Case 4:13-cr-00818-PJH Document 225-1 Filed 08/22/16 Page 1 of 5 1 BRIAN J. STRETCH (CABN 163973) United States Attorney 2 BARBARA J. V P,.LLIERE (DCBN 439353) 3 Chief, Criminal Division 4 JOSEPH M. ALIOTO, JR. (CABN 215544) WILLIAM FRENTZEN (LABN 24421) 5 SCOTT D. JOINER (CABN 223313) BRIGID S. MARTIN (CABN 231705) 6 Assistant United States Attorneys 7 1301 Clay Street, Suite 340S Oakland, .California 94612 Telephone: (415) 436-7200 Fax: (415) 436-6753 Joseph.Alioto@usdoj.gov William.Frentzen@usdoj.gov Scott.Joiner@usdoj.gov Brigid.Martin@usdoj.gov 8 9 10 11 Attorneys for United States of America 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 OAKLAND DIVISION 15 UNITED STATES OF AMERICA, 16 Plaintiff, 17 'v. 18 PURVIS LAMAR ELLIS, et al., 19 Defendants. 20 ) CR 13-00818 PJH ) ) DECLARATION ) ) ) ) ) ) ~~~~~~~~~~~~~~~-) 21 22 23 24 25 26 27 28 FBI DECLARATION CR 13-00818 PJH Case 4:13-cr-00818-PJH Document 225-1 Filed 08/22/16 Page 2 of 5 1 I, 2 , declare as follows: (1) I am a Special Agent with the Federal Bureau oflnvestigation. I have been assigned to 3 the FBI's San Francisco Division Technical Program since November 2003 and have been employed by 4 the FBI in its San Francisco Division since 1997. My work for the FBI's Technical Program involves 5 using developing technology to conduct legally-authorized collections of evidence in support of FBI 6 investigations. The FBI's Technical Program is also authorized to lend technical assistance to state and 7 local agencies conducting criminal investigations. 8 9 (2) In many instances, the technical investigative techniques used by the FBI's Technical Program are used in support of covert investiga,tions and utilize law enforcement sensitive techniques 10 that are protected under the qualified "law enforcement sensitive" privilege under federal law. In 11 addition, the identity of technically-trained agents are protected under the same privilege and they are 12 considered covert assets by the FBI. 13 (3) Because of the nature of my official duties, I am familiar with the matters at issue in this 14 case. The statements contained in this declaration are based upon my personal knowledge, upon 15 information provided to me in my official capacity, and upon conclusions and determinations reached 16 and made in accordance therewith. 17 (4) Law enforcement agents can use cell site simulators to help locate cellular devices whose 18 unique identifiers are already known to law enforcement, or to determine the unique identifiers of an 19 unknown device by collecting limited signaling information from devices in the simulator operator's 20 vicinity. This technology is one tool among many traditional law enforcement techniques available to 21 law enforcement. In support of the FBI San Francisco Division's Technical Program, I have been 22 trained in the operation of cell site simulator technology. 23 (5) In general, cell site simulators function by transmitting as a cell tower. In response to the 24 signals emitted by the simulator, cellular devices in the proximity of the device identify the simulator as 25 the most "attractive" cell tower in the area and thus transmit signals to the simulator that identify the 26 device in the same way that they would with a networked tower. 27 28 (6) A cell site simulator receives and uses an industry standard unique identifying number assigned by a device manufacturer or cellular network provider. When used to locate a known cellular FBI DECLARATION CR 13-00818 PJH 1 Case 4:13-cr-00818-PJH Document 225-1 Filed 08/22/16 Page 3 of 5 1 device (as occurred in this case), a cell site simulator initially receives the unique identifying numbers 2 from multiple devices in the vicinity of the simulator. For the provider in this case, this number is 3 known as a Mobile Identification Number ("MIN"). 1 Once the cell site simulator identifies the specific 4 cellular device for which it is looking, it will obtain the signaling information relating only to that 5 particular phone. 6 (7) By transmitting as a cell tower, cell site simulators acquire the identifying information 7 from cellular devices. This identifying information is limited, however. Cell site simulators provide 8 only the relative signal strength and general direction of a subject cellular telephone; they do not 9 function as a GPS locator, as they do not obtaui or download any location information from the device 10 or its applications. Moreover, cell site simulators used by Federal, state, and local law enforcement 11 agencies must be configured as pen registers, and may not be used to collect the contents of any 12 communication, in accordance with 18 U.S.C. § 3127(3). This includes any data contained on the phone 13 itself. The cell site simulator does not remotely capture e-mails, texts, contact lists, images, or other data 14 from the phone, nor does it, as configured, provide subscriber account information (such as an account 15 holder's name, address, or telephone number). 16 (8) On January 22, 2013, I received a telephonic request from a FBI Oakland Residence 17 Agency criminal squad located in Oakland, California. To the best of my knowledge, I believe I 18 received this request around 7 :00 AM. The request indicated that an Oakland Police Officer had been 19 shot in the vicinity of 1759 Seminary Street, Oakland, California and that the subject had not been 20 apprehended. I was notified that Oakland Police Department was requesting FBI assistance in the use 21 of its cell site simulator. 22 (9) In response to that request, I contacted the telephone carrier of the subject cellular 23 telephone and completed the required exigent circumstance request form to obtain a pen register/trap 24 trace and subscriber information, including the MIN, for phone number 510-904-7509 to assist in 25 26 27 28 I The MIN is generally different than the phone number of the device, though sometimes it can be the same. My review of subscriber information for the targeted device in this case indicates that the MIN was not the same as the target phone number. For devices other than the targeted device, however, I would not have known at the time whether the MINs encountered by the cell site simulator were the same as the device phone numbers or different. FBI DECLARATION CR 13-00818 PJH 2 Case 4:13-cr-00818-PJH Document 225-1 Filed 08/22/16 Page 4 of 5 1 locating the cellular telephone in conjunction with the cell site simulator. I simultaneously requested 2 FBI approval to deploy the cell site simulator in support of Oakland Police Department. 3 4 (10) Upon FBI approval to deploy the cell site simulator, I believe I arrived in the vicinity of 1759 Seminary Street, Oakland, California, at approximately 9:00 a.m., on January 22, 2013, with 5 another FBI Special Agent who is also trained to operate the cell site simulator. At approximately 10:00 6 a.m., the cell site simulator was powered on and operated for approximately one (1) hour. It was 7 configured to look for the MIN for phone number 510-904-7509. After that, the cell site simulator was 8 shutdown. 9 (11) Upon powering the cell site simulator on, it detected the presence of the subject cellular 10 telephone within the apartment building located at 1759 Seminary Street, Oakland, California. Once the 11 cell site simulator identified the subject cellular device, it only obtained the signaling information 12 relating to that particular phone. As previously noted, such signaling information did not include 13 content such as e-mails, texts, contact lists, images, or other data from the phone, nor did it provide 14 subscriber account information. 15 (12) At one point, in an effort to reduce the error radius and increase the accuracy of the 16 location of the cellular telephone, a cell site simulator augmentation device was deployed into the 17 interior of the apartment building. This device is used in conjunction with the cell site simulator and has 18 no data storage capability whatsoever. As before, during this operation of the cell site simulator, only 19 limited signaling data and identifying information was collected from the targeted cellular telephone. At 20 all times during the deployment of the cell site simulator and the augmentation device, the equipment 21 and I were located in publicly accessible areas in and around the target apartment building. 22 23 (13) In line with general FBI policy and practice, the cell site simulator equipment was not configured to collect any content contained on or transmitted by the target device or any other device in 24 the vicinity, e.g. e-mails, texts, contact lists, images, or other data from the phone. In addition, the cell 25 site simulator, as configured, did not collect subscriber account information (such as an account holder's 26 name, address, or the telephone number associated with the device) or collect voice or other audio 27 communications from any device in the area, .including the targeted device. 28 // FBI DECLARATION CR 13-00818 PJH 3 Case 4:13-cr-00818-PJH Document 225-1 Filed 08/22/16 Page 5 of 5 1 (14) Pursuant to FBI policy, all data for this incident was purged at approximately 11 :00 a.m. 2 on January 22, 2013, once I had been learned that the subject was arrested and in custody. Purging is, 3 done by the FBI as an additional, internal procedural safeguard: 4 1. to ensure that the privacy rights of innocent third parties are maintained; 5 2. to ensure that the FBI does not store or maintain data beyond the scope of its legal 6 7 8 authorization; 3. to ensure that the FBI does not retain information about individuals who are not the subject of criminal or national security investigation; and 9 4. to promptly preserve the operational use of the equipment (the equipment cannot be used 10 on another mission until the data from prior missions has been purged. Otherwise, the 11 data from the prior missions would be co-mingled with the non-purged data from prior 12 missions, interfering with the effective use of the data pertaining to each, individual 13 operation). 14 Consistent with these policy goals, no data was retained in the cell site simulator regarding the subject 15 matter of the operation described above. 16 17 18 Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing it true and correct to the best of my knowledge. Executed this 22nd day of August, 2016 in Martinez, California. 19 20 21 Special Agent Federal Bureau of Investigation 22 23 24 25 26 27 28 FBI DECLARATION CR 13-00818 PJH 4