Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 No. 15-2443 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. DAMIAN PATRICK, Defendant-Appellant. On appeal from the United States District Court for the Eastern District of Wisconsin Case No. 13-CR-234 Honorable Rudolph T. Randa, United States Judge, Presiding. APPELLANT’S BRIEF CHRISTOPHER DONOVAN PRUHS & DONOVAN, S.C. 757 N. Broadway, Suite 401 Milwaukee, Wisconsin 53202 Phone: (414) 221-1950 Fax: (414) 221-1959 ORAL ARGUMENT REQUESTED (1 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 DISCLOSURE STATEMENT The undersigned, counsel for Defendant-Appellant, furnishes the following list in compliance with Circuit Rule 26.1: 1. The full name of every party or amicus that attorneys represent in the case: Damian Patrick. 2. Said party is not a corporation. 3. The name of all law firms whose partners or associates have appeared for a party in the district court or are expected to appear for the party in the case: Christopher Donovan, Pruhs & Donovan, S.C., 757 N. Broadway, Suite 401, Milwaukee, WI 53202; Joseph Bugni and Anderson Gansner, Federal Defender Services of Wisconsin, 517 E. Wisconsin Ave., Room 182, Milwaukee, WI 53202. Dated: January 15th, 2016 Christopher Donovan CHRISTOPHER DONOVAN 1 (2 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 TABLE OF CONTENTS PAGE DISCLOSURE STATEMENT ………………………………………………… 1 TABLE OF AUTHORITIES ………………………………………………….. CASES ………………………………………………………………... STATUTES ……………………………………………………………. OTHER AUTHORITIES ……………………………………………... 3 3 4 4 JURISDICTIONAL STATEMENT …………………………………………... 5 ISSUES PRESENTED ………………………………………….……………... 6 STATEMENT OF THE CASE ……………..…. ….………………………….. 7 SUMMARY OF ARGUMENT ………..……………………………………... 14 ARGUMENT …………………………………………………………………. 15 CONCLUSION ………………………………………………………………. 30 CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 32(a)(7)(C)….. 31 CIRCUIT RULE 31(e) CERTIFICATION…………………………………… 31 NOTICE OF FILING AND PROOF OF SERVICE …………………………. 32 2 (3 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 TABLE OF AUTHORITIES CASES PAGE Commonwealth v. Augustine, 467 Mass. 230 (2014) ……………………………… 27 Dalia v. United States, 441 U.S. 238 (1979)………………………………………. 11, 17 Greenlaw v. United States, 554 U.S. 237 (2008) ………………………………….. 16 Illinois v. Gates, 462 U.S. 213 (1983) …………………………………………….. passim In the Matter of... Cell Cite Information, 2006 WL 2871743 (E.D. Wis. 2006)…... 23 In the Matter... Wireless Telephone, 849 F.Supp.2d 526 (D. Maryland 2011)……. 21-23 Katz v. United States, 389 U.S. 347 (1967) …………………………………….… 26 Kyllo v. United States, 533 U.S. 27 (2001) ……………………………………….. 27 Payton v. New York, 445 U.S. 573 (1980) ………………………………………... 21-22 Riley v. California, 134 S.Ct. 2473 (2014) ……………………………………….. 27 Smith v. Maryland, 442 U.S. 735 (1979) ……………………………………….… 28 State v. Earls, 214 N.J. 564 (2013) ……………………………………………….. 27 Steagald v. United States, 451 U.S. 204 (1981) ………………………………... 12, 21-23 United States v. Barajas, 710 F.3d 1102 (10th Cir. 2013) …………………………. 16 United States v. Daniels, 803 F.3d 335 (7th Cir. 2015) …………………………… 15, 25 United States v. Graham, 796 F.3d 332 (4th Cir. 2015)…………………………… 25-29 United States v. Graham, 2015 WL 6531272 (4th Cir. 2015) ……………………. 26 United States v. Jones, 132 S.Ct. 945 (2012) …………………………………...… 27 United States v. Karo, 468 U.S. 705 (1984)…………………………………….... 27 United States v. Kelly, 772 F.3d 1072 (7th Cir. 2014) ……………………………. 15 United States v. Knotts, 460 U.S. 276 (1983) ……………………………………. 27 3 (4 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 United State v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) …………………….… 27 United States v. Miller, 425 U.S. 435, 442 (1976) ……………………………… 28 Warden v. Hayden, 387 U.S. 294 (1967) …………………………………….. 12, 19-21 STATUTES 18 U.S.C. § 922 …………………………………………………………….. 5 18 U.S.C. § 2703 …………………………………………………………... 23-24 18 U.S.C. § 3122…………………………………………………………... 23-24 18 U.S.C. § 3231 …………………………………………………………. 5 18 U.S.C. § 3742(a) ……………………………………………………… 5 28 U.S.C. § 1291 …………………………………………………………. 5 28 U.S.C. § 1294 .…………………………………………………………. 5 Wis. Stat. § 939.12 ………………………………………………………… 18 Wis. Stat. § 973.10 ………………………………………………………… passim OTHER AUTHORITIES Black’s Law Dictionary, 9th Ed. 2009 ……………………………………. 12, 18 Federal Rules of Appellate Procedure 32.1 ……………………………….. 26 Federal Rules of Criminal Procedure Rule 18 ……………………………. 5 4 (5 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 JURISDICTIONAL STATEMENT The United States District Court for the Eastern District of Wisconsin originally had jurisdiction pursuant to 18 U.S.C. § 3231, which provides exclusive jurisdiction for offenses against the United States, and Fed. R. Crim. P. 18. The underlying indictment in this case charged appellant, Damian Patrick, with one count of possessing a firearm as a felon, in violation of Title 18, United States Code, § 922(g)(1). (CR1 1). This appeal is from a sentence imposed by the district court on June 25th, 2015 and reflected in a written judgment dated June 29th, 2015. The United States Court of Appeals for the Seventh Circuit has appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294, and 18 U.S.C. §§ 3742(a)(1) and (2) and is based on the following particulars: i. Date of entry of judgment sought to be reviewed: June 29th, 2015 (CR 64; App. 1-6). 1 ii. Filing date of motion for new trial: N/A iii. Disposition of motion and date of entry: N/A iv. Filing date of Notice of Appeal: July 8th, 2015. (CR 66; App. 7). “CR” is used as an abbreviation for the district court clerk’s record of Mr. Patrick’s case. 5 (6 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 ISSUES PRESENTED 1. Whether, due to the party presentation principle, this Court should assume without deciding that tracking an individual’s cell phone is a search under the Fourth Amendment and requires the government to obtain a warrant supported by probable cause? 2. Whether the state court order at issue in this case established adequate probable cause to justify tracking Mr. Patrick’s cell phone to locate and arrest him? If not, then the fruits of the tracking- the gun located at his feet when he was arrestedmust be ordered suppressed. 3. If this Court elects to address the issue on the merits, whether tracking an individual’s cell phone is a search under the Fourth Amendment that requires the government to obtain a warrant supported by probable cause? 6 (7 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 STATEMENT OF THE CASE This is a direct appeal of a sentence imposed pursuant to a guilty plea. Mr. Patrick was charged in an indictment with one count of being a felon in possession of a firearm. (CR 1). He was arrested on October 28th, 2013 after being stopped as a passenger in a vehicle based on a Wisconsin Department of Corrections’ warrant for violating terms of his supervision. (CR 47:2; App. 9). As he exited the vehicle, police saw a firearm at his feet on the floor of the vehicle. See id. On January 11th, 2014, Mr. Patrick filed a motion by his first attorney to suppress the gun, arguing that information the police received from an anonymous or unknown source was insufficient for the police to stop him and then arrest him. (CR 12:2). A hearing was held on his motion on February 4th, 2014, where it was revealed for the first time that the police had not located Mr. Patrick based on information obtained from an anonymous source, but rather from tracking the location of his cellular phone. (CR 47:3; App. 10; CR 32:34). Based upon this new information, Mr. Patrick withdrew his motion to suppress, conceding that the cell phone tracking provided the police reasonable suspicion to stop him and then arrest him once the gun was located in plain view. (CR 32:37). For reasons placed under seal, Mr. Patrick’s first attorney then moved to withdraw, which was granted by the Court on April 30th, 2014. (CR 31). Undersigned counsel was thereafter appointed to represent Mr. Patrick. (CR 34). On July 3rd, 2014, Mr. Patrick filed a motion for leave to file a new suppression motion based upon the following question: Did law enforcement violate Mr. Patrick’s Fourth Amendment right to be free from unreasonable searches when it tracked or “pinged” the location of his cell phone in real time in order to locate his person, thereby requiring suppression of all resulting evidence found as fruit of the poisonous tree? 7 (8 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 (CR 41:2). With no objection from the government to decide the issues raised in the motion (CR 42), the Court granted Mr. Patrick’s motion for leave to file his new suppression motion via a text-only order on July 15th, 2014 and set a briefing schedule. (CR 43). In his opening brief, Mr. Patrick alerted the Court to the fact that the government agreed that in order for law enforcement to track Mr. Patrick’s cell phone, it had to obtain a warrant supported by probable cause. (CR 44:1). The government later confirmed this and expressly conceded cell phone tracking must be based upon a warrant supported by probable cause. (CR 45:5). Hence, the parties’ briefing and the district court’s ultimate decision all rested on the assumption that probable cause was the standard that law enforcement must meet to track an individual’s cell phone in real time. Accordingly, the only issue that was briefed and decided was whether the state court order issued to track Mr. Patrick’s phone was indeed a warrant supported by probable cause. The district court denied Mr. Patrick’s motion to suppress because the magistrate judge who issued the recommendation that it be denied “utilized precedent that is more cogent than that relied upon by Patrick,” and it adopted the recommendation in full. (CR 54; App. 22). Therefore, it is the magistrate judge’s recommendation (CR 47) that is now subject to challenge on this appeal. The recommendation did a fair job characterizing the contents of the state court order issued in this case.2 The order was based upon the affidavit of Milwaukee Police Officer Mark Harms and an application submitted by Milwaukee Assistant District Attorney (ADA) Christopher Ladwig on October 27th, 2 The order and supporting affidavit and application are contained in the record at Exhibit A to the government’s response to Mr. Patrick’s motion for leave to file a new suppression motion. (CR 42) (hereafter referenced as “Ex. A at __”). These documents are also included in the appendix to this brief. (App. 23-32). 8 (9 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 2013. (CR 47:3: App. 10). The affidavit and application sought three orders related to Mr. Patrick’s cell phone: one for a trap and trace device, one for a pen register, and one for cell-site location information (i.e. tracking the location of the phone). See id. Officer Harms stated that he was “conducting or assisting with a criminal investigation involving the offense(s) of Violation of Probation as detailed in Wisconsin Statute §§ 973.10,” and that the tracking information sought “would be useful to investigators.” Id.; see also Ex. A at 6, ¶ 2; App. 28. He also provided information related to his training, experience, and knowledge concerning electronic surveillance. See id.; see also Ex. A at 6-7, ¶¶ 3(a)-(k); App. 28-29. As to the factual basis for the request for the three orders, Officer Harms relayed that the Wisconsin Department of Corrections (DOC) entered a valid warrant for Mr. Patrick for violation of parole that was still pending as of the date of the requests; that he and two FBI Special Agents met with a cooperating witness who placed a call to Mr. Patrick’s number [414-484-9162] and had a conversation with him over speakerphone; and that the number in question listed to Sprint. See id. at 4; App. 11; see also Ex. A at 8, ¶ 3(l); App. 30. He concluded his affidavit by asserting that “the information likely to be obtained by the installation and use of the pen register and trap and trace device is relevant to an ongoing criminal investigation, related to the offense(s) of Violation of Probation in violation of Wisconsin Statute § 973.10,” and further “there is probable cause to believe that the physical location of the cellular telephone will reveal evidence of the crime of Violation of Probation in violation of Wisconsin Statute § 973.10.” See id.; see also Ex. A at 8, ¶ 3(n); App. 30. 9 (10 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 ADA Ladwig’s application for the requested orders referenced Officer Harm’s affidavit and attempted to beef up the requests with citation to several state and federal statutes. See id.; see also Ex. A. at 9-10; App. 31-32. He asserted that there was “reasonable grounds to believe” that the requested information is “relevant and material to this [§ 973.10] ongoing criminal investigation,” see id.; see also Ex. A at 10, ¶ 2(b); App. 32, and concluded that “probable cause exists for an order approving the release of cellular tower activity, cellular tower location, cellular toll information and cellular global positioning system (GPS) location information, if available, that will permit identification of the physical location of the target cellular phone.” Id. at 4-5; App. 1112; see also Ex. A at 10, ¶ 2(c); App. 32. Milwaukee County Circuit Judge Carolina Maria Stark signed the order the same day the affidavit and application were submitted, finding that Mr. Patrick was believed to be utilizing the cell phone number recited in the affidavit; that he was the subject of an investigation; that the location of the cell phone was unknown; that the affidavit offered “specific and articulable facts showing that there are reasonable grounds to believe that the records and information sought… are relevant and material to an ongoing criminal investigation”; and that there was “probable cause to believe that the physical location of the target cellular telephone will reveal evidence of the Violation of Parole in violation of Wisconsin Statutes § 973.10.” Id. at 5; App. 12; see also Ex. A. at 1-2, ¶¶ 1-5; App. 2324. The court approved the installation and use of a trap and trace device, a pen register, and the release of cell-site location information related to Mr. Patrick’s cell phone. See id.; see also Ex. A at 2-3, ¶¶ 1-3; App. 24-25. The order was served on Sprint the same day, law enforcement agents began obtaining data on the location of Mr. Patrick’s cell 10 (11 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 phone and eventually established physical surveillance of him the next day by using that data. See id. at 5-6; App. 12-13. He was ultimately arrested as described above. The magistrate judge accepted the parties’ agreement that in order to track the location of an individual’s cell phone in real time, law enforcement must obtain a warrant supported by probable cause. See id. at 7-8; App. 14-15. Appropriately, then, the magistrate framed the issue to be decided as: “Did law enforcement officers violate the Fourth Amendment when they determined Patrick’s location by tracking his cell phone in real time pursuant to a state court order?” Id. at 8; App. 15. The magistrate judge found that his analysis began and ended with the Fourth Amendment’s “warrant clause,” which the Supreme Court has held requires only three things: (1) that warrants be issued by neutral, disinterested magistrates; (2) those seeking the warrant demonstrate to the magistrate probable cause to believe that “the evidence sought will aid in a particular apprehension or conviction” for a particular offense; and (3) the warrant particularly describes the things to be seized as well as the place to be searched. See id. at 9; App. 16, citing Dalia v. United States, 441 U.S. 238, 255 (1979) (internal citations omitted). The magistrate correctly found that Mr. Patrick did not contest the first and third requirements; that is, he did not contend the order was issued by a biased or interested judge, or failed to specify the thing to be searched or seized (the data locating Mr. Patrick’s cell phone). See id. Hence, the magistrate confined his analysis to whether the state court order in question satisfied the requisite probable cause showing under the Fourth Amendment. See id. The magistrate credited Mr. Patrick’s reliance on Illinois v. Gates, 462 U.S. 213 (1983), for what the Fourth Amendment’s probable cause standard requires: whether 11 (12 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 under all the circumstances it has been shown that there is a fair probability that contraband or evidence of a crime will be found in a particular place. See id. at 10; App. 17. The magistrate further credited Mr. Patrick’s arguments that in this case “contraband” would not be found because his person (despite the DOC warrant) was not contraband3, and further that “evidence of a crime” would not be found in a particular location because “violating one’s probation is not a crime,” Wisconsin Statute § 973.10 “is not a criminal statute,” and “having an outstanding violation warrant is not a crime either.” Id. However, the magistrate found that Mr. Patrick’s reliance on Gates for the probable cause standard was incomplete: he found that Warden v. Hayden, 387 U.S. 294 (1967) extended the scope of searches to “obtaining evidence which would aid in apprehending and convicting criminals.” Id. at 306. Finding that law enforcement was attempting to locate and apprehend Mr. Patrick on the DOC warrant when the state court order was issued, and based on the facts put forth in Officer Harms’ affidavit, the magistrate found that “it would be impractical if the government were unable to obtain search warrants for information that would aid in the execution of a valid violation warrant merely because the object to be seized does not constitute ‘evidence of a crime’ in the technical sense.” (CR 47:12; App. 19). The magistrate judge also likened the search here of tracking Mr. Patrick’s cell phone to search warrants used to assist law enforcement officers in executing an arrest warrant. See id., citing Steagald v. United States, 451 U.S. 204, 214 (1981). Reciting that Steagald allows the government to obtain a warrant to search for a defendant subject to an arrest warrant in a particular place (even in private third-party homes), the 3 Defined by Black’s Law Dictionary, 9th Ed. 2009, as “goods that are unlawful to import, export, produce or possess.” 12 (13 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 magistrate reasoned that the government should also be allowed to obtain a search warrant for data that would achieve the same thing. See id. at 12-13; App. 19-20. The magistrate found that any “distinction [between the two] would defy common sense,” and that the facts of this case were “sufficient to sustain a search warrant for information that reasonably could facilitate the capture of Patrick,” that is, the information sought would “aid in a particular apprehension.” Id. at 13; App. 20 (internal citation omitted). As mentioned earlier, the district court adopted the magistrate judge’s recommendations in full, (CR 54; App. 22), and Mr. Patrick then pled conditionally guilty to Count 1 of the indictment, preserving his right to appeal the adverse ruling on his motion to suppress in his plea agreement with the government. (CR 57:1, ¶ 2; CR 60). Mr. Patrick was sentenced to 57 months in prison to be followed by 3 years of supervised release and a $100 special assessment. (CR 64; App. 1-6). He filed a notice of appeal on July 8th, 2015 (CR 66; App. 7), and this appeal now follows. 13 (14 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 SUMMARY OF ARGUMENT Tracking an individual’s cell phone is a search for and seizure of data under the Fourth Amendment and requires the government to obtain a warrant supported by probable cause. Here, the government relied on a state court order that did not establish sufficient probable cause to track Mr. Patrick’s cell phone, and therefore the fruits of the search must be ordered suppressed (a gun that was found at his feet when he was arrested). Specifically, the order failed to establish that there was a fair probability that contraband or evidence of a crime would be found in a particular location by tracking Mr. Patrick’s cell phone. This is because despite the existence of a probation violation warrant issued for him, his person was not “contraband” and having a probation violation warrant issued (or even violating the terms of probation) does not constitute a crime under Wisconsin or federal law. Further, the search cannot be saved with the argument that the order was issued to “aid in apprehending” Mr. Patrick because that still requires a connection be shown between the item to be seized and criminal behavior, which is absent in this case. Because the government failed to meet any of the aforementioned standards, the search in this case was illegal and the fruits of it must be ordered suppressed. 14 (15 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 ARGUMENT I. Standard of Review This Court reviews a district court’s denial of a suppression motion under a dual standard of review: legal conclusions are reviewed de novo, while factual findings are reviewed for clear error. See United States v. Kelly, 772 F.3d 1072, 1077 (7th Cir. 2014). II. Based on the party presentation principle, this Court should assume without deciding that tracking an individual’s cell phone is a search under the Fourth Amendment and requires the government to obtain a warrant supported by probable cause. The government below expressly agreed with Mr. Patrick that in order to track an individual’s cell phone, it had to obtain a warrant supported by probable cause. (CR 45:5). The magistrate judge (and ultimately the district court judge by adopting the magistrate’s recommendation in full) also decided the issue on a probable cause standard. (CR 47:7-9; App. 14-16; CR 54; App. 22). That probable cause was the applicable standard was never at issue below; therefore, neither party briefed it and the district court had no reason to decide it. However, this Court has yet to rule on whether tracking an individual’s cell phone is a search under the Fourth Amendment, thereby requiring the government to obtain a warrant supported by probable cause. See United States v. Daniels, 803 F.3d 335, 351 (7th Cir. 2015). Given the unique procedural background of this case, this Court should assume without deciding that the government is required to obtain a warrant supported by probable cause to track an individual’s cell phone based on the following: the Supreme Court has held that “in our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation… we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of 15 (16 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 matters the parties present.” Greenlaw v. United States, 554 U.S. 237, 243 (2008) (emphasis added). This is because “our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” Id. at 244. Courts therefore “normally decide only questions presented by the parties.” Id. (internal citation omitted). A corollary to the party presentation principle is the cross-appeal rule, which holds that “an appellate court may not alter a judgment to benefit a nonappealing party… it takes a cross-appeal to justify a remedy in favor of an appellee.” Id. at 244-45. This rule is “inveterate and certain,” and serves to advance the important institutional interests in “fair notice and repose.” Id. at 245. The Supreme Court noted that in more than two centuries, not one of its holdings ever recognized an exception to the cross-appeal rule. See id. Here, the government has not cross-appealed, which clearly shows that it does not intend to alter its position below that a warrant supported by probable cause is required to track an individual’s cell phone. Because of its express concession below and its failure to file a cross-appeal here, this Court may not alter the judgment below to benefit the government, a non-appealing party; for example, by finding that a standard less than probable cause could have been shown to track Mr. Patrick’s cell phone. See id. at 24445. Additionally, when confronted with a similar procedural history in the district court, the Tenth Circuit assumed without deciding that tracking a cell phone is a search and must be supported by probable cause. See United States v. Barajas, 710 F.3d 1102, 1108 (10th Cir. 2013). This Court should follow the path taken by its sister court under similar circumstances. 16 (17 of 70) Case: 15-2443 III. Document: 14 Filed: 01/15/2016 Pages: 70 The state court order at issue in this case did not establish adequate probable cause to justify tracking Mr. Patrick’s cell phone to locate and arrest him. The fruits of this illegal tracking- the gun located at his feet when arrested- must be ordered suppressed. The Fourth Amendment’s guarantee against unreasonable searches and seizures is effectuated by its warrant clause: “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” As the magistrate judge noted below, the Supreme Court has found that the warrant clause requires three things: (1) that warrants be issued by neutral, disinterested magistrates; (2) those seeking the warrant demonstrate to the magistrate probable cause to believe that “the evidence sought will aid in a particular apprehension or conviction” for a particular offense; and (3) the warrant particularly describes the things to be seized as well as the place to be searched. See Dalia v. United States, 441 U.S. 238, 255 (1979) (internal citations omitted). The first and third requirements are not at issue in this case: there is no indication the state court judge who issued the order in question was biased or otherwise had an interest in the case, and the order particularly described the data to be seized from Mr. Patrick’s cell phone. The dispute here centers on the second requirement of whether law enforcement demonstrated sufficient probable cause for the judge to issue the order. To obtain a warrant, the Supreme Court has held that law enforcement must convince a court that “there is a fair probability, given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). The magistrate judge in this case credited Mr. Patrick’s argument that the two requirements of Gates were not shown. First, Mr. Patrick was not considered contraband 17 (18 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 (“goods that are unlawful to import, export, produce or possess” )4 even though he had a Wisconsin Department of Corrections’ warrant issued for violating his supervision at the time police were looking for him and then arrested him. (CR 47:10; App. 17). Second, there was no showing that evidence of a crime would be found in a particular place: having an outstanding supervision warrant is not a state or federal crime, and the “crime” referenced in the affidavit, application and order (Wis. Stat. § 973.105) is not actually a crime at all. See id. Wis. Stat. § 973.10 is not a criminal statute and does not define a crime6, but merely discusses how probationers are deemed to be in the custody of the department of corrections; can be ordered to perform community service; and describes revocation procedures to be used in the event a probationer violates conditions of probation. No other crimes were alleged in the affidavit, application or order. Even had an actual crime been alleged, there was no showing that evidence of it would be found in a particular place because the object of the search (i.e. Mr. Patrick’s cell site location data) was needed to determine the place to search for him in the first instance. Hence, law enforcement officers, by the very act of seeking this data, established that they could not show a fair probability that evidence of a crime or contraband would be found in a particular place. In short, none of the Gates requirements were established here to justify issuance of the state court order: there was no prospect of finding any contraband or evidence of a crime in a particular place, much less a fair probability of doing so. 4 See fn. 3, infra, citing Black’s Law Dictionary, 9th Ed. 2009. Referred to as “Violation of probation or parole,” depending on which document is referenced, but in actuality is titled “Control and supervision of probationers.” 6 In Wisconsin, a crime “is conduct which is prohibited by state law and punishable by fine or imprisonment or both.” Wis. Stat. § 939.12. 5 18 (19 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 While finding that Mr. Patrick’s recitation of the probable cause standard under Gates was not “inaccurate,” the magistrate judge nonetheless found it incomplete: he found in Warden v. Hayden, 387 U.S. 294 (1967), the Supreme Court stated that in addition to seeking contraband or evidence of a crime “it is reasonable, within the terms of the Fourth Amendment, to conduct otherwise permissible searches for the purpose of obtaining evidence which would aid in apprehending and convicting criminals.” (CR 47:11; App. 18); see also Hayden at 306. The question presented in Hayden was whether searches and seizures under the Fourth Amendment were limited to the instrumentalities of crime, fruits of crime, and contraband, or also included the ability of law enforcement to search for and seize “merely evidentiary materials.” Hayden at 295-96. In that case, the police had seized from the defendant’s home some clothing (including a cap, a jacket and trousers) that matched the description of clothing worn by an individual who committed an armed robbery. See id. at 296. The Supreme Court held that nothing in the Fourth Amendment prohibited searching for and seizing evidence “simply for the purpose of proving” a crime- i.e. “mere evidentiary materials.” See id. at 306. As noted by the magistrate judge, the Supreme Court held it is reasonable to conduct searches and seizures to obtain evidence which would aid in apprehending and convicting criminals. See id. This “aid in apprehension” language is what the magistrate judge relied upon when recommending Mr. Patrick’s motion to suppress be denied because he found that Officer Harm’s affidavit “demonstrated that law enforcement was attempting to apprehend Patrick” based on the DOC warrant. (CR 47:11; App. 18). Further finding that Officer Harms swore that the DOC warrant was still valid and unexecuted, that cell 19 (20 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 site data would help them apprehend Mr. Patrick, and that the phone number they wanted to track was linked to him, the magistrate judge said “it would be impractical if the government were unable to obtain search warrants for information that would aid in the execution of a valid violation warrant merely because the object to be seized does not constitute ‘evidence of a crime’ in the technical sense.” Id. at 11-12; App. 18-19. But this finding ignores a key limit Hayden placed on its own holding: that there “must, of course, be a nexus- automatically provided in the case of fruits, instrumentalities, or contraband- between the item to be seized and criminal behavior.” Hayden at 307. Thus, even when trying to apprehend an individual rather than searching for contraband or evidence of a crime, there still has to be some connection shown between the object of the search or seizure and criminal behavior. In Hayden, a connection existed because the clothing recovered from the defendant’s house matched the description of that worn by the armed robber police were looking for, so therefore they “could reasonably believe that the items would aid in the identification of the culprit.” Id. Here, there was no connection shown between the items to be searched or seized (the cell site data) and any criminal behavior. In fact, the magistrate judge found that there was not any connection between the data and criminal behavior because “violating one’s probation is not a crime,” Wis. Stat. § 973.10 is “not a criminal statute,” and “having an outstanding violation warrant is not a crime either.” (CR 47:10; App. 17). Thus, the magistrate judge’s finding that Mr. Patrick’s citation to Gates’ probable cause requirement was “incomplete” because it did not account for Hayden’s “aid in apprehension” language is itself incomplete: under both Gates and Hayden, some connection to a crime must be established to justify a search under the Fourth 20 (21 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 Amendment. 7 No such connection exists in this case because no fair probability was shown that contraband or evidence of a crime would be found in a particular place (Gates), nor was any connection established between the cell site data and any criminal behavior (Hayden). It was therefore an unreasonable search and seizure of the data under the Fourth Amendment and all evidence derived therefrom must be suppressed. The magistrate judge also relied upon Steagald v. United States, 451 U.S. 204 (1981) when he recommended denying relief to Mr. Patrick. (CR 47:12; App. 19).8 He reasoned that because Steagald allows law enforcement officers to obtain a search warrant to search for an individual subject to an arrest warrant in a particular place- even the home of a third party- that they must be allowed to obtain one to search for a person subject to an arrest warrant based on cell-site data generated by his or her cell phone. See id. But the reliance on Steagald is misplaced for several reasons. First, the information sought here is extremely broad and concerns an individual’s ongoing location, which is not known to law enforcement and is the reason it wants the information in the first place. Steagald and Payton (see fn. 8, infra) represent narrow exceptions to general Fourth Amendment constraints, however, in that they require law enforcement to establish that there is reason to believe that the subject of an arrest warrant is located at a particular place- for Payton in his or her home, for Steagald in the home of a third party. See In the Matter of an Application of the United States of America for an Order Authorizing 7 Additionally, the “aid in apprehension” language of Hayden can fairly be considered dicta because the facts of Hayden actually related to the use of the seized items to convict the defendant, not to apprehend him. See Hayden at 307. 8 While it is not cited by the magistrate judge, Payton v. New York, 445 U.S. 573 (1980) is also relevant. Payton held that “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which a suspect lives when there is reason to believe the suspect is within.” Id. at 602-03 (emphasis added). 21 (22 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 Disclosure of Location Information of a Specified Wireless Telephone, 849 F.Supp.2d 526, 563 (D. Maryland 2011). Thus, these cases do not “absolve the government from having a reasonable belief that the suspect is in a particular location before it may enter” a constitutionally protected area to execute an arrest warrant. See id. at 545. In cases like Mr. Patrick’s where law enforcement seeks a court order to track a person’s cell phone precisely because they do not know where the person is, this threshold requirement of both Payton and Steagald is not met and therefore reliance on either is misplaced. Second, implicit in the magistrate judge’s citation to Steagald is a belief that because a search warrant can be obtained to effectuate an arrest warrant in a third party’s home, obtaining one to track an individual by their cell phone is justified because it is considered a lesser intrusion. But this does not automatically follow- Wireless Telephone found that tracking someone by their cell phone “does arguably infringe upon the privacy rights of the subject of an arrest warrant more than a [home] search would and certainly does provide more information.” Id. at 551. The search requested in these types of cases “informs the government on an almost continual basis where the subject is, at places where the government lacked probable cause to believe he was, and with persons about whom the government may have no knowledge.” Id. (emphasis in original). Accordingly, the Supreme Court’s approval of a “limited” intrusion into the home under Payton and Steagald “cannot reasonably be interpreted to endorse other infringements of privacy, that is, the constitutional right to location and movement privacy.” Id. at 552; see also id. at 538-543 (discussing that individuals have a reasonable expectation of privacy in their location and movements); see also Argument Section IV, supra (same). The government below did not argue that the subject of an arrest warrant enjoys less of 22 (23 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 an expectation of privacy in their location and movements than an uncharged person, and Wireless Telephone found that such expectations are maintained for individuals subject to an arrest warrant for many of the reasons already discussed. See id. at 543-44. Thus, the magistrate’s judge reliance on Steagald to deny relief to Mr. Patrick should be rejected by this Court. Further underscoring the lack of probable cause to track Mr. Patrick’s cell phone is the reliance the affidavit, application, and order placed on statutes that do not require a showing of probable cause for law enforcement to take certain actions. For example, to obtain an order for a pen register (which reveals numbers dialed from a phone) or a trap and trace device (which reveals numbers dialed to a phone), law enforcement need only present “a certification… that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted…” 18 U.S.C. § 3122(b); see also In the Matter of the Application of the United States of America For an Order Authorizing the Disclosure of Prospective Cell Cite Information, 2006 WL 2871743 (E.D. Wis. 2006) at 2 (finding that this showing is lower than probable cause for a warrant) (hereafter “E.D. Wis.”). Also, to obtain certain phone records (not including the contents of communications) the government need only establish “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d) (part of the “Stored Communications Act”); see also E.D. Wis. at 2 (finding that this statute imposes an “intermediate” standard on the government higher than that under 18 U.S.C. § 3122(b), but less than probable cause). 23 (24 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 Here, the underlying state court documents relied heavily on language closely tracking the standards laid out in 18 U.S.C. §§ 2703(d) and 3122(b) rather than trying to establish probable cause: • In Officer Harms’ affidavit, he stated he was “conducting or assisting with a criminal investigation” under the [non-existent] offense of "Violation of Probation as detailed in Wisconsin Statute §§ 973.10,” and that the tracking information sought “would be useful to investigators.” See Ex. A at 6, ¶ 2; App. 28. • ADA Ladwig’s application asserted there were “reasonable grounds to believe” that tracking Mr. Patrick’s cell phone would be “relevant and material to this ongoing criminal investigation” into the non-existent crime under Wis. Stat. § 973.10. See id. at 10, ¶ 2(b); App. 32. • The Milwaukee County Circuit Court’s order found that Mr. Patrick was the subject of an investigation and that Officer Harms’ affidavit offered “specific and articulable facts showing that there are reasonable grounds to believe that the records and information sought… are relevant and material to an ongoing criminal investigation.” Id. at 1-2, ¶¶ 2 and 4; App. 23-24. The affidavit, application and order lumped together requests for a pen register and trap and trace device (neither of which require law enforcement to establish probable cause) with a request to track Mr. Patrick’s cell phone (which for all the reasons argued herein requires showing probable cause). By relying so heavily on 18 U.S.C. §§ 2703(d) and 3122(b), it is clear that the state court approved the tracking of Mr. Patrick’s cell phone on a standard less than probable cause and did not fulfill requirements of Gates and 24 (25 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 Hayden; therefore the subsequent tracking violated Mr. Patrick’s Fourth Amendment right to be free from unreasonable searches and seizures. This Court must reverse the district court’s order denying Mr. Patrick’s motion to suppress, and order that the evidence seized after the police illegally tracked his cell phone and arrested him be suppressed. IV. Tracking an individual’s cell phone is a search under the Fourth Amendment and requires the government to obtain a warrant supported by probable cause. As this Court observed recently, whether the government tracking an individual’s cell phone is a search under the Fourth Amendment requiring a warrant supported by probable cause is an evolving and difficult issue that courts across the country are grappling with. See Daniels at 351 (collecting cases). Should this Court elect to decide the issue and now “take sides” on it, see id., it should find that such tracking is a search that requires the government to obtain a warrant supported by probable cause. The most recent and comprehensive treatment by a federal court of appeals on this issue is the Fourth Circuit in United States v. Graham, 796 F.3d 332 (4th Cir. 2015), reh’g en banc granted (hereafter referred to as Graham I). The Fourth Circuit held that the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical9 cell site data to trace the movements of the phone and its user across public and private spaces. See id. at 344-45. However, indicative of the evolving and difficult dimensions of this issue, the Fourth Circuit granted the government’s petition for 9 The Court in Graham found no “constitutional distinction” between historical cell site data and real-time tracking data like that at issue in Mr. Patrick’s case, stating “a person’s expectation of privacy in information about where she has been is no less reasonable, or less deserving of respect, than that regarding where she is or where she is going.” Id. at 349, n. 7; see also id. at 350. For the purposes of this brief, Mr. Patrick follows that reasoning and does not differentiate between historical and real-time tracking. 25 (26 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 rehearing en banc, with oral argument tentatively calendared for the Court’s March 2225, 2016 session. See United States v. Graham, 2015 WL 6531272 at * 1 (4th Cir. October 28th, 2015). While the status of Graham I is now uncertain pending en banc review, its reasoning is still persuasive and its treatment still authoritative. For the following reasons, this Court should adopt its reasoning and find that tracking an individual’s cell phone is a search under the Fourth Amendment requiring the government to obtain a search warrant supported by probable cause. See Fed. R. App. P. 32.1 (restricting courts from prohibiting the citation of federal judicial opinions that have been designated “non-precedential” or “the like” and issued after January 1st, 2007). In Graham I, the Court began its analysis in the familiar territory of Katz’s10 “reasonable expectation of privacy that society is willing to recognize as reasonable” formulation. See Graham I at 344. The Court ultimately held that the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s cell site data to trace the phone/user’s movements across public and private spaces, thereby discovering the private activities and personal habits of the user. See id. at 34445. The Court found that cell phone users have an objectively reasonable expectation of privacy in this information that requires the government to obtain a warrant supported by probable cause (unless an established exception to the warrant requirement applies). See id. at 345. The Court came to this conclusion based primarily on the following two broad reasons, which Mr. Patrick asks this Court to adopt: First, it found that the Supreme Court has “recognized an individual’s privacy interests in comprehensive accounts of her movements, in her location, and in the location of her personal property in private spaces, particularly when such information is 10 Katz v. United States, 389 U.S. 347, 353 (1967). 26 (27 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 available only through technological means not in use by the general public.” See id. at 345-350 (citing and discussing United States v. Knotts, 460 U.S. 276 (1983); United States v. Karo, 468 U.S. 705 (1984); Kyllo v. United States, 533 U.S. 27 (2001); United States v. Jones, 132 S.Ct. 945 (2012); and Riley v. California, 134 S.Ct. 2473 (2014)). The Graham I Court found that the holdings of these Supreme Court decisions, along with two state supreme court decisions, see Commonwealth v. Augustine, 467 Mass. 230 (2014) and State v. Earls, 214 N.J. 564 (2013), lead to the conclusion that the privacy interests affected by the technologies employed by the government in those cases “apply with equal or greater force” to cell phone tracking data because that information “can reveal both a comprehensive view and specific details of the individual’s daily life.” See Graham I at 348. Quoting the D.C. Circuit, it stated: A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups- and not just one fact about a person, but all such facts. Id., citing United State v. Maynard, 615 F.3d 544, 561-62 (D.C. Cir. 2010), aff’d sub. nom. Jones, 132 S.Ct. 945. The Court further noted that cell phone tracking could very well provide even more private information about an individual than the GPS tracking at issue in Maynard/Jones because “a cell phone is a small hand-held device that is often hidden on the person of its user and seldom leaves her presence… users regularly carry these devices into their homes and other private spaces” which can “permit the government to track a person’s movements between public and private spaces, impacting at once her interests in both the privacy of her movements and the privacy of her home.” Id. Bolstered by the decisions of other courts to have considered the issue, the Fourth 27 (28 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 Circuit found that the government conducts a search and “invades a reasonable expectation of privacy when it relies upon technology not in general use to discover the movements of an individual,” with cell phone tracking being one such technology. See id. at 349. Second, the Court found that the Supreme Court’s “third-party doctrine,” which holds a person has “no legitimate expectation of privacy in information he voluntarily turns over to thirds parties,” does not apply to cell phone tracking records and does not defeat a user’s reasonable expectation of privacy in the content of those records. See id. at 353, citing United States v. Miller, 425 U.S. 435, 442 (1976) and Smith v. Maryland, 442 U.S. 735, 743-44 (1979). The Court found that Miller and Smith “do not categorically exclude third-party records from Fourth Amendment protection.” Id. at 354. The key focus is whether the information held by a third party was voluntarily conveyed to it because “it is that voluntary conveyance- not the mere fact that the information winds up in the third party’s records- that demonstrates an assumption of risk of disclosure and therefore the lack of any reasonable expectation of privacy.” Id. The Court found that cell site location information is automatically, intangibly, and passively calculated and recorded by the cellular network and therefore the user does not “convey” cell site location data “at all- voluntarily or otherwise- and therefore does not assume any risk of disclosure to law enforcement.” Id. The Court stated it “cannot impute to a cell phone user the risk that information about her location created by her service provider will be disclosed to law enforcement when she herself has not actively disclosed that information.” Id. at 355. 28 (29 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 The Court found that the third-party doctrine is increasingly in tension with “the primacy Fourth Amendment doctrine grants our society’s expectations of privacy,” but found the former must give way to the latter because the “third-party doctrine is intended to delimit Fourth Amendment protections where privacy claims are not reasonable- not to diminish Fourth Amendment protections where new technology provides new means for acquiring private information.” Id. at 360. The Fourth Circuit neatly summed up the important and difficult questions raised by cell phone tracking by the government with this observation and ultimate holding: It turns out the proliferation of cellular networks has left service providers with a continuing stream of increasingly precise information about the locations and movements of network users. Prior to this development, people generally had no cause for concern that their movements could be tracked to this extent. That new technology has happened to generate and permit retention of this information cannot by itself displace our reasonable privacy expectations; nor can it justify inspection of this information by the government in the absence of judicially determined probable cause. Id. at 360-61. For all the reasons articulated by Graham I, this Court should find that tracking an individual’s cell phone is a search under the Fourth Amendment and the government is required to obtain a warrant supported by probable cause before obtaining such information. 29 (30 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 CONCLUSION For all the reasons argued herein, this Court should assume without deciding that tracking an individual’s cell phone is a search that requires the government to obtain a warrant supported by probable cause; that the state court order in question here did not establish adequate probable cause to track Mr. Patrick’s phone; and that the fruits of this illegal search must be ordered suppressed, specifically the gun that was found laying at his feet when he was arrested. Respectfully submitted Christopher Donovan CHRISTOPHER DONOVAN COUNSEL FOR DEFENDANT-APPELLANT Pruhs & Donovan, S.C. 757 North Broadway – Suite 401 Milwaukee, Wisconsin 53202 Tel: (414) 221-1950 Fax: (414) 221-1959 30 (31 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7)(C) The undersigned certifies that this brief complies with the volume limitations of Federal Rule of Appellate Procedure 32(a)(7)(C) and Circuit Rule 32 in that it contains 7,478 words as shown by Microsoft Word in preparing this brief. Christopher Donovan CHRISTOPHER DONOVAN Pruhs & Donovan, S.C. 757 North Broadway – Suite 401 Milwaukee, Wisconsin 53202 Tel: (414) 221-1950 Fax: (414) 221-1959 CIRCUIT RULE 31(e) CERTIFICATION The undersigned, counsel for Defendant-Appellant, hereby certifies that I have filed electronically, pursuant to Circuit Rule 31(e), versions of the brief and all of the appendix items that are available in non-scanned PDF format. Christopher Donovan CHRISTOPHER DONOVAN Pruhs & Donovan, S.C. 757 North Broadway – Suite 401 Milwaukee, Wisconsin 53202 Tel: (414) 221-1950 Fax: (414) 221-1959 Dated: January 15th, 2016 31 (32 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 UNITED STATES COURT OF APPEALS SEVENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. Appeal Number: 15-2443 DAMIAN PATRICK, Defendant-Appellant. NOTICE OF FILING AND PROOF OF SERVICE TO: Clerk, United States Court of Appeals, 219 S. Dearborn St., Chicago IL 60604 Bridget Domaszek, Assistant U.S. Attorney, Room 530, 517 E. Wisconsin Avenue, Milwaukee, WI 53202 Damian Patrick (#13024-089), USP Big Sandy, P.O. Box 2068, Inez, KY 41224 PLEASE TAKE NOTICE that on January 15th, 2016, the undersigned attorney filed an electronic copy of Appellant’s Brief in digital media, formatted in PDF, with the Clerk of the United States Court of Appeals for the Seventh Circuit. All counsel of record are served copies of same via electronic filing. Mr. Patrick will be served one copy of the brief by enclosing it in a mailing package addressed as indicated above with postage prepaid, and by depositing said package in the United States Mail in Milwaukee, Wisconsin. 32 (33 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 Christopher Donovan CHRISTOPHER DONOVAN Christopher Donovan Pruhs & Donovan, S.C. 757 N. Broadway, Suite 401 Milwaukee, Wisconsin 53202 Phone: (414) 221-1950 COUNSEL FOR DEFENDANT-APPELLANT 33 (34 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 (35 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 UNITED STATES COURT OF APPEALS SEVENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff?Appellee, vs. Appeal Number: 15?2443 DAMIAN PATRICK, Defendant?Appellant. SHORT APPENDIX CHRIS DONOVAN PRUHS DONOVAN, SC. 757 North Broadway Suite 401 Milwaukee, Wisconsin 53202 T61: (414) 221?1950 Fax: (414) 221-1959 (36 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 (37 of 70) CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULES 30 AND 31 The undersigned, counsel for Defendant-Appellant, hereby states that all of the materials required by Circuit Rule 30(a) and 30(b.) are included in the Appendix to this brief. The undersigned counsel further certi?es, pursuant to Circuit Rule 351(c)(1), that no appendix materials are available in non?scanned PDF format. 001me CHRISTOPHER DONOVAN Pruhs Donovan, SC. 757 North Broadway - Suite 401 Milwaukee, Wisconsin 53202 Tel: (414) 221-1950 Fax: (414) 221-1959 Dated January 15?: 2016 Case: 15-2443 Document: 14 Filed: 01/15/2016 APPENDIX TABLE OF CONTENTS DESCRIPTION Judgment . .I . . Notice of Appeal ..-. .. Magistrate Judge?s Recommendation . .. Order Denying Motion to Suppress .. State Court Order, Af?davit, and Application .. Pages: 70 (38 of 70) PAGE 22 23 AOWB (Rev. Document: 14 Filed: 01/15/2016 Pages: 70 (39 of 70) Sheetl . UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE V. Case Number: 13~Cr-234 DAMIAN LAMONT PATRICK USM Numb-er: 13024-089 Christopher D. Donovan Defendant's Attorney Bridget J. Domaszek Assistant United States Attorney THE DEFENDANT: 51? pleaded guilty to 001mm) One (1) of the Indictment El pleaded nolo contendere to count(s) which was accepted by the court. E1 was found guilty on count(s) after a plea of not guilty. The defendant is adjudicated guilty of these offenses: Title Section Nature of Offense Offense Ended Count 1.8 U.S.C. 922(g)(1) Being a Felon in Possession of a Firearm October 28, 2013 1 and The defendant is sentenced as provided in Pages 2 through 6 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. The defendant has been found not guilty on count(s) El Count(s) is are dismissed on the motion of the United States. It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until. all ?nes, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and the United States attorney of material changes in economic circumstances. June 25, 2015 Imposition of II ature t; udicial Officer Hon. Rudolph T. Ran-da, U. S. District Judge Name Title of Judicial Of?cer June 29, 2015 Date Case Filed 06/29f15 Page 1 of 6 Documen App .001 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 A0 245B (Rev. 09!] 1) Judgment in a Criminal Case: Sheet 2 Imprisonment Defendant: Damian Lamont Patrick Case Number: 13?Cr-234 IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 57 months. Defendant shall be given credit for time served, if any, as determined/calculated by the United States Bureau of Prisons. The court makes the ibliowing recommendations to the Bureau of Prisons: (1) Defendant be placed at a facility as close to Wisconsin as possible; (2.) Defendant participate in the SOD?hour Intensive Drug Treatment Program. The defendant is remanded to the custody of the United States Marshal. The-defendant shall surrender to the United States Marshal for this district. I at Will am. Cl p.m. on as noti?ed by the United States Marshal. The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons, before 12:00 pm. on as noti?ed by the United States Marshal. El as noti?ed by the Probation or Pretrial Services Of?ce. RETURN I have executed this judgment as follows: Defendant delivered on to a with a certi?ed copy of this judgment. UNITED STATES MARSHAL By DEPUTY UNITED STATES MARSHAL Case Filed 06129l15 Page 2 of 6 Document App 002 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 Judgmentrg?gl?lj 9&70) A0 245B (Rev. 09? 1) Judgment in a Criminal Case: Sheet 3 - Supervised Release Defendant: Damian Lamont Patrick Case Number: 13-Cr-234 SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be on'supervised release for a term of Three (3) years. The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. The defendant shall not commit another federal, state or local crime. The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and two drug tests thereafter within one year. The above drug testing condition is suSpended based on the court's determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.) The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.) El The defendant shall cooperate in the collection of DNA as directed by the probation of?cer. (Check, if applicable.) The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation of?cer. (Check, if applicable.) CI The defendant shall participate in an approved program for domestic violence. (Check, if applicable.) If this judgment imposes a fine or a restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment. The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page. STANDARD CONDITIONS OF SUPERVISION 1) the defendant shall not leave the judicial district without permission of the Court or probation of?cer; 2) the defendant shall report to the probation officer in a manner and frequency directed by the Court or probation officer; 3] the defendant shall use the defendant?s best efforts to support the defendant?s dependents; 4) the defendant shall use the defendant?s best efforts to find and hold lawful employment, unless excused by the probation officer for - schooling, training, or other acceptable reasons childcare, eldercare, disability, age or serious health condition); 5) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment; When such noti?cation is not possible, the defendant shall notify the probation of?cer within 72 hours of the change; 6) the defendant shall not knowingly go to places or enter buildings where controlled substances are unlaw?illy sold, used, distributed or administered; 7) the defendant shall not associate with any persons known to the defendant to be engaged, or planning to be engaged, in criminal activity, and shall not associate with any person known by the defendant to be a felon, absent permission to do so by the probation of?cer except with siblings and at family gatherings. ?Associate,? as used here means reside, socialize, meet, communicate or otherwise interact with such person; 8) the defendant shall permit a probation officer to visit the defendant at reasonable times at home or elsewhere and shall permit con?scation of any contraband observed in plain view by the probation of?cer; 9) the defendant shall notify the probation of?cer within seventy?two hours of being or questioned by a law enforcement of?cer; 10) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; Case Filed 06/29!15 Page .3 of 6 Document APP 003 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 42 of 70) Judgment ge 4 of 6 A0 245B (Rev. 09M 1) Judgment in a Criminal Case: Sheet 3A Supervised Release Defendant: Damian Lamont Patrick Case Number: 13~Cr?234 ADDITIONAL SUPERVISED RELEASE TERMS 1. The defendant is to participate in a program of testing to include not more than six urinalysis tests per month and residential or outpatient treatment for drug and alcohol abuse, as approved by. his supervising probation of?cer, until such time as he is released from such program. The defendant shall pay the cost of this program under the guidance and supervision of his supervising probation of?cer. The defendant is to refrain from use of all alcoholic beverages throughout the supervised release term. 2. The defendant is to participate in the Cognitive Intervention Program, if available, under the guidance and supervision of the supervising probation of?cer. 3. The defendant shall not have any contact with any member of the Brother?s of the Struggle (B08) street gang, or any gang. Case Filed 06/29/15 Page 4 0f 6 Documen APP 004 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70- 01170) Judgment ge 5 6 A0 245B {Rev 09!] 1) Judgment in a Criminal Case: Sheet 5 - Criminal Monetary Penalties Defendant: Damian Lamont Patrick Case Number: 13?Cr-234 - CRIMINAL MONETARY PENALTIES The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6. Assessment Fine I Restitution Totals: $100.00 waived none The determination of restitution is deferred until Amended Judgment in a Grimmer? Case (A0 245(3) will be entered after such determination. '3 The defendant must make restitution (including community restitution) to the following payees in the amount listed below. If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless speci?ed otherwise .in the priority order or percentagepayment column below. However, pursuant to 18 U.S.C. 36640), all nonfederal victims must be paid before the United States is paid. Name of Payee Total Loss* Restitution Ordered Priority or Percentage Totals: 53 El Restitution amount ordered pursuant to plea agreement El The defendant must pay interest on restitution and a ?ne of more than $2,500, unless the restitution or ?ne is paid in full before the ?fteenth day after the date of the judgment, pursuant to 18 U.S.C. 3612(1). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. 3612(g). . 1 The court determined that the defendant does not have the ability to pay interest, and it is ordered that: the interest requirement is waived for the ?ne restitution. the interest requirement for the tine restitution is modified as follows: *Findings for the total amount of losses are required under "Chapters 109A, 110, 1 10A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996. case 2:13wcr?00234?RTR Filed 06129/15 Page 5 of 6 Documen App 005 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 (44 of 70) Judgment Page 6 of 6 A0 245B (Rev 09!]1) Judgment in a Criminal Case: Sheet 6 Schedule of Payments Defendant: Damian Lamont Patrick Case. Number: 13-Cr-234 SCHEDULE OF PAYMENTS Having assessed the defendant?s ability to pay, payment of the total criminal monetary penalties shall be due as follows: A El Lump sum payment of due immediately, balance due not later than or in accordance C, D, orEinelow; or Payment to begin immediately (may be combined with DC, D, or below); or Payment in equal (cg, weekly, quarterly) installments of aperiod of months or years), to commence 30 or 60 days) after the date of this judgment; or Payment in equal weekly, quarterly) installments of over a period of months or years), to commence (cg, 30 or 60 days) after release from imprison? ment to a term of supervision; or El Payment during the term of. supervised release will commence within 30 or 60 days) after releaSe from imprisonment. The court will set the payment plan based on an assessment of the defendant?s ability to pay at that time; or Special instructions regarding the payment of criminal monetary penalties: Payments are due immediately, through the Clerk of Court, but may be paid from prison earnings in compliance with. the Inmate Financial Responsibility Program in payment of the Special Assessment. The defendant?s participation in the Inmate Financial Responsibility Program is voluntary. Unless-the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment. All criminal monetary penalties, except these payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program are made to the clerk of the court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed. Joint and Several Defendant and Co-Defendant Names, Case Numbers (including defendant number), Total Amount,_Joint and Several Amount, and corresponding payee, if appropriate: The defendant shall pay the cost of prosecution. The defendant shall pay the following court cost(s): The defendant shall forfeit the defendant?s interest in the following property to the United States: Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, ?ne principal, (5) ?ne interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs. Case Filed 06/29l15 Page 6 of 6 Documen' APP 006 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN (45 of 70) UNITED STATES OF AMERICA, Plaintiff, vs. Case Number: NOTICE OF APPEAL DAMIAN PATRICK, Defendant. Notice is hereby given that Damian Patrick, defendant in the above named case, hereby appeals to the United States Court of Appeals for the Seventh Circuit from the judgment entered in this action on June 25th, 2015. Dated this 8th day of July, 2015. Christopher Donovan Christopher Donovan Attorney for Damian Patrick CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that a copy of the foregoing pleading was served via ECF to the US. Attorney?s Office, on this 8th day of July, 2015: Bridget Domaszek Assistant US. Attorney 517 East Wisconsin Ave, Room 530 Milwaukee, Wisconsin 53202 Christopher Donovan Christopher Donovan Attorney for Damian Patrick Case Filed 07/08/15 Page 1 of 1 Document .AP-P 007 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 - (46 of UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN UNITED STATES OF AMERICA, Plaintiff, V. Case No. DAMIAN PATRICK, Defendant. RECOMMENDATION ON MOTION TO SUPPRESS EVIDENCE I. PROCEDURAL BACKGROUND On November 26, 2013, a federal grand jury sitting in this district returned an indictment against Damian Patrick, charging Patrick with knowingly possessing a firearm as a previously convicted felon, in Violation of 18 U.S.C. 922(g) (1) and 924(a)(2). Patrick was arraigned on December 19, 2013, and he pled not guilty to the above-mentioned charge. The case was assigned to United States District Judge Rudolph T. Randa for trial and to United States Magistrate Judge Patricia J. Gorence for pretrial processing. On January 11, 2014, Patrick filed a motion to suppress in which he argued that he Was seized unlawfully and without reasonable suspicion. Judge Gorence held an evidentiary hearing on Patrick?s motion. on February 4, 2014. At the hearing, thecourt heard testimony from two law enforcement officers from the Milwaukee Police Department. (MPD). Following their testimony, Patrick requested to withdraw his motion, which Judge Gorence granted. Case Filed 09/30/14 Page 1 of 14 Document APP 003 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 Thereafter, on April 29, 2014, Patrick?s attorney filed a motion to withdraw as counsel of record. Judge Randa granted the motion the following day and appointed new counsel to represent Patrick. On July 3, 2014, Patrick filed a motion for leave to file a new motion to suppress. Judge Randa approved Patrick?s motion and referred the matter back to Judge Gorence. During a status conference, counsel for the parties agreed that another evidentiary hearing was unnecessary. Moreover, Patrick?s attorney requested that his motion for leave to file a motion to suppress also Serve as his opening suppression motion. The court agreed and set out a briefing schedule on Patrick?s motion. Patrick filed a brief in support of his motion to suppress on August 1, 2014. The government filed its response on August 14, 2014, and Patrick filed a reply on August 21, 2014. On September 17, 2014, the case was reassigned to this court for pretrial processing. Patrick?s trial before Judge Randa currently is adjourned, and a new date has not yet been set. Now pending before this court is Patrick?s motion to suppress, which is fully briefed and ready for resolution. For the reasons that follow, I will recommend that Patrick?s motion be denied. II. FACTUAL BACKGROUND On October 28, 2013, law enforcement officers from MPD observed Patrick sitting in the passenger seat of a vehicle that was parked in an alley behind an apartment complex located at 5909 N. eutonia Ave, in the City of Milwaukee. At that time, the officers were aWare that Patrick was wanted for violating his probation extended supervision. The officers ordered Patrick to exit the vehicle and, as he did, they observed a firearm on the floor of the vehicle between. Patrick?s feet. Patrick was then taken into custody. 2 Case Filed 09f30f14 Page 2 of 14 Documen APP 009 (47 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 (48 of 70) At the February 4, 2014 evidentiary hearing, Patrick learned that law enforcement located him on October 28, 2013, by tracking his cell phone. (Hr?g Tr. 34.)1 On October 27, 2013, Milwaukee County Circuit Court Judge Maria Carolina Stark issued an order authorizing, among other things, the disclosure of location information for a cell phone that was known to be used by Patrick. Accordingly, the court will summarize the contents of that state court order as well as its supporting application and affidavit. On October 27, 2013, MPD officer Mark Harms submitted a sworn affidavit in support of an application by the Milwaukee County District. Attorney?s Office for three orders: (1) an order approving the installation and use of a trap and trace device; (2) an order approving the installation and use of a pen register device; and (3) an order approving the release of certain subscriber information, including what is commonly referred to as cell- site location information. (Govt. Ex. A at 6-10, ECF No. 42?1 [hereinafter ?Ex. Officer Harms indicated that he was ?conducting or assisting with a criminal investigation involving the offense(s) of Violation of Probation as detailed in Wisconsin Statute 973.10? and that the information sought ?would be useful to investigators.? (Ex. A at 6, para. 2.) Officer Harms then recounted his training, experience, and knowledge concerning electronic surveillance. (Ex. A at6?7, paras. 3a~k.) Thereafter, Officer Harms set forth the specific facts he believed supported the request for the three orders: 1 Apparently, this fact was not disclosed in any reports generated by law enforcement. Rather, the three officers who prepared reports concerning their involvement in Patrick?s arrest indicated, respectively: (1) law enforcement obtained information? of Patrick?s location; (2) law enforcement had "prior knowledge? that Patrick was occupying the vehicle, which officers observed While on patrol; and (3) law enforcement ?obtained information from an unknown source? that Patrick was inside the vehicle at that location. (ECF No. 12?1.) The government now readily acknowledges that law enforcement determined Patrick?s location on October 28, 2013, by tracking his cell phone. (ECF No. 42.) 3 - . Case2113~cr~00234-RTR Filed 0980/14 Page 3 of 14 Documen APP 010 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 (49 of 70) On Iuly 27E11 2013, the Wisconsin Department of Corrections entered a valid felony Warrant for Damian L. Patrick, black male, . . . regarding Violation of Parole. To date (10-27-2013), the Felony Violation of Parole warrant for Damian Patrick is currently valid. On today?s date 10?27?2013, I PO Mark Harms, FBI SA Jason Soule and FBI SA Rich Bilson, conducted a meeting With a CW (cooperating Witness) that has a child in common With Damian Patrick. The CW stated she has been talking and texting Damian Patrick over the past two days on his number 414?484?9162. The CW placed a telephone call to Damian Patrick at 414-484?9162 and put the call on speaker. The CW addressed Damian Patrick by his first name and he responded with conversation. A check through open source data bases revealed the cell phone carrier for number 414484-9162 is Sprint. (Ex. A at 8, para. 31.) Officer Harms indicated that, based on the above facts, "the information likely to be obtained by the installation and use of the pen register and trap and trace device is relevant to an ongoing criminal investigation, related to the offense(s) of Violation of Probation in violation of Wisconsin Statute 973.10.? (Ex. A at 8, para. 3n.) Officer Harms further indicated that "there is probable cause to believe that the physical location of the cellular telephone will reveal evidence of the crime of Violation of Probation in violation of Wisconsin Statute 973.10.? (151.) Christopher Ladwig, an assistant district attorney (ADA) for Milwaukee County, submitted the application for the orders. (Ex. A at 9?10.) ADA Ladwig stated that the- application was made pursuant to Wisconsin Statute 968.35 and 18 U.S.C. and 2711(3), 3117, and 3127(2) (B). (Ex. A at 9.) He further stated that ?there are reasonable groundsto believe that the requested telecommunications records are relevant and material to this ongoing criminal investigation.? (Ex. A at 10, para. 2b.) ADA Ladwig concluded, based on Officer Harms? affidavit, "that probable cause exists for an order approving the release of cellular tower activity, cellular tower location, cellular toll information and cellular telephone global positioning system (GPS) location information, 4 - Case Filed OQIBOIM Page 4 of 14 Docume-r APP 011 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 if available, that will permit identification of the physical location of the target cellular phone.? (Ex. A at 10, para. 2c.) - Judge Stark signed the order that same day, which was issued pursuant to Wisconsin Statute 968.35 and 18 U.S.C. (B) and 2711(3), 3117, 3125 and 3127(2) A at 1-5.) Based on the application and supporting affidavit, Judge Stark found that Patrick was believed to be utilizing the cell phone assigned the number stated in the affidavit; Patrick was the subject of an investigation; the physical location of the cell phone was unknown; and the affidavit offered "specific and articulable facts showing that there are reasonable grounds to believe that the records and information sought by the applicant are relevant and material to an ongoing criminal investigation.? (Ex. A at 1-2, paras. 1-4.) Judge Stark further found that ?[tJhere- is probable cause to believe that the physical location of the target cellular telephone will reveal evidence of the Violation of Parole in violation of-Wisc-onsin Statutes 973.10.? (Ex. A at 2, para. 5.) Accordingly, the court approved (1) the installation and use of a trap and trace device; (2) the installation and use of a pen register device; and (3) the release of cell?site location information related to the target cell phone. (Ex. A at 2-3, paras. The court ordered Sprint to provide the cell-site location information from July 27, 2013, .to the date the order was signed and extending sixty days thereafter. (Ex. A at 4.) The order was served upon Sprint that same day, (Ex. A at 5), and law enforcement agents began obtaining data related to the location of the target cell phone. Just before noon on October 28, 2013, law enforcement established physical surveillance of Patrick by using 5 Case Filed 09130114 Page 5 of 14 Documer APP 012 (50 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages:70 the cell-site location-information. Officers then followed Patrick to the area of 5909 N. Teutonia Ave, where ultimately he was arrested. DISCUSSION Patrick argues that he was unlawfully searched when law enforcement officers located him on October 28, 2013, by tracking his cell phone. Specifically, Patrick maintains that the state court order issued by Judge Stark does not constitute a warrant under the Fourth Amendment and, at any rate, the order?s supporting documents failed to satisfy the Fourth Amendment?s probable cause standard. Patrick further contends that none of the authority cited in the order or its supporting documents provided adequate authorization to track his cell phone. He also asserts that the unlawful tracking of his cell phone cannot be saved by any exception to the warrant requirement because Officer Harms was dishonest in preparing the supporting affidavit, and the order was so lacking in probable cause as to render law enforcement?s belief in its validity entirely unreasonable. Accordingly, Patrick seeks an order suppressing from use at trial all evidence recovered after the government?s illegal the firearm found at Patrick?s feet when he exited the vehicle. In response, the government argues that the application and affidavit in support of the state court order were supported by probable cause. Specifically, the government maintains that Officer Harms? affidavit established that Patrick was the user of the target cell phone and that he had not been. apprehended in three months, despite the existence of a valid probation violation warrant. Coupled with Officer I-Iarms? description of electronic surveillance, these facts established probable cause to believe that evidence of Patrick?s whereabouts would be found by obtaining the cell?site location information. Moreover, the 6 Case Filed 09l30/14 Page 6 of 14 Documen APP 013 (51 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 government contends that the state court order is the functional equivalent of a warrant and that the order and its supporting documents cited authority that authorizes "the disclosure of prospective cell-site location information. Alternatively, the government asserts that law enforcement officers relied in good faith on Judge Stark?s decision to issue the order and, therefore, the [?0112 good faith exception to the warrant requirement applies and dictates that the evidence should not be suppressed. The ability of law enforcement to track an individual?s cell phone in real time is an evolving and somewhat unsettled area of law. One of the principal issues in this ongoing debate is whether such tracking constitutes a ?search? Within the meaning of the Fourth Amendment and thereby requires a warrant supported by probable cause. Compare United States v. Skinner, 690 F.3d 772, 781-(6th Cir. 2012) (finding that the defendant did not have a reasonable expectation of privacy in the GPS data and location of his cell phone and, therefore, such real-time tracking was not a search) with State v. Earls, 70 A.3d 630, 639-40, 644 (NJ. 2013) (requiring a warrant) (collecting cases). Although the Seventh Circuit Court of Appeals has yet to definitely weigh in on this issue, see" United States v. Thousand, 558 F. App?x 666, 670 (7th Cir. 2014) (?We have yet to address whether . . . cell?tower information that telecommunication carriers collect is protected by the Fourth Amendment?), the parties here. agree that, at least in this district, law enforcement must obtain a warrant supported by probable cause to obtain. real?time location data for Patrick?s cell phone, see, e. 3., In re United States, 412 F. Supp. 2d 947 2006) (Callahan, I12, I.) (denying government?s application for an order authorizing the disclosure of prospective cell?site information 2 United States v. Leon, 468 US. 897 (1984). 7 Case Filed 09/30/14 Page 7 of 14 Documel. APP 014 (52 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages:70 exclusively pursuant to the combined authority of 18 U.S.C. 2703 and 3122), 2006 US. Dist. LEXIS 73324, at 5*22 (ED. Wis. Oct. 6, 2006) (Adelman, I.) (holding that ?the government must meet the probable cause standard to obtain cell site information?). This, however, is where the parties? agreement ends. At times, the parties? arguments tend to muddy the waters and drift away from the ?real? issue at hand. As the muck settles, the issue becomes clear: Did law enforcement officers violate the Fourth Amendment when they determined Patrick?s location by tracking his cell phone in real time pursuant to a state court order? Consequently, whether the order and its supporting documents cited the proper statutory authority, or whether the order satisfied the requirements of Rule 41 of'the Federal Rules of Criminal Procedure, is largely irrelevant. Those authorities are subservient to the Fourth Amendment, and there is no suggestion that the failure to comply with Rule 41 violated any of Patrick?s constitutional rights. See, e. g, In re United '8 totes ex rel. an OrderAnthorizing Disclosure of Location Information ofo Speci?ed Wireless Telephone, 849 F. Supp. 2d 526, 564 (D. Md. 2011),: see also United States v. Harrington, 504 F.2d 130, 133?34 (7th Cir. 1974) .3 Likewise, that the document purportedly authorizing the disclosure of the cell?site location information is labeled an ?order? rather than a ?warrant? is a distinction without a difference. Just as a rose by any other name would smell as sweet, a warrant by another name is still 'a warrant, provided that the 3 That the order failed to comply with the "ministerial terms? of Rule 41(e) and should not invalidate the search. See Harrington, 504 F.2d at 134. The order was executed on the same day that Judge Stark issued it, (Ex. A at and the ?daytime?X?any time? distinction is rather irrelevant given the nature of the data sought. Likewise, as will be shown, law enforcement officers sought the particular information so that they could locate and apprehend Patrick. Thus, Patrick?s property rights were not inadequately protected just because the order apparently was not returned. . 8 Case Filed 0980/14 Page 8 of 14 Documen APP 015 (53 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 (54 of 70) document comports with the ?Warrant Clause? of the Fourth Amendment. Accordingly, the court?s analysis will begin and, as will be shown, end with the Fourth Amendment. The Fourth Amendment reads in full: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. The Supreme Court has stated that the words of the second clause of the Fourth Amendment, referred to as the "Warrant Clause,? are "precise and clear? and require only three things: First, warrants must be issued by neutral, dis-interested magistrates. See, e. 3., Counally Georgia, 429 U.S. 245, 250-251 (1977) (per curiam), Shadwick v. Tampa, 407 U.S. 345, 350 (1972) Coolidge v. New Hampshire, 403 US. 443, 459-460 (1971). Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that ?the evidence sought will aid in a particular apprehension or conviction? for a particular offense. Warden 19. Hayden, 387 U.S. 294, 307 (1967). Finally, "warrants must particularly describe the ?things to be seized,W as well as the place to be searched. Stanford a. Texas, supra, at 485. Delta United States, 441 U.S. 238, 255 (1979). The state court order at issue here easily satisfies the first and third requirements of the Warrant Clause. The order was issued by a neutral, disinterested state court circuit judge, and the order particularly describes the information to be seized from a specific cell phone. Patric-k makes no argument to "the contrary. Nevertheless, the parties vehemently disagree as to whether the order?s supporting documents satisfied the requisite probable cause showing under the Fourth Amendment. And, more precisely, the parties disagree as I 9 Case Filed 09f30f14 Page 9 of 14 Documen APP 016 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 to what that requisite showing is. In other words, the order must establish probable cause of what? The government maintains that the information in support of the order established probable cause to believe that evidence of Patrick?s whereabouts would be found by obtaining the location data for his cellular telephone.? (Govt.? Resp. 8.) Patrick necessarily concedes the truth of this statement?that is, there was a fair probability that he would be located by tracking his cell phone. (Def.?s Reply 6.) However, Patrick argues, this statement does not accurately set forth the probable cause standard as described in Illinois 2). Gates, 462 US. 213 (1983) .4 In Gates, the Supreme Court determined that a search warrant affidavit establishes probable cause if, given all the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." 462 US. at 238. According to Patrick, Officer Harms? affidavit clearly did not allege that the cell-site location information would lead to finding. any ?contraband? in a particular place; he himself was not contraband merely by way of the outstanding probation violation warrant. Patrick further argues that the affidavit failed to allege that evidence of a crime? would be found in a particular location. While the affidavit asserted that the physical location of the target cell phone would reveal evidence of the crime of Violation of Probation in violation of Wisconsin Statute 973.10,? (Ex. A at 8, para. 311), violating. one?s probation is not a crime and 973.10 is not a criminal statute. And, having an outstanding violation warrant is not .a crime either. Consequently, Patrick maintains that the state court order is invalid because 4 Patrick also cites the Supreme Court?s holding in Florida 0. Harris, 1338. Ct. 1050 (2013). However, Harris involved a warrantless search of an automobile. 10 Case Filed 09l30l14 Page 1-0 of 14 Docume APP 017 (55 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 (56 of 70) the supporting affidavit failed to allege that there was a fair probability that contraband or evidence of a crime would be found in a particular place. Although Patrick?s recitation of the probable cause standard is not entirely inaccurate, it is incomplete. The Supreme Court has stated that, in addition to seeking contraband or evidence of a crime, it is reasonable, within the terms of the Fourth Amendment, to conduct otherwise permissible searches for the purpose of obtaining evidence which would aid in apprehending and convicting criminals.? Hayden, 387 US. at 306. ?[T]he Supreme Court has consistently reiterated this formulation? of the Fourth Amendment probable cause standard. See In re Smartphone Geolocation Data Application, 977 F. Supp. 2d 129, 134 (E.D.N.Y. 2013) (collecting cases). Likewise, the Seventh Circuit has quoted Hayden?s ?aid in apprehension? language in several opinions and has also utilized this language to describe the requisite Fourth Amendment probable cause finding. See, 6.3., United States v. Li'sk, 522 F.2d 228, 230-31 (7th Cir. 1975) (upholding the lawfulness of a seizure of ?mere evidence? based on "a reasonable belief that it would aid in a particular apprehension or conviction?); United States 0. Anton, 633 F.2d 1252, 1254 (7th Cir. 1980) (?Probable cause exists when it is reasonably believed that the evidence sought will aid in a particular apprehension or conviction for a particular offense and that the evidence is located in the place to be searched?) Here, the affidavit at issue demonstrated that law enforcement was attempting to apprehend Patrick based on the July 27, 2013 felony violation of probation parole warrant. Officer Harms swore that on October 27, 2013, the day he composed and submitted the affidavit, the warrant was still valid and apparently had not yet been executed. The 11 Case Filed 09I3-0I14 Page 11 of 14 Document APP 018 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 affidavit further demonstrated that the? prospective cell?site location information could reasonably assist in Patrick?s apprehension. On October 27, a CW who had a child in common with Patrick met with law enforcement agents and told them that she had been talking with and texting Patrick on a specific cell phone number over the past two days. In the presence of the agents, the CW called Patrick on that number, placed the call on speaker phone, addressed Patrick by his first name, and Patrick responded with conversation. I Patrick argues that these facts are ?completely conclusory.? The court disagrees. The above facts demonstrate that Patrick was the user of the target cell phone and that he was the subject of a valid probation violation warrant, which had not been executed during its three months of existence. Nothing more was. needed to obtain the information sought by the government. As the Supreme Court has stated, ?the probable?cause standard is . .. a ?pr?actical, nontechnical conception.? Gates, 462 US. at 231 (quoting Brtuegar v. United 5 tates, 338 US. 160, 176 (1949)). It would be impractical if the government Were unable to obtain search warrants for information that would aid in the execution of a valid Violation warrant merely because the object to be seized does not constitute "evidence of a crime? in the technical sense. Indeed, the law already permits the issuance of search warrants to assist law enforcement officers in executing an arrest warrant. Specifically, the government can obtain a warrant to search for a defendant subject to an arrest warrant in a particular place, even if that particular place is the private home of a third party. See Stesgald v. United States, 451 US. 204, 214 (1981),: see also Fed. R. Crim. P. 41(c) (4). But, according to Patrick?s definition of probable cause, the government cannot obtain a search warrant to obtain data that would 12 Case Filed OQIBOIM Page 12 of 14 Down APP 019 (57 of 70) Case: 15-2443 Document: 14 - Filed: 01/15/2016 Pages: 70 assist in locating the same defendant. Such a distinction would defylcommon sense. Put simply, the above facts are sufficient to sustain a search warrant for information that reasonably could facilitate capture of Patrick.5 In sum, Judge Stark had a "substantial basis? for concluding that probable cause existed when she issued the state court order authorizing the disclosure of location information related to Patrick?s cell phone because the information sought would aid ina particular apprehension.? See Gates, 462 US. at 236 (quoting Jones v. United States, 362 US. 257, 271 (1960)) (quotation marks-omitted). Consequently, the order at issue here effectively served as a warrant that complied with the three requirements of the Warrant Clause of the Fourth Amendment and, therefore, no further authorization was required for the government to track Patrick?s cell phone.6 Given the court?s ruling, there is no need to address the government?s alternative argument that the order is saved by the Leon good faith exception. Nevertheless, considering the unsettled nature of this area of law, it seems certain that the exception would apply. Accordingly, the court will recommend that the district judge deny Patrick?s motion to suppress. NOW THEREFORE IT IS RECOMMENDED that the defendant?s motion to suppress (ECF No. 41) be DENIED. 5 Patrick does not specifically attack the reasonableness of the order?s execution. Nevertheless, the court notes that the order Was executed on the same day that Judge Stark issued it, and Patrick was apprehended the following day at approximately 12:10 p.1n. Thus, although one could argue that it may be unreasonable to allow law enforcement officers to obtain this information for a period not to exceed sixty days when they merely are attempting to locate a wanted subject, the particular facts and circumstances here present no such concerns. 6 Notably, the Wisconsin Supreme Court recently upheld the lawfulness of a ?search? under circumstances very similar to those present in the instant action. See State v. Tate, 849 798 (Wis. 2014). 13 Case Filed 09f30l14 Page 13 of 14 Documer APP 020 (58 of 70) Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 (59 of 70) Your? attention. is directed to 28 DEC. 636(b)(1)(B) and (C), and Federal Rule of Criminal Procedure 59(b)(2) (as amended effective December 1, 2009), whereby written objections to any recommendation herein or part thereof may be filed Within fourteen days of the date of service of this recommendation. Objections are to be filed in accordance with the Eastern District of Wisconsin?s electronic case filing procedures. Courtesy paper copies of any objections shall be sent directly to the chambers of the district judge assigned to the case. Failure to file a timely objection with the district court shall result in a waiver of a party?s right to appeal. Dated this ?gth day of September 2014, at Milwaukee, Wisconsin. BY THE COURT: 5/ William E. Callahan, Ir. WILLIAM E. CALLAHAN, JR. United States Magistrate Judge l4 Case Filed 0980/14 Page 14 of 14 Docum? APP 021 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 (60 of 70) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN UNITED STATES OF AMERICA, Plaintiff, -vs- Case No. 13-CR-234 DAMIAN PATRICK, Defendant. DECISION AND ORDER Magistrate Judge William E. Callahan, Jr. has recommended to this Court that Defendant Damian Patrick?s (Patrick) motion to suppress be denied. Patrick has objected, the government has ?led a response, and the Court has reviewed the decision and the responses. Because the Court thinks that Magistrate Judge Callahan has utilized precedent that is more cogent than that relied upon by Patrick, the Court will adopt Magistrate Judge Callahan?s recommendation and deny the motion to suppress, IT IS HEREBY ORDERED THAT: Patrick?s motion to suppress (ECF No. 41) is DENIED. Dated at Milwaukee, Wisconsin, this 7th day of January, 2015. BY THE COURT: Case 2:13vcr?00234wRTR Filed 01/07/15 Page 1 of 1 Documen' App 02.2 Case: 15-2443 Document: 14 . Filed:f01/15/2016 Pages: 70 (61 of STATE OF WISCONSIN CIRCUIT COURT MWAUKEE COUNTY IN THE MATTER OF AN APPLICATION BY ran MILWAUKEE COUNTY DISTRICT ATTORNEY OFFICE non THE FOLLOWING ORDERS: (1) An order approtring the installation and use of a trap and trace device or process. (2). An order approving the installation and use of a pen register device process or Dialed Number Recorder (DNR) on a cellular telephone line, a designated Electronic Serial Number (ESN), an International Mobile Subscriber Identi?er an International Mobile Equipment Identi?er (IMEI), or other cellular lines .of a particular subscriber. (3) An order approving the release of subscriber irifonnation, incoming and outgoing call detail, cellular terror activity, cellular tower location, text header information, cellular toll information and cellular telephone global positioning system location: information, if available, and authorizing the identi?cation of the physical location of a tar-get cellular telephone. ORDER. This matter comes before the court pursuant to an Application by Christopher Ladwig, a[r1] Assistant District Attorney, for Milwaukee County, for the above requested orders pm?suant to Wisconsin Stanites 968.35 and 18 U.S.C. and 3117 and and 18 USC 3125, that; Based upon the application and the supporting affidavit of Mark Harms,'the court ?nds that; (13 Damian Patrick, black male, 05414983 is believed to be utilizing the cellular telephOne assigned the number 414484?9162. (2) Damian Patrick, black male, 05?21?1988 is the subject of'the investigation. (3) The number 414484-9162 is the number of the cellular telephone. The. physical location of this cellular telephone is unknown. (4) The applicant has certi?ed that the information likely to be obtained by the installation and use of the pen register and trap and trace device is relevant to an ongoing criminal inVestigation, related to the ottensc(s) of Violation of Parole in Case Filed 07i15/14 Page of 10 Documer APP 023 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 . (62'of violation of Wisconsin Statutes 973.10. The Af?davit of Mark Harms ofi?ers speci?c and articulable facts showing that there are reasonable grounds to believe that the records and information sought by the applicant are relevant and material to an ongoing investigation. (5) There is probable cause to believe that the physical location of the target cellular telephone will reveal evidence of the Violation of Parole in violation of Wisconsin Statlnes ?'973.10. 6] Disclosure to any person of this investigation or this application and Order will result in assisting Damian L. Patrick, black male, 05?21?1988, and/or his/her .associate[s], in ?ight to avoid prosecution; (2) destruction of or tampering with evidence; THE COURT HEREBY Approves the installation and use of a trap and trace device or process related to 414484-9162 (2). Approves the installation and use of a pen register device 2? process or Dialed Number Recorder (DNR) on a cellular telephone line 414?484?9162, a designated Electronic Serial Number (asu), an International Mobile Subscriber Identi?er (IMSI), an htematicnal Mobile Equipment Identi?er or other cellular lines . ofaparticnlar Subscriber. (3) Approves the release of information, including but not limited to BSN, MSID, MST, IMEI, MEID, MDN, cellular tower act'iVations, cellular tower location, signaling information, cellular toll information, text header infonnation, dialed digit extraction, party joinfhold/drop messages, numbers dialed and incoming number identi?ed without geographic limitation, subject initiated dialing and signaling inf?rmation, direct connect activity with originating and terminating urban area codes and at call origination, duration and. call termination, Ill?band and Case Filed 07/15/14 Page 2 of 10 Documel APP 024 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 Out-of?band signaling information, a listing of all control channels and their corresponding cell sites, engineering maps or spread sheets if a map is not available that shows all cell site/tower locations by address, latitude /_longitude, sector and orientation for the state of Wisconsin or any other state where the target phone/wireless device may be located, inclusion of subject initiated conference calls and timing and cellular telephone global positioning system (GPS) location infonnation'or other precision locating information, if available, and authorizes the identi?cation of the physical location of the target cellular telephone. Such service provider shall initiate a signal to determine the location of the subject's mobile (63 of device on the service provider's notWUI'k or with such other reference points as may - be reasonable available and at such intervals. and times as directed by the law enforcement agent serving this order. The information authorized in this order shall be released to the Wisconsin Department of Justice, Division of C?n?nal . hivestigation, the-United States Marshals Service, and/or any other law enforcement agency the Department of Instice may. designate and the Milwaukee- Police . Department. IT IS HEREBY ORDERED, pursuant to Wisconsin Statute 968.35 and 18 use. and 2711(3) and 3127(2xe) and and that Sprint andfor any other providers of electronic conununication service or remote computing service Whose . assistance is needed to comply with this Order, shall provide all technical assistance necessary to accomplish this order. and disolOse the records and other infermation described herein twenty~four hours a day, that assistance shall include solutions including ranging reports and precision location based infonnation queries and Sprint is required to lend all reasonable assistance to permit the Wisconsin Department of Justice, Division of Criminal Investigation, any other law enforcement agency the Department of Justice may designate and the Milwaukee Police Depainnent to hiangtilate target location, including but not limited to terminating interfering service on the target cellular telephone. IT IS FURTHER ORDERED that the electronic communications service providers for these cellular/Wireless numbers provide subscriber information, billing mfonnation, call detail L1.) Case 2:13wcrw0023-4nRTR Filed Page 3 of 10 Documen APP 025 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages:.70 . information, any historical irrfonnation law enforcement may request to include historical cell site information from July 27?] 2013 through this order?s duration and subscriber and billing information for the target cellular/Wireless device or any other cellular/witches devices that may be identi?ed in the course of this investigation conunmiicating with the target line. IT IS FURTHER ORDERED that this order shall cover and be applied to any and all phone lines or services provided to the target of this investigation, named herein, and any changes (including additions, deletion, and transfers) in service regarding the subscriber account, including changed cellular telephone MDN or WMSID), network address (IMSI, JP and UFMI), equipment changes (eg. ESN, MED), and SIM) and subscriber information changes (published, nonnpublishe'd, listed or unlisted) for the duration of this order; which shall not exceed a period of sixty days, unless a court authorized extension is granted. IT IS FURTHER ORDERED that Sprint and their resellers not terminate or restrict service to any cellular/wireless telephone covered by this order for the duration of this order. the event that-service must be extended beyond a billing issue, the Milwaukee Police Department will compensate Sprint for any charges associated with that service extension. IT IS FURTHER ORDERED that agents ?'Ol?i?l the Wwaukee Police Department shall compensate the providers for such costs as are reasonably necessary and which have been directly incurred in complying with this Order, as required 11118 2706. IT IS FURTHER ORDERED, pursuant to Wiswnsin Statute that the orders be Sealed until otherwise ordered by the court. and pursuant to Wisconsin Statute and 1-8 U.S.C.. 2705(b), that the providers, their agents and employees, shall not notin any other person of'the existence of this court Order for aperiod of ninety (90) days. item the date of this Order or until otherwise ordered by the court. 1s FURTHER that from July 27?h 201-3, to the date that the Order is signed, and extending sixty (60) days beyond the date that the order is signed, Sprint, shall provide- the records and information described for telephone assigned Inobile identi?cation number(s): 414?434-9162 unless the order is terminated earlier at law enforcement?s request. Case 2:13ncr~00234~RTR Filed Page 4 of. 10' Become APP 026 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 (65 of, IT IS that this order shall be in e?'ect for a period not to exceed sixty days, u'nless a com-approved extension is granted; Dated?at ,Wisconsin, this 21 day of 12012; COURT: 7 Ma (ml; . Wu?flw? leaukee Circuit Cou?: E5 1 I hereby certify that I have served this Order upon gain . - by mail andlor fax transmission and received con?nnati?on of the Order?s rece1pt. Date Case Page-50f 10 Documer APP 027 Case: 15-2443. . Document: 14 Filed: 01/15/2016 Pages: 70 (66 of STATE or WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY IN THE MATTER OF AN APPLICATION BY THE MHWAUKEE COUNTY DISTRICT ATTORNEY OFFICE FOR THE FOLLOWING- ORDERS: 1) An order approving the metallation and use of a trap and trace device or process. (2) An order approving the installation and use of a pen "register device process .or Dialed Number Recorder (DNR) on a cellular telephone line, a designated Electronic Serial Number (ESN), an International Mobile Subscriber Identi?er (IMSI), an International Mobile Equipment Identi?er (EVLEI), or other cellular lines - of a particular subscriber. (3) An order approving the release of subscriber information, blooming and outgoing call detail, cellular towor activity, cellular. tower location, text header biformation, cellular toll information, and cellular telephone global positioning system (GPS) location information, it" available, and authorizing the identi?cation of the physical location of the target cellular telephone. AFFIDAVIT STATE OF WIS CONSJN ss. MILWAUKEE COUNTY I, Police Of?cer Mark Harms being duly sworn on oath states that: 1.) I am employed as a Police Of?cer with the Milwaukee Police Department, and has been a. full?time sworn law entercement of?cer for over 16 years; - I am conducting or assisting udth a criminal investigation involving the offens-e(s) of Violation of Probation as detailed in Wisconsin Statute 973.10. In the course of that investigation, it became apparent that particular information found in cellular call records Would be useful to investigators. The information Useful to investigators was determined to be available from Sprint, a cellular service provider and communications common carrier as de?ned in 18 U.S.C. 2510(10); 3.) In SuppOIl: of the request for the requested orders, I offer the following speci?c and articulable facts and circumstances to the court: a. I am aware that subscriber information, incoming and out-going call detail, cellular miner and tell information, phone enabled GPS or locating devices, electronic serial numbers of phones and other identi?ers are useful in. attempting to identify the physical location of a cellularfwireless "device. Case Filed Page 6 of 10 Documen APP 028 Case: 15-2443 b. 6. Document: 14 Filed: 01/15/2016 Pages: 70 I am aware that cellular telephone communications are routed through transnutters and receivers on terrors, often called ?cell towers? or ?cell sites-5?" I am aWare that the transmitters and receivers on these towers are articulated in such a way so as to divide the tower?s footprint into thirds or 120 degree sectors, to cover. the full radius around each cell tower; I also am aware that as cellular telephone users move around a tower, their .. communications are routed through the various town: sectors and when they move far enough away from the tower, the cellular communications. are recognized and transmitted through other in closer proximity or With a stronger signal; I know that in order to maintain their networks and to properly bill their customers, cellular telephone companies record the site of the cell tower to which a cellular telephone sends its signals when a call is ?rst placed, the telephone number dialed, the duration of the call, and the cell tower through which the call is being routed when the call ends; . Based upon my experience, I believe that this cell tower infonnation can. assist in the locating of a giVen cellular telephone, but not pinpoint the location Where the cellular telephOne Was used. Typically, the area could range anywhere horn several square blocks to several square miles; I believe that the records I seek are collected by the cellular telephone company at the cell towers or sites and this application does not request any data stored within the customer?s cellular telephone; Furthermore, by this application, I am only requesting records pertaining to calls and do not seek to intercept or otherwise obtain any part of a customer?s cellular communications or conversations; - I know that a pen register device or process records or decodes dialing, routing, addressing or signaling ??om a given cellular telephone, as Well as the telephone numbers, published and unpublished, of certain parties placing telephone calls from a gi'ven telephone; . I also know that a trap and trace device. or process captures incoming electronic or other impulses that tend to identify the originating number of an instrument or device from which an electronic communication was. transmitted to a given telephone but does not reveal the location. of that originating instrument; Through installation of a trap and trace device and. pen register device as Well as the provision of the other information identi?ed above, law enforcement has the technological capability to engage in real time identification of the target cellular telephone location. - Case Filed Page 7 of 10 Documen APP 029 Case: 15-2443 Document: 14 Filed: 01/15/2016 PagesJuly 27"h 2013, the Wisconsin Department of Corrections entered a valid felony Warrant for Damian Patrick, black male, 05-21-1988, regarding Violation of Parole. To date the Felony Violation of Parole warrant for Damian Patrick is currently valid. On today?s date' 10?27-2013, I PO Mark Harms, FBI SA Iason Souls and FBI SA Rich Bilson, conducted a meeting with a CW (cooperating witness) that has a child in-corrnnon with Dentian Patrick. The CW stated she has -. been talking and texting Damian Patrick over the past. two days on his number 414- 484?9162. The CW placed a telephone call to Damian Patrick at 414484-9162 and put the call on speaker. The CW addressed Damian Patrick by his ?rst name and he responded with conversation. A check through open source data bases revealed the cell phone carrier for number 414?484?9162 is. Sprint. m. I checked the Internet database telcodatans to con?rm the cellular telephone carrier company. I'have used this database in the past and found it to be reliable and correct. I entered the area code (414) and pre?x 484 and found the number lists to Sprint. I also checked the Nuestar Wireless Portability Database and found that the phone has not been ported to another company- n. I submit that based upon the above stated facts, the information likely to be obtained by the installation and use of the pen register and trap and trace device is relevant to an ongoing criminal investigation, related to the offense(s) of Violation of Probation in Violation of Wisconsin Statute 973.10. Furthermore, there is probable cause to believe that the physical location of the cellular telephone will reveal evidence of the crime of Violation of Probation in Violation of Wisconsin Statute 973.10. 0. Based upon my training and experience, I believe that it is necessary to protect the nature and scope of ongoing criminal investigations. Actionable information deriVed item pen registers and trap and trace devices is sensitive, and the premature disclosure of such. information may cause the target of this investigation or persons with whom the target associates to change their current practices. This disclosure,_in effect, would make it extremely dif?cult for law enforcement to utilize existing technologies to aid. in the apprehension of lmown or suspected criminals and to protect the public. I request that this sealing period begin upon erecution of the Order and continue for "a period of ninety (90) days, or by further order of the court. The information contained herein is true to the best of my knowledge and belief. Marlgfianns Policle?cer to before inc . . . 7 . 7 ,2013 . Avior Lani A ., . . - ea or. Notary Public, State of Wisconsin - simm- 9% /r 4f My commission expires 2,94; 9? 7 . Subscribed and sore [o ??gmentnew?: Case Filed omens Page a of 10 Document APP 030 Case: 15-2443 Document: 14 Filed: 01/15/2016 Pages: 70 STATE on WISCONSIN cmcorr COURT MILWAUKEE COUNTY IN THE MATTER OF AN APPLICATION BY THE MILWAUKEE COUNTY DISTRICT ATTORNEY OFFICE FOR THE FOLLOWING ORDERS: - (1) An order approving the installation and use of a trap and trace device or process. (2) An order approving the installation and use of a Pen Register device .1 process or Dialed Recorder (DNR) on a cellular telephone line, a designated Electronic Serial Number (ESN), an International Mobile Subscriber Identi?er (IMSI), an International Mobile Equipment Identi?er (IMEI), or other cellular lines of aperticular subscriber. . (3) An order approving the release of subscriber information, incoming and outgoing call detail, cellular tower activity, cellular tower location, text header information, cellular toll information and cellular telephone global positioning system (GPS) location information, if available, and authorizing the identi?cation of the physical location of the target cellular telephone. APPLICATION FOR ORDERS STATE OF WIS CONSIN ss. MILWAUKEE COUNTY Assistant District Attorney Christopher Ladwig, being duly sworn on oath, depose and state as follows: . - Christopher Ladwig, a[n] Assistant District Attorney, for Milwaukee County, hereby applies for an order pursuant. to Wisconsin Stamte 968.35 and 18 U.S.C. 2703(c)(1)(B) and 2711(3), .3117 and directing Sprint, a provider. of electronic communications service, to disclose records and other information pertaining to a customer or subscriber as described in the - proposed Order. It is. ?JIther requested that the Order apply to any other providers of electronic communications service. or remote computing service whose assistance is needed to provide the records or other information sought. 1. The State of Wisconsin requests that the provider disclose the information and records described in the proposed Order- submitted with this Application. The State of Wisconsin does not seek the contents of any commnnications covered by 18 U.S.C. 2703(3) 'or 2. In support oi" this request, the applicant states the following: Case Filed 07(15/14 Page 9 of 10 Become: APP 031 Case: 15-2443 Document: 14 Filed: 01/15/2016 . Pages: 70 (70 of 3.. Sections of the United States Code explicitly allow state court judges to issue orders for disclosure of records and infonnation - by electronic communications providers. Speci?cally, 18 U.S.C. 2703(d) provides that any "court of competent jurisdiction" may issue. orders to electronic communications providers. Next, 18 U.S.C. 2711(3) and provide that a court of competent. jurisdiction is a court of general criminal jurisdiction of a state authorized by that state to issue orders authorizing the use of a pen register or trap and trace device. The. Milwaukee Police Department is conducting a criminal hrvestiga?on of the crime[s] of Violation of Parole in violation of Wisconsin Statute 973.10, I certi?rthat: (1) the infonnation likely to be obtained by the installation and use of the pen register and trap and trace device is relevant to an ongoing criminal investigation and (2) there are reasonable grounds to believe that the requested telecommunications records are relevant and material to this ongoing criminal investigation. c. Based upon the af?davit of Mark Harms of the Milwaukee Police Department, I believe that probable cause exists for an order approving the release of cellular toWer activity, cellular tower location, cellular toll information and cellular telephone global positioning system (GPS) location information, if available, that will permit identi?cation of the physical location of the target. cellular phone. 3. Pursuant to Wisconsin Statutes and 18 2705(b), the applicant further requests that the court order the applicable providers, their agents and employees, not to notify any other persons of the existence of the requested court order becausethere is reason to believe that noti?cation of the existence of the requested court order will result in (1) assisting Damian L. Patrick, black male, 0521?1 988, and/or his/her associate[s], in?ight-to avoid prosecution; (2) destruction of or temp ering with evidence; WHEREFORE, it is 'reSpectfully requested that the court grant the proposed Order submitted with this Application. Dated this 27th day ofOctob-er, 2013. . Respec su 'tt . 1? (Christie her Assist tDisoict Attorney Subscribed and. sworn to before me is 275? day [?oretsaa 201;. Warsaw 43?ng its -- it! Notary Public, State of Wisconsin My commission expires 1.533 wt"; mag? gas} - Case Filed 07/15r14 Page .10 of 10 Become APP 032