1

 While Defendant Tragas’ reply brief also refers to a seizure of “Mr. Hunter’s cellular phone,” any

issues regarding the phone are not raised in Defendant’s motion, elaborated upon in the reply brief, and were

not pursued at the hearing. Thus, any issues regarding the seizure of “Mr. Hunter’s cellular phone” are not

properly before the Court.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case Number 09-20023-BC 

 v. Honorable Thomas L. Ludington

D-10 JOANNE TRAGAS,

Defendant.

_______________________________________/

ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS, DENYING

DEFENDANT’S MOTION TO PERMIT DEFENDANT TO ACCESS LAPTOP

COMPUTER TO REVIEW DISCOVERY, STRIKING THE GOVERNMENT’S

SUPPLEMENTAL BRIEF AND DIRECTING THE CLERK TO REMOVE THE

IMAGES FROM THE DOCKET, DETERMINING EXCLUDABLE DELAY, AND

SCHEDULING FINAL PRETRIAL CONFERENCE AND TRIAL DATES

Now before the Court is Defendant Joanne Tragas’ motion to suppress [Dkt. # 142] filed on

January 11, 2010. Defendant Tragas seeks suppression of all communications seized from a

specified laptop computer.1 On February 1, 2010, the government filed a response [Dkt. # 152]; and

on February 23, 2010, Defendant filed a reply [Dkt. # 163]. The government filed a sur-reply brief

[Dkt. # 165] on February 26, 2010. The Court held a hearing on the motion on March 8, 2010.

Subsequent to the hearing, the government filed a supplemental brief [Dkt. # 173]. The

supplemental brief, however, will be stricken because the government did not seek leave to file the

brief nor provide any justification for the belated filing. Perhaps most importantly, Defendant has
-2-

not had an opportunity to respond to the supplemental brief. Nonetheless, as further explained

below, Defendant’s motion will be denied for lack of standing under the Fourth Amendment.

I

On July 20, 2009, a criminal complaint was sworn by a federal agent before Magistrate Judge

Charles E. Binder as to Defendant Joanne Tragas. The agent stated, in part, the following:

. . .

2. On December 11, 2008, as a result of an on-going local investigation, Eugene

Watkins, Derrick James Moore, and Ashley Rebecca Allen were arrested for felony larceny

by the Saginaw County Sheriff’s Department in the parking lot at the Meijer store on

Tittabawassee Road in Saginaw, Michigan. They had fourteen counterfeit Visa gift cards

in their possession, some of which they had just used to purchase various items from that

Meijer store.

. . .

7. [In a later interview] . . . Allen stated . . . that she used Visa gift cards given to

her by Watkins to purchase [various items from various stores in Saginaw, Flint, and

Ypsilanti, Michigan.] Allen . . . had a truck [used for driving Moore and Watkins to various

stores and for transporting large items.]

8. Allen explained that Moore and Watkins obtain the counterfeit Visa gift cards

from a person in Detroit. . . . Though she did not know the name of the person who supplies

the cards to Watkins, she was able to identify the person [as Brian Denard Coleman] from

a group of driver’s license photographs. . . .

. . .

11. [After a search of his residence in December 2008,] Coleman . . . offered to

cooperate with the continuing investigation. . . . Coleman . . . admitted that . . . he had been

purchasing counterfeit cards from . . . twin brothers, Dion and Dionte Hunter . . . [who]

generally drive a white BMW or a white Range Rover. . . .

. . .

13. Coleman explained that he was instructed by the Hunters to return the fraudulent

Visa gift cards to them when the cards no longer worked so the Hunters could reencode them

with a new account number and sell them again. . . .

. . .

16. I ran Dion Richard Hunter’s criminal history through NCIC and learned that Dion

was arrested in June of 2008 by the Southfield, Michigan Police Department . . . [while]

driving a 2007 white 750LI BMW registered to Stacy Pugh of Detroit, Michigan.
-3-

. . .

18. On March 12, 2009, I spoke to the service manager for the BMW dealership in

Farmington Hills, Michigan. The service manager told me that the dealership had serviced

the white BMW registered to Pugh on March 10, 2009. He said that Dion Hunter had

brought the vehicle in for maintenance.

19. On March 13, 2009, Pugh told me that she had leased the BMW through a broker

to a person known to her only as “Twin.” The last lease payment Pugh received for the

vehicle was in January of 2009 . . . . Pugh thereafter contacted BMW and reported the

vehicle missing. Pugh gave me consent to search the vehicle, which had already been

recovered from the parking lot at Dion Hunter’s apartment complex by a repossession

company. The “repo” company also gave consent to search the BMW. Five Visa gift cards,

a laptop computer, a credit card encoder, credit card receipts, two photographs of Dion and

Dionte Hunter with other individuals, and mail . . . addressed to Dion . . . and . . . Dionte

Hunter were found during the search of the BMW.

. . .

22. On March 20, 2009, the apartment rented by Dion Hunter was searched pursuant

to a federal search warrant. . . . [A] Wal-Mart gift card was found . . . , [which had been]

purchased fraudulently on February 20, 2009 at a Wal-Mart in Columbus, Ohio[, according

to Wal-Mart’s asset protection unit. The Wal-Mart card, along with one other Wal-Mart

card,] were used to buy a total of eighteen $100 American Express gift cards from WalMart’s internet site, all of which were mailed to Joanne Kolomvakou at 1918 Cape Coral

Parkway in Cape Coral, Florida. The email account used to order the gift cards is registered

to jtragas@yahoo.com.

23. On or about February 2, 2009, the sale of a residence at 1918 Cape Coral

Parkway in Cape Coral, Florida was closed. The title is in the name of Giannoula

Kolomvakou of Sparta, Greece. . . . In the course of preparing the paperwork for the

transaction, the title company was told that Joanne Tragas is the “English” version of the

name Giannoula Kolomvakou.

24. Based on the information I have acquired during this investigation, I have reason

to believe that one person is using the name Joanne Tragas, Joanne Kolomvakou and

Giannoula Kolomvakou. In fact, on or about July 7, 2009, a Secret Service agent observed

packages addressed to Joanne Tragas and Joanne Kolomvakou on the porch of the residence

at 1918 Cape Coral Parkway, Cape Coral, Florida.

25. The laptop computer seized from the BMW has been examined pursuant to a

federal search warrant by an agent trained in computer forensics. That examination has

revealed a series of communications between that computer and a computer used by Joanne

Tragas. One of the significant communications occurred on or about January 21, 2009, when

a message received by the Hunter computer from the Tragas computer stated that the sender

of the message was flying to the United States in nine days to close on a house in Florida.

Another of the more significant communications occurred on February 20, 2009, when the

computer seized from the BMW was used to send the sixteen digit card numbers and pin
-4-

numbers for two $1,000 Wal-Mart gift cards to Tragas’s computer.

26. Based on the above, it appears that the means to use the two $1,000 gift cards

purchased by the Hunter twins in Columbus, Ohio was transferred to Tragas and that Tragas

used those cards to buy American Express gift cards. Moreover, it appears from other

communications found on the computer seized from the BMW that the information needed

to enable Tragas to access the $2,000 on those gift cards was sent to her computer because

she had sent information needed to encode gift cards with stolen credit card numbers to

email accounts associated with the computer seized from the BMW. The information sent

from the Tragas computer to the Hunter computer included BINs and “dumps.” A BIN is

a bank identification number, consisting of the first six numbers of a sixteen digit credit or

debit card number. Each BIN is unique to the card-issuing financial institution. “Dumps”

is the term applied to the data encoded in the magnetic strip on the back of a credit and debit

cards. The information sent from the Tragas computer to the Hunter computer could be used

by the recipient to manufacture the type of counterfeit access devices sold by the Hunters

to others and described above.

27. The communications recovered from the laptop seized from the BMW include

discussions between that computer and Tragas’s computer regarding the means of paying

for the BIN and dump information. Messages sent from the Tragas computer to the Hunter

computer directed that payment be sent in the form of gift cards, by wire transfer, and by

deposits into a Bank of America account [in the name of Joanne Tragas]. . . .

. . .

29. The communications recovered from the computer seized from the BMW suggest

that Tragas has been sent substantial amounts of money by various means for the BIN and

“dumps” information transferred from the Tragas computer to the Hunter computer. Based

on my analysis of the communications to date, it appears that wire transfers, gift card

information, and deposits into her Bank of America account totaling over $100,000 have

been received by Tragas from the Hunters, and people acting at their direction, for the

information she has provided to promote the access device fraud scheme.

. . .

Crim. Compl., July 20, 2009.

In count one of the fourth superseding indictment [Dkt. # 125], the government charges

Defendant Tragas and her nine co-defendants with a conspiracy under 18 U.S.C. § 1029(b)(2), to

commit violations of 18 U.S.C. §§ 1029(a)(1)–(5). Each of those statutory provisions, respectively,

applies to an individual who “knowingly and with intent to defraud,” engages in the following acts:

(1) “produces, uses, or traffics in one or more counterfeit access devices”; (2) “traffics in or uses one
-5-

or more unauthorized access devices during any one-year period, and by such conduct obtains

anything of value aggregating $1,000 or more during that period”; (3) “possesses fifteen or more

devices which are counterfeit or unauthorized access devices”; (4) “produces, traffics in, has control

or custody of, or possesses device-making equipment”; and (5) “effects transactions, with 1 or more

access devices issued to another person or persons, to receive payment or any other thing of value

during any 1-year period the aggregate value of which is equal to or greater than $1,000.” 18 U.S.C.

§§ 1029(a)(1)–(5).

In particular, count one the indictment alleges that Defendant Tragas obtained stolen credit

and debit card account information from others, which she repeatedly sold to, inter alia, coDefendants Dion and Dionte Hunter. Count one alleges that on December 29, 2005, Defendant

Tragas used a computer to obtain registration information for a forum which operated a website used

to traffic in stolen credit and debit card information called “scandinaviancarding.com.” In turn, coDefendants Dion and Dionte Hunter paid Defendant Tragas for the information with fraudulentlyobtained, but genuine, gift cards.

In counts two, four, five, six, and seven of the indictment, the government charges Defendant

Tragas and co-Defendant Dionte Hunter with violations of 18 U.S.C. §§ 1952(a)(1) and (3) on or

about April 22, 2008, on or about May 31 to June 2, 2008, on or about June 6 to 14, 2008, on or

about June 29 to July 1, 2008, and on or about August 20, 2008, respectively. The statutory

provisions provide:

(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in

interstate or foreign commerce, with intent to--

(1) distribute the proceeds of any unlawful activity; or 

. . .

(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management,
-6-

establishment, or carrying on, of any unlawful activity. . . .

18 U.S.C. §§ 1952(a). Similarly, counts three and eight of the indictment charge Defendant Tragas

and co-Defendants Dion and Dionte Hunter with violations of 18 U.S.C. §§ 1952(a)(1) and (3) on

or about May 16, 2008, and on or about February 20, 2009, respectively.

Count nine charges Defendant Tragas and co-Defendants Dion and Dionte Hunter with

violations of 18 U.S.C. § 1344 from December 2006 to on or about July 20, 2009, that is, Defendants

“aided and abetted by each other and by others . . . did knowingly execute and attempt to execute

a scheme or artifice to defraud a financial institution, that is Chase Bank, and to obtain some of the

moneys, funds, credits and assets owned by and under the control of Chase Bank, by means of false

and fraudulent pretenses and representations, in that [Defendants] used, attempted to use, and caused

the use of unauthorized, counterfeit access devices to obtain access to the lines of credit associated

with genuine credit card accounts issued by Chase Bank. . .”

Similarly, count eleven charges Defendant Tragas and co-Defendants Dion and Dionte

Hunter, Tristan Harrison, and Demario Wilson with violations of 18 U.S.C. § 1343 from April 8,

2006 to on or about July 16, 2009, that is, Defendants “aided and abetted by each other and by others

. . . , having devised and intending to devise a scheme and artifice to defraud and for obtaining

money and property by means of false and fraudulent pretenses, representations, and promises, did

knowingly transmit and cause to be transmitted by means of wire communications in interstate and

foreign commerce, various writings, signs and signals in the form of wire transfers of funds and

Internet communications, for the purposes of executing such scheme and artifice, and thereby

affected a financial institution . . . .”

Finally, counts ten and twelve only charge violations of the law against co-Defendants of
-7-

Defendant Tragas.

II

Defendant Tragas raises three primary arguments in her motion to suppress. The first two

arguments will be addressed in tandem, followed by the third. First, Defendant Tragas contends that

all of the communications stored on the laptop computer seized from the BMW informally leased

to co-Defendants Dion and Dionte Hunter by Stacy Pugh should be suppressed because the search

of the vehicle was not conducted pursuant to a warrant, Pugh did not have the authority to consent

to a search of the vehicle leased to the Hunters, and the search of the vehicle exceeded the scope of

the consent given. Defendant Tragas asserts that a consent form signed by Pugh only gave consent

to search the vehicle and to seize evidence consisting of a “counterfeit access device.”

Second, Defendant Tragas contends that the communications should be suppressed because

the laptop computer was initially searched without a warrant. She asserts that she was “unknown”

to law enforcement prior to the search and seizure of the laptop computer. She further asserts that

the affidavit in support of the search warrant for the laptop computer contained information that

could only have been obtained through a prior, warrantless search of the laptop computer. Notably,

this is inconsistent with the criminal complaint sworn by the federal agent, which suggests that the

agent learned of the email address jtragas@yahoo.com on or about March 20, 2009, subsequent to

the search of co-Defendant Dion Hunter’s apartment. See Crim. Compl. ¶¶ 22-23.

In response, the government contends that Defendant Tragas lacks the legitimate expectation

of privacy required to give her standing under the Fourth Amendment to challenge the search of the

laptop computer. The government emphasizes that Defendant Tragas does not allege that she was

the person who used the seized laptop computer and had the ability to exclude others from access.
-8-

The government reserves the right to address the legality of the search if Defendant Tragas can

establish standing.

“Because Fourth Amendment rights are “personal,” the central inquiry in any suppression

hearing is whether the defendant challenging the admission of evidence has shown a legitimate

expectation of privacy in the place searched or the thing seized.” United States v. King, 227 F.3d

732, 743-44 (6th Cir. 2000) (citing Rakas v. Illinois, 439 U.S. 128, 140 (1978), Katz v. United States,

389 U.S. 347, 353 (1967), Minnesota v. Olson, 495 U.S. 91, 96-97 (1990), and United States v.

Kincaide, 145 F.3d 771, 779 (6th Cir. 1998)). In King, the Sixth Circuit Court of Appeals explained

that “[a] determination of whether a legitimate expectation of privacy exists involves a two-part

inquiry”:

First, we ask whether the individual, by conduct, has exhibited an actual expectation of

privacy; that is, whether he has shown that he sought to preserve something as private. . . .

Second, we inquire whether the individual’s expectation of privacy is one that society is

prepared to recognize as reasonable.

Id. (internal citations and quotations omitted). “Whether a legitimate expectation of privacy exists

in a particular place or item is a determination to be made on a case-by-case basis.” Id. (internal

citations and quotations omitted). Additionally, “suppression of the product of a Fourth Amendment

violation can be successfully urged only by those whose rights were violated by the search itself,

not by those who are aggrieved solely by the introduction of damaging evidence.” Alderman v.

United States, 394 U.S. 165, 171-72 (1969); see also United States v. Salvucci, 448 U.S. 83, 85

(1980) (overruling the “automatic standing” rule).

Defendant Tragas contends that Warshak v. United States, 490 F.3d 455 (6th Cir. 2007),

vacated en banc on ripeness grounds, 532 F.3d 521 (6th Cir. 2008), stands for the proposition that

“e-mails held by an ISP” are similar to sealed letters, in which the sender maintains an expectation
2

 Subsections (a) and (b) of 18 U.S.C. § 2703 provide in full:

(a) Contents of wire or electronic communications in electronic storage.--A governmental entity may

require the disclosure by a provider of electronic communication service of the contents of a wire or

electronic communication, that is in electronic storage in an electronic communications system for

one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described

in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant

procedures) by a court of competent jurisdiction. A governmental entity may require the disclosure

-9-

of privacy, requiring that law enforcement obtain a warrant based on probable cause to search the

emails. Defendant Tragas further asserts that there can be no dispute that she and the Hunter coDefendants expected that their emails would be kept private. Significantly, as the government notes,

an individual “would lose a legitimate expectation of privacy in an e-mail that had already reached

its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose ‘expectation

of privacy ordinarily terminates upon delivery’ of the letter.” Guest v. Leis, 255 F.3d 325, 333 (6th

Cir. 2001) (quoting United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995)).

Defendant Tragas also argues that she has “standing” based on the traditional formulation

of that concept. See Warshak, 490 F.3d at 465 (“To establish standing, a plaintiff must allege (1)

an injury that is (2) fairly traceable to the defendant’s allegedly unlawful conduct and that is (3)

likely to be redressed by the requested relief.”) (quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992)). However, as the government emphasizes, the “standing” requirements highlighted

in Warshak are not specific to the Fourth Amendment “standing” required to seek the suppression

of evidence in a criminal case. Thus, Warshak does not inform the analysis as to standing under the

Fourth Amendment.

Finally, Defendant Tragas’ third argument is that she has a property interest and an

expectation of privacy in all communications stored on the laptop computer pursuant to the Stored

Communications Act, 18 U.S.C. § 2703(a)–(b).2

 Specifically in response to this argument, the
by a provider of electronic communications services of the contents of a wire or electronic

communication that has been in electronic storage in an electronic communications system for more

than one hundred and eighty days by the means available under subsection (b) of this section.

(b) Contents of wire or electronic communications in a remote computing service.--(1) A

governmental entity may require a provider of remote computing service to disclose the contents of

any wire or electronic communication to which this paragraph is made applicable by paragraph (2)

of this subsection–

(A) without required notice to the subscriber or customer, if the governmental entity obtains a

warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or,

in the case of a State court, issued using State warrant procedures) by a court of competent

jurisdiction; or 

(B) with prior notice from the governmental entity to the subscriber or customer if the

governmental entity-- 

(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal

or State grand jury or trial subpoena; or 

(ii) obtains a court order for such disclosure under subsection (d) of this section; 

except that delayed notice may be given pursuant to section 2705 of this title.

-10-

government contends that the provisions of the statute relied upon by Defendant Tragas apply to

“providers of electronic communications services.” The government emphasizes that the seized

laptop computer was examined by an agent trained to conduct forensic computer searches and that

the communications service provider did not participate in the search, making § 2703(a) and (b)

irrelevant.

Defendant Tragas also makes a reference to the Federal Wiretap Statute, 18 U.S.C. § 2510

in her motion to suppress. In response, the government asserts that Defendant Tragas cannot

establish that she is an “aggrieved person” within the meaning of the statute. See 18 U.S.C. §

2510(11) (“ ‘[A]ggrieved person’ means a person who was a party to any intercepted wire, oral, or

electronic communication or a person against whom the interception was directed.”).

At the hearing, Defendant Tragas was provided an opportunity to speak with defense counsel

regarding the proofs that would be necessary to establish standing. The Court advised that
-11-

Defendant would need to establish, at a minimum, that Defendant was both the sender and the

receiver of any electronic communications in order to demonstrate the necessary privacy interest.

In turn, defense counsel requested fifteen to thirty days within which to conduct a forensic

examination of the laptop computer. Defense counsel asserted that he sought to ascertain whether

any of the electronic communications found on the computer had traveled through an Internet

Service Provider (“ISP”). The Court denied the request, finding that whether the electronic

communications had traveled through an ISP was not relevant when Defendant did not challenge

the fact that the communications were found on the hard drive of the laptop computer and not

obtained by the government from an ISP.

Based on the above, Defendant’s motion to suppress will be denied.

III

Additionally, Defendant’s motion to permit Defendant to access laptop computer to view

discovery [Dkt. # 161], filed on February 22, 2010, will be denied. Defendant seeks to obtain a

laptop computer, at her own expense, to participate in her defense and to view the voluminous

discovery provided by the government on CDs or DVDs. While it may be more convenient to view

the discovery on a laptop computer rather than in a printed format, Defendant has not taken any

steps to ascertain whether necessary security arrangements can be made with prison officials.

Accordingly, it is ORDERED that Defendant’s motion to suppress [Dkt. # 142] is DENIED.

It is further ORDERED that Defendant’s motion to permit Defendant to access laptop

computer to view discovery [Dkt. # 161] is DENIED.

It is further ORDERED that the government’s supplemental brief [Dkt. # 173] is

STRICKEN and the Clerk of the Court is DIRECTED to remove the images from the docket.
-12-

It is further ORDERED that it is DETERMINED that the time period from the filing of

Defendant’s motion to suppress [Dkt. # 142] on January 11, 2010 to March 16, 2010, is

EXCLUDABLE DELAY pursuant to 18 U.S.C.§ 3161(h)(1)(D) and (H) on the basis of actual

delay.

It is further ORDERED that a final pretrial conference and plea cutoff is SCHEDULED for

April 13, 2010 at 2:30 p.m., and a trial is SCHEDULED for April 27, 2010 at 8:30 a.m.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: March 16, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on March 16, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS