Prince Jones v. United States , 168 A.3d 703 ( 2017 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-CF-322
09/21/2017
PRINCE JONES, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF1-18140-13)
(Hon. Jennifer M. Anderson, Trial Judge)
(Argued April 18, 2017 Decided September 21, 2017)
Stefanie Schneider, Public Defender Service, with whom Samia Fam and
Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.
Lauren R. Bates, Assistant United States Attorney, with whom Channing D.
Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and
Jodi S. Lazarus, Assistant United States Attorneys, were on the brief, for appellee.
Nathan Freed Wessler, American Civil Liberties Union, with whom Arthur
B. Spitzer and Scott Michelman, American Civil Liberties Union, and Jennifer
Lynch, Electronic Frontier Foundation, were on the brief, for American Civil
Liberties Union of the Nation‘s Capital and Electronic Frontier Foundation, amicus
curiae, in support of appellant.
Before THOMPSON and BECKWITH, Associate Judges, and FARRELL, Senior
Judge.
2
Opinion by Associate Judge BECKWITH for the court, except as to Part II.E.3.
Opinion by Senior Judge FARRELL, concurring in part and concurring in the
judgment, at page 47.
Dissenting opinion by Associate Judge THOMPSON, at page 54.
BECKWITH, Associate Judge: A jury found appellant Prince Jones guilty of
various offenses arising out of two alleged incidents of sexual assault and robbery
at knifepoint.1 Mr. Jones appeals his convictions on the ground that much of the
evidence offered against him at trial was the direct or indirect product of a
warrantless—and thus, Mr. Jones argues, unlawful—search involving a cell-site
simulator or ―stingray.‖2 Mr. Jones presented this Fourth Amendment claim to the
trial court in a pretrial motion to suppress, but the trial court denied it under the
1
Mr. Jones was convicted of two counts of first-degree sexual abuse while
armed, D.C. Code §§ 22-3002 (a)(1)–(2), -3020 (a)(5), -3020 (a)(6), -4502 (2012
Repl.); two counts of kidnapping while armed, id. §§ 22-2001, -4502; four counts
of robbery while armed, id. §§ 22-2801, -4502; and one count of threats, id. § 22-
1810.
2
The ―StingRay‖ is a popular cell-site simulator produced by the Harris
Corporation. See Stephanie K. Pell & Christopher Soghoian, Your Secret
Stingray’s No Secret Anymore: The Vanishing Government Monopoly over Cell
Phone Surveillance and Its Impact on National Security and Consumer Privacy, 28
Harv. J.L. & Tech. 1, 14 (2014). The name has become a generic term for a cell-
site simulator. Kim Zetter, Hacker Lexicon: Stingrays, the Spy Tool the
Government Tried, and Failed, to Hide, Wired (May 6, 2016),
https://www.wired.com/2016/05/hacker-lexicon-stingrays-spy-tool-government-
tried-failed-hide/. The record in this case does not reveal the name of the device
used against Mr. Jones; in the suppression hearing, the trial court sustained the
government‘s objection to a question about the name of the device.
3
inevitable-discovery doctrine3 and did not reach the question whether the
government violated Mr. Jones‘s rights. We agree with Mr. Jones that the
government violated the Fourth Amendment when it deployed the cell-site
simulator against him without first obtaining a warrant based on probable cause.
Further, we reverse the trial court‘s inevitable-discovery ruling and reject the
government‘s argument (not resolved by the trial court) that the good-faith
doctrine4 precludes applying the exclusionary rule in this case. Because the
admission at trial of the evidence obtained as a result of the unlawful search was
not harmless beyond a reasonable doubt, we reverse Mr. Jones‘s convictions.
I. Background
A. Investigation and Arrest of Mr. Jones
At the suppression hearing in this case, Detective Rachel Pulliam, a member
of the Sexual Assault Unit of the Metropolitan Police Department (MPD), testified
that she investigated a sexual assault that occurred around 12:30 a.m. on October 9,
2013, and another that occurred around 1:30 a.m. on October 11. The two sexual-
3
See Nix v. Williams, 467 U.S. 431 (1984).
4
See United States v. Leon, 468 U.S. 897 (1984).
4
assault complainants were women who had advertised escort services on the
classified-advertising website Backpage. Detective Pulliam testified that on each
occasion, the perpetrator5 contacted the complainant by telephone in response to an
advertisement and arranged to pay the complainant for sexual services. According
to Detective Pulliam, when each complainant arrived at the arranged meeting
place, the perpetrator ―forced [her] to perform oral sex on [him] at knifepoint‖ and
robbed her of her cellphone and other property. Detective Pulliam testified that on
one of the two occasions, the perpetrator also robbed the complainant‘s cousin,
who had been waiting in a car outside the meeting location.
Detective Pulliam testified that in the morning following the second
incident, she and her colleagues obtained telephone records for the sexual-assault
complainants. The telephone records revealed a possible suspect: Both
complainants had received calls from the same number during the relevant time
periods. Detective Pulliam sought the assistance of the MPD‘s Technical Services
Unit (TSU) to track the suspect‘s and the complainants‘ phones.
5
Detective Pulliam referred to the perpetrator as ―the defendant,‖ but Mr.
Jones was not known to the police at the time the complainants reported the crimes
and only became known after the police tracked him down using the cell-site
simulator.
5
Sergeant Todd Perkins, a supervisor in the TSU, testified about his office‘s
efforts to track the phones that morning. He testified that he and his team sought
―subscriber information‖ for the suspect‘s number from the provider associated
with that number but were unsuccessful—the cellphone ―was just a generic
prepaid‖ with ―no subscriber information whatsoever.‖ The TSU also sought and
obtained information about the locations of the suspect‘s and complainants‘
cellphones from the relevant telecommunication providers.6 According to Sergeant
Perkins, the TSU received updated location information from the providers every
fifteen minutes. The information came in the form of geographic coordinates—
latitude and longitude—with a ―degree of uncertainty‖ specified in meters.
Sergeant Perkins testified that the real-time location information they
received that morning had a high degree of uncertainty—―several hundred
meter[s]‖—indicating that the phones‘ GPS capabilities were inactive. He
explained that ―if it [had been] true GPS,‖ his team would have been ―getting two
meter, three meter, five meter hits.‖ Despite the lack of precision in the location
information, Sergeant Perkins and his team were able to ―tell that . . . one of the
6
Officer Perkins testified that the TSU ―declared an exigent situation‖ and
was therefore ―able to obtain the [real-time location] information without getting a
warrant.‖ Officer Perkins admitted at the suppression hearing that his team had
been operating under an erroneous belief that there had been a string of three
sexual assaults by the same perpetrator within the preceding twenty-four hours.
6
[complainants‘] phones and the [suspect‘s] phone were traveling in the same
general direction . . . as if they were together.‖ The location information suggested
that the two phones stopped in the general vicinity of the Minnesota Avenue Metro
Station.
Based on this information, Sergeant Perkins and other TSU officers took a
truck equipped with a cell-site simulator to the area of the Minnesota Avenue
Metro station and used the device to track the suspect. Sergeant Perkins could not
remember whether he and his team used the cell-site simulator to track the
suspect‘s phone or the complainant‘s phone that they believed was traveling with
it,7 but whichever signal they were tracking led them, at around 11:30 a.m., to a
parked Saturn. Inside the Saturn were Mr. Jones and Mr. Jones‘s girlfriend, Nora
Williams. The police arrested Mr. Jones and recovered evidence from Mr. Jones‘s
person and his car and from Ms. Williams, including a folding knife and the
7
As explained in the testimony summarized below, a cell-site simulator
interferes with the target phone‘s ability to communicate with the cellular network.
Records for the complainant‘s phone show that there was a single communication
error around the time the TSU officers were operating the cell-site simulator, and
Sergeant Perkins inferred from this—and from other circumstantial information—
that his team had probably been tracking the complainant‘s phone. Other
evidence, however, suggested that the TSU may have been tracking the suspect‘s
phone. In particular, records for the suspect‘s phone—which turned out to be Mr.
Jones‘s phone—show seven failed calls during the relevant time period, and a data
dump of the phone revealed that during that time period Mr. Jones sent a text
message which said, ―Our call dropped.‖
7
complainants‘ and the suspect‘s cellphones. Mr. Jones also made an incriminating
statement to the police. Ms. Williams later testified against Mr. Jones at trial.
B. Cell-Site Simulator
Sergeant Perkins testified at the suppression hearing about ―how [the cell-
site simulator they used] works,‖ ―based on the information that‘s publicly
available.‖ He explained that his team engages the cell-site simulator by
programming into it a unique identifier—an MIN or IMSI number8—associated
with the target phone.9 The simulator then begins ―listening for [the target]
phone,‖ which, as part of its normal operation, is ―constantly transmitting to and
receiving from a tower.‖ The officers operating the cell-site simulator drive
around and ―as soon as [the simulator] comes across [the target phone‘s signal], it
8
These identifying numbers are distinct from the seven- or ten-digit number
that a person dials when he or she places a call. Sergeant Perkins testified that the
TSU receives these numbers by requesting ―subscriber information‖ for a phone
number. He explained that ―MIN‖ stands for ―mobile identification number‖ and
is the identifying number used by ―Verizon, Cricket and Sprint‖ and that ―IMSI‖
stands for ―international mobile subscriber identification‖ and is used by ―T-
Mobile and AT&T.‖
9
Sergeant Perkins testified that it is also possible to enter multiple
identifying numbers into the cell-site simulator. In this operating mode, he
explained, ―the equipment will just let us know one of those phones is present in
the area‖ but will not provide location information.
8
grabs it and it holds on to it.‖ Once the cell-site simulator ―grabs‖ the target
phone, the simulator begins reporting ―general location information and signal
strength‖ that can be used to locate the target phone‘s exact location.10 Sergeant
Perkins testified that once the cell-site simulator ―grabs‖ the target phone, the
target phone is prevented from communicating ―with an actual . . . tower.‖
Further information about the cell-site simulator was provided by Ben
Levitan, an expert on ―cellular telephone networks and systems‖ called by the
defense.11 According to Mr. Levitan, cell phones are ―dumb devices‖ that
―generally connect themselves to the strongest cell tower signal that they detect.‖
Mr. Levitan explained that a cell-site simulator ―act[s] as a portable cell tower,‖
which, ―when turned on or brought into an area, may appear to be a stronger signal
and cause [a] phone[] to break its connection with the cell phone network and
10
Sergeant Perkins explained the search process thus:
[T]here is a directional antenna, . . . so we‘re driving this
way, the directional antenna knows the signal is coming
from over here, so we know the phone‘s coming over
there. And then it also measures the signal strength from
the phone, so if the signal strength is real, real low, it‘s
probably somewhere behind you.
11
The defense also submitted an affidavit by Mr. Levitan, which Mr.
Levitan ―adopt[ed] . . . as part of [his] testimony,‖ without objection by the
government.
9
reattach itself to the newly found . . . simulator.‖12 Mr. Levitan testified that when
the cellphone ―attach[es]‖ itself to the cell-site simulator, it ―identifies itself by
phone number and various codes,‖ including its IMSI number.13 Although Mr.
Levitan had never used the type of cell-site simulator utilized by law enforcement,
he testified that he had used similar devices working within the
telecommunications industry and that the devices allow the user to determine the
target phone‘s direction and distance relative to the simulator device.14 Moreover,
because the cell-site simulator is not a true cell tower connected with the cellular
network, any cellphone connected to the cell-site simulator will not be able to
communicate with the network: ―[Y]our call doesn‘t go through[,] period.
12
Mr. Levitan testified that a cell-site simulator causes not only the target
phone, but ―[a]ll cell phones that are in the vicinity,‖ to ―attach . . . to the newly
found . . . simulator.‖
13
Cell-site simulators are sometimes referred to as ―IMSI catchers.‖ Pell &
Soghoian, supra note 2, at 11.
14
Mr. Levitan testified that when a cellphone is communicating with a
legitimate cellular tower, it communicates with a particular sector antenna of the
tower, and that the provider can thus determine ―what side of the cell tower‖ the
cellphone is on. Mr. Levitan indicated that cell-site simulators measure direction
through a similar method. But see supra note 10 (Sergeant Perkins describing a
somewhat different method of determining direction). And Mr. Levitan testified
that a cell-site simulator can determine distance through a ―trick‖ in which it
―send[s] . . . a signal [to the phone] and ask[s] it to send . . . the signal back.‖ By
―measur[ing] th[e] round trip time,‖ the distance between the cell-site simulator
and the phone can be determined.
10
Nothing happens.‖15
C. Trial Court’s Ruling on the Motion To Suppress
In ruling on Mr. Jones‘s motion to suppress, the trial court did not decide
whether the use of a cell-site simulator was a search within the meaning of the
Fourth Amendment or whether the government was required to obtain a warrant to
use the cell-site simulator. Instead, the trial court focused on the issues of
standing, exigent circumstances, and inevitable discovery.
15
We note that both witnesses‘ testimony about the cell-site simulator is
consistent with information in a Department of Justice memorandum on such
devices. See Dep‘t of Justice Policy Guidance: Use of Cell-Site Simulator
Technology (Sept. 3, 2015), https://www.justice.gov/opa/file/767321/download.
The memorandum explains:
Cell-site simulators . . . function by transmitting as a cell
tower. In response to the signals emitted by the
simulator, cellular devices in the proximity of the device
identify the simulator as the most attractive cell tower in
the area and thus transmit signals to the simulator that
identify the device in the same way that they would with
a networked tower.
Id. at 2. Once the target cellphone is identified, the cell-site simulator ―provide[s]
. . . the relative signal strength and general direction‖ of the phone. Id. The
memorandum notes that the cell-site simulator can cause ―cellular devices in the
area [to] experience a temporary disruption of service from the service provider.‖
Id. at 5.
 11
On the issue of standing, the trial court stated that the suppression-hearing
record did not reveal ―with any great degree of certainty‖ which phone—Mr.
Jones‘s or the complainant‘s—the police had tracked using the cell-site simulator.
The court believed that the burden was on the government to show that the police
did not track Mr. Jones‘s phone and found that the government had failed to meet
this burden. The government did not take issue with this allocation of the burden
of proof and agreed with the court‘s determination.16
The trial court rejected the government‘s argument that there were exigent
circumstances justifying noncompliance with any otherwise applicable warrant
requirement—though, again, the trial court did not determine whether there was a
warrant requirement. The court noted that significant time (around ten hours) had
passed between the sexual assault and the arrest of Mr. Jones on October 11,
during which time ―the detectives could have been getting a warrant.‖
The trial court agreed with the government‘s argument that regardless of
whether there had been a Fourth Amendment violation, the inevitable-discovery
16
The government has reversed course in this appeal and is now arguing
that Mr. Jones bore the burden of proving that the government searched his phone
and failed to meet this burden. But because the government affirmatively—and
repeatedly—conceded the standing issue in the trial court, the government has
waived this argument.
12
doctrine rendered the exclusionary rule inapplicable. The court found that ―even if
[the police] were using [Mr. Jones‘s] phone on the cell site simulator, . . . had they
switched over . . . to use the [complainant‘s] number instead, . . . they would have
eventually gotten to the exact same place because the phones were together[ a]nd
it‘s the same technology.‖ The court thus agreed with the government‘s assertion
that ―there[ was] a separate lawful means‖ by which the government ―would have
gotten to the exact same place.‖
II. Discussion
Mr. Jones claims that the government‘s use of a cell-site simulator violated
his Fourth Amendment rights and that the trial court erred in failing to grant his
motion to suppress. In deciding this Fourth Amendment claim, we defer to the
trial court‘s factual findings and review them only for clear error, but we review
the trial court‘s legal conclusions de novo. (Albert) Jones v. United States, 154
A.3d 591, 594 (D.C. 2017). The Fourth Amendment protects the ―right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures,‖ and thus we turn first to the threshold
question whether the government‘s use of the cell-site simulator to locate Mr.
13
Jones‘s cellphone17 constituted a search or seizure.
A. Fourth Amendment Search
Government conduct is a ―search‖ within the meaning of the Fourth
Amendment if it invades ―an actual (subjective) expectation of privacy . . . that
society is prepared to recognize as reasonable.‖ Katz v. United States, 389 U.S.
347, 361 (1967) (Harlan, J., concurring) (internal quotation marks omitted); see
also Kyllo v. United States, 533 U.S. 27, 33 (2001); Napper v. United States, 22
A.3d 758, 767 (D.C. 2011). In deciding whether a particular expectation of
privacy is ―reasonable,‖ this court aims to ―assure[] preservation of that degree of
privacy against government that existed when the Fourth Amendment was
adopted.‖ Kyllo, 533 U.S. at 34. ―To withdraw protection of this minimum
expectation would be to permit police technology to erode the privacy guaranteed
by the Fourth Amendment.‖ Id.
Our analysis begins with the obvious fact that most people have a cellphone
17
We consider it conceded that the government deployed the cell-site
simulator on Mr. Jones‘s phone rather than on one of the complainants‘ phones.
See supra notes 7 & 16, as well as the accompanying text.
14
and carry it with them practically everywhere they go.18 One consequence of this
is that locating and tracking a cellphone using a cell-site simulator has the
substantial potential to expose the owner‘s intimate personal information. First,
―cell phone tracking can easily invade the right to privacy in one‘s home or other
private areas.‖ Tracey v. State, 152 So. 3d 504, 524 (Fla. 2014); see also State v.
Earls, 70 A.3d 630, 642 (N.J. 2013) (―[C]ell phones . . . blur the historical
distinction between public and private areas because [they] emit signals from both
places.‖). When this occurs, there is a ―clear[] . . . Fourth Amendment violation.‖
Tracey, 152 So. 3d at 524; see also United States v. Karo, 468 U.S. 705, 714
(1984) (―[P]rivate residences are places in which the individual normally expects
privacy free of governmental intrusion not authorized by a warrant, and that
expectation is plainly one that society is prepared to recognize as justifiable.‖).
And second, even a person‘s public movements, as observed by a cell-site
simulator or other means of cellphone tracking, can reveal sensitive information
about the person‘s ―familial, political, professional, religious, and sexual
associations.‖ United States v. (Antoine) Jones, 565 U.S. 400, 415 (2012)
(Sotomayor, J., concurring).
18
See Riley v. California, 134 S. Ct. 2473, 2490 (2014) (―[I]t is the person
who is not carrying a cell phone . . . who is the exception. According to one poll,
nearly three-quarters of smart phone users report being within five feet of their
phones most of the time . . . .‖).
15
Another consequence of cellphones‘ ―pervasiveness‖19 is that a cell-site
simulator can be used by the government not merely to track a person but to locate
him or her. See State v. Andrews, 134 A.3d 324, 348 (Md. Ct. Spec. App. 2016).
Police have always had the capacity to visually track a suspect from some starting
location, and electronic tracking devices like those used in United States v. Knotts,
460 U.S. 276 (1983), and Karo, 468 U.S. 705, have augmented this preexisting
capacity. But although the kind of device used in Knotts and Karo is probably
more reliable than a human tracker—less prone to discovery than a human and
harder to elude—at their core these devices merely enable police officers to
accomplish the same task that they could have accomplished through ―[v]isual
surveillance from public places.‖ Knotts, 460 U.S. at 282; see also Karo, 468 U.S.
at 713. This is because the tracking device must be physically installed on some
object that the target will later acquire or use. See, e.g., (Antoine) Jones, 565 U.S.
at 402–03 (GPS tracker placed on the defendant‘s wife‘s car); Karo, 468 U.S. at
708 (tracker placed in container of chemicals the defendant had purchased);
Knotts, 460 U.S. at 276 (same). These devices do not enable police to locate a
person whose whereabouts were previously completely unknown.
With a cell-site simulator, however, police no longer need to track a person
19
Riley, supra note 18, 134 S. Ct. at 2490.
16
visually from some starting location or physically install a tracking device on an
object that is in, or will come into, his or her possession. Instead, they can
remotely activate the latent tracking function of a device that the person is almost
certainly carrying in his or her pocket or purse: a cellphone. As the present case
demonstrates, police officers first obtain subscriber information and real-time
location information from the target‘s telecommunications provider to narrow
down the search area.20 They then proceed to that area with a cell-site simulator,
20
Mr. Jones has not argued in this appeal that the government violated his
Fourth Amendment rights when it obtained real-time cell-site location information
(CSLI) for his phone from his telecommunications provider. Also not involved in
this case is historical CSLI—location information maintained by cellular
companies in the ordinary course of business. Some courts have held that the
Fourth Amendment protects real-time CSLI, e.g., Tracey, 152 So. 3d at 523, but
many have held that the Fourth Amendment does not protect historical CSLI, e.g.,
United States v. Graham, 824 F.3d 421, 427–28 (4th Cir. 2016) (en banc). See
generally Eric Lode, Annotation, Validity of Use of Cellular Telephone or Tower
to Track Prospective, Real Time, or Historical Position of Possessor of Phone
Under Fourth Amendment, 92 A.L.R. Fed. 2d 1 (2015). The Fourth Amendment
analysis for real-time and historical CSLI disclosed by a telecommunications
provider is complicated by uncertainty about the applicability and scope of the
third-party doctrine. Compare Graham, 824 F.3d at 427–28 (―Each time
Defendants made or received a call, or sent or received a text message—activities
well within the ‗ordinary course‘ of cell phone ownership—[their provider]
generated a record of the cell towers used . . . . Having ‗exposed‘ the CSLI to
[their provider], Defendants here, like the defendant in Smith, ‗assumed the risk‘
that the phone company would disclose their [historical CSLI] to the government.‖
(quoting Smith v. Maryland, 444 U.S. 735, 744 (1979))), with In re United States
for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d
113, 126 (E.D.N.Y. 2011) (―[T]he court concludes that established normative
privacy considerations support the conclusion that the reasonable expectation of
privacy is preserved here, despite the fact that cell-site-location records [are]
(continued…)
17
which they use to force the person‘s cellphone to identify itself and reveal its exact
location. It is in this sense that a cell-site simulator is a locating, not merely a
tracking, device: A cell-site simulator allows police officers who possess a
person‘s telephone number to discover that person‘s precise location remotely and
at will.
A final consideration is that when the police use a cell-site simulator to
locate a person‘s cellphone, the simulator does not merely passively listen for
transmissions sent by the phone in the ordinary course of the phone‘s operation.
Instead, the cell-site simulator exploits a security vulnerability in the phone—the
fact that cellphones are, in the words of the defense expert, ―dumb devices,‖ unable
to differentiate between a legitimate cellular tower and a cell-site simulator
masquerading as one21—and actively induces the phone to divulge its identifying
information. Once the phone is identified, it can be located. So far as the present
record reveals, the only countermeasure that a person can undertake is to turn off
(…continued)
disclosed to cell-phone service providers.‖). The third-party doctrine has no
application in the present case, however, because the police‘s use of a cell-site
simulator is ―direct government surveillance.‖ Graham, 824 F.3d at 426 & n.4.
21
See also Pell & Soghoian, supra note 2, at 12 (explaining that active
surveillance devices exploit the lack of an authentication mechanism in the 2G
phone protocol design).
18
his or her cellphone or its radios (put it in ―airplane mode‖), thus forgoing its use
as a communication device.
The preceding considerations lead us to conclude that the use of a cell-site
simulator to locate Mr. Jones‘s phone invaded a reasonable expectation of privacy
and was thus a search. First, given the potential for location information gathered
by a cell-site simulator or other device to reveal sensitive personal facts, people
justifiably seek to keep such information private. This is insufficient, in itself, to
support our conclusion that the government invaded a legitimate expectation of
privacy: Supreme Court precedent makes clear that certain forms of tracking do
not invade a reasonable expectation of privacy. See Knotts, 460 U.S. at 282
(holding that the use of an electronic device to track a suspect‘s movements in
public spaces did not invade a reasonable expectation of privacy); 22 see also Karo,
468 U.S. at 719 (holding that the unlawful use of a device to track movements
inside a residence did not necessarily taint the otherwise lawful use of the same
device to track the suspects in public).
22
But see (Antoine) Jones, 565 U.S. at 416 (Sotomayor, J., concurring) (―I
do not regard as dispositive the fact that the Government might obtain the fruits of
GPS monitoring through lawful conventional surveillance techniques.‖); id. at 430
(Alito, J., concurring in judgment) (―[T]he use of longer term GPS monitoring in
investigations of most offenses impinges on expectations of privacy.‖).
19
But in addition to the fact that people reasonably value and hope to protect
the privacy of their location information, what necessitates our conclusion is the
method by which the government obtained the location information in this case.
See Kyllo, 533 U.S. at 35 n.2 (―The fact that equivalent information could
sometimes be obtained by other means does not make lawful the use of means that
violate the Fourth Amendment.‖); United States v. Maynard, 615 F.3d 544, 566
(D.C. Cir. 2010) (―[W]hen it comes to the Fourth Amendment, means do matter.‖),
aff’d on other grounds by (Antoine) Jones, 565 U.S. 400. Unlike in a situation in
which the government determines a person‘s location through visual surveillance
or by employing the older generation of tracking devices, see Karo, 468 U.S. at
719; Knotts, 460 U.S. at 282, it cannot be argued that ―the information obtained by
[the government] in this case was . . . readily available and in the public view,‖
Andrews, 134 A.3d at 348. The cell-site simulator employed in this case gave the
government a powerful person-locating capability that private actors do not have
and that, as explained above, the government itself had previously lacked—a
capability only superficially analogous to the visual tracking of a suspect.23 And
23
We are accordingly unpersuaded by one court‘s suggestion that using
cellular technology to track a suspect is analogous to using ―dogs . . . to track a
fugitive . . . [by] his scent.‖ United States v. Skinner, 690 F.3d 772, 777 (6th Cir.
2012). And our dissenting colleague‘s suggestion that the search here was
permitted under the automobile exception to the Fourth Amendment, see post at
86–88, is similarly unconvincing. The dissent argues that under the automobile
(continued…)
20
the simulator‘s operation involved exploitation of a security flaw in a device that
most people now feel obligated to carry with them at all times. Allowing the
government to deploy such a powerful tool without judicial oversight would surely
―shrink the realm of guaranteed privacy‖ far below that which ―existed when the
Fourth Amendment was adopted.‖ Kyllo, 533 U.S. at 34. It would also place an
individual in the difficult position either of accepting the risk that at any moment
his or her cellphone could be converted into tracking device or of forgoing
―necessary use of‖ the cellphone. Tracey, 152 So. 3d at 523. We thus conclude
that under ordinary circumstances, the use of a cell-site simulator to locate a person
through his or her cellphone invades the person‘s actual,24 legitimate, and
(…continued)
exception, police officers could have searched Mr. Jones‘s car without a warrant
and seized ―any cell phones in it that might have been contraband or evidence of
the crime.‖ Post at 88. From this, the dissent claims, it follows that the police had
the right to use the cell-site simulator to search or seize Mr. Jones‘s phone. This
argument glosses over the fact that what the cell-site simulator obtained was Mr.
Jones‘s location information. When police search a car under the automobile
exception, by contrast, they do not obtain location information—they already know
the car‘s location if they are searching it. The dissent also glosses over the fact that
the police need probable cause to search a car under the automobile exception.
Tuckson v. United States, 77 A.3d 357, 366 (D.C. 2013). The police here did not
have probable cause to believe that there was evidence of a crime inside Mr.
Jones‘s car until they used the cell-site simulator to locate Mr. Jones‘s cellphone.
24
Ordinarily, a person need not do anything affirmative to exhibit an actual
subjective expectation that he or she will not be located and tracked by a cell-site
simulator. In Katz, the defendant was ―entitled to assume‖ that his phone
conversation was private based purely on the fact that he had ―occupie[d] [the
(continued…)
21
reasonable expectation of privacy in his or her location information and is a search.
The government‘s argument to the contrary is unpersuasive. The
government contends that because a cellphone ―must continuously broadcast a
signal,‖ a person who carries or uses a cellphone is engaging in ―conduct [that] is
not calculated to keep [his] location private and . . . thus[] has no reasonable
expectation of privacy in his location.‖ The government cites for support United
States v. Wheeler, 169 F. Supp. 3d 896 (E.D. Wis. 2016), in which the court found
that ―today, when many Americans own some sort of cell phone and carry it
frequently, an individual‘s expectation that the government could not track his
whereabouts over time is [not] reasonable.‖ Id. at 908; see also id. (―The media is
rife with information—and sometimes warnings—about the fact that one‘s location
can be tracked from one‘s cell phone.‖).25 This line of reasoning rests on a
(…continued)
phone booth], shut[] the door behind him, and pa[id] the toll.‖ 389 U.S. at 352.
Likewise, in Kyllo, the Supreme Court found that the use of a thermal imager on
the defendant‘s home violated an expectation of privacy, without any discussion
about whether the defendant had taken measures to thwart the effectiveness of the
device. 533 U.S. at 40. But in fact in the present case, there was some evidence
that Mr. Jones affirmatively sought to keep his location information private: His
phone‘s GPS feature (to the extent it existed) had been disabled.
25
The government also cites United States v. Caraballo, 831 F.3d 95 (2d
Cir. 2016), cert. denied, 137 S. Ct. 654 (2017), a case in which the police obtained
real-time cell-site location information without a warrant. See supra note 20. The
court approved the officers‘ actions under the exigency exception. Caraballo, 831
(continued…)
22
misreading of the Katz expectation-of-privacy test that construes the test as
involving a probabilistic inquiry (an inquiry into whether it is likely—or the public
thinks it is likely—that the government can access the information in question)
rather than a normative one (an inquiry into whether it is consistent with the
nation‘s traditions and values that the government should have unfettered access to
the information).26 Contrary to the government‘s argument, Katz makes clear that
(…continued)
F.3d at 106. The court stated that ―any expectation of privacy that [the defendant]
had in his cell-phone location was dubious at best.‖ Id. at 105. But this remark
was part of a broader exigency analysis, and the court‘s primary justification for it
was the lack of decisive authority on the question. See id. at 106 (―[T]he fact that
the question of the degree of privacy that adheres to these sorts of information, to
date, divides those Circuit courts that have spoken to the issue reinforces the
conclusion that the intrusion here was not to an established, core privacy value.‖).
26
Moreover, the factual premise of the government‘s argument is
erroneous. The events at issue in this case occurred in 2013, and at that time cell-
site simulators were relatively unknown to the public. Law-enforcement agencies
around the country that acquired the device had been required (and, for all we
know, still continue to be required) to sign nondisclosure agreements with the
Federal Bureau of Investigation. See Matt Richtel, A Police Gadget Tracks
Phones? Shhh! It’s Secret, N.Y. Times, Mar. 15, 2015, https://www.nytimes.com/
2015/03/16/business/a-police-gadget-tracks-phones-shhh-its-secret.html; Pell &
Soghoian, supra note 2, at 38. Indeed, amici curiae have provided us with a
redacted copy of a nondisclosure agreement that the MPD signed. By signing this
agreement, the MPD agreed that, among other things, ―the equipment/technology
and any information related to its functions, operation, and use shall . . . [not be]
disclos[ed] . . . to the public in any manner including but not limited to: in press
releases, in court documents, during judicial hearings, or during other public
forums.‖ See also Andrews, 134 A.3d at 338 (detailing a similar agreement signed
by the Baltimore City Police Department). There is no evidence in the record that
Mr. Jones was aware of the government‘s secret use of the cell-site simulator and
(continued…)
23
a person does not lose a reasonable expectation of privacy merely because he or
she is made aware of the government‘s capacity to invade his or her privacy.
When Katz was issued, the public and the courts were well aware of the
government‘s capacity to wiretap and eavesdrop through technological means, yet
the Supreme Court did not find this fact determinative of the question whether
individuals possess a reasonable expectation of privacy in their conversations. See
Katz, 389 U.S. at 352 (citing Olmstead v. United States, 277 U.S. 438 (1928)
(wiretapping), and Goldman v. United States, 316 U.S. 129 (1942) (bugging)); see
also Susan Freiwald, First Principles of Communications Privacy, 2007 Stan.
Tech. L. Rev. 3, 28 (―In the several years preceding Katz, the public had learned of
rampant illegal wiretapping from numerous influential books, scholarly articles,
and newspaper accounts.‖). A person‘s awareness that the government can locate
and track him or her using his or her cellphone likewise should not be sufficient to
negate the person‘s otherwise legitimate expectation of privacy. See also Smith v.
Maryland, 442 U.S. 735, 741 n.5 (1979) (―[W]here an individual‘s subjective
expectations ha[ve] 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
(…continued)
little reason to believe that the public was widely aware of it.
24
[is].‖); 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 2.1 (d) (5th ed. 2016) (―[W]hat is involved here is ‗our societal
understanding‘ regarding what deserves ‗protection from government invasion.‘‖
(quoting Oliver v. United States, 466 U.S. 170, 178 (1984))).
The government‘s use of the cell-site simulator to locate Mr. Jones was
therefore a search.27 The government did not obtain a warrant and has not argued
27
We need not rule on Mr. Jones‘s alternative argument that the
government‘s conduct here constituted a search under (Antoine) Jones, 565 U.S.
400, where the court held that a trespass used to obtain information constitutes a
Fourth Amendment search. Mr. Jones makes a plausible argument that the
government‘s conduct constituted a trespass to his chattel—that is, that the
government ―intentionally . . . us[ed] or intermeddl[ed]‖ with his chattel, his
cellphone. Restatement (Second) of Torts § 217 (Am. Law Inst. 1965). The
government, through the cell-site simulator, coopted Mr. Jones‘s phone, forcing it
to do something Mr. Jones surely never intended it to do: reveal its identifying and
location information to an entity other than a telecommunications provider.
Moreover, it is a natural consequence of a cell-site simulator‘s use that it will
disrupt the operation of the target phone, and there is reason to believe that this
happened here, given the records showing Mr. Jones‘s seven failed calls. See
supra note 7. And numerous courts have held that computer hacking and
interference with electronic resources can satisfy the elements of common-law
trespass to chattels. See generally Marjorie A. Shields, Annotation, Applicability
of Common-Law Trespass Actions to Electronic Communications, 107 A.L.R. 5th
549 (2003).
But the question whether the holding of (Antoine) Jones extends beyond
physical trespasses is still an open one. It is unclear, first of all, whether the
holding of (Antoine) Jones depends on ―the law of trespass as it existed at the time
of the adoption of the Fourth Amendment‖ or whether new forms of the tort are
relevant. 565 U.S. at 426 (Alito, J., concurring in judgment). Assuming that the
former is the case, it is also not clear whether ―the[] recent decisions [recognizing
(continued…)
25
that the search ―f[ell] within a specific exception to the warrant requirement,‖ and
therefore the search was unlawful under the Fourth Amendment. United States v.
Riley, 134 S. Ct. 2473, 2482 (2014); see also United States v. Lewis, 147 A.3d 236,
239 (D.C. 2016) (en banc) (―A search conducted without a warrant is per se
unreasonable under the Fourth Amendment unless it falls within a few specific and
well-established exceptions.‖ (quoting United States v. Taylor, 49 A.3d 818, 821
(D.C. 2012))).28
(…continued)
electronic trespass to chattels] represent a change in the law or simply the
application of the old tort to new situations.‖ Id. at 426–27 (Alito, J., concurring in
judgment). Mr. Jones‘s counsel pointed out during oral argument that courts
recognized forms of nonphysical trespass on chattels long before the electronic
age, suggesting a possible answer to the second of these questions. See, e.g., Cole
v. Fisher, 11 Mass. 137 (1814) (holding that the plaintiff could sue for trespass to
chattels where the sound of the defendant‘s gunshot frightened the plaintiff‘s
horse, resulting in damage to the plaintiff‘s carriage); see also W. Page Keeton et
al., Prosser and Keeton on Torts § 14 n.8 (5th ed. 1984) (citing other cases). Yet
we do not have to answer these ―vexing‖ questions today. (Antoine) Jones, 565
U.S. at 426 (Alito, J., concurring in judgment).
28
Arguing that ―bystanders[‘] . . . phones [can be] ensnared by the cell site
simulator,‖ see supra notes 12 and 15, amici curiae ask us to adopt a requirement
that ―any cell site simulator warrant must include provisions to minimize
collection, retention, and use of bystanders‘ data.‖ See In re Application of the
United States for an Order Relating to Telephones Used by Suppressed, No. 15 M
0021, 2015 WL 6871289, at *3–4 (N.D. Ill. Nov. 9, 2015); In re Search Warrant,
71 A.3d 1158, 1170 (Vt. 2012) (―Warrants for electronic surveillance routinely set
out ‗minimization‘ requirements—procedures for how and under what conditions
the electronic surveillance may be conducted—in order to ‗afford similar
protections to those that are present in the use of conventional warrants authorizing
(continued…)
26
Our conclusion that the government violated Mr. Jones‘s Fourth
Amendment rights is not the end of our inquiry. We must decide whether Mr.
Jones is entitled to a remedy, and if so what the scope of that remedy should be.
As a general matter, the ―[e]xclusionary rule . . . forbids the use of improperly
obtained evidence at trial.‖ Herring v. United States, 555 U.S. 135, 139 (2009).
―[T]his judicially created rule is ‗designed to safeguard Fourth Amendment rights
generally through its deterrent effect.‘‖ Id. at 139–40 (quoting United States v.
Calandra, 414 U.S. 338, 348 (1974)). The government argues that the
exclusionary rule does not apply in this case, invoking the inevitable-discovery
doctrine, good-faith exception, and a change in its policies concerning the use of
cell-site simulators. The government also argues that much of the evidence that
Mr. Jones wants excluded does not fall within the scope of the exclusionary rule—
that it is not ―fruit of the poisonous tree.‖ Wong Sun v. United States, 371 U.S.
471, 488 (1963). We first address the inevitable-discovery doctrine.
B. Inevitable-Discovery Doctrine
(…continued)
the seizure of tangible evidence.‘‖ (quoting Berger v. New York, 388 U.S. 41, 57
(1967)) (brackets removed)). The issue of interference with third parties‘ phones is
not before us in this appeal, however.
27
The inevitable-discovery doctrine ―shields illegally obtained evidence from
the exclusionary rule if the government can show, by a preponderance of the
evidence, that the evidence ‗ultimately or inevitably would have been discovered
by lawful means.‘‖ Gore v. United States, 145 A.3d 540, 548 (D.C. 2016) (quoting
Hicks v. United States, 730 A.2d 657, 659 (D.C. 1999)); see also Nix v. Williams,
467 U.S. 431 (1984). To avail itself of the inevitable-discovery doctrine, the
government must prove two distinct elements: (1) that ―the lawful process which
would have ended in the inevitable discovery . . . ha[d] commenced before the
constitutionally invalid seizure,‖ and (2) that there is a ―‗requisite actuality‘ that
the discovery would have ultimately been made by lawful means.‖ Hicks, 730
A.2d at 659 (quoting Douglas-Bey v. United States, 490 A.2d 1137, 1139 n.6 (D.C.
1985), and Hilliard v. United States, 638 A.2d 698, 707 (D.C. 1994)) (brackets and
ellipsis removed).
The trial court found that ―had [the police] switched [the cell-site simulator]
over to use the [complainant‘s phone] . . . they would have eventually gotten to the
exact same place because the phones were together.‖ Assuming for the sake of
argument that the hearing evidence supports this finding,29 we agree with the trial
29
Mr. Jones argues that this finding was clearly erroneous because ―[t]he
government presented no expert testimony about the functioning of the cell site
(continued…)
28
court that this finding justifies a conclusion that there was a separate lawful means
by which the police could have captured Mr. Jones and recovered the evidence
used against him at trial.30 The finding is insufficient, however, to support a
conclusion that the police would have captured Mr. Jones—which is what the
inevitable-discovery doctrine requires.
The undisputed evidence in the record shows that the MPD possessed only
a single operating cell-site simulator,31 and that it could only be used to locate a
single phone at a time. The police used it to search for Mr. Jones‘s cellphone.
Thus, the police‘s search for the complainant‘s cellphone—the lawful process—
never occurred. If the lawful search never occurred, it did not ―commence[] before
(…continued)
simulator, choosing instead to present only lay testimony [by Sergeant Perkins]
about how the field operators use the device.‖ In Mr. Jones‘s view, ―there is no
evidence in the record about the failure rate of the cell site simulator or whether it
statistically works better with certain models of phones or on certain networks.‖
30
In this regard, we note that not only did Mr. Jones concede that he lacked
standing to contest a search involving the complainant‘s phone, but also the record
suggests that the complainant consented to the police‘s tracking of her phone. See
United States v. Johnson, 380 F.3d 1013, 1017 (7th Cir. 2004) (holding that to rely
on the inevitable-discovery doctrine the government must prove a lawful means by
which it would have obtained the evidence, and that it is insufficient to prove
merely that ―the evidence would have been discovered as a consequence of [an]
illegal search of [a third party], to which [the defendant] could not object‖).
31
The MPD owned another unit, but it was not working properly the day of
the search.
29
the constitutionally invalid seizure‖ of Mr. Jones. Hicks, 730 A.2d at 659 (quoting
Douglas-Bey, 490 A.2d at 1139 n.6).
The government disagrees with this conclusion and argues that because the
police had tracked the complainant‘s phone using real-time location information
from the provider and had obtained her phone‘s identifying information, they ―had
begun the process necessary to locate her phone with the cell-[s]ite simulator.‖
Even if we agreed that these steps constituted the commencement of a lawful
process, we would nonetheless find the second element of the inevitable-discovery
test—the ―requisite actuality‖ that the process would have led to the discovery of
Mr. Jones—lacking. This is because the police either suspended or abandoned the
purported lawful process when they chose to deploy the only operational cell-site
simulator in their possession on Mr. Jones‘s phone.
This court has found the inevitable-discovery doctrine applicable in cases in
which the police engaged in lawful and unlawful processes in parallel. See
Pinkney v. United States, 851 A.2d 479, 495 (D.C. 2004); McFerguson v. United
States, 770 A.2d 66, 74–75 (D.C. 2001); Hicks, 730 A.2d at 662. Had the unlawful
process not occurred in these cases, the lawful one would inevitably have produced
the same evidentiary result. But here the government is asking us to find inevitable
discovery where the police had mutually exclusive options and, for whatever
30
reason, chose the option that turned out to be unlawful. The inevitable-discovery
doctrine does not apply in this type of situation. See Gore, 145 A.3d at 549 n.32
(―[T]he argument that ‗if we hadn't done it wrong, we would have done it right‘ is
far from compelling.‖ (quoting 6 LaFave, supra, § 11.4 (a)) (internal quotation
marks omitted)).32
32
Unlike our dissenting colleague, we are not persuaded by the
government‘s alternative argument that because Mr. Jones was carrying the stolen
phones, which could have been located and tracked lawfully (it is assumed), Mr.
Jones had no expectation of privacy in his location. This argument was not raised
in the initial briefing or in the trial court—it was first raised at oral argument
before this court in response to questions from the bench. Although after oral
argument we requested supplemental briefing on this argument, we ultimately
conclude that the government‘s failure to present it at an earlier stage constitutes a
waiver of the argument under the circumstances of this case. See Tuckson v.
United States, 77 A.3d 357, 366 (D.C. 2013); Rose v. United States, 629 A.2d 526,
535 (D.C. 1993); see also Greenlaw v. United States, 554 U.S. 237, 244 (2008)
(―We wait for cases to come to us, and when they do we normally decide only
questions presented by the parties. Counsel almost always know a great deal more
about their cases than we do, and this must be particularly true of counsel for the
United States, the richest, most powerful, and best represented litigant to appear
before us.‖ (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir.
1987) (Arnold, J., concurring in denial of rehearing en banc))). In any case, the
argument is unpersuasive because, as we have explained above, ―[t]he fact that
equivalent information could sometimes be obtained by other means does not make
lawful the use of means that violate the Fourth Amendment.‖ Kyllo, 533 U.S. at 35
n.2; see also Maynard, 615 F.3d at 566. And as amici have cogently argued in
their supplemental submission, ―[c]onsidering as part of the reasonable-
expectation-of-privacy inquiry the availability of alternative means to gather
information would collapse inevitable discovery into the reasonable-expectation
question in a manner that would radically transform both doctrines.‖ As amici
explain, were we to adopt the government‘s—and the dissent‘s—novel theory of
(continued…)
31
C. Good-Faith Exception
We turn next to the government‘s argument that application of the
exclusionary rule here ―would not meaningfully deter police misconduct‖ because
the use of the cell-site simulator to locate Mr. Jones was ―not the type of ‗flagrant‘
abuse for which the exclusionary rule was designed.‖ In support of this argument,
the government notes that Sergeant Perkins and his team believed ―exigent
circumstances existed‖ and asserts that ―at the time of this incident, no court had
held that using a simulator to locate a phone violates the Fourth Amendment.‖ The
government further points out that the police received judicial approval for various
secondary searches of the evidence recovered from Mr. Jones and Ms. Williams at
the time of Mr. Jones‘s arrest. Specifically, the police obtained warrants to search
Mr. Jones‘s Saturn and the phones they recovered from Mr. Jones and Ms.
Williams, and secured a court order to take a buccal swab from Mr. Jones.
Although it does not explicitly say so, the government is invoking the
(…continued)
affirmance, ―the contours of the inevitable discovery doctrine, a carefully crafted
exception to the exclusionary rule with strict requirements, would be subject to
end-runs, because the possibility of an alternative means of discovery could often
be repackaged as a reason to reject an expectation of privacy in the first place‖
(citation omitted).
32
―good-faith exception.‖ Davis v. United States, 564 U.S. 229, 239 (2011). The
Supreme Court first recognized this exception in United States v. Leon, 468 U.S.
897 (1984), holding that ―evidence obtained [by the police] in objectively
reasonable reliance on a subsequently invalidated search warrant‖ is not subject to
the exclusionary rule. Id. at 922. This holding was based on the premise that ―the
deterrence rationale [for exclusion] loses much of its force‖ ―when the police act
with an objectively reasonable good-faith belief that their conduct is lawful.‖
Davis, 564 U.S. at 252; id. at 238 (quoting Leon, 468 U.S. at 909, 919) (internal
quotation marks omitted). The Court has since extended the good-faith exception
to apply in various other situations involving nonculpable or merely negligent law-
enforcement conduct. See, e.g., id. at 239–40 (holding that the good-faith
exception applies ―when the police conduct a search in objectively reasonable
reliance on binding judicial precedent‖); Herring, 555 U.S. at 136 (holding that the
good-faith exception applied to evidence obtained in a search incident to arrest
where the officer ―reasonably believe[d] there [wa]s an outstanding arrest warrant‖
for the defendant, but where ―that belief turn[ed] out to be wrong because of a
negligent bookkeeping error by another police employee‖).
The Supreme Court has not, however, recognized the applicability of the
good-faith exception in a situation remotely like the present one—where the
33
police, not acting pursuant to a seemingly valid warrant, statute, or court opinion,
conducted an unlawful search using a secret technology that they had shielded
from judicial oversight and public scrutiny. See supra note 26. Indeed, assuming
the police believed the warrantless use of the cell-site simulator to be lawful, they
could not have reasonably relied on that belief, given the secrecy surrounding the
device and the lack of law on the issue.33 And the government does not argue that
the police officers‘ mistaken belief that exigent circumstances existed was
reasonable or cite any case law that would support such an argument.
The fact that some of the evidence was obtained in secondary searches
pursuant to warrants and a court order does not change things. The police‘s
reliance on the warrants and order was not objectively reasonable because the
warrants and order were based on information obtained in violation of Mr. Jones‘s
Fourth Amendment rights. See Evans v. United States, 122 A.3d 876, 886 (D.C.
2015) (―The subsequent issuance of [a] search warrant . . . , based on information
[illegally] obtained . . . , d[oes] not operate to attenuate the [original] illegality.‖). 34
33
The Supreme Court has implicitly foreclosed the government‘s argument
that police can reasonably conclude from the complete lack of judicial precedent
that their conduct is lawful. See Davis, 564 U.S. at 248 (suggesting that the good-
faith exception for police reliance on binding judicial precedent would not apply
where ―the precedent is distinguishable‖).
34
The government cites United States v. McClain, 444 F.3d 556 (6th Cir.
(continued…)
34
Thus, the evidence the police obtained through their warrantless use of the cell-site
simulator is not subject to the good-faith exception.
D. Change in Department of Justice Policy
The government‘s final argument for not applying the exclusionary rule is
that a change in Department of Justice (DOJ) policy has diminished the likelihood
that excluding the evidence in this case will deter misconduct in the future. The
government asserts that the MPD is bound by a new DOJ policy to ―obtain a search
warrant supported by probable cause‖ before deploying a cell-site simulator. Dep‘t
of Justice Policy Guidance: Use of Cell-Site Simulator Technology at 3–4 (Sept.
3, 2015), https://www.justice.gov/opa/file/767321/download.
(…continued)
2006), in which the court declined to apply the exclusionary rule where officers
conducted a search pursuant to a warrant based in large part on information that
had been illegally gathered. This court‘s holding in Evans precludes us from
following McClain. And in any case, McClain is distinguishable because there the
―warrant affidavit fully disclosed to a neutral and detached magistrate the
circumstances surrounding the initial [illegal] search.‖ Id. at 566. Here, by
contrast, the police did not disclose in their applications for the warrants and order
that they had deployed a cell-site simulator to locate Mr. Jones. Indeed, in the
otherwise lengthy affidavit for the warrants, the officers‘ search for Mr. Jones is
described in a single sentence: ―[T]he Defendant was located by members of the
Washington, D.C. Metropolitan Police Department . . . .‖ The government cannot
rely on the Leon good-faith exception when the police have not been ―frank with
the magistrate in proceedings to obtain the warrant.‖ United States v. Reilly, 76
F.3d 1271, 1273 (2d Cir.), on reh’g, 91 F.3d 331 (2d Cir. 1996).
35
The government did not develop this argument in the trial court—and could
not have, as the DOJ policy had not yet been issued—and we do not find it
persuasive. The government has not cited any case in which a court has declined
to apply the exclusionary rule based on the government‘s representation that it will
not engage in unlawful conduct in the future. The government cites Blair v. United
States, 114 A.3d 960 (D.C. 2015), but in that case we relied on a change in a
statute that eliminated the need to deter subsequent violations, not a mere change
in policy. Id. at 973–74. And given that the DOJ policy memorandum does not
describe any sort of enforcement mechanism that would ensure compliance with
the policy, and given that the present administration or a subsequent one may well
revise this policy, we are not convinced that the need to deter future constitutional
violations is lacking.
E. Fruit of the Poisonous Tree
Having decided that the exclusionary rule applies in this case, we must now
decide which evidence should be excluded as ―fruit of the poisonous tree‖ of the
illegal search.35 Wong Sun, 371 U.S. at 488. In deciding whether evidence
35
In the trial court, Mr. Jones specifically moved to ―[s]uppress
[i]dentifications, [s]tatements, and [t]angible evidence‖ resulting from the illegal
search. The evidence and testimony that Mr. Jones identifies as fruits of the
(continued…)
36
constitutes fruit of the poisonous tree, the critical inquiry is whether ―the evidence
. . . has been come at by exploitation of th[e] illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.‖ Wong Sun, 371 U.S.
at 488 (quoting John Maguire, Evidence of Guilt 221 (1959)); see also Wilson v.
United States, 102 A.3d 751, 753 (D.C. 2014). The court considers ―[t]he temporal
proximity of the [illegality] and the [acquisition of the evidence], the presence of
intervening circumstances, and, particularly, the purpose and flagrancy of the
official misconduct.‖ Brown v. Illinois, 422 U.S. 590, 603–04 (1975) (citations
and footnote omitted); see also Gordon v. United States, 120 A.3d 73, 85 (D.C.
2015).
Mr. Jones argues that the following evidence and testimony should have
been excluded as fruits of the poisonous tree: his knife, a statement he made to the
(…continued)
poisonous tree in this appeal clearly fall within these categories, and the
government could not have reasonably doubted that Mr. Jones intended to have
them suppressed. The government had a ―full and fair opportunity‖ in the trial
court to litigate this matter. Barnett v. United States, 525 A.2d 197, 200 (D.C.
1987). And the record before us is ―of amply sufficient detail and depth‖ to permit
us to decide the scope of the exclusionary rule as a matter of law. Brown v.
Illinois, 422 U.S. 590, 604 (1975). We thus (except as to the testimony of Ms.
Williams, see infra note 41) decline the government‘s request that we remand the
case so that the trial court can ―hold hearings, make factual findings of fact, and
reach legal conclusions on the application of the fruit-of-the-poisonous-tree
doctrine.‖
37
police at the scene of his arrest, cellphones recovered from Ms. Williams‘s purse at
the scene of the arrest, evidence (including cellphones) recovered from his car (the
Saturn) pursuant to a warrant, data extracted from the various cellphones pursuant
to warrants, the testimony of Ms. Williams, the later photo-array identification of
Mr. Jones by one of the complainants, a DNA profile generated from a buccal
swab of Mr. Jones (a month after his arrest), and a photograph of Mr. Jones‘s
groin.36 The government ―agrees that some, but not all, of the . . . evidence
[identified by Mr. Jones] is a fruit of the alleged poisonous tree.‖ The government
only specifically objects to classifying (1) Mr. Jones‘s statement to the police, (2)
the cellphones recovered from Ms. Williams‘s purse, and (3) Ms. Williams‘s
testimony as fruits of the poisonous tree.
1. Prince Jones’s Statement
Mr. Jones made an incriminating statement to the police at the scene of the
arrest: When asked what his address was, Mr. Jones gave the address of one of the
sexual-assault complainants. The government argues that this statement should not
be suppressed as a fruit of the unlawful cell-site-simulator search because ―[i]t
36
One of the complainants testified at trial about the appearance of Mr.
Jones‘s genital area, and the photograph of Mr. Jones‘s groin was admitted in
evidence at trial.
38
would make little sense to suppress evidence obtained merely as part of a routine
booking procedure.‖ See Thomas v. United States, 731 A.2d 415, 421 (D.C. 1999)
(recognizing ―a routine booking question exception‖ to the rule of Miranda v.
Arizona, 384 U.S. 436 (1966)). We reject this argument. That the question about
Mr. Jones‘s address was otherwise proper does not negate the fact that very little
time and no substantial intervening circumstances separated the illegal search from
Mr. Jones‘s incriminating response. See United States v. Olivares-Rangel, 458
F.3d 1104, 1112 (10th Cir. 2006). Mr. Jones‘s statement was a direct product of
the unlawful search and is thus excludable as fruit of the poisonous tree.
2. Cellphones from Nora Williams’s Purse
When the police located Mr. Jones and Ms. Williams, they searched Ms.
Williams‘s purse and found several cellphones, including two of the complainants‘
phones and Mr. Jones‘s phone. The government argues that the contents of Ms.
Williams‘s purse are not fruits of the poisonous tree because Mr. Jones did ―not
have a reasonable expectation of privacy in the contents of Ms. Williams‘s purse‖
and because ―Ms. Williams gave the officers consent to search her purse.‖
Preliminarily, Mr. Jones‘s expectation of privacy (or lack thereof) in Ms.
Williams‘s purse is not a material consideration in the fruit-of-the-poisonous-tree
39
analysis. As one court has explained, ―[w]hile the fruit of the poisonous tree
doctrine applies only when the defendant has standing regarding the Fourth
Amendment violation which constitutes the poisonous tree, the law imposes no
separate standing requirement regarding the evidence which constitutes the fruit of
that poisonous tree.‖37 Olivares-Rangel, 458 F.3d at 1117 (citation omitted); see
also 6 LaFave, supra, § 11.4 (―If the defendant [has] standing with respect to the
poisonous tree, that alone suffices . . . .‖).
The factors in Brown, 422 U.S. at 604, moreover, compel a conclusion that
the contents of Ms. Williams‘s purse are fruits of the poisonous tree. First, as the
search of Ms. Williams‘s purse occurred at the scene of Mr. Jones‘s apprehension
and arrest, very little time passed between the police‘s unlawful cell-site-simulator
search and their recovery of the evidence from Ms. Williams‘s purse.
37
United States v. Bowley, 435 F.3d 426, 430–31 (3d Cir. 2006), and United
States v. Pineda-Chinchilla, 712 F.2d 942, 943–44 (5th Cir. 1983), cited by the
government, stand only for the narrow proposition that a defendant cannot
suppress the contents of his immigration file even if the prosecuting authority‘s
discovery of that file or its connection to the defendant was based on evidence
gathered in an illegal search or seizure. Thus, even if we were to find these cases
persuasive, but see 6 LaFave, supra, § 11.4 & n.22, they would not support the
proposition that a defendant must always—or even usually—have standing in a
particular item of evidence to have it suppressed as a fruit of an illegal search or
seizure.
40
Second, Ms. Williams‘s supposed consent was not a significant intervening
circumstance. According to Detective Pulliam, Ms. Williams consented only after
the police presented her with the following options: the police ―would either have
to take the purse and put it into police custody until [they] could get a search
warrant and then search it or . . . she could give [the police] consent to search it.‖
Given this threat and the fact that her boyfriend, Mr. Jones, had just been arrested
in her presence, Ms. Williams‘s consent was not sufficiently ―the product of free
will [to] break . . . the causal connection between the illegality and the‖ search of
the purse. Brown, 422 U.S. at 603; cf. Utah v. Strieff, 136 S. Ct. 2056, 2062 (2016)
(holding that a valid arrest warrant ―entirely unconnected with the [illegal] stop‖
was a sufficient intervening circumstance); 4 LaFave, supra, § 8.2 (c) (explaining
that a person‘s consent to a search may be involuntary where the police, ―‗trading
on‘ a prior Fourth Amendment violation,‖ have ―threat[ened] to seek a warrant‖).38
And third, although the police officers‘ warrantless use of the cell-site
38
The proper inquiry here is not whether Ms. Williams‘s consent was a
valid waiver of her own rights, but rather whether it constituted an intervening
circumstance sufficient to purge the taint of the illegal search. Thus, we need not
decide whether Ms. Williams could have had the evidence excluded had she
herself been tried. See generally 4 LaFave, supra, § 8.2 (c) (discussing Fourth
Amendment cases in which ―the police have obtained consent to search after
threatening that if consent were not given they would proceed to seek or obtain a
search warrant‖).
41
simulator here was not flagrant misconduct,39 recovery of Mr. Jones‘s cellphone
and the complainants‘ phones was undoubtedly one of the officers‘ purposes in
deploying the cell-site simulator. The cell-site simulator is used to locate and track
phones after all. The contents of Ms. Williams‘s purse thus ―bear a . . . close
relationship to the underlying illegality.‖ Gordon, 120 A.3d at 85 (quoting New
York v. Harris, 495 U.S. 14, 19 (1990)).40
3. Nora Williams’s Testimony41
Mr. Jones argues that Ms. Williams should have been barred from testifying
39
But see supra text accompanying note 33.
40
The government contends that even if the cellphones in Ms. Williams‘s
purse are fruits of the poisonous tree, the ―call detail records and location
information obtained from the provider‖ for the cellphones ―are not subject to
exclusion.‖ Mr. Jones has not argued otherwise, and we see no reason for
classifying this information as fruit of the poisonous tree.
The government also represents in its brief that ―the government received an
unsolicited offender hit from the FBI‘s Combined DNA Index System (‗CODIS‘)
indicating that a sample obtained from [Mr. Jones] in connection with [a] prior
Maryland conviction matches the crime scene sample obtained in this case.‖
Assuming that the government can demonstrate this in the trial court, we agree
with the government that it ―should not be precluded from seeking another buccal
swab [from Mr. Jones] based on the independent and untainted CODIS hit.‖ This
CODIS hit would not be a fruit of the illegal search.
41
This part does not constitute the opinion of the court, as it is not joined by
Associate Judge THOMPSON or Senior Judge FARRELL.
42
for the government at trial. The government disagrees, arguing that ―[t]here was
sufficient attenuation between the search and Ms. Williams‘s testimony to dissipate
any taint‖ and that ―the government would have inevitably discovered Ms.
Williams through independent sources.‖
In United States v. Ceccolini, 435 U.S. 268 (1978), the Supreme Court
recognized factors pertinent to the determination of whether a witness‘s testimony
should be barred as fruit of the poisonous tree: (1) whether ―the testimony given by
the witness was an act of her own free will in no way coerced,‖ (2) whether
evidence gathered or information learned as a result of the illegal search was used
to question the witness, (3) whether ―[s]ubstantial periods of time elapsed between
the time of the illegal search and the initial contact with the witness . . . and
between the [initial contact] and the testimony at trial,‖ (4) whether the witness and
―her relationship with the [defendant] were well known‖ to the police before the
illegal search, and (5) whether the officers conducting the illegal search did so with
the ―intent of finding a willing and knowledgeable witness to testify against‖ the
defendant. Id. at 279–80; see also 6 LaFave, supra, § 11.4 (i). These factors
weigh in favor of excluding Ms. Williams‘s testimony.
First, it is undisputed that Ms. Williams was not a willing witness for the
government. As the government points out, Ms. Williams was initially ―not
43
forthcoming about her knowledge and use of the . . . items‖ stolen from the
complainants, and only testified after ―the government sought and received a court
order granting her immunity.‖ Ms. Williams testified at trial that after she was
granted immunity, she testified for the grand jury ―[b]ecause [she] had no choice.‖
She expressed unhappiness about having to testify against Mr. Jones at trial, stating
that she ―didn‘t want to go against him.‖
Second, the government admits that the police ―confronted [Ms. Williams]
with the fact that stolen phones and other items were recovered from her purse and
from the car.‖ This evidence, as explained above, was the product of the illegal
search. The government‘s attempt to minimize the significance of this fact is
unpersuasive. The government contends that the ―illegally obtained evidence
ultimately did not play a great role in obtaining Ms. Williams‘s testimony‖ and that
it was the grant of immunity that was the decisive factor. But this argument fails to
address the fact that the police questioned Ms. Williams before she was
immunized, and is also speculative: It is plausible—indeed, likely—that both the
grant of immunity and fact that Ms. Williams was found red-handed with the
proceeds of the robberies played significant roles in her decision to testify.
Third, a very short period of time passed between the illegal search and Ms.
Williams‘s first contact with the police. Indeed, Ms. Williams was present at Mr.
44
Jones‘s arrest and was questioned at the scene. See United States v. Ramirez-
Sandoval, 872 F.2d 1392, 1397 (9th Cir. 1989). Approximately a year passed
between the police‘s initial contact with Ms. Williams and her testimony at trial,
but a lengthy period between first contact and trial is almost always present in a
criminal case, and this time period is less significant than the time period between
the search and first contact. Moreover, the witness‘s initial statements to the police
will often significantly constrain the witness‘s testimony at trial because the initial
statements can be used to impeach the witness or bolster his or her testimony. See
1 Kenneth S. Broun et al., McCormick on Evidence § 34 (7th ed. 2016) (discussing
the procedure of impeaching a witness with a prior inconsistent statement); id. § 47
(discussing the procedure of supporting a witness with a prior consistent
statement).
Fourth, although at trial the government offered in evidence surveillance
footage of Ms. Williams using an ATM card stolen from one of the complainants,
at the suppression hearing the government neither presented evidence nor argued
that the police had this video before they conducted the illegal cell-site-simulator
search or that the video would have enabled the police to locate Ms. Williams.
Thus, based on the record before the court, it is not possible to conclude that the
police were aware of Ms. Williams or her relationship with Mr. Jones before they
45
located her through the illegal search. See also supra note 35.
The remaining factor favors the government. Specifically, there is no reason
to believe that the police intended their use of the cell-site simulator to result in the
discovery of a witness for the government. Rather, the record before the court
suggests that the police were trying to locate Mr. Jones—and, as a necessary
consequence of their use of cellphone tracking, Mr. Jones‘s cellphone.
Nonetheless, because the other four factors strongly weigh in favor of suppression,
there is ―a close[], . . . direct link between the illegality and [Ms. Williams‘s]
testimony.‖ Ceccolini, 435 U.S. at 278.
F. Harmless-Error Analysis
The introduction of evidence collected in violation of Mr. Jones‘s Fourth
Amendment right to be free from unreasonable searches and seizures is
constitutional error. So we must reverse Mr. Jones‘s convictions unless the
government has ―prove[d] beyond a reasonable doubt that the error . . . did not
contribute to the verdict.‖ Chapman v. California, 386 U.S. 18, 24 (1967).
Because we have concluded that the fruits identified by Mr. Jones should have
46
been excluded at his trial,42 and because these fruits comprised some of the most
damning evidence against him, we need not undertake a detailed analysis to
conclude that the erroneous admission of these fruits at trial was not harmless
beyond a reasonable doubt. The government does not argue otherwise.
III. Conclusion
For the foregoing reasons, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
42
To be entirely accurate, we have reached this conclusion with respect to
all of the purported fruits except for the testimony of Ms. Williams. See supra
note 41. The conclusion that the error was not harmless beyond a reasonable doubt
nonetheless stands.
47
FARRELL, Senior Judge, concurring in part and concurring in the judgment:
I agree with Judge Beckwith that the police‘ use of the cell-site simulator to
discover appellant‘s precise location violated the Fourth Amendment because it
was a ―search‖ requiring a warrant. My analysis of why that is so is more limited
than Judge Beckwith‘s, however. I also agree that the government has not shown
that the fruits of the use of the simulator would have been inevitably discovered by
lawful means, and that this is not the sort of case in which the Supreme Court has
found that suppression of the fruits would serve no deterrent purpose. Further,
except that I would not decide whether the testimony of Nora Williams should
have been suppressed, I agree that the evidence discussed in part II. E. of Judge
Beckwith‘s opinion was suppressible fruit of the warrantless search. Finally, I
explain briefly why I am not persuaded by Judge Thompson‘s position in dissent
that no search at all under the Fourth Amendment took place.
I.
As to inevitable discovery, a key argument by appellee in its original brief, I
agree that the government has failed to show the ―requisite actuality,‖ Hicks v.
United States, 730 A.2d 657, 659 (D.C. 1999), that tracking the complainants‘
cellphones with the simulator, had that taken place, would have led to the same
seizure of incriminating evidence. The government in its brief states that
48
appellant‘s and the complainants‘ cellphones ―were ultimately found together in
appellant‘s car,‖ and that since ―the simulator was close enough to locate one of
the phones, it inevitably was close enough to locate the other‖ (Appellee‘s Brief at
32). But this analysis is troublesome partly because it relies on the fruits of the
actual simulator use. See 6 WAYNE R. LAFAVE, Search and Seizure: A Treatise on
the Fourth Amendment § 11.4 (a), at 283 (5th ed. 2016) (―‗[T]he fact making
discovery inevitable must arise from circumstances other than those disclosed by
the illegal search itself.‘‖). Moreover, the police began using the simulator a
considerable length of time after appellant had come into possession of the
complainants‘ cellphones, and even then some 30–45 minutes elapsed before the
simulator directed them to appellant‘s car and cellphone. So there is too much
surmise, I submit, in the reasoning that if the police had used the simulator to
locate the complainants‘ phones instead, those phones would still have been in
appellant‘s possession or, if so, in a powered-on condition enabling their detection.
II.
The dispositive issue, then, is whether the use of the cell-site simulator was a
―search‖ requiring the police to have obtained a warrant beforehand (in the now-
conceded absence of exigent circumstances). To answer that question it is enough,
I believe, to know how the simulator learns of a target cellphone‘s location. It does
49
so by effectively commandeering the cellphone as a police investigative tool in the
way Judge Beckwith describes, namely, by ―actively induc[ing] the phone to
divulge its identifying information,‖ ante at 17, from which the phone‘s direction
and distance relative to the simulator can be determined. This process of
―grabbing‖ the target phone and making it the instrument of its own locational
disclosure explains why the government‘s primary reliance on the third-party
doctrine of Smith v. Maryland, 442 U.S. 735 (1979)—―Smith . . . is controlling
here‖ (Appellee‘s Brief at 23)—to argue that appellant had no reasonable
expectation of privacy in the police‘ use of his phone is unpersuasive.
Smith held that an individual enjoys no Fourth Amendment protection ―in
information he voluntarily turns over to [a] third part[y].‖ Id. at 743–44. The
reason is that by ―revealing his affairs to another‖ an individual ―takes the risk . . .
that the information will be conveyed by that person to the government.‖ United
States v. Miller, 425 U.S. 435, 443 (1976). Recently the Fourth Circuit applied the
third-party doctrine to hold that the government‘s acquisition of historical cell-site
location information (CSLI) from a suspect‘s cellphone provider is not a search
under the Fourth Amendment. United States v. Graham, 824 F.3d 421 (4th Cir.
2016) (en banc). Although that issue remains an open one in this court, and the
Supreme Court is expected to decide it this term, Carpenter v. United States, No.
50
16-402, cert. granted June 5, 2017, Graham‘s analysis at least serves by
comparison to show why the use of a cell-site simulator to locate appellant‘s phone
compels a different conclusion.1
Graham distinguished prior Supreme Court cases involving ―direct
government surveillance‖ (e.g., United States v. Karo, 468 U.S. 705 (1984); United
States v. Jones, 565 U.S. 400 (2012)) from the situation where the government
―obtains, from a third party, the third party‘s records, which permit the government
to deduce location information.‖ 824 F.3d at 426. Because CSLI is information
the individual has already ―‗exposed‘ . . . to the phone company‘s ‗equipment in
the ordinary course of business,‘‖ that person has ―‗assumed the risk‘ that the
phone company would disclose their information to the government.‖ Id. at 427-
28 (quoting Smith, 442 U.S. at 744). The government thus ―does not engage in a
Fourth Amendment ‗search‘ when it acquires‖ CSLI from the cellphone provider.
Id. at 427. But in contrast to this passive ―acquir[ing]‖ or ―obtain[ing]‖ of CSLI,
direct government surveillance of a cellphone does constitute a search, as when —
the Fourth Circuit observed by footnote — ―the government uses cell-site
1
The fact that the Supreme Court will take up cell phone technology in
relation to the Fourth Amendment is alone reason for us to decide the present issue
narrowly and not opine in broad stokes about privacy and electronic information,
locational or other.
51
simulators . . . to directly intercept CSLI instead of obtaining CSLI records from
phone companies.‖ Id. at 426 n.4
When the police seek and obtain locational information by directly
interacting with, indeed by taking functional control of, a suspect‘s cellphone
through a simulator, it cannot reasonably be said that the phone user has
―voluntarily conveyed‖ locational information to anyone and thereby relinquished
a reasonable expectation of privacy in the information. Smith, 442 U.S. at 744.
Police requests for cellphone location data held by a third party, however the
Supreme Court resolves that privacy issue, are not comparable to forcing a
cellphone to disclose its own identifying data. The police located appellant‘s
phone by effectively making it a self-investigative tool. Any reduced expectation
of privacy an individual accepts by entering the cellphone world does not extend to
co-optation of that kind.
III.
I also agree that suppression of most of the fruits of the unlawful search here
will ―pay its way,‖ United States v. Leon, 468 U.S. 897, 919 (1984), under the
―cost-benefit analysis in exclusion cases.‖ Davis v. United States, 564 U.S. 229,
238 (2011). As Judge Beckwith points out, the government has not sought to show
52
that any belief the police had that there was no time to pursue a search warrant was
objectively reasonable, albeit mistaken. The record suggests, to the contrary, that
the police decided to forgo the warrant process either believing — unreasonably, in
the virtual absence of relevant court decisions—that no Fourth Amendment
intrusion was involved or to honor a proprietary agreement for secrecy in using the
device. See ante at 22 n.26. Thus, the search cannot be said to have involved the
sort of ―‗isolated,‘ ‗nonrecurring‘ police negligence . . . [that] lacks the culpability‖
required to justify suppression, Davis, 564 U.S. at 239 (citing Herring v. United
States, 555 U.S. 135, 137 (2009)), even if it entailed no ―‗deliberate,‘ ‗reckless,‘ or
‗grossly negligent‘ disregard for Fourth Amendment rights.‖ Davis, 564 U.S. at
238. The unlawfulness here was not like the ―err[or] in maintaining records in a
warrant database,‖ id. at 239, involved in both Arizona v. Evans, 514 U.S. 1
(1955), Herring, supra; nor was it comparable to the mistaken but ―objectively
reasonable reliance on binding judicial precedent‖ in Davis, 564 at 239.
Exclusion of evidence was thus a proper remedy here, except that, unlike
Judge Beckwith, I would not decide whether the testimony of Nora Williams
should have been suppressed. Her testimony was given more than a year after the
illegal search and only after, now represented by counsel, she had received use
immunity for her testimony. Those circumstances present a difficult question of
53
attenuation that we need not reach, because the admission of the immediate fruits
of the search was not harmless error and requires reversal. In any new trial the
parties can brief and the trial court resolve the issue of the admissibility of
Williams‘ testimony, should the issue arise.
Finally, I am not persuaded by Judge Thompson‘s position in dissent that no
Fourth Amendment search took place because appellant had no ―reasonable
expectation that the location of his cell phone would remain private while he was
traveling on the public roads with a powered-on, stolen cell phone.‖ Post at 68
(emphasis added). That contention, resting on appellant‘s presumed awareness of
how the police might have located him (via the stolen cell phone) but did not,
closely resembles the inevitable discovery argument we have rejected. See
Appellee‘s Supp. Brief at 6 (―[A]ppellant has effectively conceded that the use of a
cell site simulator to locate the stolen Sprint cell phone would have been a ‗lawful
investigative process‘‖ (emphasis added)). Moreover, the theory appears to
assume a conclusion of wrongdoing—that appellant possessed a ―stolen‖ phone—
disputed by appellant‘s not-guilty plea at the time the suppression motion was
litigated.2 It would be unfair to hold that, in moving to suppress the fruits of the
2
In McFerguson v. United States, 770 A.2d 66 (D.C. 2001), this court
rejected the argument that ―society would [not] impute a reasonable expectation of
(continued…)
54
search of his cell phone, appellant assumed the burden of proving that his
possession of another‘s phone was lawful—the issue of guilty possession vel non
on which the government would have the burden of proof at trial. The dissent‘s
ingenious argument for why no search took place is too fraught with difficulty to
provide a basis for admitting in evidence the fruits of the warrantless manipulation
of appellant‘s cell phone.
THOMPSON, Associate Judge, dissenting: My colleagues in the majority are
―properly and commendably concerned about the threats to privacy that may flow
from advances in the technology available to the law enforcement profession.‖ 1 I
share their concern, but I am not persuaded to their conclusion in this case, which I
believe rests on a too-generic description of the facts surrounding use of the cell-
site simulator involved here. My colleagues express concern that ―[a] cell-site
simulator allows police officers who possess a person‘s telephone number to
discover that person‘s precise location remotely and at will.‖ Ante at 17. But this
(…continued)
privacy to a burglar running away from the crime scene carrying in plain view a
distinctively marked shopping bag . . . stolen from the burgled residence and filled
with the victim‘s property.‖ Id. at 71 (internal quotation marks and ellipses
omitted). The government‘s argument, we said, ―assumes the very facts that were
to be proved at trial — that [the defendant] was fleeing with goods he had stolen in
the burglary.‖ Id.
1
Kyllo v. United States, 533 U.S. 27, 51 (2001) (Stevens, J., dissenting).
55
case is about far more particular and narrow facts, and here, as always, Fourth
Amendment analysis must be ―extremely fact-specific‖;2 ―[i]t is important to be
clear about what occurred in this case[.]‖3
Described with the necessary specificity, this case is about the following:
Police had near real-time cell-site location information from cell phone providers4
that a cell phone, which police knew (from a review of victim call records) had
been used by the perpetrator of two recent sexual assaults and related robberies to
lure his victims, was traveling on the public streets together with a powered-on5
Sprint cell phone (the ―stolen phone‖) that the perpetrator had stolen from one of
the robbery victims, and was in the vicinity of the Minnesota Avenue Metro
2
In re Application of United States for Historical Cell Site Data, 724 F.3d
600, 603 (5th Cir. 2013) (internal quotation marks omitted).
3
United States v. Jones, 565 U.S. 400, 404 (2012).
4
As the majority opinion notes, ante at 16 n.20, appellant has not argued in
this appeal that his Fourth Amendment rights were violated when the government
obtained cell-site location information from cellular providers. See United States
v. Graham, 824 F.3d 421, 428 (4th Cir. 2016) (joining other circuit courts in
holding that ―individuals do not have a reasonable expectation of privacy in
historical [cell-site location information] that the government obtains from cell
phone service providers‖).
5
Police Technical Services Unit (―TSU‖) Sergeant Perkins testified at the
suppression hearing in this case that, as long as it‘s ―powered on,‖ a cell phone ―is
constantly transmitting to and receiving from a tower.‖
56
station; and, after driving to the area near that station, law enforcement officers
using a cell-site simulator (over a period of 30 to 45 minutes) were led to a row of
cars parked on the street near the Metro station and thence to the sole occupied car,
in which appellant sat with the stolen cell phone in his possession.6
I can agree with my colleagues that ―under ordinary circumstances,‖ ante at
20, the government‘s use of a cell-site simulator to locate an individual through the
individual‘s cellphone likely violates the legitimate expectation of privacy we all
have in our location information.7 I would also agree that ―individuals have a
reasonable expectation of privacy in their location information when they are
tracked in a space, like the home, that is traditionally protected or when they are
tracked for a longer period of time and in greater detail than society would expect.‖
Historical Cell Site Data, 724 F.3d at 608 (describing a contention by the ACLU).
But I do not believe it is fair to regard the particular circumstances of this case,
which I have described above, as ―ordinary circumstances.‖ And as the facts of
6
Actually, at the time appellant was arrested, he had in his car all four
stolen cell phones involved in this case.
7
I acknowledge that some courts have so held. See, e.g., United States v.
Ellis, No. 13-CR-00818 PJH, 2017 U.S. Dist. LEXIS 136217, *20 (N.D. Cal. Aug.
24, 2017) (―[C]ell phone users have an expectation of privacy in their cell phone
location in real time and . . . society is prepared to recognize that expectation as
reasonable.‖).
57
this case (1) do not involve the privacy of the home;8 (2) did not entail long-term
tracking that could reveal appellant‘s private information about the places he
frequents;9 (3) did not entail a physical intrusion or a physical trespass to any
8
That fact distinguishes this case from cell-site simulator cases on which
appellant relies. See State v. Andrews, 134 A.3d 324 (Md. Ct. Spec. App. 2016),
and United States v. Lambis, 197 F. Supp. 3d 606, 609 (S.D.N.Y. 2016). In
Andrews, police used a cell-site simulator to locate Andrews, who was wanted on
charges of attempted murder, and tracked him to a location inside a residence,
where he was arrested. 134 A.3d at 326. The court cited its concern that the cell-
site simulator had ―been used to obtain information about the contents of a home,
not otherwise discernable without physical intrusion.‖ Id. at 349. The court stated
that ―people have a reasonable expectation that their cell phones will not be used as
real-time tracking devices by law enforcement‖ and ―an objectively reasonable
expectation of privacy in real-time cell phone location information.‖ Id. at 327. In
Lambis, the Drug Enforcement Administration used a cell-site simulator to locate
Lambis‘s apartment, conduct that the court found to be an unreasonable search
because ―[t]he home has special significance under the Fourth Amendment.‖ 197
F. Supp. 3d at 609–10. These cases are consistent with the principle that, ―[w]ith
few exceptions, the question whether a warrantless search of a home is reasonable
and hence constitutional must be answered no.‖ Kyllo, 533 U.S. at 31 (observing
that ―[a]t the very core of the Fourth Amendment stands the right of a man to
retreat into his own home and there be free from unreasonable governmental
intrusion‖ (internal quotation marks omitted)).
In this case, the cell-site simulator alerted the officers that appellant‘s phone
was located in the 4000 block of Minnesota Avenue, N.E., a block on which there
were several businesses, a District of Columbia government building, and a Metro
station. There appears to be no evidence in the record that there were residential
buildings in the block, but amici note that a large apartment building is also located
on the block, at 4020 Minnesota Avenue. There appears to be no evidence in the
record that the cell-site simulator came within range of that apartment building as
the officers were ―coming down southbound Minnesota [Avenue].‖
9
See Graham, 824 F.3d at 435 (noting that in Jones, ―the concurring
justices recognized a line between ‗short-term monitoring of a person‘s movements
(continued…)
58
property of appellant;10 and (4) did not involve a search of the contents of
(…continued)
on public streets,‘ which would not infringe a reasonable expectation of privacy,
and ‗longer term GPS monitoring,‘ which would‖ (quoting Jones, 565 U.S. at
430)). The concern is that long-term historic location information can reveal ―a
wealth of detail about [an individual‘s] familial, political, professional, religious,
and sexual associations.‖ Jones, 565 U.S. at 415 (Sotomayor, J., concurring); id. at
430 (Alito, J., concurring in judgment) (―[T]he use of longer term GPS monitoring
[over a period of twenty-eight days in Jones‘s case] in investigations of most
offenses impinges on expectations of privacy.‖); cf. United States v. Riley, 858
F.3d 1012, 1013 (6th Cir. 2017) (tracking of fugitive‘s real-time GPS location data
for approximately seven hours did not amount to a Fourth Amendment search).
10
A trespassory search implicating the Fourth Amendment occurs when the
government ―gains evidence by physically intruding on constitutionally protected
areas.‖ Florida v. Jardines, 569 U.S. 1, 16 (2013).
Appellant and the majority opinion cite cases suggesting that use of a cell-
site simulator could constitute trespass to chattels, ante at 24–25 n.27, but my
colleagues do not rely on that case law for their conclusion. Moreover, as Justice
Alito noted in his concurrence in the judgment in Jones, ―today there must be some
actual damage to the chattel before [an] action [for trespass to chattels] can be
maintained.‖ 565 U.S. at 419 n.2 (Alito, J., concurring in judgment) (internal
quotation marks omitted); see also Restatement (Second) of Torts § 218 cmt. (e)
(1965) (stating that, generally, ―one who intentionally intermeddles with another‘s
chattel is subject to liability only if his intermeddling is harmful to the possessor‘s
materially valuable interest in the physical condition, quality, or value of the
chattel, or if the possessor is deprived of the use of the chattel for a substantial
time‖). If arguendo use of the cell-site simulator in this case (which, according to
the evidence, may have caused calls that appellant tried to initiate to be dropped)
did constitute a trespass, I do not believe we could reasonably conclude that the
police were culpable in failing to recognize it as such (and thus I believe we would
have no occasion to apply the exclusionary rule). See Herring v. United States,
555 U.S. 135, 141, 143 (2009) (confirming that ―exclusion has always been our
last resort, not our first impulse‖ and that the Court has ―never suggested that the
exclusionary rule must apply in every circumstance in which it might provide
marginal deterrence,‖ and stating that ―[t]he extent to which the exclusionary rule
(continued…)
59
appellant‘s cell phone that could have exposed his private information,11 I am
unpersuaded that there was a Fourth Amendment violation in this case.
In the pages that follow, I will explain my reasoning in more detail. But
first, I must address a preliminary issue.
I.
After oral argument in this matter, this court directed the parties to submit
supplemental briefs on the following issue:
What reasonable and legitimate expectation of privacy
(…continued)
is justified . . . varies with the culpability of the law enforcement conduct.‖)
(internal quotation marks omitted). And, as discussed infra, even if police
interfered with the operation of appellant‘s ―chattel‖ when the cell-site simulator
―grabbed‖ his cell phone remotely and rendered it temporarily non-operational for
making calls, police were justified in effecting that seizure of appellant‘s cell
phone under the automobile exception to the warrant requirement.
11
―[C]oncerns about a general ‗erosion of privacy‘ with respect to cell
phones . . . revolve around protecting the large quantity of information stored on
modern cell phones and on remote servers like the ‗cloud.‘ If all that information
were indeed at risk of disclosure [through the government‘s obtaining cell-site
location information], we would share this concern.‖ Graham, 824 F.3d at 434
n.13 (internal citation omitted). Documents, however, ―stored on phones and
remote servers are protected, as ‗content,‘ in the same way that the contents of text
messages or documents and effects stored in a rented storage unit or office are
protected.‖ Id.
60
does a person have in his or her location information
when the person possesses (outside his or her residence)
a stolen cell phone capable of being located by a cell-site
simulator or through real-time cell site location
information available to the cell phone owner or his or
her telecommunications provider?
Asserting that the issue the court raised was waived by the government,
appellant argues in his supplemental brief that ―waiver rules preclude this court
from affirming the trial court‘s ruling on an alternative ground that the government
did not raise at trial or on appeal.‖ I disagree in the strongest terms.12 Fourth
Amendment suppression issues are serious issues. In this case, the evidence
sought to be suppressed relates to serial sexual assaults and robberies at knifepoint
(with use of a knife that the assailant — confirmed by DNA evidence to be
appellant — was still carrying on his person at the time he was stopped by police).
We have a duty to analyze for ourselves the antecedent question of whether, on the
12
Appellant is also incorrect in suggesting that the court directed briefing
on an issue entirely absent from the government‘s initial brief in this court and its
arguments in the trial court. The government argued in its opening brief to us that
in cases cited by appellant, ―the cell-site simulator located the defendant‘s phone
inside a home, thus implicating Fourth Amendment privacy concerns not raised
here.‖ Our inquiry about the significance of the fact that appellant possessed the
stolen cell phone outside his residence reflected in part that argument. Our inquiry
also reflected the prosecutor‘s repeated argument (to which she mistakenly referred
as involving application of the ―inevitable discovery‖ doctrine) to the trial court
that suppression was not warranted because there was ―a separate, lawful way
[police] could have gotten to the same thing‖ (emphasis added) — i.e., use of the
cell-site simulator to target the stolen cell phone that was traveling with appellant‘s
phone.
61
particular facts of this case, use of the technology by which appellant was located
constituted a search (and, if so, whether it was a lawful search). In this case as
always, this court‘s task is to ―consider[] the briefs and the oral argument, and [to]
test[] them against the record and the law,‖ Watson v. United States, 536 A.2d
1056, 1068 (D.C. 1987) (en banc), not merely to choose the better or best of the
arguments presented in support of a claim. Our responsibility as an appellate court
is to decide cases in accordance with the law, and that responsibility is not to be
diluted by how counsel have framed the issues or by limitation to the specific
authorities counsel have cited.
The Supreme Court‘s decision in United States National Bank of Oregon v.
Independent Insurance Agents of America, Inc., 508 U.S. 439 (1993), is
instructive. That litigation commenced after the Comptroller of the Currency
issued a ruling allowing the United States National Bank of Oregon ―to sell
insurance through its branch in Banks, Oregon.‖ Id. at 443. Trade organizations
challenged the Comptroller‘s decision, arguing, inter alia, that it was inconsistent
with section 92, a statutory provision enacted in 1916 that ―permit[ted] banks
located in small communities to sell insurance to customers outside those
communities.‖ Id. at 441, 444. The District Court granted summary judgment in
favor of the Comptroller, finding that ―the Comptroller‘s interpretation was
62
rational and consistent with section 92.‖ Id. at 444 (internal quotation marks and
alterations omitted). On appeal, the trade organizations did not ask the Court of
Appeals for the District of Columbia to rule that section 92 no longer existed (it
had been repealed in 1918), and they did not take a position on the issue during
oral argument or in supplemental briefing. Nevertheless, reasoning that it had ―a
‗duty‘ to [decide the issue],‖ the Court of Appeals determined that section 92 had
been repealed. Id. at 444-45 (quoting Indep. Ins. Agents of America, Inc. v. Clarke,
955 F.2d 731, 734 (D.C. Cir. 1992)).
The case went to the Supreme Court, which concluded that ―[t]he Court of
Appeals . . . had discretion to consider the validity of section 92,‖ and ―did not
stray beyond its constitutional or prudential boundaries‖ in doing so. Id. at 447.
The Court explained that ―[t]hough the parties did not lock horns over the status of
section 92, they did clash over whether the Comptroller properly relied on section
92 as authority for his ruling,‖ and the Court of Appeals was not obliged ―to treat
the unasserted argument that section 92 had been repealed as having been waived.‖
Id. at 446-47. The Court confirmed that ‗―when an issue or claim is properly
before the court, the court is not limited to the particular legal theories advanced by
the parties, but rather retains the independent power to identify and apply the
proper construction of governing law.‖‘ Id. at 446 (internal alterations omitted)
63
(quoting Kamen v. Kemper Fin. Servs, Inc., 500 U.S. 90, 99 (1991)). The Court
further instructed that ―a court may consider an issue ‗antecedent to and ultimately
dispositive of‘ the dispute before it, even an issue the parties fail to identify and
brief.‖ Id. at 446-47 (internal alterations omitted) (quoting Arcadia v. Ohio Power
Co., 498 U.S. 73, 77 (1990)).
Our court has applied the guidance of National Bank of Oregon in various
circumstances. For example, in Martin v. United States, 952 A.2d 181(D.C. 2008),
after requesting supplemental briefs from the parties, we reached the question of
whether the police had unlawfully entered Martin‘s home in violation of the Fourth
Amendment, even though ―appellate counsel [had] failed to argue that the entry
itself constituted an unlawful search either in his principal brief or at oral
argument.‖ Id. at 188–89.13 Our sister court, the United States Court of Appeals
13
See also Anthony v. United States, 935 A.2d 275, 282 n.10 (D.C. 2007)
(―But no matter whose ox is gored when the parties are directed by the court to file
supplemental submissions, ‗this court has frequently requested post-argument
briefing of issues not adequately raised by counsel, to the end that, after both
parties have been fully heard, the court is in the best position to render a sound
decision.‘‖ (quoting Randolph v. United States, 882 A.2d 210, 226 (D.C. 2005));
Outlaw v. United States, 632 A.2d 408, 410–11 (D.C. 1993) (declining to reach the
question briefed by the parties — ―whether one may be convicted of being an
accessory after the fact to murder on the basis of actions taken while the decedent
was still alive‖ — and instead, after requesting and receiving supplemental
briefing, ruling based on an issue the panel raised for the first time at oral argument
— ―whether the evidence was sufficient to support [appellant‘s] conviction of
(continued…)
64
for the District of Columbia Circuit, has also considered the merits of issues the
parties did not raise. See United States v. Maynard, 615 F.3d 544, 560–61 (D.C.
Cir. 2010) (―The Government does not separately raise, but we would be remiss if
we did not address, the possibility that although the whole of Jones‘s movements
during the month for which the police monitored him was not actually exposed to
the public, it was constructively exposed because each of his individual
movements during that time was itself in public view.‖).14
(…continued)
[accessory after the fact] to any offense whatever‖); cf. Randolph, 882 A.2d at
217–18 (‗―Once a claim is properly presented to the trial court, a party can make
any argument in the appellate court in support of that claim[, and] parties are not
limited to the precise arguments made below.‖‘ (internal alterations omitted)
(quoting West v. United States, 710 A.2d 866, 868 n.3 (D.C. 1998)); see also id. at
227 (determining that ―the judgment should be affirmed on harmlessness grounds,
notwithstanding the government‘s initial failure to argue that the trial court‘s error
was harmless‖).
14
See also Lesesne v. Doe, 712 F.3d 584, 588 (D.C. Cir. 2013) (noting that
the Supreme Court ―has recognized that ‗there may always be exceptional cases or
particular circumstances which will prompt a reviewing or appellate court, where
injustice might otherwise result, to consider questions of law which were neither
pressed nor passed upon by the court or administrative agency below,‖‘ and
determining that ―the proper interpretation of [the Prison Litigation Reform Act‘s]
exhaustion requirement is a dispositive legal issue antecedent to its application‖
(internal alterations omitted) (quoting Hormel v. Helvering, 312 U.S. 552, 557
(1941))); United States v. Pryce, 938 F.2d 1343, 1348 (D.C. Cir. 1991) (―Only if
one adopts an absolutist approach to the adversary system can one contend that
courts must never address unargued issues, no matter how obvious their proper
resolution may be. Certainly the Supreme Court rejects such an approach.‖).
65
In short, case law does not bind us to the approach of addressing only the
arguments the parties have framed. The Supreme Court has not followed or
dictated that approach,15 our neighbor the United States Court of Appeals for the
District of Columbia Circuit has rejected it, and numerous other federal circuit
courts of appeals have said that they have discretion on direct appeal to consider
arguments a party has failed to make.16 The bottom line is that appellate courts
―regularly and frequently consider sua sponte authorities not cited and grounds of
decision not raised.‖17
15
Commentators have frequently mentioned that in Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938), the issue the Court resolved — whether ―in
diversity cases the substantive law of the state of trial must be applied‖ — ―had not
been raised by the parties before either the lower courts or the Supreme Court.‖
Albert Tate, Jr., Sua Sponte Consideration on Appeal, 9 TRIAL JUDGES J. 68
(1970), reprinted in APPELLATE JUDICIAL OPINIONS 128 (Robert A. Leflar ed.,
1974); see also Singleton v. Wulff, 428 U.S. 106, 121 (1976) (―The matter of what
questions may be taken up and resolved for the first time on appeal is one left
primarily to the discretion of the courts of appeals, to be exercised on the facts of
individual cases. We announce no general rule.‖).
16
See, e.g., United States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997) (―We
join several other circuit courts of appeals in holding that appellate courts have the
discretion on direct appeal to overlook the government‘s failure to argue that the
admission of the challenged evidence, if error, was harmless, and that appellate
courts may therefore consider the issue of harmlessness sua sponte.‖) (collecting
cases).
17
Albert Tate, Jr., supra note 15, at 127; see also Estate of Girard v. Laird,
621 A.2d 1265, 1268 n.3 (Vt. 1993) (citing the Tate article in explaining why the
court may ―reach[] results for reasons different than those argued by the parties‖);
State v. Weber, 471 N.W.2d 187, 199 n.7, 200 (Wis. 1991) (citing the Tate article
(continued…)
66
When we review denials of motions to suppress, ―our role is [essentially] to
ensure that the trial court had a substantial basis for concluding that no
constitutional violation occurred.‖ Brown v. United States, 590 A.2d 1008, 1020
(D.C. 1991). ―We must determine whether the court‘s denial of the motion to
suppress is sustainable under any reasonable view of the evidence,‖ and ―[i]t is
well settled that [we] may affirm a decision for reasons other than those given by
the trial court.‖ Alston v. United States, 518 A.2d 439, 440 n.2 (D.C. 1986). Thus,
in this case, we have a duty to study carefully the particular facts of the case to
determine for ourselves whether the trial court‘s denial of appellant‘s motion to
suppress is sustainable. This means that we have not only the discretion to
consider, but an obligation to consider whether appellant had a reasonable and
legitimate expectation of privacy in his location information when (as the
supplemental briefing order described and among other material facts discussed
below) he ―possesse[d] (outside his . . . residence) a stolen cell phone capable of
being located by a cell-site simulator or through real-time cell-site location
information available to the cell phone owner or his . . . telecommunications
provider.‖
(…continued)
in justifying its decision upholding the reasonableness of a search under the Fourth
Amendment on grounds that, according to the dissenting justice, the State ―was
aware of . . . but did not argue . . . in this court‖).
67
As explained in the discussion below, ―the antecedent question of whether
there [wa]s a Fourth Amendment ‗search‘ at all‖18 turns on resolution of that issue
(which, on the facts presented here, is ultimately dispositive of the case). And
even if arguendo use of the cell-site simulator constituted a ―search‖ for Fourth
Amendment purposes, application of the automobile exception to the Fourth
Amendment warrant requirement requires affirmance of the trial court‘s denial of
the motion to suppress.
II.
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. Thus, in analyzing a Fourth Amendment claim,
the threshold issue is whether there has been a ―search‖ or ―seizure.‖ That
―antecedent question whether or not a Fourth Amendment ‗search‘ has occurred is
not so simple under [Supreme Court] precedent.‖ Kyllo, 533 U.S. at 31. The
fundamental principle, however, is that ―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
18
Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 63 (1st Cir. 2004).
68
expectation as reasonable.‖ Id. at 33 (internal quotation marks and alterations
omitted). ―[W]hether an expectation of privacy is reasonable depends in large part
upon whether that expectation relates to information that has been ‗exposed to the
public.‘‖ Maynard, 615 F.3d at 558 (internal alterations omitted) (quoting Katz v.
United States, 389 U.S. 347, 351 (1967)). ―In considering whether something is
‗exposed‘ to the public as that term was used in Katz[,] we ask not what another
person can physically and may lawfully do but rather what a reasonable person
expects another might actually do.‖ Id. at 559.
A. Appellant had no reasonable expectation of privacy in his location
while he was on the public roads with the powered-on, stolen cell
phone.
It appears that police used the cell-site simulator to locate appellant‘s phone
rather than the stolen phone. However, appellant‘s expectation of privacy with
respect to the location of his phone need not come into play in our resolution of
this case because appellant exposed that location to discovery by being on the
public roads with both his phone and the powered-on, stolen cell phone. Even if
appellant generally had a subjective expectation that information about his cell
phone‘s location would be private, he could not have had a reasonable expectation
that the location of his cell phone would remain private while he was traveling on
the public roads with a powered-on, stolen cell phone.
69
The sexual assaults and robberies in this case occurred in 2013. Well before
that time, Apple had introduced the Find My iPhone application (―app‖). See In re
J.A., No. A-1624-14T2, 2016 N.J. Super. Unpub. LEXIS 430, *11 n.3 (Super. Ct.
App. Div. Feb. 29, 2016) (noting that ―Apple introduced the Find My iPhone
feature in 2011‖ and that, in that case, the Find My iPhone app ―allowed police to
track J.A. by following the stolen iPhone‘s signal to the Shelbourne Lane address
within minutes of the robbery‖). And indeed in this case, one of the detectives
working on the case, Detective Rachel Pulliam, testified that she had ―one of the
complainant‘s information in [her] phone as well [as] in the Find My iPhone app‖
(and thus was able to ―get a general idea of where‖ she would be going to meet the
TSU officers who had located appellant through use of the cell-site simulator). It
appears that the detective was referring to her ability to use the Find My iPhone
app in an effort to locate the Apple iPhone 4S cell phone stolen from the woman
the police referred to as complainant number one‘s cousin (who was robbed but not
sexually assaulted at the end of the first of the two incidents involved in this case).
As it happened, police in this case tracked the stolen Sprint phone and not that
iPhone, but case law is replete with references to iPhone owners or law
enforcement officers locating stolen iPhones by using the Find My iPhone app in
2013 or earlier years.19 The facts caution against assuming that the Find My
19
See, e.g., People v. Easton, No. H041704, 2017 Cal. App. Unpub. LEXIS
(continued…)
70
iPhone app or similar find-my-device apps always pinpoint an address or do so
(…continued)
644, *5 (Jan. 30, 2017) (―Using the Find My iPhone application [in 2012], police
recovered Casey‘s cell phone from a recycling bin in front of a residence in Santa
Clara within a few blocks of defendant‘s residence.‖); State v. Copes, No. 84, 2017
Md. LEXIS 478, *5 n.4 (July 28, 2017) (citing a November 2011 publication
entitled ―How to Use Find My iPhone to Get Your Stolen iPhone Back‖); People v.
Foy, 199 Cal. Rptr. 3d 208, 212 (Ct. App. 2016) (―Wang had an application on his
iPhone called ‗Find My iPhone,‘ which he used [in 2011] at the suggestion of
police to track Song‘s stolen iPhone. Wang‘s phone displayed a map indicating
that Song‘s phone was located at 603 Grant Street[.]‖); People v. Robinson, No.
3268/2013, 2016 N.Y. Misc. LEXIS 652, * 3, (App. Div. Feb. 24, 2016) (―As they
were driving [in 2013], the ‗Find My iPhone‘ tracker showed the [stolen] phone to
be moving. The movement stopped at East 120th Street and First Avenue in
Manhattan.‖); People v. Snyder, No. B265391, 2016 Cal. App. Unpub. LEXIS
8230, *2 (Nov. 16, 2016) (―Using another device‘s ‗find my iPhone‘ feature [in
2013], Jordyn tracked her iPhone‘s location to the Mentor Court residence.‖);
People v. Scales, No. B260902, 2016 Cal. App. Unpub. LEXIS 1942, *7-8 (Mar.
17, 2016) (―[A] Los Angeles Police Department . . . Officer . . . used a ‗Find My
iPhone App‘ [in 2012] to locate Schulz‘s cell phone that had been taken during the
robbery events. It was found on the side of the 10 Freeway about two miles away
from the Green Path building.‖); Adams v. State, No. 1142, 2016 Md. App. LEXIS
457, *3 n.3 (Ct. Spec. App. Feb. 5, 2016) (―Because Myers‘ cell phone was inside
his [stolen] vehicle, police [in 2013] were able to locate the car by tracking the
phone by use of the ‗find my iPhone‘ application.‖); Commonwealth v. Gil, No.
566-EDA-2014, 2015 Pa. Super. Unpub. LEXIS 3695, *2 (Feb. 10, 2015) (―After
the victim reported the robbery [in 2012], the police tracked the iPhone, through a
‗Find My iPhone‘ mobile application, to a house on Washington Street.‖); State v.
Coleman, No. W2012-00880-CCA-R3-CD, 2013 Tenn. Crim. App. LEXIS 573, *3
(June 10, 2013) (―Mr. Petty recalled that there was an application on his wife‘s
phone called ‗Find My iPhone.‘ Mr. Petty was able to use his computer to track
the phone‘s location to a general vicinity of Division and Waddell Street.‖); Pirozzi
v. Apple, Inc., 966 F. Supp. 2d 909, 915 (N.D. Cal. 2013) (quoting a statement
from Apple‘s website that ―In the event your iPhone is lost or stolen, Find My
iPhone allows you to locate it on a map[.]‖); United States v. Flores-Lopez, 670
F.3d 803, 808 (7th Cir. 2012) (referring to the Find My iPhone app).
71
accurately,20 or that the only method officers used in the reported cases to locate
the stolen phones was such an app (and not, for example, the app supplemented
with use of a cell-site simulator). But the relevant point is that, in 2013, the public
had reason to know that, because of ―the ubiquity of . . . apps,‖21 it was quite
possible for a stolen cell phone to be tracked with precision, even if such efforts
were not always successful.
Further, even aside from the apps available to cell phone owners, cellular
service providers have long been able to supply cell phone locational data in close
to real-time,22 and, as at least one court observed in 2010, the providers‘
capabilities were increasing.23 In 2013, it would have been reasonable to expect
20
Detective Pulliam testified that the Find My iPhone app showed her
―[not] an exact, pinpointed location‖ but, at one point, ―a general area . . . in
southeast‖ (perhaps the area of the District into which the phones traveled when,
according to other evidence, they left Capitol Heights, Maryland, and headed
toward Kenilworth Avenue).
21
Commonwealth v. Wilson, No. 15-P-851, 2016 Mass App. Unpub. LEXIS
466, *3 (Apr. 29, 2016).
22
The evidence in this case showed that the police TSU received updated
location information from the cellular service providers at least every fifteen
minutes (every five minutes for the stolen Sprint phone), with only a one-to-three-
minute lag time.
23
The following observations made by that court in 2010 are notable:
―Neither the user nor the carrier can predict how precise the next location data will
be. For a typical user, over time, some of that [location] data will likely have
(continued…)
72
that the owner of the stolen cell phone might try to locate it by obtaining cell-site
location information from her cellular service provider. Surely ―[t]he availability
and use of [the foregoing] and other new devices . . . shape the average person‘s
expectations about the privacy of‖ cell phone movements and location. Jones, 565
U.S. at 429 (Alito, J., concurring in judgment).24 Further, it was reasonable to
expect that the owner of the stolen cell phone would seek help from the police and
put in motion their efforts, with whatever cell-site location information and devices
were at their disposal, to locate the stolen phone. As police TSU Sergeant Perkins
testified, with the cell phone simulator, ―either one [i.e., the stolen phone or
appellant‘s phone] would have got us to the area [where they found appellant in his
(…continued)
locational precision similar to that of GPS‖; ―Emerging versions of the technology
are even more precise‖; ―[T]he tech-savvy user may now understand that there is a
risk that the provider can calculate and record his location and movements very
precisely.‖ In re Application for United States for Historical Cell Site Data, 747 F.
Supp. 2d 827, 833-34, 845 (S.D. Tex. 2010), rev’d on other grounds, 724 F.3d 600
(5th Cir. 2013).
24
Such considerations led the Second Circuit to observe that ―any
expectation of privacy that [the defendant] had in his cell-phone location [tracked
over a less-than-two-hour period] was dubious at best.‖ United States v.
Caraballo, 831 F.3d 95, 105 (2d Cir. 2016). See generally United States v.
Wheeler, 169 F. Supp. 3d 896, 908 (E.D. Wis. 2016) (noting that ―[t]he media is
rife with information — and sometimes warnings — about the fact that one‘s
location can be tracked from one‘s cell phone‖).
73
car].‖25
By traveling with the stolen cell phone that was susceptible to all the
foregoing find-the-phone methods and devices, appellant exposed his location, too.
I therefore find it impossible to conclude that appellant could reasonably have
expected that his movements and location with the stolen phone in his possession
would be private (and thus that he had an ―expectation of privacy in his phone‘s
location‖). Moreover, if appellant had such an expectation, I suspect that it is not
one that society is prepared — and in my view it is not one that we should be
prepared26 — to recognize as reasonable. To be sure, our cell phones play such a
central role in our lives and contain so much of our personal data that we must be
vigilant about protecting against government intrusions into cell phone privacy.
But the other side of that coin is that — I strongly suspect — a great many people
who have had a cell phone stolen or who fear such a theft are likely to have a
25
Appellant suggests that the evidence indicated that the cell-site simulator
did not work with the stolen cell phone, but the trial court declined to so find. The
court found instead that if the TSU officers ―had . . . switched over . . . to use the
Sprint number instead, . . . they would have eventually gotten to the exact same
place because the phones were together.‖
26
I have in mind the caution that where we may have been ―‗conditioned‘
by influences alien to the well-recognized Fourth Amendment freedoms, a
normative inquiry may be necessary to align‖ what we are prepared to recognize as
legitimate privacy interests ―with the protections guaranteed in the Fourth
Amendment.‖ Tracey v. State, 152 So. 3d 504, 525–26 (Fla. 2014).
74
strong desire to recover their stolen phones and to be unwilling to recognize as
legitimate the locational-privacy interest of a person who is traveling the streets
with a stolen phone.27 I am not the first to observe that ―many people may find the
tradeoff [between electronic tracking technology and some diminution of privacy]
as worthwhile.‖ Jones, 565 U.S. at 427 (Alito, J., concurring in judgment).
To be clear, the analysis above does not rely on the inevitable-discovery
27
My conclusion that appellant was traveling with a stolen phone as to
which he had no locational-privacy interest does not depend on the jury verdict that
he was the thief, i.e., the perpetrator of the robberies. Cf. Godfrey v. United States,
414 A.2d 214, 214 (D.C. 1980) (―The real question is whether the [proponent of a
motion to suppress] can be deemed to have a legitimate expectation of privacy in
the thing or area searched and the item seized without reference to‖ an
―unfortunate pretrial connotation that the proponent of the motion to suppress is
guilty.‖) Rather it rests on the evidence presented at the suppression hearing that,
when arrested, appellant had with him in his car all four stolen phones as well as
the phone used by the perpetrator of the robberies and sexual assaults. (Unlike the
defendant in McFerguson v. United States, 770 A.2d 66 (D.C. 2001) — a case
Judge Farrell suggests is apposite, ante at 53 n.2 — appellant was not ―a street
pedestrian [with] a reasonable expectation of privacy in covered objects associated
with his person,‖ id. at 71). I believe we can say with confidence that even if
appellant had disputed at the suppression hearing that he knew that the victims‘
(four) phones found in his possession had been stolen and had attempted to show
that he had a legitimate possessory interest in and expectation of privacy with
respect to the stolen Sprint phone, he would not have been able to carry his burden
of so demonstrating. See Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978) (―The
proponent of a motion to suppress has the burden of establishing that his own
Fourth Amendment rights were violated by the challenged search or seizure.‖);
Morton v. United States, 734 A.2d 178, 182 (D.C. 1999) (referring to defendant‘s
―burden of showing that he had a protectible interest‖).
75
doctrine to conclude that use of the cell-site simulator was lawful. As the majority
opinion notes, the inevitable-discovery doctrine ―shields illegally obtained
evidence from the exclusionary rule if the government can show, by a
preponderance of the evidence, that the evidence ‗ultimately or inevitably would
have been discovered by lawful means.‘‖ Gore v. United States, 145 A.3d 540,
548 (D.C. 2016) (quoting Hicks v. United States, 730 A.2d 657, 659 (D.C. 1999)).
The inevitable-discovery doctrine thus requires proof that a presumably lawful
search process was actually underway; here, at least arguably, that would have
entailed at a minimum having entered the pertinent number of the stolen cell phone
(which police had obtained) into the cell-site simulator. There was some evidence
that the TSU officers did that, but, in the trial court‘s view, not enough such
evidence to enable the government to prove by a preponderance of the evidence
that the officers used the cell-site simulator to find the stolen phone rather than
appellant‘s phone. However, for purposes of my analysis focused on what
appellant could reasonably have expected others to do, I have properly relied on
what the police could have done with respect to the stolen cell phone (or, it
appears, with respect to the cousin‘s stolen iPhone) that would have enabled them
to locate appellant and his phone.
United States v. Gbemisola, 225 F.3d 753 (D.C. Cir. 2000), illustrates the
76
point. There, law enforcement agents had installed and subsequently monitored an
electronic tracking device in a package addressed to the defendant, which enabled
the agents to know if and when the defendant opened the package — which he did
while riding in the back of a taxicab. Id. at 756. Noting that the agents did not see
when the box was opened, the D.C. Circuit concluded that no warrant was required
for their use of the electronic device that reported when the box was opened
because the ―decisive issue . . . [was] not what the officers saw but what they could
have seen.‖ Id. at 759 (emphasis added). ―At any time, the surveillance vehicle
could have pulled alongside of the taxi and the officers could have watched
Gbemisola through its window. Indeed, the taxi driver himself could have seen the
event simply by looking in his rear-view mirror or turning around.‖ Id.; see also
Maynard, 615 F.3d at 560 (―[I]t was not at all unlikely Gbemisola would be
observed opening a package while seated in the rear of a taxi[.]‖). Thus, the fact
that the agents learned what they learned through an electronic device (one
presumably not generally available to members of the public) was not the
important factor; the important factor was that they, or someone else, could have
learned that the defendant opened the package through lawful means.28
28
It might be suggested that the analysis in Gbemisola is a straightforward
application of the Supreme Court‘s ruling in United States v. Knotts, 460 U.S. 276
(continued…)
77
The same point applies here. Again, police TSU Sergeant Perkins‘s
testimony (and the trial court‘s finding) was that, with the cell-cite simulator,
―either [phone] would have got[ten them] to [where they found appellant in his
car].‖ In other words, officers could have found appellant‘s location through use
of the cell-site simulator targeted at the stolen cell phone that was in his vehicle
(the lawfulness of which approach appellant does not challenge, and likely has no
(…continued)
(1983), about the lawfulness of use of a monitoring device that reveals no more
than could be seen by visual surveillance. See id. at 282–84 (holding that the
officers‘ conduct in monitoring signals from a beeper they had installed in a
container the defendant subsequently placed in his car did not invade any
legitimate expectation of privacy and did not constitute a Fourth Amendment
search since the beeper surveillance revealed no more than could have been visible
to the naked eye as the car traveled the public highway and raised no constitutional
issues that visual surveillance would not also raise); see also United States v. Karo,
468 U.S. 705, 714 (1984) (―[T]he monitoring of a beeper in a private residence, a
location not open to visual surveillance, violates the Fourth Amendment rights of
those who have a justifiable interest in the privacy of the residence.‖) (emphasis
added). However, the Supreme Court‘s decision in Bond v. United States, 529
U.S. 334 (2000), makes clear that what an individual exposes to the public is not
limited to what can be learned through visual perception (outside a residence), but
also includes what members of the public may be able to discern through
predictable tactile actions. See id. at 338 (―When a bus passenger places a bag in
an overhead bin, he expects that other passengers or bus employees may move it
for one reason or another. Thus, a bus passenger clearly expects that his bag may
be handled‖ and ―exposed to certain kinds of touching and handling.‖). I see no
reason why the analysis of whether something is exposed to the public based on
―what a reasonable person expects another might actually do,‖ Maynard, 615 F.3d
at 559, should not include as well the find-my-stolen-phone efforts likely to be set
in motion by an individual whose cell phone has been stolen.
78
standing to challenge).29 The fact that (we presume) police officers actually found
appellant‘s location by using the cell-site simulator on appellant‘s cell phone
should not change the Fourth Amendment calculus.
B. The (assumed) fact that the police actually used the cell-site
simulator as to appellant’s cell phone while it was on the public roads
does not provide a basis for finding a Fourth Amendment violation.
My colleagues focus, however, on the apparent fact that the police entered
the identifying number for appellant‘s cell phone into the cell-site simulator and
thus used it to locate appellant‘s phone rather than the co-located stolen phone.
They emphasize that ―when it comes to the Fourth Amendment, means . . . matter.‖
Ante, at 18 (quoting Maynard, 615 F.3d at 566). But, as the D.C. Circuit explained
in Maynard, what matters with respect to the means employed is whether ―one‘s
reasonable expectation of control over one‘s personal information would . . . be
defeated‖ through that means of information gathering. 615 F.3d at 566. For the
reasons already discussed, on the facts of this case, appellant had no reasonable
expectation of control over the information about his location while he was on the
29
See Lucas v. United States, 411 A.2d 360, 363 (D.C. 1980) (―[I]t is not so
clear that persons can always assume that the right to privacy extends to articles of
contraband in their possession.‖); United States v. White, 504 F. App‘x 168, 172
(3d Cir. 2012) (citing authority from several federal circuits that one who
knowingly possesses a stolen item has no legitimate expectation of privacy with
respect to it and no standing to challenge a search of it).
79
public roads with the powered-on, stolen cell phone in his possession.
Moreover, while the ―means . . . matter‖ principle applies a fortiori when it
comes to law enforcement efforts to learn about what is contained or is transpiring
in a home,30 the principle applies with much less consistency when what is
challenged as a ―search‖ took place on public roads. See Knotts, 460 U.S. at 282
(explaining that the defendants had no legitimate expectation of privacy that was
violated by use of a beeper, pre-installed inside a container of chemicals that the
defendant purchased and put in his car, which sent signals to a police receiver and
enabled police to track the movements of the car, because police could have
tracked the car‘s movements by driving behind it); United States v. Patrick, 842
F.3d 540, 545 (7th Cir. 2016) (concluding that because the defendant, located with
use of a cell-site simulator, was at the time ―in a public place, where he had no
legitimate expectation of privacy, [he could]not complain about how the police
30
See, e.g., Kyllo, 533 U.S. at 35 n.2 (analyzing whether use of a thermal-
imaging device, capable of detecting the amount of heat emanating from a home,
constituted an unlawful search when, without a warrant, it was aimed at the home
of an individual suspected of growing marijuana in his home using high-intensity
lamps; reasoning that the ―comparison of the thermal imaging to various
circumstances in which outside observers might be able to perceive, without
technology, the heat of the home — for example, by observing snowmelt on the
roof — is quite irrelevant. The fact that equivalent information could sometimes
be obtained by other means does not make lawful the use of means that violate the
Fourth Amendment‖ (internal citation omitted)).
80
learned his location.‖); see also Gbemisola, 225 F.3d at 759.
My colleagues ultimately acknowledge that ―certain forms of tracking [in
public spaces] . . . do not invade a reasonable expectation of privacy.‖ Ante at 18.
What they seem to regard as dispositive is that by using the cell-site simulator, the
police ―actively induce[d] the phone to divulge its identifying information.‖ Ante
at 17. Judge Farrell sees as the critical fact that with the cell-site simulator, the
police TSU officers ―commandeer[ed]‖ appellant‘s cell phone, turning it into a
―self-investigative‖ tool. I have several responses.
First, for a couple of reasons, I believe the foregoing characterizations
somewhat overstate the facts. As one court has noted, ―cell phones identify
themselves by an automatic process called ‗registration,‘ which occurs
continuously while the cell phone is turned on regardless of whether a call is being
placed.‖ Tracey, 152 So. 3d at 507 n.1.31 That observation accords with the
31
See also Copes, 2017 Md. LEXIS 478, at *6 (―A cell site
simulator . . . takes advantage of the fact that a cell phone — when turned on —
constantly seeks out nearby cell towers, even if the user is not making a call
. . . When the cell site simulator is close enough, the target phone will connect to it
as though it were a cell tower.‖); In re Application for Tel. Info. Needed for a
Criminal Investigation, 119 F. Supp. 3d 1011, 1014 (N.D. Cal. 2015) (―[C]ell
phones, when turned on and not in airplane mode, are always scanning their
network‘s cellular environment. In so doing, cell phones periodically identify
themselves to the closest cell tower — i.e., the one with the strongest radio signal
(continued…)
81
testimony by defense telecommunications technology expert Ben Levitan in this
case. See Levitan Aff. 5 (―When a phone attaches itself to a cell tower, it identifies
itself by phone number and various codes.‖). In other words, identifying
themselves constantly is what powered-on cell phones do, regardless of whether a
cell-site simulator is in the area. Second, while the majority opinion accurately
quotes TSU Sergeant Perkins‘s testimony that the cell-site simulator ―grabs [the
target cell phone] and holds on to it for a minute,‖ the opinion does not recount
Sergeant Perkins‘s additional explanation. Sergeant Perkins explained that ―by
grabs it,‖ he meant that the cell site simulator ―just knows it‘s there,‖ much as one
knows when he has arrived at a station he is looking for by scanning the radio dial.
Mr. Levitan put it differently, explaining that cell phones ―generally connect
themselves to the strongest cell tower signal that they detect,‖ and, in that vein,
when a cell phone detects the cell-site simulator as having the strongest signal, it
will ―break its connection with the cell phone network and reattach itself to the
newly found . . . simulator.‖ The Department of Justice document entitled ―Dep‘t
of Justice Policy Guidance: Use of Cell-Site Simulator Technology (Sept. 3,
(…continued)
— as they move throughout their network‘s coverage area. This process[ is]
known as ‗registration‘ or ‗pinging[.]‘ . . . Pinging is automatic and occurs
whenever the phone is on, without the user‘s input or control.‖ (record citations
omitted)).
82
2015), http://www.justice.gov/opa/file/767321/download (the ―DOJ Policy
Guidance‖), states similarly that ―cellular devices in the proximity of the [cell-site
simulator] identify the simulator as the most attractive cell tower in the area and
thus transmit signals to the simulator that identify the device in the same way that
they would with a networked tower.‖ Id. at 2. Thus — if it matters — it appears
that it is cell phones that initiate contact with a cell-site simulator and not the other
way around.32
In any event, my colleagues raise points that must be addressed when they
emphasize that by using the cell-site simulator, the TSU officers took ―functional
control‖ of and ―coopted [appellant‘s] phone, forcing it to do something [he] surely
never intended it to do: reveal its identifying and location information to an entity
32
But see Andrews, 134 A.3d at 340 (citing testimony in that case that a
cell-site simulator known as the Hailstorm ―is an active device that can send an
electronic signal . . . and ‗draw[] the phone to [the] equipment‖‘ (alteration in
original)).
My colleagues also say that the cell-site simulator ―exploits a security
vulnerability‖ of cell phones. Ante at 17. I would not call what happened here as
exploitation of a cell phone security flaw, but as law enforcement‘s taking
advantage of a security-enhancement feature that aids in the recovery of stolen or
lost phones. It may place a person who is traveling on the roads with a powered-
on, stolen cell phone (that circumstances show he knew to be stolen) in the position
either of accepting the risk that at any moment the stolen cell phone or his own cell
phone could be converted into a tracking device or, alternatively, turning the
phones off, but I do not see why that is an improper choice to foist on the person.
83
other than a telecommunications provider.‖ Ante, at 24 n.27. Judge Farrell finds it
―unpersuasive‖ ―to argue that appellant had no reasonable expectation of privacy in
the police‘ use of his phone‖ for this purpose. Ante, at 47. One major problem for
my colleagues‘ analysis, however, is that, as shocking or outrageous as the
foregoing characterizations might sound, the officer‘s use of the cell-site simulator
did not constitute a ―search‖ and thus was not a Fourth Amendment violation
unless appellant had a reasonable and legitimate expectation of privacy with
respect to the object of the challenged search: his location information. For the
reasons already discussed, he did not while he was on the public roads with a
trackable, stolen cell phone.
It is helpful to recall the facts of California v. Greenwood, 486 U.S. 35
(1988). In Greenwood, a police detective asked the regular trash collector in
Greenwood‘s neighborhood to pick up the plastic garbage bags that Greenwood
had left on the curb in front of his house and to turn the bags over to the detective
without mixing their contents with garbage from other houses. Id. at 37. The trash
collector responded by cleaning his truck bin of other garbage, collecting the
garbage bags from the street in front of Greenwood‘s house, and turning the bags
over to the detective. Id. The detective searched through the trash and found items
indicative of narcotics use. Id. at 37–38. The Greenwood respondents asserted
84
―that they had, and exhibited, an expectation of privacy with respect to the trash
that was searched by the police,‖ emphasizing that the trash had been placed on the
street for collection at a fixed time and was contained in opaque bags, which the
garbage collector was expected to pick up, mingle with the garbage of others, and
deposit at the garbage dump. Id. at 39. The respondents also highlighted that
―there was little likelihood that [the trash] would be inspected by anyone.‖ Id. The
Supreme Court acknowledged that ―[i]t may well be that respondents did not
expect that the contents of their garbage bags would become known to the police
or other members of the public,‖ id. at 39, but reasoned nevertheless that the police
conduct did not constitute a Fourth Amendment violation (because respondents
―could have had no reasonable expectation of privacy in the inculpatory items that
they discarded‖). Id. at 41.
In my view, the intrusive police conduct in Greenwood, by which police
officers converted the entire contents of respondent‘s trash into a database of
information about his activities, was every bit as objectionable as the temporary
―coopt[ing]‖ of appellant‘s cell phone. I suspect most of us would be outraged at
the effrontery of law enforcement officials in systematically inspecting our trash.
But that would not be enough to establish that police officers‘ systematic
85
rummaging through our trash is a ―search‖ for Fourth Amendment purposes.33
And any sense of outrage here is likewise not enough to establish that use of the
cell-site simulator in the particular circumstances of this case violated appellant‘s
Fourth Amendment rights.34
But even if we assume that the TSU officers‘ taking ―functional control‖ of
and ―coopt[ing] [appellant‘s] phone‖ was a search and/or seizure for Fourth
Amendment purposes, there is yet another consideration that, in my view, should
preclude the court from concluding that the search/seizure was unlawful.35 The
33
Cf. Historical Cell Site Data, 724 F.3d at 615 (―We understand that cell
phone users may reasonably want their location information to remain private, just
as they may want their trash, placed curbside in opaque bags, . . . to remain so. But
the recourse for these desires is in the market or the political process . . . . The
Fourth Amendment, safeguarded by the courts, protects only reasonable
expectations of privacy.‖ (internal citation omitted)).
34
Another lesson from Greenwood is the principle on which Gbemisola,
was decided: that if the individual does not have a reasonable expectation of
privacy in the object of an activity that we would describe in ordinary parlance as a
search, there is no search for Fourth Amendment purposes even if the manner in
which law enforcement conducted their garbage inspection was not available to
most members of the public. The Supreme Court observed in Greenwood that the
respondents‘ trash was readily accessible to ―animals, children, scavengers,
snoops, and other members of the public.‖ 486 U.S. at 40. But it is likely that few
people other than the police would have been granted the accommodation of
having the trash collector segregate all of the respondents‘ garbage from other
garbage.
35
―A ‗seizure‘ of property occurs when ‗there is some meaningful
interference with an individual‘s possessory interests in that property.‘‖ Karo, 468
(continued…)
86
police TSU officers could reasonably infer that the stolen cell phone and
appellant‘s phone were traveling together in a car or other vehicle because the real-
time location information showed them as having gone from Capitol Heights,
Maryland, to Kenilworth Avenue, before moving to the 4000 block of Minnesota
Avenue, N.E. The automobile exception to the Fourth Amendment warrant
requirement ―permits the warrantless search of a car [or other vehicle] that is
‗readily mobile‘ so long as ‗probable cause exists to believe it contains
contraband.‘‖ United States v. Eshetu, 863 F.3d 946, 951 (D.C. Cir. 2017)
(quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam)); United
States v. Shackleford, 830 F.3d 751, 753 n.2 (8th Cir. 2016) (―The automobile
exception requires probable cause to believe contraband or evidence of any crime
will be found in the vehicle[.]‖).36 And, ―[i]f probable cause justifies the search of
(…continued)
U.S. at 712 (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). There
was at least arguably a seizure here, because, according to the testimony, use of the
cell-site simulator may have caused calls appellant tried to make from his phone to
drop. (I note that to the extent that the presence of the cell-site simulator in the
area caused dropped calls or other disruption of the cell phones of other people in
the area, appellant has no standing to complain.)
36
See also California v. Carney, 471 U.S. 386, 393 n.2 (1985) (―With few
exceptions, the courts have not hesitated to apply the vehicle exception to vehicles
other than automobiles.‖); id. at 392-93 (explaining that if a vehicle ―is readily
capable of such use [on the highways] and is found stationary in a place not
regularly used for residential purposes,‖ the ―justifications for the vehicle
(continued…)
87
a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its
contents that may conceal the object of the search.‖ United States v. Ross, 456
U.S. 798, 825 (1982); Eshetu, 863 F.3d at 952.
―Probable cause exists when based on the known facts and circumstances, a
reasonably prudent person would believe that contraband or evidence of a crime
will be found in the place to be searched.‖ United States v. Charles, 801 F.3d 855,
860 (7th Cir. 2015) (internal quotation marks omitted). Here, even before using
the cell-site simulator, the police TSU officers had near real-time cell-site location
information that gave them probable cause to believe that a vehicle was on the
public roads with both the stolen cell phone and the cell phone used by the sexual
assault/robbery perpetrator, and thus probable cause to believe that—whatever the
subject vehicle‘s precise location on the roads37—it contained contraband and
(…continued)
exception come into play,‖ because ―the vehicle is obviously readily mobile by the
turn of an ignition key, if not actually moving‖); id. at 392 (―[I]ndividuals always
have been on notice that movable vessels may be stopped and searched on facts
giving rise to probable cause that the vehicle contains contraband, without the
protection afforded by a magistrate‘s prior evaluation of those facts.‖ (internal
quotation marks and alterations omitted)). And, there is exigency about searching
a vehicle where there is probable cause to believe it contains contraband: ―[T]he
overriding societal interests in effective law enforcement justify an immediate
search before the vehicle and its occupants become unavailable.‖ Id. at 393.
37
Cf. State v. Tate, 849 N.W.2d 798, 810 (Wis. 2014) (reasoning that even
if a warrant had been required to authorize use of a cell-site simulator, the exact
(continued…)
88
evidence of a crime. This means that — under the automobile exception — the
vehicle was searchable without a warrant, and that any cell phones in it that might
have been contraband or evidence of the crime could be seized.38 We should
therefore hold that when the cell-site simulator simultaneously detected/caught the
signal from appellant‘s cell phone (which was located in a car parked on the street)
and ―seized‖ the phone by ―hold[ing] on to it for a minute,‖ there was no Fourth
Amendment violation. Any locational information obtained from the cell phone
was not content that could be searched only pursuant to a warrant.39
(…continued)
place to be searched, such as a street address, was not required).
38
Our request for supplemental briefing signaled, without explicitly
suggesting, that the automobile exception might be implicated on the facts of this
case (and amici briefly addressed its applicability in their initial brief).
39
See Graham, 824 F.3d at 434 (rejecting the argument that cell-site
location information should be treated as ―content‖ for Fourth Amendment
purposes).
Again, this case does not involve a warrantless search of any digital content
(such as text messages, emails, contact lists, call logs, voicemail messages,
photographs, videos, files, internet browsing history, apps that are revelatory of a
person‘s interests, historic location information, etc.) stored on appellant‘s cell
phone, the conduct for which, the Supreme Court determined in Riley v.
California, 134 S. Ct. 2473, 2485 (2014), a warrant was needed. See id. at 2480-
81 (involving a search of the cell phone that was found in Riley‘s pocket after he
was stopped for driving with expired tags and subsequently arrested for possession
of concealed and loaded firearms); see also DOJ Policy Guidance at 2 (―[T]he
[cell-site] simulator does not remotely capture emails, texts, contact list, images or
any other data from the phone.‖). The seizure, ―interfer[ence] with the
functioning‖ of, or ―coopt[ing]‖ of appellant‘s phone involved here, including the
(continued…)
89
***
I end by repeating and underscoring that my dissent rests on the particular
facts of this case: Police had near real-time information, from cell phone
providers, that the cell phone the robbery/sexual assault assailant had used to lure
his victims was traveling on the public streets together with a trackable, powered-
on cell phone stolen from one of the assailant‘s victims (who gave the police
permission to obtain her phone records); they could infer that the phones were
traveling together in a car or other vehicle; and law enforcement officers‘ use of a
cell-site simulator in the vicinity led them to a ―handful of cars‖ parked at the
Minnesota Avenue Metro station and to a car in which appellant sat with the stolen
cell phone in his possession. To hold that the officers‘ use of the cell-site
simulator in this case was lawful would come nowhere close to holding, as my
colleagues conclude, that police may use cell-site simulators ―at will‖ to locate any
individual who is carrying a cell phone, without regard to whether the individual is
known to be in a vehicle moving through the public streets and without regard to
(…continued)
effect of having his calls dropped, is akin to the interruptions or intrusions that the
Riley Court found permissible when police officers execute a search incident to
arrest that turns up a cell phone: they are ―free to examine the physical aspects of
[the] phone,‖ may ―turn the phone off or remove its battery,‖ or may ―leave a
phone powered on and place it in an enclosure that isolates the phone from radio
waves.‖ 134 S. Ct. at 2485, 2487.
90
whether the individual is known to have with him in the vehicle both a trackable
cell phone stolen during a set of robberies and the cell phone from which an
assailant placed calls to lure his sexual assault/robbery victims. Quite the contrary,
the holding I believe is the right one would, because of its nuanced analysis, sound
a cautionary note about using a cell-site simulator in other circumstances without a
warrant.40
What we should not do in resolving this appeal is to jump on the bandwagon
of decrying what is claimed to be a Fourth Amendment violation from use of cell-
site-simulator technology without recognizing how the particular, material facts of
this case distinguish it from the cell-site simulator cases courts have decided before
this one. The Supreme Court has recognized the need for ―consideration of case-
40
In addition, even if I assume arguendo that there was a Fourth
Amendment violation, I am doubtful that suppression in this case would ―pay its
way,‖ United States v. Leon, 468 U.S. 897, 907 n.6 (1984), under the ―cost-benefit
analysis in exclusion cases,‖ Davis v. United States, 564 U.S. 229, 238 (2011),
particularly in light of the Department of Justice‘s announced general policy that
the government now must seek warrants for cell-site simulator use. DOJ Policy
Guidance at 3-4. ―[T]he [exclusionary] rule‘s operation [is limited] to situations in
which th[e] purpose [of deterrence] is thought most efficaciously served‖;
accordingly, ―[w]here suppression fails to yield appreciable deterrence, exclusion
is clearly unwarranted.‖ Davis, 564 U.S. at 237 (internal alterations and quotation
marks omitted).
91
specific exceptions to the warrant requirement‖;41 we are remiss if we do not
carefully consider the distinguishing facts of this case; and the public deserves no
less from us, even as we do what we must to protect precious Fourth Amendment
rights.
For all the foregoing reasons, I respectfully dissent from the judgment
reversing appellant‘s convictions of two counts of first-degree sexual abuse while
armed, two counts of kidnapping while armed, four counts of robbery while armed,
and one count of threats.
41
Riley, 134 S. Ct. at 2486.