to believe the suspect is within.’”

United States v. Werra,

, 336–37 (1st Cir. 2011) (quoting Payton v. New York,

(1980)). “Even if it becomes known after entry that the residence is not the

suspect’s, the entry is justified if the police had reasonably believed that (1) the suspect resided

at the location and (2) the suspect would be present.” United States v. Hamilton,

(1st Cir. 2016) (quotations omitted). In analyzing the officers’ reasonable belief, the court

must “examine the information known to the officers in the totality and not in isolation.” United

States v. Graham,

(1st Cir. 2009).

The government argues that the officers reasonably believed that Guerrero-Nuñez resided

in Apartment 204. It points to the location and pen register data discussed above, as well as

Guerrero-Nuñez’s presence in the Jeep registered to that address on two separate occasions

spanning more than two years, including in January 2024. The court agrees that this evidence

establishes that the officers reasonably believed that Guerrero-Nuñez resided in Apartment 204.

See, e.g., United States v. Stewart,

(D.R.I. 2015) (holding that

officers reasonably believed that the defendant resided in an apartment associated with another

individual when a car in which the officers had seen the defendant was parked outside the

apartment building and the police had location data showing that the defendant’s cell phone had

been inside the apartment).

12 While Guerrero-Nuñez does not concede that the officers reasonably believed that he

resided in Apartment 204, he disputes that point without substantial elaboration. Instead, he

argues primarily that the officers did not have a reasonable belief that he would be present in the

apartment at the time they arrested him. He notes that the testimony regarding the location and

pen register data did not specify any time of day that the phone associated with the 5540 number

was in the area or the apartment. However, there were several other pieces of evidence to support

the belief that Guerrero-Nuñez would be present at approximately 12:30 p.m. on the date of his

arrest.

Undercover agents had been communicating with Guerrero-Nuñez on the 2361 number

throughout the morning to arrange the narcotics purchase in Portsmouth. Though the location

and pen register data did not provide the time of day at which Guerrero-Nuñez and his phones

were typically in the apartment, it did support a reasonable belief that Guerrero-Nuñez arranged

drug buys from the apartment and was likely communicating with the undercover agents from

that location on March 14, 2024. Moreover, the investigation connected Guerrero-Nuñez to the

Jeep and there is no evidence that he was connected to any other vehicle. On March 14, 2024,

officers began surveilling the apartment complex mid-morning. When they arrived, they did not

see the Jeep. While they continued their surveillance, they did not see Guerrero-Nuñez leave the

apartment. Only after the surveillance team observed Lara Lara return to the apartment in the

Jeep did they execute the warrant for Guerrero-Nuñez’s arrest.

Examining the totality of the circumstances, the evidence shows that the officers

reasonably believed that Guerrero-Nuñez lived in Apartment 204 and would be present when

they entered the apartment. As such, their entry into the apartment did not violate Guerrero-

Nuñez’s Fourth Amendment rights.

13 B. Consent

Even if the officers did not have a reasonable belief that Guerrero-Nuñez lived and would

be present in the apartment, the evidence demonstrates that Lara Lara validly and voluntarily

consented to their entry. “The Fourth Amendment recognizes a valid warrantless entry . . . when

police obtain the voluntary consent of an occupant who shares, or is reasonably believed to

share, authority over the area in common with a co-occupant who later objects to the use of

evidence so obtained.” Georgia v. Randolph,

(2006). To show that this

exception to the warrant requirement applies, “the government has the burden to prove, by a

preponderance of the evidence, two factbound elements.” United States v. Antone,

(D.R.I. 2007) (citing United States v. Schaefer,

(1st Cir. 1996)).

“The first, often referred to as consent-in-fact, requires a showing that consent actually was

rendered, whether it be done expressly through oral invitation or impliedly through gesture or

conduct.” Antone,

(citations omitted). “The second typically more

controversial element requires a showing that consent was voluntary; that is, ‘the product of an

essentially free and unconstrained choice,’ and not ‘the product of duress or coercion, express or

implied.’”

(quoting United States v. Chhien,

(1st Cir. 2001) and United States

v. Luciano,

(1st Cir. 2003), respectively). Courts must examine the totality of the

circumstances in determining whether the government carried its burden to show valid and

voluntary consent. Pagán-González v. Moreno,

(1st Cir. 2019).

There is little doubt that the government proved that Lara Lara rendered her consent to

the officers’ entry into the apartment. The evidence shows that the officers identified themselves

while in the hallway outside the apartment and asked Lara Lara’s permission to enter. There is

some evidence that Lara Lara verbally consented but there is no question that she voluntarily

14 stepped aside out of the doorway and allowed the officers to come into the apartment. Her

movement under these circumstances is sufficient to show that she consented to the officers’

entry into the apartment. United States v. Rodriguez,

(D. Mass. 1996)

(“An objective manifestation of consent to a warrantless search may include a gesture such as

stepping away after opening a door.” (citing Robbins v. MacKenzie,

(1st Cir.

1966))).

Guerrero-Nuñez argues that the government has not proven the second element, that Lara

Lara’s consent was voluntary. He contends that her consent was coerced, noting that she was on

federal supervised release and was confronted with eight to ten officers, all of whom had

weapons. This evidence does not show that Lara Lara’s consent was coerced. See United States

v. Barnett,

(1st Cir. 1993) (finding that the defendant’s consent was not

coerced “[n]otwithstanding the inherently unnerving effect of having numerous officers arrive at

one’s door with guns drawn,” especially considering his prior interactions with law

enforcement). “[N]one of the classic signs of consent unlawfully coerced exist in this record—no

threats, brandishing of weapons, aggressive language, or the like.” United States v. Fix, No. 08-

20147-JWL,

, at *5 (D. Kan. Jan. 28, 2009); see United States v. Salomon-

Castro, No. 23-CR-01843-KWR,

, at *10 (D.N.M. Dec. 16, 2024) (noting that

coercion that undermines voluntary consent includes when the “defendant suffered . . . ‘physical

mistreatment, use of violence . . . or threats of violence, promises or inducements, deception or

trickery.’” (quoting United States v. Dozal,

(10th Cir. 1999))).7

7 In his motion, Guerrero-Nuñez also suggests that Lara Lara’s consent was not voluntary because she did not speak English well enough to understand the officers. He abandoned that argument during the evidentiary hearing, but it would have failed in any event. The evidence shows that Lara Lara was able to understand the officers’ questions and directions and could respond appropriately.

15 The government has carried its burden to show that Lara Lara’s consent to the officers’

entry was valid and voluntary. Therefore, for this additional reason, the officers’ entry into the

apartment did not violate Guerrero-Nuñez’s Fourth Amendment rights.

III. Calling the Phones

Although Guerrero-Nuñez’s motion focuses primarily on the officers’ seizure of the cell

phones, he requests that the court “suppress all evidence derived from the entry into 478

Riverside Road unit 204 in Lawrence, Massachusetts.” Doc. no. 84 at 1. At the evidentiary

hearing, the government argued that, even if the court determined that seizing the cell phones

violated Guerrero-Nuñez’s constitutional rights, the court should not suppress evidence that the

two cell phones rang when Special Agent Frigon dialed their numbers.

The question is whether the act of calling a cell phone constitutes a search. The District

of Massachusetts addressed this exact issue in United States v. Katana, No. CR 4:19-40024-TSH,

(D. Mass. Jan. 19, 2021), aff’d,

(1st Cir. 2024). As that court

noted, the “First Circuit Court has never specifically addressed whether or not a law enforcement

officer dialing what they believe to be an individual’s cellphone number constitutes a search

under the Fourth Amendment.” Id. at *2. Nevertheless, the Katana court held that

[a] person has no legitimate expectation of privacy in their phone number given that it is shared with cellphone providers and other users. Thus, while the Katana phone was not in plain view when it was dialed, the act of dialing the defendant’s phone number does not constitute a search under the Fourth Amendment. If a person wanted to keep their cell phone’s location private, they could do so by turning off the phone. By having the phone turned on, a person allows any third

16 party to call them. Because a person has no reasonable expectation of privacy in their phone number, dialing that number does not constitute a search under the Fourth Amendment.

Id.

The court agrees with the reasoning set forth in Katana. Given that the officers were

constitutionally permitted to be in the apartment, Guerrero-Nuñez had no legitimate subjective or

objective expectation of privacy in the officers’ observations of cell phones ringing after the

officers dialed known numbers. Special Agent Frigon’s act of dialing the cell phones does not

constitute a search under the Fourth Amendment. As such, to the extent that Guerrero-Nuñez

seeks to suppress evidence that Special Agent Frigon dialed both cell phone numbers and that

they rang in the apartment, his motion is denied. The officers’ authority to call the phones and

observe them ringing does not, however, determine whether the Fourth Amendment permitted

the officers to seize the cell phones.

IV. Seizure of the Cell Phones

“The very core of [the Fourth Amendment’s] guarantee is the right of a [person] to retreat

into his own home and there be free from unreasonable governmental intrusion.” Caniglia v.

Strom,

, 197–98 (2021) (quotations and alterations omitted). Therefore, “searches

and seizures inside a home without a [search] warrant are presumptively unreasonable.”

Michigan v. Fisher,

(2009) (quotations omitted).

There are certain exceptions to the warrant requirement that allow officers to seize items

without a warrant. It is the government’s burden to show that these exceptions apply. See United

States v. Wurie,

(1st Cir. 2013). For example, under certain circumstances, an

officer may seize an item that is within his or her plain view. United States v. Allen,

,

17 51 (1st Cir. 2009). In addition, an officer may conduct a warrantless seizure of an item if exigent

circumstances exist. Belsito Commc’ns, Inc. v. Decker,

(1st Cir. 2016).

These two exceptions are at the heart of the government’s response to Guerrero-Nuñez’s

motion to suppress. As discussed above, the officers were authorized to enter Apartment 204 to

execute Guerrero-Nuñez’s arrest pursuant to the arrest warrant and with Lara Lara’s consent. The

government does not argue that this authority allowed the officers to search the apartment or

seize any items therein. Therefore, the government must establish that an exception to the

warrant requirement applies. It argues that the officers were entitled to seize the phones both

because they were in plain view and because exigent circumstances justified seizing the phones

before they could obtain a warrant.

A. Plain View

The plain view “doctrine permits the warrantless seizure of an item if the officer is

lawfully present in a position from which the item is clearly visible, there is probable cause to

seize the item, and the officer has a lawful right of access to the item itself.” United States v.

Hernandez-Mieses,

(1st Cir. 2019) (quotations omitted). The government

argues that it can meet this test because the officers were lawfully in the apartment, and they saw

the two phones in plain view after they dialed the numbers associated with those phones and

heard them ring.8

8 The government also argues that the officers had probable cause to seize the phones because cell phones are a common tool of the drug trade and undercover agents had executed several drug buys over both phones. The court need not reach that argument for the reasons discussed below.

18 There are two problems with the government’s argument, both of which highlight the

same issue—there is no evidence that the cell phones were actually in plain view. First, the

evidence about the locations of the cell phones when they were seized is unclear. Special Agent

Frigon testified that he called both cell phones, and that he was notified by Special Agent

Silvestro that the phones rang in the bedroom. He further testified that Special Agent Silvestro

told him that both phones had been found in the closet where Guerrero-Nuñez had been hiding.

However, Special Agent Silvestro testified that he found the first phone in the closet, and that he

could not recall where he found the second phone. More importantly, there was no testimony that

either phone was “clearly visible” when Special Agent Silvestro located them.

Second, even if the phones were clearly visible at that point, they would not have been

until and unless Special Agent Frigon called them—there was no testimony that the officers

observed the phones during Guerrero-Nuñez’s apprehension or the protective sweep. The

government argues that this set of facts satisfies the plain view exception; that the officers’ act of

calling the cell phones to determine their location can bring the phones within the confines of the

plain view exception.

The government offers little legal support for its argument. During the hearing, the

government pointed to United States v. Katana, focusing on the case’s holding that the act of

dialing a phone number does not constitute a search. But that holding is not relevant to the plain

view analysis. Whether Guerrero-Nuñez’s Fourth Amendment rights were violated when Special

Agent Frigon called the cell phones is a separate question from whether Guerrero-Nuñez’s

Fourth Amendment rights were violated when the officers seized the phones. Indeed, Katana

itself acknowledges this distinction. See Katana,

, at *2 (“While the dialing of

19 the phone does not constitute a search under the Fourth Amendment, the seizure of that phone

does implicate Fourth Amendment concerns.”).

The plain view exception applies only if the cell phones “were easily visible to the naked

eye.” Hernandez-Mieses,

. They were not. The officers did not see the cell

phones while they were arresting Guerrero-Nuñez or during the protective sweep. The officers

saw them only after Special Agent Frigon dialed their numbers and Special Agent Silvestro

followed the sound of their ringing. Even if both phones were clearly visible to Special Agent

Silvestro at that point—again, a fact that the court cannot find on the evidence offered at the

suppression hearing, especially considering the clutter in the closet and Special Agent Silvestro’s

inability to remember where the phones were found—these circumstances do not satisfy the

plain view exception. If the officers needed to call the cell phones in order to locate them, they

were not easily visible to the naked eye or in plain view. Cf. United States v. Mejia-Velazquez,

No. 1:21-CR-00137-SDG,

, at *9 (N.D. Ga. Jan. 6, 2023) (granting motion to

suppress seizure of cell phone because “the officers had no probable cause to seize either

cellphone until Special Agent Clutter took an additional action (i.e., calling the cellphone)

unrelated to the objectives of the authorized safety sweep (i.e., to look for persons or objects that

might pose a risk to the officers’ safety”)). Therefore, the plain view exception did not authorize

the officers’ seizure of the cell phones.

B. Exigent Circumstances

The exigent circumstances exception to the warrant requirement applies when “the

exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless

search is objectively reasonable.” Lange v. California,

(2021) (quotations

20 omitted). To “show exigent circumstances, the police must reasonably believe that there is such a

compelling necessity for immediate action as will not brook the delay of obtaining a warrant.”

Belsito,

(quotations omitted). This is a “heavy burden,” French v. Merrill,

(1st Cir. 2021), which “should be supported by particularized, case-specific facts,

not simply generalized suppositions about the behavior of a particular class of criminal

suspects,” United States v. Samboy,

(1st Cir. 2005) (quotations omitted).

The government argues that the officers were concerned about preserving the data on the

phones. The “imminent destruction or removal of evidence” is a commonly recognized exigent

circumstance allowing for the warrantless seizure of evidence. United States v. Rodríguez-

Pacheco,

(1st Cir. 2020). As several courts have recognized, it is technologically

possible to wipe certain phones remotely. See, e.g., Riley v. California,

, 388-89

(2014). And, of course, a person with physical access to a phone may have the ability to erase its

contents or destroy it. That possibility does not entitle officers to effect a warrantless seizure or

search of every cell phone in every case. Instead, the government must point to specific facts in

each case to support an objective belief that, absent the warrantless seizure, the phones were at

an imminent risk of being wiped or destroyed. Samboy,

.

On this point, the government relies entirely on Special Agent Frigon’s testimony. He

stated that he had learned in training that third parties can remotely erase data from cell phones.

He recalled that this training had been primarily about iPhones, and he could not recall working

on a case in which a cell phone had been remotely wiped. To guard against remote wiping,

officers could place a cell phone in a mylar evidence bag. According to Special Agent Frigon,

“in theory” this bag blocks out radio frequencies that would allow a third party to call or

remotely wipe a phone; however, he stated that he had heard phones ring while inside those bags.

21 In any event, neither he nor Special Agent Silvestro could recall whether they had mylar

evidence bags at this scene. Special Agent Frigon also testified that placing a phone in airplane

mode could prevent remote wiping if officers could bypass a locked screen, which they can

sometimes do with iPhones.

With regard to the possibility of manually erasing or destroying the phones, the testimony

was even more limited. Special Agent Frigon testified that the phones could be physically

accessed by a third party if the officers did not immediately seize them, and that they had not

received confirmation that all five targets had been arrested that day. In addition, Lara Lara

would have had physical access to the phones if they were left in the apartment with her after

Guerrero-Nuñez’s arrest.

This evidence does not “show an objectively reasonable basis for concluding that the loss

or destruction of evidence is likely to occur” absent warrantless seizure of the phones. Samboy,

. There was no evidence that any officer had been involved in a case in which a

cell phone had been wiped, remotely or otherwise, or that such activity is common in narcotics

cases. There was also no evidence to support any particularized concerns about Lara Lara’s or

any co-conspirator’s ability to wipe the phones remotely or the likelihood that they would

manually erase or destroy the phones before the officers could obtain a warrant. The only

evidence to support concerns about erasing information from phones was testimony that Special

Agent Frigon had received training regarding remote wiping. But even if that training were

sufficient to establish exigent circumstances in this case—which it is not—Special Agent Frigon

testified that the training had pertained primarily to Apple products and the two phones in this

case were manufactured by Samsung.

22 The government disagrees, and again cites Katana to support its position. In Katana, the

District of Massachusetts denied the defendant’s motion to suppress the search and seizure of his

cell phone.

, at *3. The court held that exigent circumstances justified the

officers’ warrantless search and seizure of the phone because “[i]t was reasonable for the law

enforcement officers to believe that Katana’s cell phone was going to be removed from the

premises, and/or destroyed.” Id. at *2.

But Katana does not help the government; to the contrary, it only underscores the

government’s failure to establish exigent circumstances in this case. In Katana, as here, the

officers knew that the defendant’s cell phone had been involved in his crimes. During Katana’s

arrest, however, the officers “observed a cell phone near where the Defendant had been seated

prior to his arrest, they observed his brother pick a phone up, and heard a phone in his pants ring

when they dialed Katana’s number.” Id. The court held “that the officers had probable cause to

seize the phone and that exigent circumstances, namely the imminent removal of the phone by

Katana’s brother made the obtaining of a warrant impractical.” Id. (emphasis added).

In contrast, the government here offered no “particularized, case-specific facts” to

support an objective belief that the cell phones were in imminent danger of being wiped or

destroyed such that the officers were justified in seizing the phones without a warrant.9 Samboy,

; cf. United States v. Sanchez, No. 217CR136FTMUAMRM,

,

at *3 n.3 (M.D. Fla. Nov. 1, 2018) (noting that a reasonable officer would have reason to fear

9 Although the court evaluates the evidence under an objective standard, see Kentucky v. King,

(2011), it is worth noting that there was no evidence that the officers who seized the phones were actually concerned about the possibility that they could be remotely wiped absent their immediate seizure. There was no evidence that the officers had mylar bags that day, that they put the phones in those bags if they did have them, or that they put either of the phones in airplane mode.

23 that the subject cell phone would be wiped before he could secure a search warrant where the

defendant was not in custody, told officers that others had access to the phone, and was aware

that officers were looking for his phone), aff’d,

(11th Cir. 2022).

Neither the exigent circumstances exception nor the plain view exception applies in this

case. Therefore, the warrantless seizure of the cell phones violated Guerrero-Nuñez’s Fourth

Amendment rights. His motion is granted to the extent that it seeks to suppress evidence gained

from the seizure of the phones.

Conclusion

For the foregoing reasons, the defendant’s motion to suppress (doc. no. 84) is granted to

the extent that it seeks to suppress evidence gained from the seizure of the two cell phones but is

otherwise denied.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge

February 12, 2025

cc: Counsel of Record

24