Case4:13-cr-00818-PJH Document93 Filed04/20/15 Page1 of 3 1 MELINDA HAAG (CABN 132612) United States Attorney 2 DAVID R. CALLAWAY (CABN 121782) 3 Chief, Criminal Division 4 JOSEPH M. ALIOTO JR. (CABN 215544) WIL FRENTZEN (LABN 24421) 5 Assistant United States Attorney 1301 Clay Street, Suite 340S Oakland, California 94612 Telephone: (510) 637-3680 FAX: (510) 637-3724 Joseph.Alioto@usdoj.gov 6 7 8 9 Attorneys for United States of America 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 OAKLAND DIVISION 13 14 UNITED STATES OF AMERICA, Plaintiff, 15 16 ) ) ) ) ) ) ) ) ) ) v. 17 PURVIS ELLIS, ET AL., 18 Defendant. 19 20 21 22 23 24 25 26 27 28 30 CR 13-00818 PJH UNITED STATES’ RESPONSE TO DEFENDANTS’ MOTION FOR DISCLOSURE OF ELECTRONIC SURVEILLANCE The United States respectfully submits this response to Defendants’ Motion for Search and Disclosure of Electronic Surveillance (doc. 89). INTRODUCTION Defendants move under Section 3504(a) seeking to require the United States to disclose information related to the use of a cell-site simulator on January 22, 2013. However, Section 3504(a) governs the illegal interception of content from phone lines; it does not govern the detection of noncontent cellphone signals. Thus, there is no authority for the order Defendants seek and their motion should be denied. UNITED STATES’ RESPONSE TO DEFENDANTS’ MOTION FOR DISCLOSURE OF ELECTRONIC SURVEILLANCE CR 13-00818 PJH Case4:13-cr-00818-PJH Document93 Filed04/20/15 Page2 of 3 Nevertheless, the United States confirms that a cell-site simulator was used in this case to obtain 1 2 the general location of an armed suspect at large. Since the United States voluntarily confirms the use of 3 the cell-site simulator, Defendants’ motion may also be denied as moot. Even if the use of a cell-site 4 simulator now requires a warrant, its use in this case was under exigent circumstances. The Defendant 5 was thought to be armed and involved in the shooting of an Oakland police officer several hours earlier. 6 The cell records thus were obtained under exigent circumstances and no warrant was required. 7 I. SECTION 3504(a) DOES NOT AUTHORIZE THE RELIEF SOUGHT 8 Defendants base their motion on the authority of Section 3504(a). But, that provision does not 9 apply here. Section 3504 only relates to unlawful eavesdropping, where the contents of phone calls are 10 intercepted without the use of a warrant. Here, Defendants make no claim that conversations were 11 intercepted; rather they assert a phone signal was detected. That type of detection is not considered an 12 “unlawful act” under Section 3504, so the motion should be denied. Under Section 3504(a), an aggrieved party may claim that certain evidence stems from an 13 14 “unlawful act.” Once such a claim is properly made – through affidavits or other evidence – the 15 responding party must “affirm or deny” the occurrence of the unlawful act. An “unlawful act” is defined 16 with reference to the Wiretap Act and means the “use of any electronic, mechanical, or other device (as 17 defined in section 2510(5) of this title) in violation of the Constitution.” 18 U.S.C. § 3504(b). Section 18 2510(5) only applies to devices used to “intercept” a wire, oral or electronic communication. The term 19 “intercept” requires that “contents” of a wire are acquired. Here, Defendants’ motion does not specify the type of electronic surveillance suspected. 20 21 However, its attached exhibits reference only the use of a Stingray – the commercial name for a cell-site 22 simulator. While a cell-site simulator is used to detect the location of a cell-phone, it does not generally 23 intercept the contents of cell phone conversations. Therefore, since Defendants’ only claim of 24 unlawfulness is the use of a device which does not intercept “content,” its claim is not covered by 25 Section 3504. Thus, there is no authority for Defendants’ motion to require the United States to affirm 26 or deny the use of an unlawful act. Defendants’ motion should be denied. 27 II. A CELL-SITE SIMULATOR WAS USED IN THIS CASE 28 The United States confirms that a cell-site simulator was used in this case to identify the general 30 UNITED STATES’ RESPONSE TO DEFENDANTS’ MOTION FOR DISCLOSURE OF ELECTRONIC SURVEILLANCE CR 13-00818 PJH Case4:13-cr-00818-PJH Document93 Filed04/20/15 Page3 of 3 1 location of a suspect’s cell phone. It was not used to intercept contents of phone calls. Oakland Police 2 Department sought cell phone records from MetroPCS in the early morning of January 22, 2013. (Def. 3 Mot, Exs. C, D.) Since the suspects of an officer-involved shooting were still at large, those records 4 were sought under exigent circumstances excusing the failure to obtain a warrant. 5 6 CONCLUSION The motion should be denied. 7 8 Dated: April 20, 2015 Respectfully Submitted, 9 10 11 MELINDA HAAG United States Attorney 12 13 /s/ Joseph M. Alioto Jr. 14 JOSEPH M. ALIOTO JR. WIL FRENZTEN Assistant United States Attorneys 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 UNITED STATES’ RESPONSE TO DEFENDANTS’ MOTION FOR DISCLOSURE OF ELECTRONIC SURVEILLANCE CR 13-00818 PJH