United States v. Sedillo (297 F. Supp. 3d 1155, 2017)

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Defendants' Motion to Void Search Warrant For DNA Sample or For Return of DNA Sample Pursuant to F.R.C.P. 41(g), filed July 6, 2017 (Doc. 29)("Motion"); and (ii) Defendant Sedillo's Opposed Motion to Join in Defendant Sabaquie's Motion to Void Search Warrant for DNA Sample or For Return of DNA Sample Pursuant to F.R.C.P. 41(g), filed July 31, 2017 (Doc. 35)("Motion to Join"). The Court held a hearing on August 3, 2017. The primary issue is whether Plaintiff United States of America, pursuant to two search warrants, unlawfully seized DNA samples from Defendants Bruce Sedillo and Loren Sabaquie to test against DNA collected from clothing identified as theirs that appeared similar to clothing worn by masked robbers, when the clothing has yet to be tested for viable DNA samples. The Court grants the Motion to Join and concludes that the United States did not unlawfully seize the DNA, because probable cause supports the warrants. Specifically, probable cause exists, because facts tie the robbers' getaway vehicle to Sedillo and Sabaquie, and facts tie the robbers' descriptions and clothing to Sedillo's and Sabaquie's descriptions and clothing associated with them. Moreover, based on an FBI agent's sworn statement and existing precedent, it is sufficiently reasonable to infer that the clothing will yield relevant evidence to survive constitutional scrutiny. Accordingly, the Court will deny the Motion.

FACTUAL BACKGROUND

The Court draws its facts from the Criminal Complaint, filed May 5, 2017 (Doc. 1)("Complaint"). On January 16, 2017, two men armed with handguns robbed Metro PCS, a cellphone and electronics distributor, in Albuquerque, New Mexico. See Complaint ¶ 3, at 1. Both of these men concealed their faces, the first with a purple bandana and the second with a Teenage Mutant Ninja Turtles mask.

See Complaint ¶ 3, at 1-2. Witnesses described the first man, later alleged to be Gallardo, as a skinny, black male who wore a black hooded sweatshirt, grey paisley pants, and blue latex gloves. See Complaint ¶¶ 3, 7, at 1, 3. Gallardo took electronic devices from the store and stuffed them into a green backpack. See Complaint ¶ 3, at 2. Witnesses described the second man, later alleged to be Sedillo, as a Hispanic male who wore a grey hooded sweatshirt, black pants, green and yellow shoes, and blue latex gloves. See Complaint at ¶¶ 3, 12, at 2, 5. Sedillo took cash from the store's cash register. See Complaint ¶ 3, at 2.

On January 21, 2017, a similar theft occurred when three men, one wearing a Ninja Turtles mask and all armed with handguns, robbed a 7-Eleven in Albuquerque. See Complaint ¶ 4, at 2. Witnesses described the first robber, later alleged to be Kshawn Cornwell, as a skinny black male, standing 6'3? who wore a black hooded sweatshirt, grey pants, black and white "Chuck Taylor" style shoes, black gloves, and covered his face with a red bandana. Complaint ¶¶ 4, 7, at 2-3. The second robber matched Sedillo's description from the Metro PCS robbery in that witnesses described him as a medium build, Hispanic male standing 5'8? who wore a red and black hooded sweatshirt, a Ninja Turtle mask, and gloves. See Complaint ¶ 4, at 2. Witnesses described the third robber, later alleged to be Sabaquie, as a Hispanic male standing 5'6? or 5'7? who wore a black and grey hooded sweatshirt, black pants, white shoes, and covered his face with a red bandana. See Complaint ¶ 4, at 7. The three men fled the scene in a Scion box-style vehicle. See Complaint ¶ 4, at 7.

Over the next week, two more thefts occurred with similarly described men robbing another Metro PCS and a Wienerschnitzel. See Complaint ¶¶ 5-6, at 2-3. At both robberies, a man who matched Sedillo's description wore a Ninja Turtle mask and Nike high-top shoes. See Complaint ¶¶ 5-6, at 2-3. A man matching Gallardo's description robbed the Metro PCS while wearing grey paisley pants, a black hooded sweatshirt, and a white bandana over his face. See Complaint ¶ 6, at 3. An individual matching Sabaquie's description also robbed the Metro PCS, and wore a blue hooded sweatshirt, black pants, and white shoes. See Complaint ¶ 6, at 3. The robbers fled the Wienerschnitzel in a red, box-style vehicle. See Complaint ¶ 5, at 2.

On January 30, 2017, the Albuquerque Police Department received an anonymous tip that Sedillo had been robbing cellular telephone stores and riding around in a red, box-style vehicle. See Complaint ¶ 7, at 3. On February 2, 2017, a detective observed four men wearing hooded sweatshirts and armed with handguns rob a Verizon Wireless store. See Complaint ¶ 8, at 3. The men fled the scene in a car that matched the Wienerschnitzel robbery's getaway vehicle, a red Scion XB with New Mexico license plate "HYY834." See Complaint ¶ 8, at 3. Police pursued, but the car fled at high speed. See Complaint ¶ 8, at 4.

The police tracked the vehicle to an Albuquerque neighborhood and found Gallardo approximately two blocks away from where they later found the car. See Complaint ¶ 9, at 4. Gallardo is a black male, standing 6'3? with a slender build, and on that night he wore black and white shoes, camouflage shorts, and a purple shirt. See Complaint ¶ 9, at 4. Witnesses had described one of the Verizon store's robbers as a black man, standing 6'3? with a slender build, who wore a black-striped hooded sweatshirt, black and white shoes, a purple shirt underneath his sweatshirt, and gloves. See Complaint ¶ 9, at 4. The police also spotted Sabaquie in the neighborhood "walking away quickly from the area." Complaint ¶ 10, at 4. He wore a black hooded sweatshirt and white shoes. See Complaint ¶ 10, at 4. He matched one of the Verizon robbers' description. See Complaint ¶ 10, at 4.

Police discovered the red Scion vehicle in an apartment parking lot. See Complaint ¶ 11, at 4. After executing a search warrant, they uncovered masks and clothing matching the robbers' clothing from the Verizon heist. See Complaint ¶ 11, at 4. They also recovered two active cellular telephones: one had pictures of Sabaquie; the other "had a distinctive background picture that matched a photo that Bruce Sedillo had posted on his Facebook page." Complaint ¶ 12, at 5. Police also found Facebook photographs of Sedillo wearing the grey Nike high-top shoes that the Ninja Turtle masked robber wore at the Wienerschnitzel robbery. See Complaint ¶ 12, at 5.

The police subsequently searched an apartment where Sedillo and Gallardo lived with Cornwell. See Complaint ¶ 13, at 5. They found clothing similar to the apparel that the robbers wore during the various heists, including: white and grey Nike high-tops, green and yellow shoes, grey paisley pants, a purple bandana, and a grey and black hooded sweatshirt. See Complaint ¶ 13, at 5. The police found the grey paisley pants and purple bandana in Gallardo's bedroom. See Complaint ¶ 13, at 5. The police discovered the white Nike high-top shoes, and green and yellow shoes, in Sedillo's bedroom. See Complaint ¶ 13, at 5. Sedillo's girlfriend told the police that the grey and black hooded sweatshirt found in the apartment belonged to Sabaquie, and that Cornwell wears black and white Chuck Taylor style shoes. See Complaint ¶ 14, at 5-6. She also told the police that she saw Gallardo and Sabaquie leave the apartment in the red Scion on the night of the Verizon robbery. See Complaint ¶ 15, at 6. Sedillo, Gallardo, and Sabaquie were subsequently arrested. See Arrest Warrant, filed May 11, 2017 (Doc. 11). Before the indictment, see Indictment at 1, filed May 24, 2017 (Doc. 13), Sabaquie's counsel indicated that Sabaquie would not consent to a DNA swab. See Motion ¶ 1, at 1.

FINDINGS OF FACT

Rule 12(d) of the Federal Rules of Criminal Procedure states: "When factual issues are involved in deciding a motion, the court must state its essential findings on the record." Fed. R. Crim. P. 12(d). The findings of fact in the Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d)'s purposes. These facts are drawn from the Complaint and the Application for a Search Warrant for Loren Sabaquie, filed June 23, 2017, No. 17-0543 (Doc.1)("Search Warrant"). The Court accepts these facts as true only for the purposes of this Motion.

A. The Robberies .

1. On January 16, 2017, two masked men took cash and electronic items without paying for them from the Metro PCS located at 3551 Gibson Blvd. SE, Albuquerque. See Complaint ¶ 3, at 1-2; Search Warrant ¶ 3, at 1-2.

2. The first man was black, stood 6'2?, wore a black hooded sweatshirt, a purple bandana that covered his face, grey paisley pants, and blue latex gloves, and carried a green backpack with an orange interior lining. See Complaint ¶ 3, at 1-2; Search Warrant ¶ 3, at 1-2.

3. The second man was Hispanic, and wore a grey hooded sweatshirt, a Ninja Turtle mask, black pants, green and yellow shoes, and blue latex gloves. See Complaint ¶ 3, at 1; Search Warrant ¶ 3, at 1.

4. The men carried handguns. See Complaint ¶ 3, at 1; Search Warrant ¶ 3, at 1.

5. The first man's handgun was a chrome pistol with a black extended magazine. See Complaint ¶ 3, at 1; Search Warrant ¶ 3, at 1.

6. The second man's handgun was a small black pistol. See Complaint ¶ 3, at 2; Search Warrant ¶ 3, at 2.

7. On January 21, 2017, three masked men robbed a 7-Eleven convenience store located at 10324 Menaul Blvd. NE, Albuquerque. See Complaint ¶ 4, at 2; Search Warrant ¶ 4 at 2.

8. The first man was black, stood 6'3?, and wore a black hooded sweatshirt, a red bandana that covered his face, grey pants, black and white "Chuck Taylor" style shoes, and black gloves. Complaint ¶ 4, at 2; Search Warrant ¶ 4, at 2.

9. The second man was Hispanic, stood 5'8?, and wore a red and black hooded sweatshirt, a Ninja Turtle mask, and gloves. See Complaint ¶ 4, at 2; Search Warrant ¶ 4, at 2.

10. The second man held a handgun. See Complaint ¶ 4, at 2; Search Warrant ¶ 4, at 2.

11. The third man was Hispanic, stood 5'6? or 5'7?, and wore a black and grey hooded sweatshirt, black pants, white shoes, and a red bandana covering his face. See Complaint ¶ 4, at 2; Search Warrant ¶ 4, at 2.

12. The three masked men fled from the business in a Scion style box car. See Complaint ¶ 4, at 2; Search Warrant ¶ 4, at 2.

13. On January 25, 2017, three masked men robbed a Wienerschnitzel located at 2929 Carlisle Blvd. NE, Albuquerque, New Mexico. Complaint ¶ 5, at 2; Search Warrant ¶ 5, at 2.

14. The first man was white, wore a black hooded sweatshirt, a Ninja Turtle mask, white Nike high-top shoes, and carried black bag with a strap. See Complaint ¶ 5, at 2; Search Warrant ¶ 5, at 2.

15. The second man was Hispanic, wore a grey hooded sweatshirt, and a black mask. See Complaint ¶ 5, at 2; Search Warrant ¶ 5, at 2.

16. The third man was black, and wore a checkered hooded sweatshirt and black and white "Chuck Taylor" style shoes. Complaint ¶ 5, at 2; Search Warrant ¶ 5, at 2.

17. All three men carried handguns. See Complaint ¶ 5, at 2; Search Warrant ¶ 5, at 2.

18. The three men fled the Wienerschnitzel in a red box-style vehicle. See Complaint ¶ 5, at 2; Search Warrant ¶ 5, at 2.

19. On January 26, 2017, four masked men robbed the Metro PCS located at 3531 Gibson Blvd. SE, Albuquerque, New Mexico. See Complaint ¶ 6, at 2; Search Warrant ¶ 6, at 2.

20. The first man was black, stood 6'3?, wore grey paisley pants, black and white shoes, a black hooded sweatshirt, a white bandana that covered his face, and carried a green backpack with orange lining. See Complaint ¶ 6, at 3; Search Warrant ¶ 6, at 2-3.

21. The second man was Hispanic, wore a black jacket, a Ninja Turtle mask, white or grey Nike high-top shoes, and carried a black bag slung over his shoulders. See Complaint ¶ 6, at 3; Search Warrant ¶ 6, at 3.

22. The third man was Hispanic, stood 5'6? and wore a blue hooded sweatshirt, black pants, and white shoes. See Complaint ¶ 6, at 3; Search Warrant ¶ 6, at 3.

23. The fourth man was black, stood 6'2?, wore flower patterned sweatpants, white shoes with blue and orange soles, a black jacket, and carried a blue bag with white spots. See Complaint ¶ 6, at 3; Search Warrant ¶ 6, at 3.

24. All four men carried handguns. See Complaint ¶ 6, at 2; Search Warrant ¶ 6, at 2.

25. The first man held a chrome pistol with a black extended magazine. See Complaint ¶ 6, at 3; Search Warrant ¶ 6, at 3.

26. On January 30, 2017, an anonymous tipster told the Albuquerque Police Department that a man with the Facebook profile "OTF RJ Numero Cuatro" and a man named "Bruce Sedillo" were robbing cellular telephone stores and selling stolen telephones. Complaint ¶ 7, at 3; Search Warrant ¶ 7, at 3.

27. The anonymous tipster also stated that the men drove a red box-style car of an unknown make during the robberies. See Complaint ¶ 7, at 3; Search Warrant ¶ 7, at 3.

28. The anonymous tipster further said that the two men lived in an apartment located at the corner of Georgia St. SE and Gibson Blvd. SE, in Albuquerque. See Complaint ¶ 7, at 3; Search Warrant ¶ 7, at 3.

29. The Albuquerque Police Department identified "OTF RJ Numero Cuatro" as Robert Gallardo. Complaint ¶ 7, at 3; Search Warrant ¶ 7, at 3.

30. On Gallardo's Facebook account, there is a photograph of Cornwell holding a chrome pistol with an extended magazine and Gallardo. See Complaint ¶ 7, at 3; Search Warrant ¶ 7, at 3.

31. On February 2, 2017, an Albuquerque police detective spotted four men wearing hooded sweatshirts and masks approach a Verizon Wireless located at 5737 Menaul Blvd. NE, Albuquerque. See Complaint ¶ 8, at 3; Search Warrant ¶ 8, at 3.

32. The four men "entered the store and committed armed robbery." Complaint ¶ 8, at 3; Search Warrant ¶ 8, at 3.

33. One of the robbers was black, stood 6'3?, wore a black striped hooded sweatshirt, black and white shoes, a purple shirt underneath his sweatshirt, and gloves, and carried a green backpack with orange lining. See Complaint ¶ 9, at 4; Search Warrant ¶ 9, at 4.

34. Witnesses described another one of the robbers as Hispanic, short, and thin. See Complaint ¶ 10, at 4; Search Warrant ¶ 10, at 4.

35. The men fled the store after robbing it in a red Scion XB with New Mexico License Plate "HYY834." Complaint ¶ 8, at 3; Search Warrant ¶ 8, at 3.

36. Police followed the Scion XB and attempted to conduct a traffic stop, but the car fled at a high speed. See Complaint ¶ 8, at 4; Search Warrant ¶ 8, at 3.

37. The red Scion XB entered a neighborhood near California St. SE and Zuni Rd. SE, in Albuquerque. See Complaint ¶ 8, at 4; Search Warrant ¶ 8, at 4.

38. Officers set up a perimeter around the neighborhood and searched for suspects. See Complaint ¶ 8, at 4; Search Warrant ¶ 8, at 4.

39. Officers located Gallardo at the corner of Florida St. SE and Acoma Rd. SE, about two blocks away from where the red Scion XB was later found parked. See Complaint ¶ 9, at 4; Search Warrant ¶ 9, at 4.

40. Gallardo is black, stands 6'3?, and on that night wore black and white shoes, camouflage shorts, and a purple shirt. See Complaint ¶ 9, at 4; Search Warrant ¶ 9, at 4.

41. Gallardo told the officers his name was "Ariel Bueno." Complaint ¶ 9, at 4; Search Warrant ¶ 9, at 4.

42. Officers also located Sabaquie, walking away "quickly" from the neighborhood. Complaint ¶ 10, at 4; Search Warrant ¶ 10, at 4.

43. Sabaquie is Hispanic, short, thin, and on that night wore a black hooded sweatshirt and white shoes. See Complaint ¶ 10, at 4; Search Warrant ¶ 10, at 4.

B. The Red Scion.

44. Police discovered the red Scion XB with New Mexico license plate HYY834 in an apartment parking lot at the corner of Cochiti Rd. SE and California St. SE. See Complaint ¶ 11, at 4; Search Warrant ¶ 11, at 4.

45. Officers saw, through the car's windows, masks, gloves, a red hooded sweatshirt, and a bag of unopened Verizon cellular telephones. See Complaint ¶ 11, at 4; Search Warrant ¶ 11, at 4.

46. Police sought a search warrant for the vehicle. See Complaint ¶ 11, at 4; Search Warrant ¶ 11, at 4.

47. After receiving the search warrant, police discovered all of the cellular telephones and cash missing from the Verizon store, a silver .25 caliber pistol, masks, clothing, two active cellular telephones, and a casino player's reward card with the name "Ariel Bueno" on it. Complaint ¶ 11, at 4; Search Warrant ¶ 11, at 4.

48. The police also discovered in the car a document for a Motel 6 hotel room rented from February 1, 2017, until February 2, 2017, to a woman named Annette Lucero. See Complaint ¶ 11, at 5; Search Warrant ¶ 11, at 4.

49. One of the active cellular telephones found in the car yielded several pictures of Sabaquie. See Complaint ¶ 12, at 5; Search Warrant ¶ 12, at 5.

50. The other active cellular telephone yielded a distinctive background photograph that matched a photograph Sedillo had posted on his Facebook page. See Complaint ¶ 12, at 5; Search Warrant ¶ 12, at 5.

51. Other photographs posted on Sedillo's Facebook page show Sedillo wearing white and grey Nike high-top shoes. See Complaint ¶ 12, at 5; Search Warrant ¶ 12, at 5.

52. The red Scion XB with New Mexico license plate HYY834 belongs to Victor and Susan Guerrero. See Complaint ¶ 15, at 6; Search Warrant ¶ 15, at 6.

C. The Apartment.

53. Pursuant to a search warrant, police searched the apartment, where, according to the anonymous tipster, Sedillo and Gallardo lived. See Complaint ¶ 13, at 5; Search Warrant ¶ 13, at 5.

54. Police discovered that two more people resided in the apartment: Cornwell and Garcia. See Complaint ¶ 13, at 5; Search Warrant ¶ 13, at 5.

55. The police found in the apartment white and grey Nike high-top shoes, green and yellow shoes, grey paisley pants, a chrome pistol with a black extended magazine, a purple bandana, a black bag, and a grey and black hooded sweatshirt. See Complaint ¶ 13, at 5; Search Warrant ¶ 13, at 5.

56. The police found the grey paisley pants, purple bandana, and chrome pistol with black extended magazine in Gallardo's room. See Complaint ¶ 13, at 5; Search Warrant ¶ 13, at 5.

57. The police found the white Nike high-top shoes, green and yellow shoes, and black bag in Sedillo's room. See Complaint ¶ 13, at 5; Search Warrant ¶ 13, at 5.

58. Garcia, Sedillo's girlfriend, told the police that the grey and black hooded sweatshirt belonged to Sabaquie. See Complaint ¶ 14, at 5; Search Warrant ¶ 14, at 5.

59. Garcia also stated that Sedillo was able to borrow the red Scion XB from a woman named Sue. See Complaint ¶ 15, at 6; Search Warrant ¶ 15, at 6.

60. Garcia saw Gallardo and Sabaquie leaving the apartment in the red Scion on the night of the Verizon robbery. See Complaint ¶ 15, at 6; Search Warrant ¶ 15, at 6.

PROCEDURAL BACKGROUND

On May 24, 2017, the United States indicted Sedillo on five counts of interference with commerce by robbery in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2. See Indictment at 1, filed May 24, 2017 (Doc. 13). On June 28, 2017, Sabaquie's and Gallardo's cases were merged with Sedillo's, and the United States filed a superseding indictment, indicting Sedillo on five counts of interference with commerce by robbery in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2, and Sabaquie and Gallardo on three counts of interference with commerce by robbery in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2. See Superseding Indictment at 1-3. The Indictment alleges that each "did unlawfully take and obtain currency from a cash register," and threatened employees at the various locations "with a firearm." See Superseding Indictment at 1-3.

1. The Search Warrant.

Despite Sabaquie's counsel's representation that Sabaquie would not consent to a DNA swab, on June 30, 2017, Cristina Sandoval, an FBI agent, sought to extract a DNA sample from Sabaquie pursuant to a search warrant. See Motion ¶ 2, at 2; Search Warrant at 1. The Search Warrant application recounts the facts from the criminal complaint, see Search Warrant at ¶¶ 3-15, at 2-6, concludes that "there is probable cause to believe ... Sabaquie committed armed robbery of [the] 7/11, ... the Metro PCS on January 26, 2017, and Verizon," states "there is a probability that DNA and fingerprints will be found on the items collected during the search of the vehicle and apartment," and requests a "DNA sample by way of buccal swab" to compare the two DNA sets, Search Warrant ¶ 16, at 6. The Honorable Steven C. Yarbrough, United States Magistrate Judge, issued the Search Warrant, see Search Warrant at 1, and issued almost identical search warrants for Sedillo and Gallardo, see No. 17-0541, Application for a Search Warrant (Gallardo) at 1, filed June 23, 2017 (Doc. 1); Application for a Search Warrant (Sedillo) at 1, filed June 23, 2017 (Government Exhibit No. 2). Sabaquie's counsel did not learn of the Search Warrant until Sabaquie called and informed him that "an agent was at the Sandoval County Jail, seeking his DNA." Motion ¶ 2, at 2. After speaking with Sandoval, Sabaquie's counsel learned that "no evidence from any of the alleged crime scenes ha[d] been submitted for DNA testing yet, but she wanted to submit Mr. Sabaquie's sample at the same time" as the DNA from the items collected to move the case quicker. Motion ¶ 3, at 2.

2. The Motion .

On July 6, 2017, Sabaquie moved to void the warrant or for return of the DNA sample pursuant to rule 41(g) of the Federal Rules of Criminal Procedure. See Motion at 1. Sabaquie argues broadly that the Fourth Amendment of the Constitution of the United States of America bars a DNA sample collection. See Motion ¶ 5, at 2. According to Sabaquie, the Fourth Amendment precludes buccal DNA swabs, unless "there is probable cause to believe that the defendant's DNA will yield evidence of wrongdoing, not simply probable cause that a crime occurred." Motion ¶ 5, at 2-3 (citing United States v. Biglow, 562, F.3d 1272, 1278 (10th Cir. 2009) ). From that legal principle, Sabaquie argues that, "[a]t this stage, the government cannot say with any degree of certainty, whether any DNA evidence will be developed from items that were taken pursuant to their investigation." Motion ¶ 6, at 3. Sabaquie, thus, concludes that, because DNA has not yet been developed from the items collected in the car and the apartment, there is no DNA profile to which Sabaquie's DNA can be compared, and, accordingly, there is no connection "between the alleged criminal behavior, and the [United States'] intended search." Motion ¶ 6, at 3.

Sabaquie adds that, if the United States has already extracted Sabaquie's DNA, the Court should order the United States to return the sample pursuant to rule 41(g). See Motion ¶ 8, 3-4. Sabaquie asserts that the Court should order the DNA's return, because, if it does not, it "would encourage rather than deter the unlawful extraction of DNA," and "it would leave Mr. Sabaquie with no adequate remedy in law." Motion ¶ 8 at 3-4 (citing Floyd v. United States, 860 F.2d 999, 1003-06 (10th Cir. 1988) ). Sabaquie concludes that there is a risk of DNA examiner bias, and Sabaquie's DNA profile remains "irrelevant contextual information, unless and until it is independently determined that there is an evidentiary sample of adequate quality to compare him against." Motion ¶ 9, at 4.

3. The Response.

The United States responded to the Motion on July 20, 2017, and argues that the Fourth Amendment is no bar to the Search Warrant for two reasons. See United States' Response in Opposition to the Defendant's Motion to Void Search Warrant and Return of DNA Sample at 2-3, filed July 20, 2017 (Doc. 31)("Response"). First, the United States asserts that there is a sufficient connection between the Sabaquie buccal swab it requests and the clothing it intends to test, because a person with knowledge, Sedillo's girlfriend, identified the clothing to be tested as Sabaquie's, and the clothing appears substantially similar to the robber's clothing as "can be seen in the surveillance video of the robberies." Response at 4. It further argues that a DNA comparison is needed, "because the nature of the crime involves suspects who concealed their identities." Response at 5. The United States adds that, because Sandoval provided "her assessment that DNA will be discovered" on the clothing, there is a sufficient factual connection between the robbery and Sabaquie to overcome any Fourth Amendment problems. Response at 5. It also asserts that, "[b]ased on the strong deference given to a magistrate's determination of probable cause, the Court should deny the defendant's motion." Response at 5.

Second, the United States argues that the Fourth Amendment allows searches that serve a practical purpose, such as in this case, where the United States needs to identify masked robbers. See Response at 5-6. Specifically, the United States avers that it gave a "detailed account[ ] of its investigation" into "robberies perpetrated by individuals who concealed their identities," and that the Search Warrant, thus, serves a practical and "common-sense" purpose of identifying the robbers. Response at 6. The United States concludes that "probable cause is delineated in the four corners" of the Search Warrant, and "there is a nexus between the collection of the defendant's DNA and the suspected criminal activity." Response at 6.

4. The Reply.

On July 28, 2017, Sabaquie replied to the Response, and argues that the Search Warrant's facts do not provide a sufficient connection between the crime and Sabaquie to justify the warrant, and that there is a risk that the DNA tester will be unconsciously biased by testing Sabaquie's buccal DNA sample contemporaneously with the clothing's DNA sample. See Reply to Government's Response to Motion to Void Search Warrant for DNA Sample or for Return of DNA Sample Pursuant to F.R.C.P. 41(g) at 2-11, filed July 28, 2017 (Doc. 34)("Reply"). Sabaquie begins by noting that, after filing his Motion, the United States collected Sabaquie's DNA. See Reply ¶ 1, at 2. Consequently, Sabaquie withdraws his request to prevent collection, but preserves his request for his DNA's return pursuant to rule 41(g). See Reply ¶ 1-2, at 2-3.

First, Sabaquie contends that Sandoval's affidavit is defective. See Reply ¶ 3, 2-3. He explains that the Search Warrant requests to compare buccal swab DNA only "with evidence obtained during the search of the Scion XB with New Mexico license plate 'HYY834,' " but does not request to compare buccal DNA with DNA from items retrieved from the Apartment. Reply ¶ 3, at 2-3 (quoting Search Warrant at 6). According to Sabaquie, because the Search Warrant did not specify that Sabaquie's DNA would be compared with DNA from items retrieved from the apartment, the United States factual arguments vis-à-vis the apartment items are "misleading." Reply ¶¶ 2-3, at 2-3. Sabaquie further contends that the affidavit does not support at least one of the United States' arguments. See Reply ¶ 4, at 3. According to Sabaquie, the United States contends that a grey and black hooded sweatshirt found in the apartment belongs to Sabaquie, and matches a grey and black hooded sweatshirt that a robber wore, but Sabaquie notes that the affidavit identifies Kshawn Cornwell as wearing the grey and black hooded sweatshirt during the robbery, not Sabaquie. See Reply ¶ 4, at 3. Sabaquie also attacks the Search Warrant more broadly by asserting that the United States does not establish facts "to support that the conclusion that there will be DNA on the items to be tested." Reply ¶ 5, at 3-4. He also attacks the Sandoval's statement that "[b]ased on my experience there is a probability that DNA ... will be found on the items collected," because her experience does not encompass "the collection, analysis, or science of DNA or DNA transference." Reply ¶ 6, at 4. He continues that she has only been an FBI agent for a year, and the training and experience that she alleges in her affidavit is limited to "conducting surveillance, interviewing subjects, victims, and witnesses, writing affidavits for and executing search and arrest warrants, managing cooperating sources, issuing subpoenas, collecting evidence, and analyzing public records." Reply ¶ 6, at 4-5 (quoting Search Warrant at 1). He concludes that such experience "does not suggest that she could reliably predict the presence of testable DNA." Reply ¶ 6, at 4-5.

Sabaquie also asserts that "we know nothing about the items seized or their likelihood of producing evidence," because "we do not know how long the sweater had been out of Mr. Sabaquie's custody, under what circumstances and for how long someone other than Mr. Sabaquie was wearing the sweater," whether the sweater had been laundered, "and so on." Reply ¶ 7, at 5. He avers that there must be specific facts linking the intended search to relevant evidence, and without that link "no warrant should have [been] issued." Reply ¶ 8, at 5 (citing Illinois v. Gates, 462 U.S. 213, 239-40, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). He concedes that there is arguably some link between the sweater and the telephone in the car, and Sabaquie, because there was a witness that said the sweater belonged to him, and the telephone has photographs of him saved to it, but "it must be alleged, at minimum, that the proven physical connection is likely to yield testable DNA." Reply ¶ 10, at 5-6.

Second, Sabaquie argues that, if his DNA is developed contemporaneously with the sweater's DNA, a risk exists that the forensic analysis might be affected "by knowing about the prosecution's case." Reply ¶ 1, at 7-8. He contends that the President's Counsel of Advisors on Science and Technology has recently warned that, "[w]hen examiners know information such as the identity of a suspect, or a DNA profile, subjective interpretations of the DNA data can be irreversibly misinterpreted." Reply ¶ 1, at 8. He adds that several other academic groups have come to the same conclusion or have encouraged separate DNA testing. See Reply ¶ 2-3, at 8-9 (citing Strengthening Forensic Science in the United States: A Path Forward, National Academies Press at 185 (2009); Interpretation Guidelines for Autosomal STR Typing by Forensic DNA Testing Laboratories, Scientific Working Group on DNA Analysis Methods (October 14, 2017)). Sabaquie also argues that, if the samples are tested contemporaneously, contamination is also a concern, especially if the sample has little DNA to test. See Reply ¶ 4-5, at 10 (citing Rudin N., Imman K., An Introduction to DNA Analysis at 14 (2001)). He concludes by noting that the Supreme Court of the United States of America has also recognized DNA contamination concerns, and states that "there is absolutely no reason for this Court to endorse a practice that is at best a slight expedient, and at worst, an unconstitutional breach." Reply ¶ 6-7, at 11 (citing District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 82, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009) (Alito, J., concurring)).

5. Sedillo's Motion to Join Sabaquie's Motion.

On July 31, 2017, Sedillo moved to join the Motion. See Defendant Sedillo's Opposed Motion to Join in Defendant Sabaquie's Motion to Void Search Warrant for DNA Sample or for Return of DNA Sample Pursuant to F.R.C.P. 41(g) (Doc. 29), filed July 31, 2017 (Doc. 35)("Motion to Join"). Sedillo argues that, because "only insignificant factual differences exist between Defendant Sedillo and Defendant Sabaquie," the Court should grant Sedillo's Motion to Join. Motion to Join at 1. In support of his contention that the two cases are highly similar, Sedillo says that Sedillo and Sabaquie are co-Defendants, Sabaquie's case was joined to Sedillo's, and neither parties' attorneys had notice of the Search Warrant. See Motion to Join ¶¶ 6-7, 16 at 2-4. Sedillo also notes the following facts that diverge between Sabaquie's case and Sedillo's: Sedillo was not a party to the discussion between Sabaquie's counsel and Assistant United States Attorney Presiliano Torrez on May 22, 2017, concerning Sabaquie's refusal to have his DNA collected; Sedillo told his counsel on July 5, 2017 that he had been fingerprinted at the jail a few days before his arraignment; and Sedillo's counsel confirmed that this fingerprinting included a DNA buccal swab. See Motion to Join ¶¶ 8-9, 16, at 3-4. He concludes by "respectfully request[ing] that the Court permit Defendant Bruce Sedillo to join" the Motion. Motion to Join at 4.

6. The Hearing.

The Court held a hearing on August 3, 2017. See Draft Transcript of Motion Hearing (taken August 3, 2017)("Tr."). Sabaquie opened by arguing that Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) dispositively dealt with the issue before the Court. See Tr. at 2:11-24 (Fernandez). Sabaquie explained that, in that case, the Supreme Court held that " 'the interests in human dig[nity] and privacy, which the Fourth Amendment protects forbid any such intrusions on the mere chance that [the] desired evidence might be obtained.' " See Tr. at 2:17-20 (Fernandez)(quoting Schmerber v. California, 384 U.S. at 769-70, 86 S.Ct. 1826 ). Sabaquie expanded that the Supreme Court ruled that " '[i]n the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to [suffer the] risk that such evidence may disappear unless there is an immediate search.' " Tr. at 2:20-24 (Fernandez)(quoting Schmerber v. California, 384 U.S. at 770, 86 S.Ct. 1826 ). From that Supreme Court holding, Sabaquie contended that Sabaquie's and Sedillo's DNA should be returned, because: (i) there is no chance that Sedillo's or Sabaquie's DNA will disappear between now and the time that the United States develops the DNA samples from the items; and (ii) there is insufficient probable cause to collect DNA where the United States has not yet developed the DNA from the other items. See Tr. at 3:2-22 (Fernandez).

When the Court probed that Sabaquie and Sedillo were asking the Court to expand the Fourth Amendment "further than any Federal Court has ever gone before," see Tr. at 5:4-6 (Court), Sabaquie conceded that he is seeking to expand the Fourth Amendment, see Tr. at 10:25-11:1 (Fernandez), but also responded that the question presented rarely arises, because the United States typically motions to collect DNA under 42 U.S.C. § 14135A, not pursuant to a search warrant, see Tr. at 5:7-16 (Fernandez). Sabaquie also argued that Maryland v. King, 569 U.S. 435, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) is inapposite, because "the rationale in [that case] was that [the DNA] was used for identification and classification," which is "very different from what [the United States is] seeking to use it [for here.]" Tr. at 6:18-21 (Fernandez). He added that the Supreme Court was not concerned in Maryland v. King with "contamination and development of evidence at the same time as [a] suspect's DNA," which is at issue here. Tr. at 10:3-6 (Fernandez). The Court responded, however, that it was "skeptical that when [DNA] ends up in law enforcement['s hands]" that the Constitution of the United States of America bars law enforcement from using the DNA in more than one way-its experience had been that law enforcement can "give [the DNA] to other people, use it to investigate this crime, that crime. It's not usually cabin[ed] the way" that Sabaquie proposed. Tr. 8:5-12 (Court). Sabaquie countered that "practical concerns" dictate a distinction in this case, because, when developing a DNA profile "at the time of book and classification," the DNA is presumably developed "so that it is useful for classification and identification." Tr. at 8:22-9:4 (Fernandez). Sabaquie argued that, in contrast here, the DNA is being developed "side by side with evidence," which risks contamination. Tr. at 9:3 (Fernandez). He added that collecting the DNA sample differs from routine collections of fingerprints, because "you cannot contaminate a fingerprint the same way you can contaminate DNA." Tr. at 9:16-18 (Fernandez).

Drawing on state authority, Sabaquie added to his argument that developing DNA side-by-side risks contamination. See Tr. at 10:25-11:22 (Fernandez). He noted that several state cases construing the Constitution of the United States have determined that using the side-by-side development process increases "the possibility of contamination." Tr. at 11:21-22 (Fernandez). Sabaquie argued that, in discussing contamination, his major concern is that "the same lab technician or DNA examiner [will] touch both samples and inadvertently [ ] transfer DNA from a suspect's sample to the evidence." Tr. at 13:12-15 (Fernandez). Sabaquie added that, if technicians develop the DNA separately at different times, the danger that "the same lab examiner touch[es] both samples is eliminated." Tr. at 14:1-2 (Fernandez).

Turning to policy arguments, Sabaquie averred that there is a good deal of subjectivity that is introduced in analyzing DNA from evidence, because DNA from evidence is often "mixtures," not "pure samples." Tr. at 15:14-17 (Fernandez). He contended that "the scientific community is in full agreement that anything beyond a two person mixture is virtually impossible to untangle," that "[t]here is great evidence to show that most examiners can't even reliably distinguish a mixture where there is 3 or 4 [known contributors]," and that "the task of untangling is really impossible when you get complex enough." Tr. at 16:8-24 (Fernandez). Based on those considerations, Sabaquie argued that the way to test the samples "with integrity is you first decide whether or not this is a sample that can first be analyzed." Tr. at 17:6-7 (Fernandez). He argued that with the items collected-a sweater on the bedroom floor and a cellular telephone-there is going to be a mixture of DNA, so the best way to ward against error is to test the DNA only after determining whether there was a collectable sample from the items. See Tr. at 18:3-12 (Fernandez).

Sedillo then took the podium and argued that his case "is substantially identical" to Sabaquie's, but that there are a couple points he wanted to add. Tr. at 25:25 (Tallon). First, he argued that, unlike Sabaquie, "Mr. Sedillo did not acknowledge or concede probable cause." Tr. at 26:1-3 (Tallon). Second, he noted that the United States has brought to his attention nine items that it believes are associated with Sedillo: two bags, two pairs of shoes, three guns, and two cellular telephones. See Tr. at 30:11-21 (Tallon). Sedillo argued that there is an insufficient nexus between those nine items and the robberies to support probable cause to collect his DNA. See Tr. at 31:6-10 (Tallon). He added that, at the preliminary hearing, "Judge Yarbrough indicated that the evidence against Mr. Sedillo, which we are challenging, was fairly slender." Tr. 32:9-13 (Tallon). Sedillo also emphasized that the evidence's nature-DNA-is important, because jurors hold DNA evidence in higher esteem then other evidence. See Tr. at 33:11-17 (Tallon).

Regarding the risk of evidence contamination, the Court noted that it seemed unlikely that a constitutional rule could ever prevent all laboratory mistakes. See Tr. at 34:1-5 (Court). Sedillo rejoined that a DNA contamination risk was heightened when taking swabs outside of the booking context, because the evidence here remains in an area that can be contaminated. See Tr. at 34:23-35:13 (Tallon). He added that a DNA mixture is highly likely here given that Sedillo had been living in the apartment with other people for months. See Tr. at 36:2-14 (Tallon). He argued that, given that cohabitation, Sedillo's DNA appearing on some of the items six weeks after the last robbery "must be factored into the reasonableness analysis." Tr. at 36:2-14 (Tallon).

Sedillo concluded by attacking several loose ends. See Tr. at 38:16-41:6. First, Sedillo argued that the United States' argument that gathering the buccal swabs now serves a practical purpose of expediting the case is unpersuasive, because "almost any kind of investigative technique could be characterized as having a practical purpose[ ]." Tr. at 38:16-18 (Tallon). Second, Sedillo emphasized that ruling in their favor would not affect thousands of cases, but affects only this one, because the case has distinct factual elements. See Tr. at 39:10-17 (Tallon). Finally, Sedillo argued that Sandoval's inexperience should also sway the Court to return Sedillo's DNA. See Tr. at 40:25-41:6 (Tallon).

The United States countered by broadly arguing that ruling in the Defendants' favor was impractical. See Tr. at 48:19-52:24 (Torrez). It contended that a contamination concern "is an issue that arises in every case" that DNA is used. Tr. at 48:19-20 (Torrez). The United States also argued that requiring the United States to wait to collect DNA is akin to requiring the United States to wait to test a defendant's fingerprints until fingerprints collected from a crime scene are developed, but it noted that this is impractical, because developing fingerprints can take up to six months. See Tr. at 52:18-24 (Torrez). Although it admitted that DNA contamination might be a hurdle in terms of evidence admissibility, the United States argued that the contamination risk does not implicate the search warrant's constitutionality. See Tr. at 53:6-17 (Torrez).

It also argued that there is a sufficient connection between Sabaquie and Sedillo, and the items in the car, to establish probable cause. See Tr. at 53:19-25 (Torrez). First, it contended that Sabaquie was arrested blocks from the car soon after the robbery. See Tr. at 53:19-21 (Torrez). Second, it averred that agents found a cellular telephone with photographs that tied Sedillo to that telephone. See Tr. at 53:24-54:2 (Torrez). It also argued that there is a sufficient nexus between the apartment and the Defendants. See Tr. at 54:4-5 (Torrez). The United States contended that Sedillo lived at the apartment and that a witness identified clothing at the apartment that belonged to Sabaquie. See Tr. at 54:5-8 (Torrez). The United States concluded that, "once we establish the nexus" between the crime and the Defendants, "common sense tells us that if there is a possibility of DNA ... we don't have to wait until the[re] is a determination that DNA exists." Tr. at 55:7-12 (Torrez). Regarding the proper inquiry, the United States argued that the Court must "look at the four corners of the warrant to determine whether or not probable cause exists," but that it does not know whether the Court is "allowed to go and look at the transcript of a preliminary hearing to see what the magistrate thought about probable cause." Tr. at 54:16-23 (Torrez).

The United States also responded to several contentions that the Defendants raised previously. See Tr. at 55:23-56:18 (Torrez). First, the United States contended that, although the Search Warrant states that it would compare the Defendants' DNA profiles with only items found in the car, the limitation to the car does not preclude the United States from comparing the Defendants' DNA sample with items found in the apartment, because "what we're trying to do is ... compare [the DNA profiles] to items of relevant evidence." Tr. at 55:23-56:7 (Torrez). Regarding whether Sandoval has proper credentials to draw an opinion about DNA evidence, the United States argued that "she has a Ph.D. in biochemistry" and that "the education that she does have would certainly be relevant." Tr. at 56:16-18 (Torrez).

Sabaquie rejoined that, "until the[ United States] can show that [it] can develop DNA from [the evidence collected,] there is no ground upon which to say that [Sabaquie's] DNA will be evidence of anything." Tr. at 63:5-7 (Fernandez). He also conceded: "I think [the Court is] right [that] you don't create Fourth Amendment precedents on the risk [that] there [is] intentional mis[handling]," but that the Fourth Amendment can speak to "unintentional mishandling" of DNA samples. Tr. at 64:14-20 (Fernandez). Sabaquie also contended that, if the United States' only practical concern is that testing DNA at different times will slow the investigation down, "additional time is worth it" if "the risk is finding an innocent person guilty." Tr. at 65:16-20 (Fernandez). He added that "it would actually save [the United States] resources ... if they only sought DNA from suspects when they knew they could compare it to something." Tr. at 65:20-23 (Fernandez). Sedillo concluded by arguing that the preliminary hearing gives the Court an opportunity to look at Sandoval's cross-examination, and that her cross-examination demonstrates why the Court should return Sedillo's and Sabaquie's DNA. See Tr. at 67:14-22 (Tallon); id. at 68:16-21 (Tallon).

LAW REGARDING THE FOURTH AMENDMENT

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. Fourth Amendment rights are enforceable against state actors through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ; United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1225 n.1 (10th Cir. 2008) ("[T]he Fourth Amendment applies against state law enforcement officials as incorporated through the Due Process Clause of the Fourteenth Amendment."). "Not all searches require a warrant. The hallmark of the Fourth Amendment is reasonableness." United States v. Harmon, 785 F.Supp.2d 1146, 1157 (D.N.M. 2011) (Browning, J.). See United States v. McHugh, 639 F.3d 1250, 1260 (10th Cir 2011) ("[T]he ultimate touchstone of the Fourth Amendment is 'reasonableness.' ")(quoting Brigham City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ). The Supreme Court has stated that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnotes omitted).

1. Fourth Amendment Searches.

A Fourth Amendment search occurs where, in an attempt to collect information, the government either trespasses on a person's property or violates a person's subjective expectation of privacy that society recognizes as reasonable. See United States v. Jones, 565 U.S. 400, 409, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). The test "[a]t bottom" is meant to " 'assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.' " United States v. Jones, 565 U.S. at 406, 132 S.Ct. 945 (alteration in original). Accordingly, "the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." United States v. Jones, 565 U.S. at 409, 132 S.Ct. 945 (emphasis in original)(citing Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) ; Soldal v. Cook Cty., 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) ).

a. Trespass-Based Analysis.

In Florida v. Jardines, 569 U.S. 1, 5, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), the Supreme Court explained that the Fourth Amendment "establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When 'the Government obtains information by physically intruding' on persons, houses, papers, or effects, 'a search within the original meaning of the Fourth Amendment' has 'undoubtedly occurred.' " 569 U.S. at 5, 133 S.Ct. 1409 (quoting United States v. Jones, 565 U.S. at 406 n.3, 132 S.Ct. 945 ). "[A]n actual trespass," however, "is neither necessary nor sufficient to establish a constitutional violation." United States v. Jones, 565 U.S. at 408 n.5, 132 S.Ct. 945 (emphasis omitted)(quoting United States v. Karo, 468 U.S. 705, 713, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) ). In determining whether a search has occurred, "[t]respass alone does not qualify, but there must be conjoined with that ... an attempt to find something or to obtain information." United States v. Jones, 565 U.S. at 408 n.5, 132 S.Ct. 945. The Supreme Court has also noted that "[p]hysically invasive inspection is simply more intrusive than purely visual inspection." Bond v. United States, 529 U.S. 334, 337, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). Moreover, the Supreme Court, in Florida v. Jardines, suggested that the trespass-based analysis applies only when the trespass occurs in one of the four places or things listed in the Fourth Amendment:

The Fourth Amendment "indicates with some precision the places and things encompassed by its protections": persons, houses, papers, and effects. The Fourth Amendment does not, therefore, prevent all investigations conducted on private property; for example, an officer may (subject to Katz ) gather information in what we have called "open fields"-even if those fields are privately owned-because such fields are not enumerated in the Amendment's text.... But when it comes to the Fourth Amendment, the home is first among equals.

569 U.S. at 7, 133 S.Ct. 1409.

b. Katz v. United States' Reasonable-Expectation-of-Privacy Analysis.

" '[N]o interest legitimately protected by the Fourth Amendment' is implicated by governmental investigative activities unless there is an intrusion into a zone of privacy, into 'the security a man relies upon when he places himself or his property within a constitutionally protected area.' " United States v. Miller, 425 U.S. 435, 440, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (quoting Hoffa v. United States, 385 U.S. 293, 301-02, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) ). The United States Court of Appeals for the Tenth Circuit has, thus, noted that "[a]n illegal search or seizure only harms those with legitimate expectations of privacy in the premises searched." United States v. Jones, 44 F.3d 860, 871 (10th Cir. 1995) (citing United States v. Roper, 918 F.2d 885, 886-87 (10th Cir. 1990) ). Thus, "[t]he proper inquiry" to determine whether a search implicates a defendant's Fourth Amendment interests still depends, after conducting a trespass-based analysis, on "whether the defendant had an expectation of privacy in the place searched and whether that expectation was objectively reasonable." Kerns v. Bd. of Comm'rs of Bernalillo Cty., 888 F.Supp.2d 1176, 1219 (D.N.M. 2012) (Browning, J.), abrogated on other grounds as recognized in Ysasi v. Brown, 3 F.Supp.3d 1088, 1131 n.24 (D.N.M. 2014) (Browning, J.).

"Official conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (quoting United States v. Jacobsen, 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ). The Supreme Court has, thus, recognized that, rather than determining whether law enforcement conduct was a search, it sometimes proves easier to "assess[ ] when a search is not a search." Kyllo v. United States, 533 U.S. 27, 32, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).

In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States. Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth-a location not within the catalog ("persons, houses, papers, and effects") that the Fourth Amendment protects against unreasonable searches. We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth. As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.

Kyllo v. United States, 533 U.S. at 32-33, 121 S.Ct. 2038. The Supreme Court, thus, articulated the Katz v. United States rule-which posits: "[A] Fourth Amendment search does not occur ... unless 'the individual manifested a subjective expectation of privacy in the object of the challenged search,' and 'society [is] willing to recognize that expectation as reasonable.' " Kyllo v. United States, 533 U.S. at 33, 121 S.Ct. 2038 (emphasis in original)(quoting California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) ).

A "reasonable expectation of privacy" is "said to be an expectation 'that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.' " United States v. Jones, 565 U.S. at 408, 132 S.Ct. 945 (quoting Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) ). See United States v. Harmon, 785 F.Supp.2d 1146, 1157 (D.N.M. 2011) (Browning, J.)("To decide whether a reasonable expectation of privacy exists, courts consider concepts of real or personal property law."). In analyzing whether an expectation of privacy is reasonable in the Fourth Amendment context based on property law, "arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control." Rakas v. Illinois, 439 U.S. 128, 143 n.12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

A defendant maintains a subjective expectation of privacy when he or she "has shown that 'he sought to preserve something as private.' " Ysasi v. Brown, 3 F.Supp.3d at 1109-10 (quoting Bond v. United States, 529 U.S. at 338, 120 S.Ct. 1462 ). Thus, there is no reasonable expectation of privacy in otherwise private information disclosed to a third party. "[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. at 351, 88 S.Ct. 507. The Supreme Court has noted:

This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

United States v. Miller, 425 U.S. at 443, 96 S.Ct. 1619.

The Supreme Court has recognized, however, that subjective expectations of privacy do not always coincide with the interests that the Fourth Amendment is universally thought to protect. In Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), for instance, the Supreme Court identified situations in which it would not follow the subjective approach:

Situations can be imagined, of course, in which Katz' two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation or [sic] privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation's traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual's subjective expectations had been "conditioned" by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a "legitimate expectation of privacy" existed in such cases, a normative inquiry would be proper.

Smith v. Maryland, 442 U.S. at 740 n.5, 99 S.Ct. 2577.

Under Katz v. United States' second step, the reasonable-expectation-of-privacy approach, courts must determine "whether society is prepared to recognize that [subjective privacy] expectation as objectively reasonable." United States v. Ruiz, 664 F.3d 833, 838 (10th Cir. 2012) (citing United States v. Allen, 235 F.3d 482, 489 (10th Cir. 2000) ). The Supreme Court has cautioned: "The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities." United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). "Determining whether society would view the expectation as objectively reasonable turns on whether the government's intrusion infringes on a legitimate interest, based on the values that the Fourth Amendment protects." United States v. Alabi, 943 F.Supp.2d 1201, 1247 (D.N.M. 2013) (Browning, J.), aff'd 597 Fed.Appx. 991 (10th Cir. Jan. 20, 2015) (citing California v. Ciraolo, 476 U.S. 207, 212, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (explaining that "[t]he test of legitimacy is not whether the individual chooses to conceal assertedly 'private' activity," but instead "whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment") quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ). This second factor of the Katz v. United States reasonable-expectation-of-privacy analysis developed from Justice Harlan's "attempt to give content to the word 'justifiably' in the majority's assertion that eavesdropping on Katz was a search because it 'violated the privacy upon which he justifiably relied while using the telephone booth.' " LaFave, § 2.1(d), at 439 (quoting Katz v. United States, 389 U.S. at 353, 88 S.Ct. 507 ). Thus, whether society will recognize a certain expectation of privacy does not turn on whether the hypothetical reasonable person would hold the same expectation of privacy, but rather on whether the expectation of privacy is justified or legitimate. The Supreme Court has provided that, while no single factor determines legitimacy, whether society recognizes a privacy interest as reasonable is determined based on our societal understanding regarding what deserves protection from government invasion:

No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion.

Oliver v. United States, 466 U.S. 170, 177-78, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (citations omitted).

The Supreme Court has held that "[o]fficial conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652 ). For example, in United States v. Place, the Supreme Court held that a drug-sniffing dog's "canine sniff" does "not constitute a 'search' within the meaning of the Fourth Amendment." United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The case arose when law enforcement seized the luggage of an airline passenger and transported it to another location, where a drug-sniffing dog could sniff it. See 462 U.S. at 699, 103 S.Ct. 2637. The drug-sniffing dog alerted the officers that drugs were in the luggage, the officers obtained a search warrant, and, upon opening the ba