Wednesday, March 30, 2016

The U.S. Secret Service, “Fraudulent Possession of Identifying Information” and the Laptops

This post examines a recent opinion from the Court of Appeals of Texas – Houston:  Minassian v. State, 2016 WL 1054719 (2016).  The court begins by explaining that a
grand jury indicted Arkadi Minassian for the offense of fraudulent possession of identifying information. See TEX. PENAL CODEANN. § 32.51 (West Supp. 2013). Minassian moved to suppress the evidence that law enforcement seized at the time of his arrest, contesting both the lawfulness of that arrest and the search of (1) the white Nissan Armada in which he was traveling at the time of his arrest, and (2) two laptop computers found within the Nissan. The trial court denied the motion. Minassian then pleaded guilty, and the trial court assessed his punishment at thirty years' confinement. . . .
Minassian v. State, supra.
The court went on to outline the facts that led to Minassian’s being charged with, and convicted of, the offenses outlined above:
The United States Secret Service began investigating an organized crime ring that placed `skimmers,’ or devices that capture credit information and permit it to be wirelessly downloaded onto a nearby laptop computer, on gas pumps at gas stations in the Dallas area. Investigators suspected that Minassian was a participant in the scheme. A confidential informant notified officers that Minassian planned to travel from Dallas to Houston in connection with the scheme. The day before Minassian's trip, members of the Houston Police Department's regional interagency task force on fraud received an alert that four skimmers had been found on gas pumps at a Valero gas station on Beamer Road in Houston. Special Agent Charles Hutchins, Jr., with the United States Secret Service in its Houston office, confirmed that the skimmers discovered in Houston matched the description of ones seized in connection with a Dallas investigation.
On the day that Minassian's plane was due to arrive in Houston, a Valero technician discovered four additional skimmers at another Houston-area gas station, on Bay Area Boulevard in Clear Lake. The technician notified the Secret Service's Houston Field Office of his finding.

Meanwhile, task force members began surveillance of Minassian when he arrived at George Bush Intercontinental Airport. From the airport, Minassian and another man drove to the Valero gas station on Bay Area Boulevard. Neither he nor the driver attempted to pump gas. They departed from the gas station a few minutes later. Minassian and the man then drove to the Valero gas station on Beamer Road. Officers observed the vehicle stop at a gas station pump, but again, neither Minassian nor the driver attempted to pump gas.

Officers arrested Minassian and the driver and searched the vehicle. An open and powered-on laptop sat in the passenger-seat area. Police seized a second laptop, two GPS devices, six universal keys for gas pumps, several cell phones, double-sided tape, two thumb drives, and a USB radio receiver/transmitter device. Minassian possessed two different California Driver's licenses, one with his name and photo, and a second one with the name `Ashot Aslanian’ and Minassian's photo. The American Airlines ticket stubs in Minassian's possession showed a flight ticketed to Ashot Aslanian.

A Secret Service agent searched the laptops at the scene. In that search, the agent discovered about 10,000 credit card numbers and the names associated with them. Six days later, a federal magistrate issued a warrant for the further search of the laptops. The State alleged that this further search revealed 38,000 additional names and identifying information.
Minassian v. State, supra.  As Wikipedia explains, the U.S. Secret Service has
two distinct areas of responsibility: 
  • Financial Crimes, covering missions such as prevention and investigation of counterfeit U.S. currency, U.S. treasury securities, and investigation of major fraud.
  • Protection, which entails ensuring the safety of current and former national leaders and their families, such as the President, past Presidents, Vice Presidents, presidential candidates, visiting heads of state, and foreign embassies.
Minassian responded to his arrest and the search of the vehicle by moving to suppress evidence the government obtained as a result of the events outlined above.  Minassian v. State, supra.  The trial court judge held a hearing on the motion and at that hearing,
neither Minassian nor the State introduced testimony from live witnesses, but the trial court admitted without objection an affidavit from Special Agent Hutchins as well as a copy of the federal warrant and color copies of the two different California driver's licenses. In the affidavit, Hutchins averred in part:

2. This case originated on 03/25/11, when I was contacted by Special Agent (SA) Troy Saria, United States Secret Service (USSS), Dallas Field Office, regarding an on-going case in their district involving gas pump skimmers. Through his investigation, SA Saria determined Minassian is involved in an organized crime ring responsible for distributing highly sophisticated gas pump skimmers to several cities and downloading the credit card numbers, initially thought to be through Bluetooth, but later determined to be via Zigbee Radio technologies. The device works in the following manner: The skimmer is installed in a gas pump and the user can download its contents (credit card name and account number) from a laptop within a 100 meter range. Bluetooth devices are discoverable on wireless networks, whereas Zigbee Radio technologies are not. SA Sarria stated he received information that Minassian would be traveling from Dallas, TX to Houston, TX, on 03/29/11, and departing on 03/30/11. SA Sarria stated Minassian was traveling under the alias Ashot Aslanyan.

3. On 03/28/11, Sgt. Gorski, HPD and Houston Area Fraud Task Force (HAFTF) member, was notified 4 skimmers were found in 4 different gas pumps at a Valero gas station located at 11499 Beamer Rd., Houston, TX 77089. Sgt. Gorski, SA Russell Sparks, and I met with Valero technician James Henderson and observed the gas pump skimmers in 4 different pumps. The skimmers are described as a black hard plaster square block with connection cables to the card reader and key pad of the gas pump attached to the pump with double sided tape. Each skimmer was labeled with a name believed to be a city. I confirmed with SA Sarria the description of these skimmers matched the skimmers seized in Dallas throughout their investigation.

4. On 03/29/11, Valero technician James Henderson notified the USSS Houston Field Office that he conducted an inspection of another Valero gas station, located at 2404 Bay Area Blvd., Clear Lake, TX 77058. Henderson discovered 4 additional skimmers at 4 separate gas pumps at this Valero gas station. All skimmers are in the custody of the USSS.

5. Continuing on 03/29/11, members of the HAFTF conducted surveillance of Minassian upon his arrival into Bush Intercontinental Airport. Minassian departed the airport riding in the passenger seat of a white Nissan Armada, California License Plate (LP) 5GRC174, registered to Arvin Mehrabian. Minassian and the driver, later determined to be Arin Mehrabian, drove directly to the Valero gas station, located at 2404 Bay Blvd. Neither the driver nor the passenger attempted to get gas, and approximately 2–3 minutes later, the Nissan Armada departed the scene in an erratic behavior and at a high rate of speed. Mobile surveillance was discontinued.

6. Continuing on this date, members of the HAFTF conducted stationary surveillance at the Valero gas station, located at 11499 Beamer Rd. The Nissan Armada, LP 5GRC74, was observed driving up to the gas station pump and again neither the driver, nor the passenger, attempted to pump gas. Members of the HAFTF arrested Minassian and Meharbian without incident. Search incident to arrest revealed an open, powered on, laptop in the passenger seat area, an additional laptop, 2 GPS devices, 6 universal keys for gas pumps, several cell phones, double sided tape, 2 thumb drives, and a USB radio receiver/transmitter device. Mehrabian also possessed notebook paper containing a list of addresses, including the addresses to both gas stations which contained the skimmers. Due to the risk of losing the data stored on the computers, the laptops were immediately examined by SA Sparks. Approximately 10,000 credit card numbers and names associated with these numbers were discovered. Efforts are on-going to examine the 8 skimmers found at the aforementioned gas pumps.
Minassian v. State, supra. 
The opinion goes on to explain that after the hearing was over, the judge
denied Minassian's motion to suppress the evidence seized in connection with his arrest. Minassian subsequently pleaded guilty. The trial court admonished him about the potential range of punishment and other consequences of his plea; it then accepted Minassian's plea and assessed his punishment at thirty years' confinement.
Minassian v. State, supra. 
Minassian appealed his conviction, arguing, first, that
law enforcement lacked probable cause to arrest him and therefore violated his constitutional right to be free of unreasonable seizures. See Brown v. State, 481 S.W.2d 106, 109 (Texas Criminal Court of Appeals 1972) (probable cause is a prerequisite to warrantless arrest). He argues that he was not in a suspicious place when he was taken into custody and exigent circumstances did not require his arrest without first obtaining a warrant. See TEX.CODECRIM. PROC. ANN. art. 14.03(a)(1) (West Supp. 2015) (warrantless arrest permitted when person is found in a suspicious place under circumstances that reasonably show he is guilty of a felony); Swain v. State, 181 S.W.3d 359, 366 (Texas Criminal Court of Appeals 2005) (warrantless arrest under Section 14.03(a)(1) requires showing of exigent circumstances). . . .
Minassian v. State, supra. 
The appellate court then took up Minassian’s argument concerning probable cause.  Minassian v. State, supra.  It began by explaining that probable cause for an arrest
exists when the totality of the circumstances show that law enforcement has `reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense.' Guzman v. State, 955 S.W.2d 85, 87 (Texas Criminal Court of Appeals 1997). While probable cause requires `a relatively high level of suspicion,; it is `far short of a preponderance of the evidence standard.’ Baldwin v. State, 278 S.W.3d 367 (Texas Criminal Court of Appeals 2009). . . . And it requires `far less evidence’ than is necessary to support a finding under a preponderance of the evidence. Guzman v. State, supra. Under this standard, information from a confidential informant that has been corroborated through independent investigation by law enforcement may supply probable cause for an arrest. See Angulo v. State, 727 S.W.2d 276, 278–80 (Texas Criminal Court of Appeals 1987).
Minassian v. State, supra. 
The Court of Appeals then took up the specifics of Minassian’s arguments on appeal, noting, first, that he
contends his arrest resulted from a confidential informant's tip alone without evidence that the informant was credible and reliable. See Lowery v. State, 843 S.W.2d 136 (Texas Court of Appeals -- Dallas 1992) (probable cause lacking where information supplied by informant was not shown to be reliable or credible). Thus, he contends, the trial court erred in denying his motion to suppress.

But the record shows that Minassian's arrest was not based solely on an informant's tip. The informant told law enforcement that Minassian would fly from Dallas to Houston on a particular date. The accuracy of the informant's information was verified when Minassian traveled to Houston on the day in question, using an assumed name and fake driver's license. There, law enforcement observed Minassian travel directly from the airport to a gas station, and then later observed him at another gas station. Officers previously had determined that skimmers like those discovered in the Dallas area had been installed in pumps at both of these gas stations. Minassian and his companion drove to both of these stations directly from the airport; neither one attempted to pump gas at either gas station.

The information from a confidential informant in the Dallas area thus was independently corroborated by firsthand surveillance of Minassian's activities by law enforcement in the Houston area. Probable cause may arise from such a combination of sources.  sources. See Angulo v. State, 727 S.W.2d 276, 278–80 (Texas Court of Criminal Appeals 1987) (anonymous tip with independent police corroboration and surveillance based on prior investigation provided probable cause). Accordingly, the trial court acted within its discretion in denying Minassian's motion to suppress on this ground.
Minassian v. State, supra. 
The court then took up Minassian’s second argument with regard to probable cause, explaining that,
[i]n addition to probable cause, law enforcement officers also must have statutory authorization to make a warrantless arrest. Parker v. State, 206 S.W.3d 593, 596–97 (Texas Court of Criminal Appeals 2006). Section 14.03(a)(1) of the Texas Code of Criminal Procedure authorizes law enforcement to arrest “persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony ... or are about to commit some offense against the laws.” This section requires “the legal equivalent of constitutional probable cause.” Amores v. State, 816 S.W.2d 407, 413 (Texas Court of Criminal Appeals 1991).

Places seldom, if ever, are suspicious in and of themselves. Dyar v. State, 125 S.W.3d 460 (Texas Court of Criminal Appeals 2003). Instead, whether a given place is suspicious requires a fact-specific analysis and turns on the totality of the circumstances. Dyar v. State, supra. The proper inquiry focuses not on whether a particular activity is innocent or criminal standing alone, but rather on the degree of suspicion that the activity engenders when viewed in the totality of the circumstances. State v. Guzman, supra; Hall v. State, 795 S.W.2d 195, 197 (Texas Court of Criminal Appeals 1990) (per curiam). Innocent activities can provide probable cause when they are coupled with prior knowledge by law enforcement that indicates a criminal offense is occurring. Stull v. State, 772 S.W.2d 449, 451–52 (Texas Court of Criminal Appeals 1989). With that knowledge, a place `may become suspicious’ and raise a reasonable belief that the person has committed a crime.  Swain v. State, 181 S.W.3d 359, 366 (Texas Court of Criminal Appeals 2005); see also Goldberg v. State, 95 S.W.3d 345 (Texas Court of Appeals--Houston [1st Dist.] 2002). The same facts that support a finding of probable cause may also support a finding that a defendant was in a suspicious place. place. E.g., Dyar v. State, supra. . . .
Minassian v. State, supra. 
The Court of Appeals then went on to announce its ruling on Minassia’s argument regarding probable cause:
The facts in this case support a finding that the police arrested Minassian in a suspicious place under suspicious circumstances, i.e., upon leaving the second of two minutes-long visits to gas stations with skimmers like the ones discovered in Dallas, and without attempting to purchase gas at either location. Minassian argues that traveling to the two Houston-area gas stations is as consistent with innocent activity as it is with criminal conduct.  See Torres v. State, 868 S.W.2d 798, 802-803(1993) (probable cause does not exist when a defendant's activities are as consistent with innocent conduct as criminal conduct). He posits, for example, that he could have visited a gas station to look at a map or GPS.

Minassian's argument is tenable only if one considers his gas-station visits in isolation from the remainder of the record, rather than in context. Law enforcement had identified the two stations that Minassian visited as locations at which skimmers had been installed, confirmed that these skimmers were of the same type as those associated with an organized crime ring's activities in the Dallas area, suspected that Minassian was a member of this ring, and learned that he was travelling from Dallas to Houston in apparent furtherance of the ring's scheme. Law enforcement surveilled Minassian when he arrived in Houston, and observed that he went directly to one of the two stations at issue but made no attempt to pump gas. He later went to the second station and again made no attempt to pump gas.

Taken as a whole, the facts are not as consistent with innocent activity as criminal conduct, and they support a finding that Minassian was arrested in a suspicious place under circumstances that raised a reasonable belief that he had committed a crime. See State v. Dyar, supra (a place may become suspicious when circumstances raise a reasonable belief that a person has committed a crime there); Hall v. State, supra (the proper inquiry is not limited to whether the actual activity observed is innocent or criminal but instead concerns the degree of suspicion reasonably aroused by the observed activity); Lunde v. State, 736 S.W.2d 665 (Texas Court of Criminal Appeals 1987) (holding that another statutory provision authorizing warrantless arrest was satisfied despite that fact that law enforcement did not observe overtly criminal conduct). Thus, the trial court did not abuse its discretion in denying the motion to suppress on this ground.
Minassian v. State, supra. 
It then addressed Minassian’s argument concerning “exigent circumstances”, noting that
[s]o long as probable cause to make the arrest exists, a warrantless felony arrest made in a public place need not be supported by exigent circumstances in order to pass constitutional muster. Milton v. State, 549 S.W.2d 190 (Texas Court of Criminal Appeals 1977). Minassian contends without elaboration that no exigency required his immediate arrest.
Minassian v. State, supra. 
The court also explained that
Hutchins' affidavit permits a reasonable inference that Minassian and his driver were pulled over and arrested at the second gas station or on a nearby roadway. Both of these locations are public places. Accordingly, regardless of any exigency, Minassian's arrest was not constitutionally infirm, because there was probable cause.  Milton v. State, 549 S.W.2d 190 (Texas Court of Criminal Appeals 1977). Section 14.03(a)(1) of the Texas Code of Criminal Procedure, requires exigent circumstances to make a warrantless arrest premised on suspicious activity in a suspicious place. Swain v. State, supra. Even if not in public, the possibility of escape and immediate erasure of any evidence of wrongdoing provides the necessary exigency for an immediate arrest. Coyne v. State, 485 S.W.2d 917 (Texas Court of Criminal Appeals 1972). Thus, the trial court did not abuse its discretion in denying the motion to suppress on this ground.
Minassian v. State, supra. 
Minassian also argued that “law enforcement violated his Fourth Amendment rights when they conducted a search of the laptops found within the vehicle without a warrant.” Minassian v. State, supra.  As Wikipedia explains, the Fourth Amendment has been interpreted to require that law enforcement officers obtain a warrant before they search a place or a thing; as Wikipedia also explains, the Supreme Court has recognized a number of circumstances (“exceptions”) which allow officers to search and/or seize without first obtaining a warrant.
Getting back to the opinion, the Court of Appeals explained that law enforcement
searched the vehicle in which Minassian was a passenger incident to his arrest. See State v. Tercero, 467 S.W.3d 1 (Court of Appeals of Texas – Houston 2015). . . .  We have concluded that the arrest was lawful. The search-incident-to-arrest exception to the warrant requirement, however, does not render an immediate, warrantless search of the laptops found in the car constitutional, and it is this further search that Minassian challenges. 
Minassian v. State, supra. 
The court went on to hold that
[o]ne of the two laptops was discovered in the passenger area of the vehicle in which Minassian was traveling as a passenger, and the other was located elsewhere within the vehicle. In the trial court, Minassian asserted in a footnote to his motion to suppress that the computers `were both personal computers, with personal information, under his control.’ But Minassian did not introduce any evidence in support of this allegation at the suppression hearing. Nor is there any evidence of ownership of the laptops elsewhere in the record. The argument of counsel, as opposed to evidence, is not enough to show standing. Handy v. State, 189 S.W.3d 296, 299 (Texas Court of Criminal Appeals 2006); Calloway v. State,743 S.W.2d 645 (Texas Court of Criminal Appeals 1988). The fact that Minassian was seated near one laptop is not proof of ownership without evidence linking him to it. Rawlings v. Kentucky, 448U.S. 98 (1980).

In sum, Minassian failed to carry his burden to prove a legitimate expectation of privacy in the laptops. We hold that he failed to establish standing to challenge law enforcement's search of them. State v. Granville, 423 S.W.3d 399 (Texas Court of Criminal Appeals 20140.  Accordingly, the trial court did not abuse its discretion in denying Minassian's motion to suppress on this ground. Thus, we do not reach the State's further contention that sufficient exigent circumstances existed for the search.
Minassian v. State, supra. 
You can, if you are interested, read more about the facts in this case in the news stories you can find here, here and here. 

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