Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 1 of 39 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 UNITED STATES OF AMERICA, 9 Case No. 13-CR-00818 PJH v. 8 PURVIS LAMAR ELLIS, et al., Defendants. 10 PRETRIAL ORDER NO. 3 DENYING MOTIONS TO SUPPRESS Doc. nos. 304, 307 United States District Court Northern District of California 11 12 On August 2, 2017, the court held a hearing on the motions of defendant Purvis 13 14 Lamar Ellis to suppress evidence obtained from use of Stingrays on behalf of all 15 defendants; to suppress evidence seized from Apartment 212 on behalf of all defendants; 16 and to sever. The court DENIED Ellis’s motion to sever for the reasons stated on the 17 record. Doc. no. 306. Having considered the relevant legal authority, the papers, 18 argument of counsel, and the evidence in the record, the court DENIES the motions to 19 suppress, doc. nos. 304, 307, for the reasons stated at the hearing and set forth below. 20 I. Motion to Suppress Evidence Obtained from Use of Cell Site Simulators 21 Ellis moves on behalf of all defendants to suppress any and all evidence obtained 22 or derived from the use of cell site simulators (“CSS”), generally referred to as Stingrays. 23 Doc. no. 304. As described in the Department of Justice Policy Guidance (“DOJ Policy”) 24 cited by Ellis, a CSS functions by transmitting as a cell tower, such that cell phones in its 25 proximity transmit signals to the CSS, which the cell phones identify as the most 26 attractive cell tower in the area. Doc. no. 304 at 3-5 (citing United States v. Patrick, 842 27 F.3d 540, 542–43 (7th Cir. 2016) (quoting DOJ Policy, Sept. 3, 2015), reh’g and reh’g en 28 banc denied (May 9, 2017)). “When used to locate a known cellular device, a cell-site Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 2 of 39 1 simulator initially receives the unique identifying number from multiple devices in the 2 vicinity of the simulator. Once the cell-site simulator identifies the specific cellular device 3 for which it is looking, it will obtain the signaling information relating only to that particular 4 phone.” Id. (internal marks omitted). See also doc. no. 321, Ex. G ¶ 6 and Ex. I ¶ 6. United States District Court Northern District of California 5 As supported by the record, Ellis has shown that the Oakland Police Department 6 (“OPD”) and the Federal Bureau of Investigation (“FBI”) each used a Stingray to locate 7 Ellis’s cell phone starting in the early morning hours of January 22, 2013, following the 8 shooting of an OPD officer the evening of January 21, 2013. Ellis contends that the use 9 of these Stingrays amounted to a warrantless search requiring suppression of any 10 evidence obtained or derived from the Stingrays, and/or an evidentiary hearing. Ellis 11 further contends that the use of the Stingrays likely intercepted communications in 12 violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 13 14 15 A. Fourth Amendment Search 1. Legal Standard The Fourth Amendment provides in relevant part that “[t]he right of the people to 16 be secure in their persons, houses, papers, and effects, against unreasonable searches 17 and seizures, shall not be violated.” United States v. Jones, 565 U.S. 400, 404 (2012). 18 The proponent of a motion to suppress has the burden of establishing that his own Fourth 19 Amendment rights were violated by the challenged search or seizure. Simmons v. United 20 States, 390 U.S. 377, 389-390 (1968). 21 The Supreme Court recognizes two tests to determine whether a “search” within 22 the meaning of the Fourth Amendment occurred. Jones, 565 U.S. at 411. The first is the 23 “classic” common-law trespass test, as applied by the Court in Jones. 565 U.S. at 404- 24 05. Under that property-based approach, government actions amount to a search when 25 “[they] physically occupy private property for the purpose of obtaining information” without 26 consent. Id. The Court explained that before Justice Harlan’s concurrence in Katz 27 articulated the “reasonable expectation of privacy” standard, “for most of our history the 28 Fourth Amendment was understood to embody a particular concern for government 2 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 3 of 39 1 trespass upon the areas (“persons, houses, papers, and effects”) it enumerates.” Jones, 2 565 U.S. at 406. The Court in Jones held that attachment of a Global Positioning System 3 (GPS) tracking device to a vehicle, and the subsequent use of that device to monitor the 4 vehicle’s movements on public streets, was a search within the meaning of the Fourth 5 Amendment, reasoning that “[t]he Government physically occupied private property for 6 the purpose of obtaining information. We have no doubt that such a physical intrusion 7 would have been considered a ‘search’ within the meaning of the Fourth Amendment 8 when it was adopted.” Id. at 404-05 (citation omitted). 9 Second, under the reasonable expectation of privacy test, the Fourth Amendment 10 protects against an unreasonable search of an area in which (1) a person exhibits actual, 11 subjective expectation of privacy, and (2) the expectation is one that society is prepared 12 to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., 13 concurring). Under Katz, the capacity to claim Fourth Amendment protection does not 14 strictly depend on a property right in the invaded place, but whether the person asserting 15 the claim has a legitimate expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 143 16 (1978) (citing Katz, 389 U.S. at 353). 17 18 2. Use of Stingray Constitutes a Search Ellis asserts several grounds for determining that the use of the Stingray to locate 19 his cell phone in real time amounted to a Fourth Amendment search requiring issuance of 20 a warrant: that the Stingray intruded into the constitutionally protected area of a private 21 residence and that the Stingray violated Ellis’s privacy interests both in the use and 22 location of his cell phone and in his public movements. 23 In his reply, Ellis raises the argument that the government is bound by its 24 concession in other cases that the use of a Stingray amounts to a search. Doc. no. 324 25 at 2-3. However, the court finds that these concessions were limited for the purposes of 26 each particular case, and do not amount to a binding admission by the government. See 27 Patrick, 842 F.3d at 544, 545 (where the government conceded that use of a cell site 28 simulator is a search for purposes of that litigation, the court noted that questions about 3 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 4 of 39 1 whether use of a simulator amounts to a search “have yet to be addressed by any United 2 States court of appeals,” reserving the issue). 3 United States District Court Northern District of California 4 a. Standing As a threshold matter, the government contends that only Ellis has standing to 5 challenge the use of a Stingray to locate his cell phone, and that no other defendant has 6 standing to bring a motion to suppress. To the extent that Ellis challenges the potential 7 collection of signals from phones used by non-parties, the government correctly points 8 out that Ellis lacks standing to invoke the privacy rights of anyone else whose cell phone 9 may have been located by the Stingrays. In light of the record showing that two 10 Stingrays were used to locate Ellis’s cell phone, and no other defendant’s cell phone, 11 Ellis alone has standing to bring the instant motion to suppress evidence obtained 12 through use of Stingrays. See Rakas, 439 U.S. at 133-34 (“Fourth Amendment rights are 13 personal rights which, like some other constitutional rights, may not be vicariously 14 asserted.”) (citation and marks omitted). 15 16 b. Intrusion on Private Residence Starting with the Jones trespassory approach, Ellis argues that the government’s 17 use of the Stingrays to monitor and track his phone was a search under the Fourth 18 Amendment because the Stingrays emitted signals that penetrated the walls of private 19 dwellings that were not open to visual surveillance. Doc. no. 304 at 15 (citing United 20 States v. Karo, 468 U.S. 705, 714 (1984) and Kyllo v. United States, 533 U.S. 27, 29 21 (2001)). In Karo, the Court held that the warrantless “monitoring of a beeper in a private 22 residence, a location not open to visual surveillance, violates the Fourth Amendment 23 rights of those who have a justifiable interest in the privacy of the residence.” In Kyllo, 24 the Court held that use of a thermal-imaging device aimed at a private home from a 25 public street to detect relative amounts of heat within the home constitutes a “search” 26 within the meaning of the Fourth Amendment, reasoning that “obtaining by sense- 27 enhancing technology any information regarding the interior of the home that could not 28 otherwise have been obtained without physical ‘intrusion into a constitutionally protected 4 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 5 of 39 1 area’ [ ] constitutes a search—at least where (as here) the technology in question is not 2 in general public use.” 533 U.S. at 34 (quoting Silverman v. United States, 365 U.S. 505, 3 512 (1961)). Ellis argues that because a Stingray emits signals that penetrate the walls 4 of constitutionally protected spaces, it amounts to trespass and constitutes a search 5 under Silverman, 365 U.S. at 511-12 (holding that attaching a spike mike to a heating 6 duct of a home was a search, reasoning that technical trespass is not necessary for 7 Fourth Amendment violation but “actual intrusion into a constitutionally protected area” is 8 sufficient) and Jones, 565 U.S. at 410 (holding that warrantless installation of GPS device 9 to vehicle encroached on a protected area in violation of Fourth Amendment). United States District Court Northern District of California 10 The government responds that Ellis lacks standing to assert any protected interest 11 in the apartment where he was located because he was in someone else’s home when 12 the Stingray located his cell phone, not his own residence which was known to be 13 Apartment 212. Opp. at 6. If Ellis had been in someone else’s private residence at the 14 time his cell phone was located by the Stingray, he could not strictly assert a violation of 15 any property-based or privacy-related interest in that residence. See Kyllo, 533 U.S. at 16 34-35 and Karo, 468 U.S. at 714. 17 Ellis argues that there is no evidence in the record to support the government’s 18 position that Ellis was not in his own home when his cell phone location was detected at 19 a specific apartment. The record indicates that Ellis and other occupants of Apartment 20 112 were escorted out of the building at around 10:52 am, but it is not clear from the 21 record where Ellis was located when the Stingray tracked his cell phone location. The 22 evidence in the record only suggests that the Stingray, in conjunction with “a cell site 23 simulator augmentation device,” located Ellis’s cell phone at a particular location that is 24 not identified in the declarations. See doc. no. 321, Ex. I (declaration of unnamed FBI 25 Special Agent whose identifying information was redacted to protect his identity, see doc. 26 no. 244 (8/8/16 transcript) at 15-16; previously submitted in this case as doc. no. 225-1). 27 The record is therefore insufficient to determine whether Ellis had any protectable 28 interest in the residence where his cell phone was located. It is unnecessary to decide 5 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 6 of 39 1 this issue of Ellis’s standing to claim Fourth Amendment protection for the private 2 residence, however, because Ellis does have standing to challenge the use of the 3 Stingray to locate his cell phone based on a reasonable expectation of privacy in one’s 4 real-time cell phone location, as discussed below. c. 5 of Cell Phones 6 7 Under the Katz test, Ellis has demonstrated that the use of the Stingray devices 8 amounted to a search in violation of a reasonable expectation of privacy in the real-time 9 location of his cell phone. 10 United States District Court Northern District of California Reasonable Expectation of Privacy in Real-Time Location The Ninth Circuit has not decided the question presented here whether use of cell 11 site simulators to locate cell phones in real time amounts to a search, nor the issue 12 whether there is a reasonable expectation of privacy in one’s cell phone location. In 13 Patrick, the first circuit court opinion to address the use of Stingrays, the Seventh Circuit 14 noted that the issue remains unsettled as to whether the use of cell site simulators 15 amounts to a search, by analogy to GPS locators which are treated as searches when 16 police enter private property to install them under Jones, and which may impinge on 17 expectations of privacy when used for long-term monitoring. Patrick, 842 F.3d at 543-44 18 (citing Jones, 565 U.S. at 413-31 (concurring opinions of Sotomayor and Alito, JJ.)). The 19 court in Patrick also discussed the competing view that the use of cell site simulators is 20 more like the use of a pen register, which is not a search because it reveals the making 21 of a call and the number called but not the call’s communicative content, or the use of a 22 beeper, which is not a search because it reveals a suspect’s location but nothing else. 23 Id. (citing Smith v. Maryland, 442 U.S. 735 (1979), and United States v. Knotts, 460 U.S. 24 276 (1983)). Patrick did not, however, decide this question because the government 25 “conceded for the purpose of this litigation that use of a cell-site simulator is a search.” 26 Id. at 544. 27 28 In the absence of controlling authority, Ellis suggests that Riley v. California, 134 S. Ct. 2473, 2489-90 (2014), should be extended to recognize a protected privacy 6 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 7 of 39 1 interest in the use and location of cell phones. The Court in Riley held that a warrant is 2 generally required to search the information on a cell phone, recognizing the privacy 3 interests in the kinds of data stored on or accessed through modern cell phones, but did 4 not go so far as to hold that the Fourth Amendment protects the use or location of a cell 5 phone in real time. 6 The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video— that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone. 7 8 9 10 United States District Court Northern District of California 11 12 13 14 Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. . . . According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. . . . [I]t is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. . . . 15 16 17 18 19 Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. . . . Data on a cell phone can also reveal where a person has been. . . . 20 21 22 Riley, 134 S. Ct. at 2489–90 (footnote and citations omitted). Though this discussion is 23 instructive, Riley did not recognize a protected privacy interest in one’s cell phone use or 24 location. 25 On a related issue, several judges in this district have recognized a right to privacy 26 in historical cell site location information (“CSLI”) that is collected by cellular service 27 providers. CSLI is generated by the radio signals emanated by a cell phone to the 28 closest cell tower in the cellular service network, as described more fully by Judge Koh in 7 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 8 of 39 1 In re Application for Telephone Information Needed for a Criminal Investigation, 119 F. 2 Supp. 3d 1011, 1013-15 (N.D. Cal. 2015), No. 15-xr-90304 HRL (LHK), doc. no. 30, 3 appeal dismissed (Feb. 5, 2016). “The resulting CSLI includes the precise location of the 4 cell tower and cell site serving the subject cell phone during each voice call, text 5 message or data connection,” and may be generated even without the user’s interaction 6 with the cell phone. Id. at 1014 (citations omitted). United States District Court Northern District of California 7 Judge Illston addressed the privacy interests in such information in United States 8 v. Cooper, 2015 WL 881578 (N.D. Cal., Mar. 2, 2015), No. 13-cr-693 SI, doc. no. 117. 9 There, the defendant moved to suppress evidence obtained from collecting historical and 10 prospective, or real-time, cell site location information without a warrant. Judge Illston 11 recognized that cell phone users have a reasonable expectation of privacy in their 12 physical location as conveyed by historical CSLI that is protected by the Fourth 13 Amendment. Id. at *6-11 (citing United States v. Davis, 754 F.3d 1205, 1215 (11th Cir.), 14 vacated, 573 Fed. Appx. 925 (11th Cir. 2014), and reheard en banc in part, 785 F.3d 498 15 (11th Cir. 2015)). Judge Illston did not reach the Fourth Amendment issue with respect 16 to prospective CSLI, but held, as further discussed below at pp. 16-17, that by application 17 of the Communications Assistance of Law Enforcement Act (“CALEA”), 47 U.S.C. 18 § 1002(a)(2), the pen register statute did not authorize access to call-identifying 19 information from telecommunications carriers that may disclose the subscriber’s physical 20 location, and that a showing of probable cause was required to obtain prospective cell 21 site data. Id. at *3-6. Although the government had not obtained a warrant, the court 22 denied the motions to suppress upon finding that the agents relied in good faith on the 23 magistrate judge’s order authorizing a pen register. Id. at *11-12. 24 Judge Koh also held that cell phone users have a reasonable expectation of 25 privacy in historical CSLI, requiring a warrant to obtain such information absent case- 26 specific exceptions. In re Appl. for Tel. Info., 119 F. Supp. 3d at 1025-26. There, the 27 government submitted an application to Magistrate Judge Lloyd for an order authorizing it 28 to obtain both historical and prospective CSLI for target cell phones pursuant to the 8 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 9 of 39 1 Stored Communications Act (“SCA”), 18 U.S.C. § 2703(d), which sets forth a “specific 2 and articulable facts” standard that requires a lesser showing than probable cause. 3 Following Cooper, Magistrate Judge Lloyd denied the application and required the 4 government to obtain a search warrant to obtain cell site information, whether historical or 5 prospective. No. 15-xr-90304 HRL (LHK), doc. no. 2. 6 7 application for historical CSLI. In affirming that decision, Judge Koh articulated several 8 Fourth Amendment principles based on Supreme Court precedent: 9 10 11 United States District Court Northern District of California The government appealed Magistrate Judge Lloyd’s denial with respect to the 12 (1) an individual’s expectation of privacy is at its pinnacle when government surveillance intrudes on the home; (2) longterm electronic surveillance by the government implicates an individual’s expectation of privacy; and (3) location data generated by cell phones, which are ubiquitous in this day and age, can reveal a wealth of private information about an individual. 13 In re Appl. for Tel. Info., 119 F. Supp. 3d at 1022. Applying those principles to the 14 government’s application for historical CSLI, Judge Koh determined that the information 15 sought by the government was arguably more invasive of an individual’s expectation of 16 privacy than the GPS device attached to the defendant’s car in Jones, noting that when 17 the government uses CSLI data to obtain information about one’s location and 18 movements, (1) “an individual will invariably enter constitutionally protected areas, such 19 as private residences” and (2) the government would “get more information, more data 20 points, on the cell phone via historical CSLI” compared to GPS tracking of a car, because 21 cell phones typically accompany the user wherever she goes. Id. at 1023 (internal marks 22 omitted). Applying the Katz test, Judge Koh considered evidence demonstrating that 23 individuals have a subjective expectation of privacy in the historical CSLI associated with 24 their cell phones, and determined that society is prepared to recognize that expectation 25 as objectively reasonable, citing state court decisions recognizing a reasonable 26 expectation of privacy in CSLI. Id. at 1024-26. Upon determining that the third party 27 doctrine did not defeat that reasonable expectation of privacy, and that no exception to 28 9 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 10 of 39 1 the warrant requirement was applicable, Judge Koh held that the Fourth Amendment 2 requires the government to secure a warrant to obtain historical CSLI. Id. at 1040. In United States v. Williams, et al., 2016 WL 492934 (N.D. Cal. Feb. 9, 2016), No. 3 4 13-cr-764 WHO, doc. no. 874, Judge Orrick followed In re Application for Telephone 5 Information and Cooper to recognize a reasonable expectation of privacy in one’s 6 historical CSLI, requiring probable cause to obtain the historical CSLI from the four 7 moving defendants’ cell phones. Having determined that the government submitted 8 several applications pursuant to the SCA under the lower “specific and articulable facts” 9 standard rather than the probable cause standard, Judge Orrick held that the good faith 10 reliance exception applied and denied the motions to suppress.1 2016 WL 492934 at *2. On the specific issue presented here whether using a Stingray to locate a cell United States District Court Northern District of California 11 12 phone amounts to a search, the district court for the Southern District of New York held 13 that the DEA’s use of a CSS to locate a defendant’s apartment “was an unreasonable 14 search because the ‘pings’ from [the defendant’s] cell phone to the nearest cell site were 15 not readily available ‘to anyone who wanted to look’ without the use of a cell-site 16 simulator.” United States v. Lambis, 197 F. Supp. 3d 606, 610 (S.D.N.Y. 2016) (quoting 17 Knotts, 460 U.S. at 281), appeal withdrawn (Mar. 13, 2017). The court in Lambis rejected 18 the government’s contention that there was no reasonable expectation of privacy under 19 the third party doctrine, reasoning that the location information detected by a cell-site 20 simulator is “neither initiated by the user nor sent to a third party,” unlike pen register 21 information that is conveyed to a telephone company or cellular provider. 197 F. Supp. 22 23 24 25 26 27 28 1 By separate order, doc. no. 873, Judge Orrick granted another defendant’s motion to suppress historical CSLI obtained under a warrant, which the court determined was not supported by probable cause, having recognized a reasonable expectation of privacy in one’s historical CSLI. United States v. Williams, 161 F. Supp. 3d 846, 850-57 (N.D. Cal.) (order granting A. Gilton’s motion to suppress cell phone data) (citing In re Appl. for Tel. Info. and Cooper), appeal docketed, No. 16-10109 (9th Cir. March 11, 2016). The Ninth Circuit recently withdrew submission of the appeal from the suppression order pending the Supreme Court’s decision in Carpenter v. United States, No. 16-402, which presents the question whether warrantless search and seizure of historical cell phone records revealing the location and movements of cell phones is permitted under the Fourth Amendment. Williams, CR 13-cr-764 WHO, doc. no. 1194. 10 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 11 of 39 1 3d at 614-15. See also State v. Andrews, 227 Md. App. 350, 393 (2016) (holding that 2 people have a reasonable expectation of privacy in real-time cell phone location 3 information, and requiring a search warrant to use a CSS); State v. Tate, 357 Wis. 2d 172 4 (2014) (assuming, without deciding, that use of a Stingray amounted to a Fourth 5 Amendment search requiring a warrant, and holding that the pen register order was 6 sufficiently particularized and based on probable cause). United States District Court Northern District of California 7 The government relies on recent circuit court decisions that tracking cell site 8 location information from phone companies is not a search because there is no 9 reasonable expectation of privacy in information shared with cellular service providers 10 under the third party doctrine. United States v. Graham, 824 F.3d 421, 435-38 (4th Cir. 11 2016) (en banc), pets. for cert. filed sub nom Graham v. United States, No. 16-6308 12 (Sept. 26, 2016) and Jordan v. United States, No. 16-6694 (Oct. 27, 2016); United States 13 v. Carpenter, 819 F.3d 880, 888 (6th Cir. 2016), cert. granted sub nom Carpenter v. 14 United States, No. 16-402 (June 5, 2017). Distinguishing these cases, the court in 15 Lambis reasoned that unlike CSLI obtained by the wireless carriers, CSS technology has 16 “an additional layer of involuntariness” that renders the third party doctrine inapplicable: 17 18 19 20 Unlike CSLI, the “pings” picked up by the cell-site simulator are not transmitted in the normal course of the phone’s operation. Rather, “cell site simulators actively locate phones by forcing them to repeatedly transmit their unique identifying electronic serial numbers, and then calculating the signal strength until the target phone is pinpointed.” 21 Lambis, 197 F. Supp. 3d at 615 (quoting Andrews, 227 Md. App. at 359 n.4). The court 22 in Lambis also determined that unlike pen register information or CSLI, “a cell-site 23 simulator does not involve a third party.” Id. at 616. “With the cell-site simulator, the 24 Government cuts out the middleman and obtains the information directly.” Id. See also 25 Patrick, 842 F.3d at 543 (noting that by using CSS technology, “law-enforcement officials 26 get the same sort of information that a phone company could provide using its own 27 facilities, and they get it in real time rather than waiting for the phone company to turn 28 11 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 12 of 39 1 over data”). For the reasons articulated in Lambis, the circuit court decisions applying the 2 third party doctrine to historical CSLI are inapposite. 3 The court adopts Judge Koh’s reasoning in In re Application for Telephone 4 Information, 119 F. Supp. 3d at 1026, to hold that cell phone users have an expectation 5 of privacy in their cell phone location in real time and that society is prepared to recognize 6 that expectation as reasonable. While Judge Koh limited her analysis to the privacy 7 interest in historical CSLI, the court determines that cell phone users have an even 8 stronger privacy interest in real time location information associated with their cell 9 phones, which act as a close proxy to one’s actual physical location because most cell 10 phone users keep their phones on their person or within reach, as the Supreme Court 11 recognized in Riley. In light of the persuasive authority of Lambis, and the reasoning of 12 my learned colleagues on this court recognizing a privacy interest in historical cell site 13 location information, the court holds that Ellis had a reasonable expectation of privacy in 14 his real-time cell phone location, and that use of the Stingray devices to locate his cell 15 phone amounted to a search requiring a warrant, absent an exception to the warrant 16 requirement. 17 d. Privacy Interest in One’s Public Movements 18 Ellis further argues that because a Stingray can track an individual’s location by 19 locating his cell phone with an accuracy of about two meters, its use infringed upon his 20 reasonable expectation of privacy in one’s public movements, as considered by Justice 21 Sotomayor in her concurring opinion in Jones: “GPS monitoring generates a precise, 22 comprehensive record of a person’s public movements that reflects a wealth of detail 23 about her familial, political, professional, religious, and sexual associations. . . . I would 24 take these attributes of GPS monitoring into account when considering the existence of a 25 reasonable societal expectation of privacy in the sum of one’s public movements.” Doc. 26 no. 304 at 16 (citing Jones, 565 U.S. at 415-16 (Sotomayor, J., concurring)). The Court 27 in Jones did not reach the question whether the Fourth Amendment protects a privacy 28 interest in one’s public movements, and even Justice Sotomayor did not attempt to 12 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 13 of 39 1 resolve these “difficult questions” because “the Government’s physical intrusion on 2 Jones’ Jeep supplies a narrower basis for decision.” Id. at 418. Accordingly, Ellis fails to 3 establish that a reasonable expectation of privacy in one’s public movements that is 4 protected under the Fourth Amendment has been recognized by any court. 5 B. Pen Register Procedures 6 The government argues that even if use of the Stingray devices amounted to a 7 search, the search was reasonable because it was conducted pursuant to the emergency 8 provisions of the pen register statute, in combination with provisions of the Stored 9 Communications Act. The government further argues that a warrant was not required to 10 conduct the search pursuant to the exception for exigent circumstances, and that the 11 exceptions to the exclusionary rule for good faith reliance and/or inevitable discovery are 12 also applicable. 13 The pen register statute and the SCA set forth different standards to authorize 14 different methods of electronic surveillance. The provisions for authorizing a pen register 15 and/or a trap and trace device under Title III of the Electronic Communications Privacy 16 Act of 1986 (“ECPA”), codified as amended at 18 U.S.C. §§ 3121-3127 (referred to 17 throughout as the “pen register statute”), require a government attorney merely to “certify” 18 the relevance of the information likely to be obtained, without requiring a factual basis for 19 the certification. 18 U.S.C. §§ 3122 and 3123 (requiring the court to enter “an ex parte 20 order authorizing the installation and use of a pen register or trap and trace device 21 anywhere within the United States, if the court finds that the attorney for the Government 22 has certified to the court that the information likely to be obtained by such installation and 23 use is relevant to an ongoing criminal investigation”). The SCA, enacted under Title II of 24 the ECPA, as amended, provides that the government may require a provider of 25 electronic communication service or remote computing service to disclose a subscriber’s 26 records, without the contents of communications, by obtaining either (A) a warrant, or (B) 27 a court order upon a showing of “specific and articulable facts showing . . . reasonable 28 grounds to believe that . . . the records or other information sought, are relevant and 13 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 14 of 39 1 material to an ongoing criminal investigation.” 18 U.S.C. §§ 2703(c)(1) and (d). The 2 “specific and articulable facts” standard under the SCA requires a higher showing than 3 the certification required by the pen register statute, but does not require probable cause. 4 Under the emergency provisions of the pen register statute, a law enforcement 5 officer who reasonably determines that an emergency situation exists may have a pen 6 register or trap and trace device installed without a prior court order only if an order 7 approving the installation or use is issued within forty-eight hours after the installation has 8 occurred, or begins to occur. 18 U.S.C. § 3125. The provision for “Emergency Pen 9 Register And Trap And Trace Device Installation” narrowly defines a covered 10 “emergency” to involve specific circumstances, two of which the government asserts 11 authorized the use of the emergency provisions here: (A) immediate danger of death or 12 serious bodily injury to any person; and (B) conspiratorial activities characteristic of 13 organized crime. 18 U.S.C. §§ 3125(a)(1)(A) and (B). The officers’ sworn statements, 14 including affidavits filed under seal in this case, establish that the OPD had reason to 15 believe that there was an emergency where (A) the immediate safety of officers and/or 16 public citizens was at risk and (B) the emergency involved the conspiratorial activities of 17 organized crime, based on information that Ellis was a known member of a gang who 18 was involved in an attempted murder at a bus stop on January 20, who was near the 19 shooting of a police officer earlier that evening on January 21, and who was believed to 20 be in possession of guns. 21 It is undisputed that the OPD and FBI did not seek issuance of a search warrant to 22 operate the Stingray devices, but only obtained an order authorizing pen register and/or 23 trap and trace devices (the “pen register order”). Here, the state court judge issued an 24 order pursuant to both the SCA and the pen register statute (“18 United States Code 25 Section 2703(c)(d), 3122, 3123”) requiring the service providers to provide the FBI and 26 the OPD with pen registers “to register numbers dialed or pulsed[,] to record the date and 27 time[,] to record the length of time[,] and to receive cell site and/or location sites,” as well 28 as trap and trace devices, for the target phone number which the application 14 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 15 of 39 1 demonstrated was used by Ellis. Doc. no. 321, Ex. F. The court order also required the 2 wireless carriers to provide, “on an ongoing and/or real-time basis, the location of cell 3 site/sector (physical address) at call origination (for outbound calls), call termination (for 4 incoming calls), and, during the progress of a call, the direction and strength of a signal” 5 for the target phone. The government does not contend that the order authorizing the 6 use of pen register and/or trap and trace devices here was supported by a finding of 7 probable cause. The pen register order does not make a probable cause finding, but 8 only a finding of “specific and articulable facts establishing reasonable grounds to believe 9 the listed records are relevant and material to an ongoing criminal investigation” pursuant 10 United States District Court Northern District of California 11 to the SCA, 18 U.S.C. §§ 2703(c)(1)(B) and (d). Doc. no. 321, Ex. F. Ellis contends that the pen register order was not sufficient to authorize the use of 12 the Stingray devices, which required a warrant. As an initial matter, Ellis challenges the 13 government’s factual assertion that the Stingrays were configured as pen registers and/or 14 trap and trace devices, doc. no. 321 at 9 and Exs. G-J, given that Stingrays also have the 15 capability of intercepting the content of communications, not just information about 16 numbers dialed in or dialed out. Doc. no. 324 at 3. See 18 U.S.C. § 3127(3) and (4) 17 (defining pen register as a device which “records or decodes dialing, routing, addressing, 18 or signaling information” transmitted by the target phone on outgoing calls, and a trap and 19 trace as a device which captures information from incoming calls made to the target 20 phone, but not contents of any communication). Although Ellis seeks supporting 21 evidence about how the specific Stingray devices were configured and the capabilities of 22 each device, the sworn affidavits of the OPD and FBI agents are sufficient to establish 23 that the Stingrays used here were configured as pen registers and/or trap and trace 24 devices and were not capable of capturing any content. Doc. no. 321 at 9 and Exs. G-J. 25 There is no evidence in the record suggesting that the Stingrays captured the content of 26 any communications, and an evidentiary hearing to determine the mechanical details 27 about the Stingray devices is not warranted. 28 15 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 16 of 39 United States District Court Northern District of California 1 Ellis further argues that even if the government had obtained a search warrant 2 authorizing the use of the Stingrays, the warrant would be invalid for lack of particularity 3 because a cell site simulator is capable of collecting information from anyone’s phone 4 that was within range. Doc. no. 304 at 19. He suggests that the FBI and OPD used the 5 Stingrays to monitor potentially hundreds of individuals’ phone calls. Id. at 22. This is a 6 purely speculative argument given the sworn affidavits of the Stingray operators stating 7 that the devices were configured to look for the phone number that belonged to Ellis. 8 Doc. no. 321, Exs. G ¶ 8 (OPD officer) and I ¶ 10 (FBI agent). There is no evidence to 9 suggest that Stingrays were set up to sweep all cell phones in the area, and such a 10 configuration would be inconsistent with the purpose for using the Stingrays, which was 11 to find Ellis by locating his cell phone. 12 The government contends that since the Stingray devices used in this case were 13 configured in compliance with the pen register statute, then the provisions of the pen 14 register statute, including the “emergency” provisions, govern their operation. Doc. no. 15 321 at 9 (citing 18 U.S.C. § 3125). The government does not address the key issue in 16 dispute, namely, whether the provisions of the pen register statute and the SCA provide 17 the appropriate standard for using a CSS to locate a cell phone in real-time. The court 18 follows Judge Illston’s determination in Cooper, 2015 WL 881578, that the provisions of 19 the pen register statute and the SCA do not authorize the use of a CSS to disclose real- 20 time information about a cell phone user’s physical location, and that such location 21 monitoring must be authorized by a showing of probable cause. 22 In Cooper, the government collected both historical and prospective CSLI from 23 Metro PCS pursuant to orders authorizing pen register, trap and trace, and cell site data, 24 without the use of Stingrays or similar devices, and the defendant challenged the failure 25 to show probable cause to obtain cell site data. With respect to obtaining prospective 26 CSLI, the government argued in Cooper that it was not required to show probable cause 27 but only needed to satisfy the provisions of the pen register statute, 18 U.S.C. § 3123, 28 and the SCA, 18 U.S.C. § 2703(d). 16 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 17 of 39 United States District Court Northern District of California 1 With respect to real time CSLI, Judge Illston held that under the CALEA, which 2 amended the ECPA, the government is prohibited from relying solely on the provisions of 3 the pen register statute to obtain cell site data that discloses the physical location of the 4 subscriber. Cooper, 2015 WL 881578 at *3 (citing 47 U.S.C. § 1002(a)(2)(B) (“with 5 regard to information acquired solely pursuant to the authority for pen registers and trap 6 and trace devices [ ], such call-identifying information shall not include any information 7 that may disclose the physical location of the subscriber)). Judge Illston noted that the 8 CALEA did not explicitly establish a standard for obtaining cell site data, and applied the 9 “default” probable cause standard of Rule 41 of the Federal Rules of Criminal Procedure. 10 Id. (citations omitted). See Fed. R. Crim. P. 41(d)(1) (“After receiving an affidavit or other 11 information, a magistrate judge--or if authorized by Rule 41(b), a judge of a state court of 12 record--must issue the warrant if there is probable cause to search for and seize a person 13 or property or to install and use a tracking device.”). Judge Illston rejected the 14 government’s hybrid theory that combining the SCA with the pen register statute to obtain 15 prospective cell site data would comply with the CALEA, reasoning that Congress 16 intended that the SCA “was to be used as a means to obtain data which has already 17 been stored at the time the government seeks to obtain it,” as opposed to real-time data. 18 Cooper, 2015 WL 881578 at *4-5 (emphasis added). 19 Here, the government has provided declarations stating that the OPD and FBI 20 configured the Stingray devices to locate the target cell phone, not broadly tracking all 21 cell phone signals in the apartment building, making the Stingray use here similar to use 22 of a beeper that was tracked inside a home, as in Karo, 468 U.S. at 715 (“the monitoring 23 indicated that the beeper was inside the house, a fact that could not have been visually 24 verified”). Given the undisputed fact that the Stingray devices were configured to locate 25 Ellis’s cell phone, the court adopts Judge Illston’s reasoning in Cooper to hold that by 26 application of 47 U.S.C. § 1002(a)(2), the pen register statute in combination with the 27 SCA does not authorize obtaining cell phone location information through pen register or 28 trap and trace devices, and that a warrant supported by a showing of probable cause is 17 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 18 of 39 1 required to use a Stingray to locate a cell phone. The court further holds that the 2 “specific and articulable facts” standard under the SCA does not govern the use of a 3 Stingray on the separate ground that the SCA authorizes the disclosure of 4 communications or records kept by third party service providers, not direct surveillance of 5 cell phone location by the government. United States District Court Northern District of California 6 The government raises a cursory argument that the search of Ellis’s cell phone 7 location information was a valid probation search, contending that the more intrusive 8 search of the contents of his cell phone was valid under the four-way search condition of 9 his probation. Doc. no. 321 at 16 (citing 10/29/15 Order, hereby designated “Pretrial 10 Order No. 2,” at 19). The government cites no authority for this proposition, given that 11 the privacy interest in one’s cell phone location, which could be a proxy for one’s 12 personal location, is more akin to the privacy interests against GPS tracking or GPS 13 monitoring, which was not a condition of Ellis’s probation. 14 Accordingly, the warrantless searches were unreasonable, unless the exigent 15 circumstances exception to the warrant requirement applies. If the court finds that no 16 exception to the warrant requirement applies, the government seeks an exception from 17 the exclusionary rule for good faith reliance or inevitable discovery. 18 C. 19 The government argues that if a warrant was required to use a Stingray to locate a 20 cell phone, the warrantless searches here were reasonable due to exigent circumstances 21 which relieved law enforcement of the warrant requirement. Doc. no. 321 at 10 (citing 22 Kentucky v. King, 563 U.S. 452, 460 (2011) and Murdock v. Stout, 54 F.3d 1437, 1441 23 (9th Cir. 1995), abrogated on other grounds by United States v. Ramirez, 523 U.S. 65, 69- 24 70 (1998)). The government identifies several factors known to law enforcement to 25 demonstrate exigent circumstances at the time the OPD and FBI deployed the Stingrays: 26 Exception to Warrant Requirement for Exigent Circumstances i. Ellis was identified by an eyewitness as the get-away driver in an attempted murder on January 20, 2013; ii. The same eyewitness identified the license plate number of the car Ellis was driving, and that car was located in the rear lot of the 27 28 18 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 19 of 39 apartment building where Ellis lived; 1 iii. The next day, an Oakland police officer investigating the get-away car was attacked, beaten, and shot while Ellis stood in the driveway of the apartments; iv. Ellis was in the driveway when the assault occurred; v. The guns stolen from the officer were in Ellis’s room; vi. In the days immediately preceding the shooting, Ellis was in possession of a large number of firearms; 7 vii. Ellis was a known member of a gang with a violent history; and 8 viii. Ellis lived at the 1759 Seminary Apartment complex, but officers did not know his location. 2 3 4 5 6 United States District Court Northern District of California 9 10 Doc. no. 321 at 8. Having reviewed the affidavits in the record, including the unredacted 11 search warrant affidavits and pen register application filed ex parte under seal, the court 12 determines that these circumstances were known to OPD officers by the early morning of 13 January 22, 2013, when the first Stingray was deployed. See doc. no. 321, Ex. M (under 14 seal). Ellis disputes the government’s factual assertions (iii) and (iv) suggesting that he 15 was involved in the assault and shooting of the OPD officer. Doc. no. 324 at 2. Officer 16 Saunders’ redacted pen register application indicates, however, that B.O.T., known to be 17 Ellis, was “in the driveway when the shooting happened.” Doc. no. 304, Ex. I. 18 Under the exigency exception to the warrant requirement, officers may make a 19 warrantless search if: (1) they have probable cause to believe that the item or place to be 20 searched contains evidence of a crime, and (2) they are facing exigent circumstances 21 that require immediate police action. United States v. Camou, 773 F.3d 932, 940 (9th 22 Cir. 2014). Exigent circumstances are defined as “‘those circumstances that would cause 23 a reasonable person to believe that entry [or search] ... was necessary to prevent 24 physical harm to the officers or other persons, the destruction of relevant evidence, the 25 escape of the suspect, or some other consequence improperly frustrating legitimate law 26 enforcement efforts.’” Id. (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th 27 Cir. 1984) (en banc), overruled on other grounds by Estate of Merchant v. Comm’r, 947 28 F.2d 1390, 1392–93 (9th Cir. 1991)). “To be reasonable, a search under this exception 19 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 20 of 39 1 must be limited in scope so that it is ‘strictly circumscribed by the exigencies which justify 2 its initiation.’” Id. (quoting Mincey v. Arizona, 437 U.S. 385, 393 (1978)). United States District Court Northern District of California 3 Ellis disputes that any exigencies justified use of the Stingrays without a warrant 4 sometime after 2:11 a.m., where earlier that evening, by 8:45 p.m., Ellis and other 5 suspects had already been determined to be in the apartment building which had been 6 surrounded by the SWAT team “to contain any suspects.” Doc. no. 324, Ex. C. Ellis also 7 points out that the officers had time to apply for and obtain three separate search 8 warrants late at night and into the morning, particularly the warrant to search Apartments 9 108, 110 and 112, which Judge Horner issued at 1:05 am, indicating that the situation did 10 not prevent the OPD and FBI from seeking court authorization to use the Stingrays. Doc. 11 no. 324 at 7; doc. no. 321, Ex. B (search warrant). 12 Because the OPD and FBI proceeded on the premise that the Stingrays were 13 subject to the emergency provisions of the pen register statute, rather than a warrant 14 requirement, the government contends that the officers followed the statutory procedures 15 by securing an order authorizing use of the Stingray devices within 48 hours of using the 16 device. Doc. no. 321 at 9-10 (citing 18 U.S.C. § 3125). The order was issued on January 17 22, 2013, the same day the Stingrays were used, although the exact time the order was 18 issued is not known. 19 The government argues that exigent circumstances excused the requirement to 20 obtain a warrant to locate Ellis’s cell phone, but Ellis responds that he was not known to 21 have assaulted or directly threatened violence against the victim in either of the 22 shootings. The record demonstrates, however, that Ellis was a known suspect involved 23 as a getaway driver in the January 20 shooting and was near the January 21 shooting in 24 the driveway. Though Ellis was not known to be the shooter, he was believed to be a 25 suspect in possession of firearms. The need to prevent escape by a suspect presented 26 exigent circumstances here. McConney, 728 F.2d at 1199. Although Ellis was not 27 involved in an armed standoff situation, the timeline of events and the facts presented in 28 the unredacted pen register application demonstrate that law enforcement officers on the 20 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 21 of 39 1 scene believed that any unnecessary delay in finding Ellis would endanger their lives or 2 the safety of others and/or that speed was essential to prevent his escape. See Fisher v. 3 City of San Jose, 558 F.3d 1069, 1075 (9th Cir. 2009) (en banc) (where exigent 4 circumstances justified seizure of the suspect who was seen pointing a rifle at police 5 officers, loading his rifles, and arranging them strategically throughout his apartment to 6 repel any entry by the police, police were not required to obtain an arrest warrant to take 7 the suspect into full physical custody over twelve hours later). 8 9 10 United States District Court Northern District of California 11 The declarations and documents in support of the government’s opposition, doc. no. 321, indicate the following sequence of events on the night of January 21 to January 22, 2013, as cited below. 9:00 pm At about 9:00 pm, the Stingray operator for the OPD arrived at the scene, and helped deploy the SWAT robots soon after arriving. Ex. G ¶ 10. 10:41 pm Police held a perimeter on the apartment building at 1759 Seminary, and continued to search nearby houses, roofs, yards and a creek. 8/17/15 Order at 9. 11:15 pm OPD prepared an Exigent Circumstance Request to MetroPCS asking for call detail records, cell sites and pen register information for Ellis’s cell phone number. Ex. A. 11:55 pm Officers end the yard search and focus on 1759 Seminary. 8/17/15 Order at 9. 1:05 am Judge Horner signed the warrant authorizing the search of Apartments 108, 110, and 212. Ex. B. 1:47 am OPD starts making announcements for “everyone to stay away frm windows,” and preparing to send bean bags into Apartment 212. Doc. no. 304, Ex. M (CAD reports). 2:11 am OPD Officer Saunders faxed a Pen Worksheet for Ellis’s number to Metro PCS, asking to “start pen register if phone is active and being used,” implying that the pen register had not yet been provided. Ex. C. Sometime after that request was faxed, OPD obtained the pen register information and deployed the Stingray. Ex. G ¶¶ 11, 12 (indicating the OPD Stingray operator did not begin operating the Stingray until after OPD obtained the pen register information from the telephone provider, and began operating the Stingray sometime after midnight in the early hours). 3:41 am OPD searched Apartment 212, finding both handguns taken from Officer K. plus a third pistol, and keys to the white Dodge Avenger 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 22 of 39 getaway car from the January 20 daytime shooting. 8/17/15 Order at 10. 1 2 7:00 am At approximately 7:00 am, the FBI Stingray operator was notified that OPD requested assistance from the FBI in the use of its cell site simulator. Ex. I ¶ 8. 7:30 am The FBI sent MetroPCS an Exigent Circumstances Request for pen register information on Ellis’s phone. Ex. D; Ex. I ¶ 9. 9:00 am The FBI Stingray operator arrived at the scene. Ex. I ¶ 10. 10:00 am OPD powered off its Stingray and purged the data, and the FBI began operating its Stingray. Ex. G ¶ 13, 15; Ex. I ¶ 10. The FBI Stingray was operated for about one hour before Ellis’s phone was located. Ex. I ¶ 10. 10:52 am Apartment 112 was cleared, and Ellis and the other occupants were escorted out. Ex. L (radio purge excerpt) 3 4 5 6 7 8 9 10 Ellis suggests that OPD had sufficient time to obtain a warrant to deploy the Stingrays as 11 United States District Court Northern District of California demonstrated by the issuance of the search warrant for Apartments 108, 110 and 212 in 12 the early hours of January 22. To explain why a warrant or pen register order was not 13 obtained before deploying the Stingrays, the government has demonstrated that OPD 14 proceeded under the emergency pen register procedures and that OPD otherwise would 15 have needed to wait until normal business hours to submit a pen register order to 16 MetroPCS. Doc. no. 321, Ex. K. Indeed, it is worth noting that the factual basis for 17 demonstrating probable cause for issuance of the warrant authorizing the search of Ellis’s 18 apartment would have likely been found to support probable cause for the OPD to use 19 the Stingray device to locate Ellis by locating his cell phone, if a separate warrant had 20 been sought, based on the showing of a fair probability that evidence of a crime would be 21 found. Illinois v. Gates, 462 U.S. 213, 238 (1983). See doc. no. 307, Ex. E (search 22 warrant affidavit sworn at 1:05 a.m. on 1/22/2013). 23 Ellis also suggests that there was no exigency requiring a warrantless search to 24 prevent flight and to prevent harm to the officers and others because OPD knew that Ellis 25 was somewhere inside the apartment building, rather than outside where police had 26 conducted a search of nearby houses and yards. However, OPD obtained a warrant to 27 search Ellis’s residence, Apartment 212, and he was not there, leaving the entire building 28 22 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 23 of 39 1 to remain under siege all night as OPD continued to look for Ellis. Under these 2 circumstances, the use of the Stingray by OPD to locate Ellis’s cell phone was justified by 3 exigent circumstances, based on risk of flight and the belief that Ellis was in possession 4 of firearms. The FBI’s use of the second Stingray device was a continuation of the 5 OPD’s initial search for Ellis’s cell phone location. See Fisher, 558 F.3d at 1077-78 6 (“officers were not required to periodically reassess whether the exigency persisted 7 throughout the standoff because the standoff was ‘no more than an actual continuation’ 8 of the actual seizure” and the exigent circumstances did not materially change) (citing 9 Michigan v. Tyler, 436 U.S. 499, 511 (1978) (warrantless entry into burning building to 10 extinguish fire and conduct search to determine its cause was justified by exigency, and 11 warrantless post-fire search four hours later, despite the absence of exigent 12 circumstances, was upheld as a continuation of the initial search); United States v. 13 Echegoyen, 799 F.2d 1271, 1280 (9th Cir. 1986) (where exigent circumstances justified 14 initial warrantless entry, subsequent entry by narcotics officers to inspect the premises for 15 a possible fire hazard was merely a continuation of the initial lawful entry because both 16 were done to alleviate the exigent circumstances)). Cf. Michigan v. Clifford, 464 U.S. 17 287, 296 (1984) (post-fire search for evidence of arson “was not a continuation of an 18 earlier search” where the homeowners made a reasonable effort to secure their fire- 19 damaged home after the blaze was extinguished and the fire and police units left the 20 scene about six hours earlier, distinguishing Tyler). 21 Accordingly, the court determines that a warrant was not required to deploy the 22 Stingrays to locate Ellis’s cell phone under the exigent circumstances that existed the 23 morning of January 22, 2013. Ellis’s motion to suppress evidence obtained from use of 24 the Stingrays is therefore DENIED. 25 Notwithstanding this determination, the court proceeds to consider the exceptions 26 to the exclusionary rule for good faith reliance and/or inevitable discovery asserted by the 27 government as separate grounds for denying the motion to suppress. 28 23 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 24 of 39 1 2 Exceptions to Exclusionary Rule 1. Good Faith Reliance 3 The government argues that even if a warrant had been required to authorize the 4 use of the Stingrays, the OPD officers and FBI agents reasonably relied in good faith on 5 the pen register order, issued under the emergency procedures of the pen register 6 statute, 18 U.S.C. § 3125, to use the Stingrays to locate Ellis’s cell phone. 7 United States District Court Northern District of California D. The “good faith” exception to the exclusionary rule established by United States v. 8 Leon, 468 U.S. 897 (1984), is satisfied if an officer acts “in objectively reasonable 9 reliance” on a defective warrant. See United States v. Underwood, 725 F.3d 1076, 1084 10 (9th Cir. 2013). “To determine whether the officer acted in objectively reasonable 11 reliance, ‘all of the circumstances - including whether the warrant application had 12 previously been rejected by a different magistrate - may be considered.’” Id. (citing Leon, 13 468 U.S. at 922 n. 23; Messerschmidt v. Millender, 565 U.S. 535, 132 S. Ct. 1235, 1249- 14 50 (2012)). The burden of demonstrating good faith rests with the government. Id. 15 The Court in Leon identified four situations that per se fail to satisfy the good faith 16 exception: (1) where the affiant recklessly or knowingly placed false information in the 17 affidavit that misled the issuing judge; (2) where the judge “wholly abandon[s] his [or her] 18 judicial role”; (3) where the affidavit is “so lacking in indicia of probable cause as to render 19 official belief in its existence entirely unreasonable” (in other words, a “bare bones” 20 affidavit); and (4) where the warrant is “so facially deficient - i.e., in failing to particularize 21 the place to be searched or the things to be seized - that the executing officers cannot 22 reasonably presume it to be valid.” Underwood, 725 F.3d at 1085 (citing Leon, 468 U.S. 23 at 922-23) (internal quotation marks omitted). “In these situations, ‘the officer will have 24 no reasonable grounds for believing that the warrant was properly issued.’” Id. (quoting 25 Leon, 468 U.S. at 922–23). 26 Ellis argues that any good faith reliance argument is foreclosed by the fact that 27 Officer Saunders’s application failed to disclose to the issuing judge that the OPD and 28 FBI planned to use the Stingray devices, rather than more traditional pen register and 24 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 25 of 39 1 trap and trace methods. Ellis points out that the pen register application does not, on its 2 face, seek authorization to use a Stingray. Doc. no. 324 at 4-5. Under Ninth Circuit 3 authority, however, the particular means of executing a warrant need not be specifically 4 authorized, though it is subject to judicial review for reasonableness if challenged. United 5 States v. Chen, 979 F.2d 714, 720 (9th Cir. 1992) (following Dalia v. United States, 441 6 U.S. 238, 258-59 (1979) (“It would extend the Warrant Clause to the extreme to require 7 that, whenever it is reasonably likely that Fourth Amendment rights may be affected in 8 more than one way, the court must set forth precisely the procedures to be followed by 9 the executing officers.”)). In Dalia, the Court held that the Fourth Amendment requires 10 that search warrants must be issued by neutral, disinterested magistrates; that those 11 seeking the warrant must demonstrate to the magistrate their probable cause to believe 12 that the evidence sought will aid in a particular apprehension or conviction for a particular 13 offense; and that warrants must particularly describe the things to be seized, as well as 14 the place to be searched, but do not require “a specification of the precise manner in 15 which they are to be executed.” Dalia, 441 U.S. at 255, 257 (citations and internal marks 16 omitted). See Patrick, 842 F.3d at 544 (“neither constitutional text nor precedent 17 suggests that ‘search warrants also must include a specification of the precise manner in 18 which they are to be executed’”) (citing Richards v. Wisconsin, 520 U.S. 385 (1997) and 19 Dalia, 441 U.S. at 256). In light of this authority, it was reasonable for Officer Saunders 20 not to disclose the particular manner of execution in his application for a pen register 21 order authorizing location information for Ellis’s cell phone, including cell site/sector 22 location and “direction and strength of a signal” for his telephone number. 23 Ellis also challenges the pen register order on the ground that the order 24 authorizing use of the devices for a period of 30 days from the date of the order could not 25 have authorized the use of any device before the order was signed on January 22, 2013, 26 but the government has explained that the statutory provisions for emergency pen 27 register applications permit such post hoc authorization. 18 U.S.C. § 3125. Ellis further 28 challenges the pen register order because the government has failed to produce the 25 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 26 of 39 1 original, but the lack of an original does not warrant suppression in light of other evidence 2 in the record demonstrating that the pen register order was issued by Judge Horner. United States District Court Northern District of California 3 Here, there are no indicia of bad faith where the Stingray operators have attested 4 that the OPD and FBI configured the Stingrays as pen registers, without capturing any 5 content of communications, and sought authorization under the pen register statute in 6 combination with the SCA. The government points out that under then-existing FBI 7 policy, a warrant was not required before using a cell site simulator. See doc. no. 304 8 Ex. B (FBI Electronic Surveillance Manual at 41). The excerpt of a manual cited by Ellis 9 further instructed that cell site simulators were covered by the definition of a pen register 10 in 18 U.S.C. § 3127(3) as amended by the USA Patriot Act of 2001, Pub.L. 107–56, 11 October 26, 2001, 115 Stat. 272. Doc. no. 304, Ex. O (USABook). That DOJ policy has 12 since been amended, effective September 3, 2015, to require a warrant to operate a 13 CSS. See Lambis, 197 F. Supp. 3d at 611. 14 At the time the CSS technology was used in this case, there was no controlling 15 authority as to whether its use constituted a search requiring issuance of a warrant. In 16 this district, Judge Illston’s unpublished decision in Cooper, 2015 WL 881578, requiring a 17 showing of probable cause to obtain prospective cell site location information, was not 18 issued until two years after the Stingrays were used in this case in January 2013. 19 On the other hand, there is out-of-district authority indicating that prior to 2013, the 20 government applied for tracking warrants within this district, supported by a showing of 21 probable cause, to use mobile tracking devices that acted like cell site simulators. In 22 Rigmaiden, the government obtained a tracking warrant in this district issued in 2008 by 23 then-Magistrate Judge Seeborg to use a mobile tracking device which functioned as a 24 cell site simulator to locate the defendant’s aircard. United States v. Rigmaiden 25 (“Rigmaiden I”), 844 F. Supp. 2d 982, 995 (D. Ariz. 2012) (“The mobile tracking device 26 mimicked a Verizon Wireless cell tower and sent signals to, and received signals from, 27 the aircard.”). The government conceded there, for purposes of the defendant’s requests 28 for discovery related to his suppression motions, that the aircard tracking operation was a 26 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 27 of 39 1 Fourth Amendment search and seizure and that the government would rely on the Rule 2 41 tracking warrant, application, and affidavit to authorize the use of the tracking device 3 to communicate directly with the defendant’s aircard and determine its location. Id. at 4 996 (citing In re Application of the US for an Order Authorizing the Use and Monitoring of 5 a Mobile Tracking Device, No. 08-xr-90330-RS (N.D. Cal.)). After conducting an ex parte 6 hearing, and in light of the government’s factual admissions and concessions, the 7 Arizona district court denied the defendant’s motions for disclosures and additional 8 discovery. See id. at 1005 (“The Court concludes that Defendant has ample information 9 with which to construct his Fourth Amendment arguments.”). The court subsequently 10 denied Rigmaiden’s motion to suppress evidence with respect to the FBI’s use of the 11 mobile tracking device after determining that the tracking warrant was supported by 12 probable cause. United States v. Rigmaiden (“Rigmaiden II”), 2013 WL 1932800 (D. 13 Ariz. May 8, 2013). The court in Rigmaiden II initially determined that the defendant did 14 not have a reasonable expectation of privacy in the aircard that was obtained through 15 fraud. 2013 WL 1932800 at *6-9. The Arizona district court did not, however, reach the 16 issue whether use of a CSS required a warrant even if there was a protected privacy 17 interest because the government conceded that use of a CSS-type mobile tracking 18 device to track the aircard was a Fourth Amendment search and relied on a warrant, 19 which the court found was supported by probable cause and sufficient particularity. 20 Prior to 2013, the few out-of-district courts presented with the question whether 21 law enforcement was required to obtain a warrant or a pen register/trap and trace order 22 to operate a cell site simulator, or similar device, issued differing opinions. Compare In re 23 Application of the U.S. for an Order Authorizing Use of a Cellular Telephone Digital 24 Analyzer (“In re Appl. Digital Analyzer”), 885 F. Supp. 197, 202 (C.D. Cal. 1995) (holding 25 that no court order is required for law enforcement agents to use a digital analyzer to 26 detect only the electronic serial number and phone number of the subject cellular 27 telephone and the numbers being called, but, to the extent an order could be fashioned, 28 requiring certain provisions analogous to an order authorizing a pen register and trap and 27 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 28 of 39 1 trace device pursuant to 18 U.S.C. § 3123(b)) with In re Application of the U.S. for an 2 Order Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, 890 F. 3 Supp. 2d 747, 748 (S.D. Tex. 2012) (denying application for order authorizing the 4 installation and use of a pen register and trap and trace device to operate “stingray” in the 5 absence of authority that pen register statute, rather than warrant requirement, applies to 6 stingray equipment) (citing In re Appl. Digital Analyzer). United States District Court Northern District of California 7 In determining whether to apply the exclusionary rule in the absence of settled 8 authority applicable to the use of new investigative technology, the court considers the 9 Supreme Court’s observation that “under Leon’s good faith exception, we have ‘never 10 applied’ the exclusionary rule to suppress evidence obtained as a result of nonculpable, 11 innocent police conduct.” Davis v. United States, 564 U.S. 229, 240 (2011) (citing 12 Herring v. United States, 555 U.S. 135, 144 (2009)). 13 14 15 16 17 18 When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. [Herring, 555 U.S. at 144.] But when the police act with an objectively “reasonable good-faith belief” that their conduct is lawful, Leon, [468 U.S.] at 909, or when their conduct involves only simple, “isolated” negligence, Herring, supra, at 137, the “‘deterrence rationale loses much of its force,’” and exclusion cannot “pay its way.” See Leon, supra, at 919, 908, n. 6 [internal citation omitted]. 19 Id. at 238. Here, the law enforcement officers took steps to obtain court authorization 20 under the pen register procedures that they believed were applicable to use of the 21 Stingrays for tracking the location of Ellis’s cell phone. Officer Saunders’s application did 22 not mislead the issuing judge about the purpose of the pen register order, which included 23 locating Ellis’s cell phone with information about “cell site and/or location sites” and “on 24 an ongoing and/or real-time basis, the location of cell site/sector (physical address)” for 25 outbound and incoming calls and “the direction and strength of a signal” during a call in 26 progress. The application articulated specific facts and circumstances giving rise to the 27 need to locate Ellis and his coconspirators. The pen register order did not amount to a 28 28 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 29 of 39 1 mere “rubber stamp” or otherwise indicate that the judge wholly abandoned his judicial 2 role in approving the pen register application. United States District Court Northern District of California 3 Under the totality of the circumstances, where the state court judge had reviewed 4 a detailed affidavit which he found demonstrated probable cause to issue a search 5 warrant earlier that morning, at 1:05 a.m., the OPD and FBI Stingray operators 6 reasonably relied on the emergency pen register procedures to deploy the Stingray 7 devices. In particular, the FBI relied in objectively good faith on then-current DOJ policy 8 and practice construing the pen register statute to cover the use of cell site simulators. In 9 Illinois v. Krull, 480 U.S. 340, 349 (1987), the Supreme Court recognized that the Leon 10 exception applies if officers obtain evidence in objectively reasonable reliance on a 11 statute that is subsequently declared unconstitutional, reasoning that “[t]here is no basis 12 for applying the exclusionary rule to exclude evidence obtained when a law enforcement 13 officer acts in objectively reasonable reliance upon a statute, regardless of whether the 14 statute may be characterized as ‘substantive’ or ‘procedural.’” Id. at 356 n.12. In 15 weighing whether suppression would have significant deterrent effect, the court in Krull 16 determined as follows: 17 18 19 20 21 22 23 24 There is nothing to indicate that applying the exclusionary rule to evidence seized pursuant to the statute prior to the declaration of its invalidity will act as a significant, additional deterrent. Moreover, to the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against the “substantial social costs exacted by the exclusionary rule.” [Leon, 468 U.S. at 907.] When we indulge in such weighing, we are convinced that applying the exclusionary rule in this context is unjustified. Krull, 480 U.S. at 353. Because the FBI proceeded here under a mistaken understanding of the statute, 25 rather than a statute that has been found unconstitutional, Krull does not squarely apply. 26 However, the Krull analysis is instructive to determine whether applying the exclusionary 27 rule would have significant deterrent effect to warrant suppression of evidence. Law 28 enforcement’s view that the use of the Stingrays was authorized under the provisions of 29 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 30 of 39 1 the pen register statute, an unsettled question that has yet to be decided by any appellate 2 authority, is distinguishable from a mistaken understanding of the law supporting a belief 3 that a suspect has broken the law. Cf. United States v. Lopez-Soto, 205 F.3d 1101, 4 1106–07 (9th Cir. 2000) (officer lacked reasonable suspicion to stop defendant based on 5 mistaken belief about proper placement of registration sticker). While the court holds that 6 probable cause is required to use CSS devices to pinpoint the location of a cell phone, 7 the OPD and FBI’s reliance four years ago on the view that the pen register statute 8 governed the use of the Stingrays, which were configured so as not to capture any 9 content of communications, was not objectively unreasonable. 10 Where the OPD had applied for and obtained a search warrant for Ellis’s 11 apartment before the Stingrays were deployed, and Officer Saunders applied for a pen 12 register order that authorized wireless carriers to provide law enforcement with cell 13 site/sector location information for Ellis’s phone, for which the issuing judge did not 14 require a showing of probable cause, the OPD and FBI used the Stingrays in objectively 15 reasonable reliance on the emergency provisions of the pen register statute and the pen 16 register order. The court finds that the officers were acting “as a reasonable officer would 17 and should act in similar circumstances,” such that “excluding the evidence can in no way 18 affect [their] future conduct unless it is to make [them] less willing to do his duty,” so as to 19 warrant the good faith reliance exception. United States v. Crews, 502 F.3d 1130, 1136 20 n.4 (9th Cir. 2007) (citing Leon, 468 U.S. at 920) (internal marks omitted). Accordingly, 21 the motion to suppress is DENIED on this additional ground. 22 23 2. Inevitable Discovery The government also argues that under the inevitable discovery doctrine, Ellis 24 undoubtedly would have been located by the OPD inside the apartment building, even 25 without the use of the Stingray devices. 26 The inevitable discovery exception to the exclusionary rule permits the admission 27 of otherwise excluded evidence “if the government can prove that the evidence would 28 have been obtained inevitably and, therefore, would have been admitted regardless of 30 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 31 of 39 1 any overreaching by the police. . . .” United States v. Reilly, 224 F.3d 986, 994 (9th Cir. 2 2000) (quoting Nix v. Williams, 467 U.S. 431, 447 (1984)). “If the prosecution can 3 establish by a preponderance of the evidence that the information ultimately or inevitably 4 would have been discovered by lawful means . . . then the deterrence rationale has so 5 little basis that the evidence should be received.” Nix, 467 U.S. at 444. United States District Court Northern District of California 6 Here, the evidence in the record reflects that police officers and SWAT members 7 had established a perimeter around 1759 Seminary by at least 10:41 pm, according to 8 the CAD reports, well before the first Stingray device was deployed. They had also sent 9 in a robot and bean bags and instructed residents to stay away from the windows, 10 believing that suspects were inside the building. While the cell phone location 11 information obtained by the Stingrays facilitated locating Ellis in a specific apartment, 12 under these circumstances, the police would have eventually found Ellis inside and 13 apprehended him, even without the use of the Stingrays. See United States v. Takai, 14 943 F. Supp. 2d 1315, 1324–25 (D. Utah 2013) (denying motion to suppress based on 15 warrantless cellphone GPS pinging data from cellular providers pursuant to 18 U.S.C. 16 § 2702(c)(4), where the defendant’s location was already being staked out and discovery 17 was inevitable even absent the cellphone GPS pinging data). 18 19 Accordingly, the court finds that the inevitable discovery exception is a separate ground for DENYING the motion to suppress. 20 E. Failure to Disclose Stingray in Pen Register Application 21 Because the government relies on the pen register order to authorize the use of 22 the Stingrays, Ellis requests a Franks hearing based on the affiant’s misleading 23 omissions in the pen register application about the use of cell site simulators by the FBI 24 and OPD. Doc. no. 304 at 22 (citing Franks v. Delaware, 438 U.S. 154 (1978)). Ellis 25 argues that the officer failed to disclose to the state court judge that MetroPCS would not 26 be conducting the surveillance, but that the FBI and OPD would each use Stingrays to 27 locate Ellis’s phone. Ellis contends that the application fails to particularize the 28 information to be collected from the Stingrays or from whom. Id. Ellis also argues that 31 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 32 of 39 1 the OPD and FBI deliberately misled the state court judge by omitting any reference to 2 the use or capabilities of the Stingray devices in seeking the pen register order, and that 3 a Franks hearing is warranted by the government’s misleading statements to the court. 4 As discussed above with respect to good faith reliance on the pen register 5 procedures, Officer Saunders’s failure to explain that a Stingray device would be used by 6 law enforcement to locate the cell phone did not amount to a knowingly false statement 7 or reckless disregard for the truth, where such details of execution were not required to 8 be specified under Dalia, 441 U.S. at 258. In Patrick, the Seventh Circuit rejected a 9 defendant’s challenge to the failure of the police to disclose in a location-tracking warrant 10 application that they planned to use a cell-site simulator, implying that they would obtain 11 location information from his cell phone company’s data. Patrick, 842 F.3d at 544. The 12 court in Patrick held that under Dalia and Richards (holding that no-knock entry in 13 executing search warrant was reasonable under the circumstances even though the 14 issuing judge denied the request for advance authorization for no-knock entry), “the 15 police could have sought a warrant authorizing them to find [a suspect’s] cell phone and 16 kept silent about how they would do it.” Id. The Patrick court reasoned that under the 17 authority of Dalia and Richards, and other considerations, “the Fourth Amendment forbids 18 judges to attempt to regulate, ex ante, how a search must be conducted, and confines 19 the judiciary to ex post assessments of reasonableness.” Id. at 544-45 (citing Orin S. 20 Kerr, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241, 1260– 21 71 (2010)). See also United States v. Rigmaiden (“Rigmaiden III”), 2013 WL 4525252, *5 22 (D. Ariz. Aug. 27, 2013) (denying motion for reconsideration of denial of suppression 23 motion, rejecting arguments that the tracking warrant lacked particularity and that the 24 government violated its duty of candor by failing to disclose additional technical details of 25 the mobile tracking device used to locate the defendant’s aircard, following Dalia). 26 In light of these authorities, the omitted references to the Stingray devices at issue 27 do not demonstrate knowingly false statements or reckless omissions of material fact to 28 the state court so as to warrant an evidentiary hearing. See United States v. Stanert, 762 32 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 33 of 39 1 F.2d 775, 781 (9th Cir.), amended, 769 F.2d 1410 (9th Cir. 1985) (requiring “that the 2 defendant make a substantial showing that the affiant intentionally or recklessly omitted 3 facts required to prevent technically true statements in the affidavit from being 4 misleading” to warrant a hearing under Franks). Here, the pen register order authorized 5 the OPD and FBI to obtain real-time information about cell site/sector location and signal 6 direction and strength for Ellis’s phone, the purpose of which was to determine the 7 location of Ellis’s cell phone. Doc. no. 304, Ex. I. Under Dalia and Chen, and the 8 persuasive authority of Patrick, the OPD affiant was not required to disclose the use of 9 the Stingray devices to determine Ellis’s cell phone location. Accordingly, Ellis has not United States District Court Northern District of California 10 demonstrated that a Franks hearing is warranted. 11 F. 12 Ellis contends that if the Stingrays used by OPD and the FBI captured content or 13 were used as a microphone to pick up conversations, even if not recording or capturing 14 them, then their use violated Title III of the Omnibus Crime Control and Safe Streets Act 15 of 1968, 18 U.S.C. §§ 2510 et seq. Doc. no. 304 at 19-20. Title III requires an 16 application for an order authorizing interception of a wire, oral, or electronic 17 communication to establish probable cause to believe “that an individual is committing, 18 has committed, or is about to commit a particular offense,” and probable cause to believe 19 that “particular communications concerning that offense will be obtained” by intercepting 20 communications over the targeted facilities. 18 U.S.C. § 2518(3). Each application and 21 order must contain a “particular description of the type of communication sought to be 22 intercepted.” 18 U.S.C. §§ 2518(1)(b)(iii) and (4)(c). 23 Possibility of Interceptions in Violation of Title III It is undisputed that neither the OPD nor FBI applied for an order for electronic 24 surveillance under 18 U.S.C. § 2518, and that the state court order did not authorize 25 interception of communications from the target phone. Ellis points out that cell site 26 simulators are capable of intercepting conversations by using the target cell phone as a 27 microphone, and suggests that there is evidence to suggest that the police were listening 28 to conversations on his phone by using the Stingrays. See doc. no. 304, Ex. O 33 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 34 of 39 1 (USABook excerpt on electronic surveillance referring to the possibility of using Stingrays 2 to “intercept conversations using a suspect’s cell phone as the bug”). Ellis cites the 3 police radio recordings of officers discussing “some activity on the phone right now” and 4 that “he’s live on his uh every couple minutes.” Doc. no. 304-1 (Boersch Decl.) ¶ 19. 5 Ellis suggests that this evidence is inconsistent with the government’s representations 6 that the Stingrays used in this case did not capture or collect content, but he merely 7 speculates that the Stingrays were configured to intercept conversations through his cell 8 phone. The police officers’ conversation about activity on the phone does not support an 9 inference that the content of the conversations were being intercepted, particularly in light 10 of the declarations by law enforcement officers who attested that the Stingrays did not 11 obtain or collect content or communications from the target cell phone. 12 The unnamed OPD operator states in his declaration that the OPD’s cell site 13 simulator (1) ”was not configured to capture the content of any communications, including 14 data contained on the phone itself;” (2) “does not remotely capture e-mails, texts, contact 15 lists, images, or other data from the phone, nor does it, as configured, provide subscriber 16 account information;” and (3) “[t]he device used to locate the defendant’s cell phone 17 therefore did not capture, collect, decode, view or otherwise obtain any content 18 transmitted from the defendant’s cell phone or any others in the area.” Doc. no. 321, Ex. 19 G ¶ 8 and Ex. H. 20 Similarly, the unnamed FBI agent’s declaration indicates that “cell site simulators 21 used by Federal, state, and local law enforcement must be configured as pen registers, 22 and may not be used to collect the contents of any communication, in accordance with 18 23 U.S.C. § 3127(3)[, including] any data contained on the phone itself.” Doc. no. 321, Ex. I 24 ¶ 7. The FBI agent further states, “[t]he cell site simulator does not remotely capture e- 25 mails, texts, contact lists, images, or other data from the phone, nor does it, as 26 configured, provide subscriber account information (such as an account holder’s name, 27 address, or telephone number).” Id. With respect to the use of the FBI cell site simulator 28 on January 22, 2013, to locate Ellis’s cell phone, “it only obtained the signaling 34 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 35 of 39 1 information relating to that particular phone[;] such signaling information did not include 2 content such as e-mails, texts, contact lists, images, or other data from the phone, nor did 3 it provide subscriber account information.” Id. ¶ 11. The FBI agent attests that “[i]n line 4 with general FBI policy and practice,” the cell site simulator equipment was not 5 configured to collect (1) any content contained on or transmitted by the target device; 6 (2) subscriber account information; or (3) voice or other audio communications from any 7 device in the area, including the targeted device. Id. ¶ 13. See also doc. no. 321, Ex. J 8 ¶ 7 (Decl. of FBI Program Manager). 9 The evidence in the record is sufficient to determine that the cell site simulators 10 were not used to intercept conversations or other communications over cell phones in 11 violation of Title III. See United States v. Oliva, 705 F.3d 390, 397-400 (9th Cir. 2012) 12 (affirming denial of motion to suppress where defendant argued that orders authorizing 13 government to intercept wire communications to and from certain target phones under 14 Title III could have given the government broader authority to convert the targeted 15 phones into roving bugs or roving wiretaps, where the government disavowed such 16 surveillance). Ellis’s motion to suppress for violation of Title III is therefore DENIED. 17 II. 18 Ellis’s Motion to Suppress Evidence Seized from Apt. 212 Ellis seeks suppression of evidence seized from his apartment, No. 212, on the 19 ground that the government has failed to produce the original file-stamped search 20 warrant and warrant affidavit, and has thereby failed to demonstrate that the search of 21 Apartment 212 was conducted pursuant to a valid search warrant. Alternatively, Ellis 22 seeks suppression of the evidence given the extraordinary delay from when the search 23 was conducted and when the search warrant was returned and filed with the state court. 24 Doc. no. 307. 25 A. Lack of Original Warrant 26 Although the defense has not previously moved to suppress the search warrant for 27 lack of the original, the court has already addressed the validity of the search warrant for 28 Apartments 108, 110 and 212 in denying defendants’ earlier motions to suppress. 35 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 36 of 39 1 10/29/15 Order. In brief, the court found that after police responded to the shooting of a 2 police officer the evening of January 21, 2013, OPD secured the apartment complex and 3 obtained a valid search warrant, supported by a showing of probable cause, to search 4 Apartments 108, 110 and 212. Having reviewed the relevant evidence in the record, 5 including the factual statements in the unredacted search warrant affidavit based on 6 information provided by a confidential informant, filed under seal, the court determines 7 that despite the absence of an original file-stamped warrant, the record is sufficient to 8 determine that OPD conducted a search of Apartment 212 pursuant to a warrant. See 9 Gov’t Ex Parte Submission of Proposed Redactions to State Court Warrant Affidavits for 10 In Camera Review (filed under seal November 12, 2014). Defense counsel’s continued 11 objections to the court’s reliance on redacted information to determine the validity of the 12 search warrants are overruled in light of the government’s prior representations that the 13 informant will not be called to testify and the redacted information will not be offered at 14 trial to prove the charged conduct. See McCray v. Illinois, 386 U.S. 300, 311 (1967); 15 United States v. Fixen, 780 F.2d 1434, 1439 (9th Cir. 1986). 16 Ellis also points out inconsistencies in the search inventory and police reports, 17 doc. no. 307 at 15, such as Officer Milina’s failure to list the three handguns from 18 Apartment 212 in his report, Ex. Q, or the failure to list the handguns in the search 19 inventory, Ex. G. The government responds that Milina’s inventory does in fact refer to 20 “Box w/ 3 glock pistols” and that his report explains that he gave the firearms to 21 Technician Jaecksch, who documented them in her report, which explains the omission 22 of the guns from Milina’s property record, Ex. T. Doc. no. 322 at 9 (referring to Jaecksch 23 report at Bates 3447). 24 Ellis further takes issue with the fact that the police left a blank search warrant in 25 Apartment 212, which has no indication that portions were redacted, suggesting that 26 Judge Horner may have signed a blank warrant which would be overbroad. Doc. no. 325 27 at 3-4 and Reply Ex. A. This suggestion is purely speculative and unreasonable in light 28 of the record. The government cites Officer Milina’s declaration, filed in opposition to 36 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 37 of 39 1 Ellis’s earlier suppression motion, stating that he left a redacted version of the warrant 2 per OPD policy. Doc. no. 322 at 6-7 (citing doc. no. 95-4). The government also 3 compares the copy of the unredacted warrant produced to defendants with the redacted 4 copy left at the scene, and points out there are no discrepancies in Judge Horner’s 5 signature and date. Doc. no. 322 at 7. Even if the police had not provided Ellis with any 6 copy of the warrant, suppression of evidence obtained pursuant to a valid search warrant 7 would not be justified. United States v. Hector, 474 F.3d 1150, 1154-55 (9th Cir. 2007) 8 (“On its face, the Fourth Amendment does not require that a copy of the warrant be 9 served on the person whose premises are being searched.”) (citing United States v. 10 Banks, 540 U.S. 31, 35 (2003) (“The Fourth Amendment says nothing specific about 11 formalities in exercising a warrant’s authorization.”)). 12 The government has demonstrated that the OPD and FBI applied for, and 13 obtained, a search warrant for Apartment 212, as corroborated by the timeline of events 14 and the warrants that were issued contemporaneously. The years-long delay in locating 15 and filing the original warrant that was issued by the state court judge may raise concerns 16 about clerical operations after the search was conducted, but does not weigh against a 17 finding that the police searched Apartment 212 pursuant to a warrant. To the extent that 18 Ellis challenges the failure to produce the original warrant, the lack of an original may 19 impact admissibility of that document at trial, but does not so outweigh the evidence, 20 demonstrating that a warrant was issued, as to require suppression of the fruits of the 21 search. Under Ninth Circuit authority, “California courts uniformly recognize that statutory 22 provisions covering the filing and return of a search warrant are ministerial in nature, the 23 violation of which does not in itself invalidate an otherwise lawful search or require 24 suppression of evidence seized thereby, at least in the absence of demonstrated 25 prejudice to the defendant.” United States v. Towne, 997 F.2d 537, 542 n.3 (9th Cir. 26 1993) (where the court file was missing an attachment incorporated by reference in a 27 search warrant, court may consider extrinsic evidence to determine if attachment 28 accompanied warrant when search was authorized and carried out, and whether to treat 37 Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 38 of 39 1 the missing attachment as part of the warrant). As defense counsel concedes, there is 2 no state court authority requiring suppression as a remedy for failure to comply with the 3 search warrant return procedures. See People v. Head, 30 Cal. App. 4th 954, 958 (1994) 4 (“No California case has yet held that a late or otherwise faulty return violates the Fourth 5 Amendment.”). United States District Court Northern District of California 6 Accordingly, the fact that the original search warrant cannot be located in the state 7 court record does not establish that the warrant was invalid or that the search of 8 Apartment 212 was unreasonable. The motion to suppress the evidence seized from 9 Apartment 212 for lack of the original search warrant is therefore DENIED. 10 B. Prejudice from Delay 11 In the alternative, Ellis contends that he has been prejudiced by the government’s 12 delay of nearly four years in filing the return of the search warrant in state court, which 13 has led to extensive litigation over producing the file-stamped warrant to determine its 14 validity. He asserts that the delay has prejudiced all defendants by diverting time and 15 resources to litigating the issue and by extending the length of their pretrial detention, 16 particularly Ellis who has been in solitary confinement for most of that time. Ellis further 17 argues that the delay raises uncertainty over the discrepancies in the copies of the 18 search warrant and the police records related to the search, particularly given that 19 defense counsel still cannot locate the original search warrant in the state court file. 20 The government accepts responsibility for the delay, almost three years after this 21 case was commenced in December 2013, in realizing that the original search warrant 22 and Ellis’s arrest warrant had not been returned to the state court until September 2016 23 when they were discovered in the OPD’s files that were in the FBI’s custody. Doc. no. 24 322 at 4. 25 Though the delay in locating the original file-stamped search warrant for 26 Apartments 108, 110 and 212 is ongoing and is now approaching four years, Ellis has not 27 demonstrated prejudice from this delay in light of the record. In November 2014, the 28 court reviewed the search warrant affidavits in camera and approved certain redactions 38 United States District Court Northern District of California Case 4:13-cr-00818-PJH Document 337 Filed 08/24/17 Page 39 of 39 1 proposed by the government. The government represents that it produced a redacted 2 copy of the search warrant affidavit for Apartment 212 in December 2014, and a copy of 3 the warrant was subsequently produced in May 2015, after which the parties litigated 4 defendants’ pretrial motions, including motions to suppress. Doc. no. 322 at 2-3. Thus, 5 defendants have had copies of the search warrant and redacted affidavit for over two 6 years, enabling defendants to challenge the probable cause showing and prepare a 7 defense. Ellis has not shown that the lack of the original search warrant has been so 8 prejudicial as to merit suppression of the evidence. See United States v. Motz, 936 F.2d 9 1021, 1025 (9th Cir. 1991) (suppression not warranted where the agents executed a valid 10 search and the defendants “were not prejudiced by the agents’ failure to perform the 11 ministerial requirements” for return and inventory under Rule 41). 12 13 14 15 16 17 Accordingly, Ellis’s motion to suppress evidence seized from Apartment 212 on the ground of prejudicial delay is DENIED. IT IS SO ORDERED. Dated: August 24, 2017 _______________________________ PHYLLIS J. HAMILTON United States District Judge 18 19 20 21 22 23 24 25 26 27 28 39