2:15-cr-20652-GCS-DRG

Doc # 637

Filed 08/22/17

Pg 1 of 14

Pg ID 3213

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 15-20652-01
v.
Hon. GEORGE CARAM STEEH
BILLY ARNOLD,
Defendant.
/
DEFENDANT’S AMENDED MOTION TO SUPPRESS
Defendant BILLY ARNOLD, by his attorney, MARIA MANNARINO,
Amends his previously filed Motion to Suppress (ECF 583) and further moves this
Honorable Court to Suppress all evidence obtained by the Government as a result of
the warrantless seizure of records created and maintained by the Defendant’s wireless
carrier.
1) Defendant Billy Arnold is currently charged in 31 Counts of a 19-Defendant,
36-Count, Fourth Superseding Indictment. The Defendant is charged with:
2) Count One: 18 USC 1962(d): RICO Conspiracy;
3) Counts Four and Sixteen: 18 USC 1959(a)(1); 2:

Murder in Aid of

Racketeering;
4) Count Five: 18 USC 924(c); 924(j); 2: Use of Firearm in Furtherance of a
1

 2:15-cr-20652-GCS-DRG

Doc # 637

Filed 08/22/17

Pg 2 of 14

Pg ID 3214

Crime of Violence Causing Death;
5) Counts Six through Eight, Thirteen, Eighteen through Twenty, Twenty-five,
and Twenty-eight: 18 USC 1959(a)(5); 2: Attempted Murder in Aid of
Racketeering;
6) Counts Nine through Eleven, Fourteen, Twenty-one through Twenty-three,
Twenty-six, Twenty-nine and Thirty: 18 USC 1959(a)(3); 2: Assault with
a Dangerous Weapon in Aid of Racketeering;
7) Count Twelve, Fifteen, Seventeen, Twenty-four, Twenty-seven, Thirty-one,
and Thirty-two: 18 USC 924(c); 2: Uses and Carry of a Firearm During,
and in Relation to, a Crime of Violence; and
8) Count Thirty-three: 18 USC 922(g)(1): Felon in Possession of a Firearm.
9) The Defendant was originally arrested on September 26, 2015, at
approximately 1:55 a.m., after police officers saw Mr. Arnold leave a bar
in Detroit, and enter the front passenger seat of a Chevrolet Trailblazer
being driven by Mr. Steve Rumeal Arthur, Jr.. Police determined the
vehicle being driven by Mr. Arthur had been reported stolen on September
6, 2015, and attempted to stop the vehicle. (The vehicle had subsequently
been recovered by the owner, but police never removed the vehicle from
LIEN.) When police attempted to stop the vehicle driven by Mr. Arthur,
2

 2:15-cr-20652-GCS-DRG

Doc # 637

Filed 08/22/17

Pg 3 of 14

Pg ID 3215

he initially refused to stop and tried to flee. Mr. Arthur eventually stopped
the vehicle, but he exited the Trailblazer and fled on foot. Mr. Arthur was
pursued, and apprehended. Mr. Arnold was located by police still sitting in
the passenger seat of the vehicle. He was cooperative, and followed all
instructions. He was initially arrested for being in possession of a stolen
motor vehicle.
10)

After Mr. Arthur and Mr. Arnold were both taken into police custody, a
warrantless search of the Trailblazer by police revealed a gun in the rear,
tailgate area of the vehicle (a Bushmaster, Model XM15-E2S,
Serial#BFI468505, .223 caliber rifle, with a fully loaded 40-round
magazine). Also seized were six cell phones:
a. White Apple iPhone Model A1524, IMEI 359244062834263 (“Device
1”);
b. White

Samsung

Galaxy

S5

Model

SM-G900V,

IMEI

990004472042641 (“Device 2”);
c. Black Samsung Model SM-G386T1, Serial#354897067789025
(“Device 3”);
d. Black Kyocera Milano C5121, MEID 268435459913676805, ESN
12815630266 (“Device 4”);
3

 2:15-cr-20652-GCS-DRG

Doc # 637

Filed 08/22/17

Pg 4 of 14

Pg ID 3216

e. Black iPhone (Damaged back; unable to see Model or MEID) (“Device
5”); and
f. Black

LG

GLG440GB,

IMEI

014162-00-846250-1,

Serial

410CYYQ846250 (Located on Mr. Arnold’s person)(“Device 6”);
11)

Mr. Arnold (as well as Mr. Arthur) was subsequently charged, first by way
of a Criminal Complaint filed on September 26, 2015, and then on October
13, 2015, by Indictment, with being a felon in possession of the weapon
which was located in the rear compartment of the Trailblazer.

12)

The Government, subsequent to the arrest of Mr. Arnold, applied for a
search warrant, seeking “All information and records, contained (on the
devices) that relate to violations of 18 USC 1959(a)(1); 1959(a)(3);
1959(a0(5); 1962(a)-(d); 922(g); and 924(c) and 21 USC 841 and 846.”
The Government’s application was granted on October 7, 2015, by the
Honorable Anthony Patti, United States Magistrate Judge.

13)

A series of superseding Indictments followed, culminating with a Fourth
Superseding Indictment returned on December 15, 2016.

14)

Defendant Billy Arnold asserts that his arrest on September 26, 2015, was
without requisite cause, and any items seized following his illegal arrest
ought to be suppressed.
4

 2:15-cr-20652-GCS-DRG

15)

Doc # 637

Filed 08/22/17

Pg 5 of 14

Pg ID 3217

Defendant Billy Arnold further challenges the search of the cell phones
pursuant to the warrant thereafter issued.

16)

Counsel now further challenges in this Amended Motion, any evidence
obtained as a result of the following warrantless seizure: On December
23, 2014, nine months prior to his arrest, the Government had sought and
obtained an ex parte and Under Seal Court Order, pursuant to the Stored
Communications Act, 18 U.S.C. 2703(d), for the records and other
information held by Cellco Partnership dba Verizon Wireless, for the
records pertaining to telephone number 313-424-8378, a number the
Government associated with Defendant Arnold. Order Attached to this
Amended Motion as Exhibit 1.

17)

Defendant Billy Arnold further challenges any evidence obtained as a
result of the following warrantless seizure: On September 23, 2015, three
days prior to his arrest, the Government sought and obtained an ex parte
and Under Seal Court Order, pursuant to the Stored Communications Act,
18 U.S.C. 2703(d), for the records and other information held by Metro
PCS, for the records pertaining to telephone numbers (212) 470-1934 and
(212) 470-3434, numbers the Government associated with Defendant
Arnold. Order Attached to this Amended Motion as Exhibit 2.
5

 2:15-cr-20652-GCS-DRG

18)

Doc # 637

Filed 08/22/17

Pg 6 of 14

Pg ID 3218

Such Orders was entered without a finding of probable cause, and in
violation of the Fourth Amendment.

19)

The Defendant has sought the concurrence of the Assistant United States
Attorney in filing this Amended Motion, and the Government does not
object to the Amended Motion, but does not concur in the relief sought.

WHEREFORE, Defendant respectfully prays that the Court enter an Order
suppressing from trial in this matter the records obtained in violation of the
Fourth Amendment.
Respectfully Submitted,
s/ Maria Mannarino
Maria Mannarino P39531
431 Gratiot
Detroit, MI 48226
Telephone: (248) 761-7347
mmannarino@comcast.net
Dated: August 22, 2017

6

 2:15-cr-20652-GCS-DRG

Doc # 637

Filed 08/22/17

Pg 7 of 14

Pg ID 3219

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 15-20652-01
v.
Hon. GEORGE CARAM STEEH
BILLY ARNOLD,
Defendant.
/
BRIEF IN SUPPORT OF DEFENDANT’S MOTION
Issues presented: Whether the warrantless seizure and search of the
historical cell phone records is permitted by the Fourth Amendment?
ARGUMENT
The motion in support of which this brief is written challenges the
admissibility of evidence acquired, pursuant to 18 USC 2703(d), but without
warrant or probable cause. The issue Defendant Arnold raises in this Amended
Motion is currently before the United States Supreme Court and is scheduled for
oral argument this fall. Carpenter v. United States, 16-402 (819 F.3d 880).
Defendant argues that like the type of long-term location surveillance the Supreme
Court held to be unconstitutional in United States v. Jones, 132 S Ct 945 (2012),
cell site location records reveal vast amounts of information about an individual’s
7

 2:15-cr-20652-GCS-DRG

Doc # 637

Filed 08/22/17

Pg 8 of 14

Pg ID 3220

private life. With this information, the government can find out who an individual
calls, who is calling him, and where he was located when he made or received those
calls. When the government obtains these records, it can surmise a person’s
everyday habits and activities, i.e., when he makes or receives calls at home, the
places he frequents, including businesses, employment, worship and homes of
family members; and, by examining the phone numbers of outgoing and incoming
calls, an individual’s personal relationships. Obtaining these records without a
warrant or probable cause violated Mr. Arnold’s reasonable expectation of privacy
and, therefore, is a search within the meaning of the Fourth Amendment, because it
permitted the government to invade “the privacies of life.” Riley v. California, 134
S Ct 2473, 2494 (2014) citing Boyd v. United States, 116 US 616, 630 (1886).
Following the well-established principle of Fourth Amendment jurisprudence, “that
searches conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment,” Katz v. United
States, 389 US 347, 357 (1967), the Government’s acquisition of Mr. Arnold’s
comprehensive cell records, without a warrant, violates the Fourth Amendment.
The Supreme Court has adopted a two-part test to determine whether a
person’s expectation of privacy is legitimate. Id at 361 (Harlan, J., concurring).
First, the individual must have a subjective expectation of privacy in a place or
8

 2:15-cr-20652-GCS-DRG

Doc # 637

Filed 08/22/17

Pg 9 of 14

Pg ID 3221

thing. Id. Second, society must be prepared to recognize that expectation as
objectively reasonable. Id. The Court applies this test in circumstances where
technological advances have made possible “nontresspassory surveillance
techniques.” United States v. Jones, 132 S Ct 945, 955 (2012). (Sotomayor, J.
concurring); Id at 964 (Alito, J. concurring in the judgment).
The evidence at issue in this case to which Mr. Arnold objects, includes
records the Government obtained by using a court order based on the Stored
Communications Act (“SCA”), 18 USC 2703(d) without a warrant or a showing of
probable cause. The order the Government chose to seek under subsection (d) only
required it to show “that there are reasonable grounds to believe that the … records
or other information sought, are relevant and material to an ongoing criminal
investigation.” 18 USC 2703(d)(emphasis added).
New technologies have given the government unprecedented access to private
information. The Supreme Court has responded by applying Fourth Amendment
limitations. See Riley v. California, 134 S Ct. 2473, 2494-2495 (2014), Jones, 132 S
Ct at 945 (2012); Kyllo, 533 US at 34-40.
Although the Court majority in Jones, 132 S Ct. at 948, used a trespass-based
rationale for its conclusion that the installation of a GPS tracking device on a
suspect’s vehicle for 28 days was a “search” requiring suppression of electronic
9

 2:15-cr-20652-GCS-DRG

Doc # 637

Filed 08/22/17

Pg 10 of 14

Pg ID 3222

location data obtained from the installation, Jones, 132 S Ct. at 949, five Justices
agreed that prolonged government vehicle location tracking is subject to the Fourth
Amendment limitations under the Katz reasonable expectation of privacy rationale.
132 S Ct. at 964 (Alito, J.); Id at 955 (Sotomayor, J.). The plurality is premised on
Fourth Amendment privacy protection principles applied to advanced electronic
investigation techniques, Id at 963; and, is applicable here.
The Court applied similar principles in 2014 to what has quickly become the
ubiquitous use of cell phones in all aspects of our daily lives. Riley v. California,
134 S Ct 2494-2495. It emphasized in Riley, the necessity of protecting individual
privacy interests from governmental investigative intrusions into the vast array of
data stored within cell phones by the use of search warrants requiring careful
judicial scrutiny. The Court’s holding emphasized the breadth of information about
all aspects of personal lives that can be extrapolated from cell phones:
a cell phone search would typically expose to the
government far more than the most exhaustive search
of a house: A phone not only contains in digital form
many sensitive records previously found in the home;
it also contains a broad array of private information never
found in a home in any form.
Id at 2491.
Cell site location data analysis is like an examination of the contents of cell
phones. It reveals the details of a person’s private affairs, much like examination of
10

 2:15-cr-20652-GCS-DRG

Doc # 637

Filed 08/22/17

Pg 11 of 14

Pg ID 3223

data obtained through GPS monitoring of a personal motor vehicle. See United
States v. Maynard, 615 F3d 544, 562 (DC Cir. 2010) aff’d in part sub nom. Jones,
supra. The data from long-term surveillance discloses much about personal affairs
that commonly held sensibilities regard as private:
Repeated visits to a church, a gym, a bar, or a bookie tell a
story not told by a single visit, as does one’s not visiting
any of these places over the course of a month. The
sequence of a person’s movements can reveal still more; a
single trip to a gynecologist’s office tells little about a
woman, but that trip followed a few weeks later by a visit
to a baby supply store tells a different story. A person who
knows all of another’s travels can deduce whether he is a
weekly church goes, a heavy drinker, a regular at the gym,
an unfaithful husband, an outpatient receiving medical treatment,
an associate of particular individuals or political
groups – and not just one such fact about a person,
but all such facts.
Maynard, 615 F3d at 562, aff’d in part sub nom. Jones, supra.
But in many ways, the data from cell sites reveals even more, because we
routinely carry our cell phones everywhere. “Now it is the person who is not
carrying a cell phone, with all that it contains, who is the exception. According to
one poll, nearly three-quarters of smart phone users report being within five feet of
their phones most of the time, with 12% admitting that they even us their phones in
the shower.” Riley, S Ct at 2490; see also United States v. Powell, 943 F Supp 2d
759, 777 (ED Mich. 2013)(There are practical limits on where a GPS tracking
11

 2:15-cr-20652-GCS-DRG

Doc # 637

Filed 08/22/17

Pg 12 of 14

Pg ID 3224

device attached to a person’s vehicle may go. A cell phone, on the other hand, is
usually carried with a person wherever they go (emphasis in original).
An 18 USC 2703 order, as in this case, allows skillful government attorneys
and investigators to “connect the dots,” using data disclosing both incoming and
outgoing calls and how long they last.
The court, in In re Application of U.S. for an Order Directing a Provider of
Elec. Commc’n Serv. To Disclose Records to Gov’t, 620 F3d 304, 317-18 (3rd Cir.
2010)(In re Application), although reversing a magistrate’s denial of a request to
furnish records pursuant to 2703(d), acknowledged that “circumstances” can
“require a warrant showing probable cause…” Id at 319. Mr. Arnold submits that
appropriate circumstances of the kind referred to there are present here.
The In Re Application court rejected a government argument based on Smith v.
Maryland, 442 US 735, 743-44 (1979), that individuals have no legitimate
expectation of privacy in cell site location data or call detail records because call
information is voluntarily turned over to third parties. “[A] cell phone customer has
not ‘voluntarily’ shared his location information with a cellular provider in any
meaningful way.” This is so because “it is unlikely that cell phone customers are
aware that their cell phone providers collect and store historical location
information.” In Re Application, 620 F3d at 317. Therefore, “when a cell phone
12

 2:15-cr-20652-GCS-DRG

Doc # 637

Filed 08/22/17

Pg 13 of 14

Pg ID 3225

user makes a call, the only information that is voluntarily and knowingly conveyed
to the phone company is the number that is dialed, and there is no indication to the
use that making that call will also locate the caller.” Id. That is, “when a cell phone
user receives a call, he hasn’t voluntarily exposed anything at all.” Id. at 317-318.
In this case, the information obtained by the government without a warrant or
probable cause is a Fourth Amendment “search.” Katz, 389 US at 357; Jones, 132
S Ct at 964 (Alito, J.); Id at 955 (Sotomayor, J.). Disclosure of who the Defendant
called, who called him, and where was at those times permit the Government to
invade the “privacies of life.” Riley, 134 S Ct at 2494. Because “searches
conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment.” Katz, 389 US at
357, the acquisition of Defendant’s cell records in this manner was a violation of
the Fourth Amendment requiring suppression.
Wherefore, for these reasons, and any such reasons that shall appear to the
Court, the Defendant, Billy Arnold, respectfully requests that his motion be granted.
Respectfully submitted,
s/ Maria Mannarino
Maria Mannarino P39531
431 Gratiot
Detroit, MI 48226
Telephone: (248) 761-7347
Dated: August 22, 2017
13

 2:15-cr-20652-GCS-DRG

Doc # 637

Filed 08/22/17

Pg 14 of 14

Pg ID 3226

CERTIFICATE OF SERVICE
I hereby certify that on August 22, 2017, I electronically filed the foregoing
paper with the clerk of the Court using the ECF system, which will send
notification of such filing to the following:
Christopher Graveline
Assistant United States Attorney
United States Attorney's Office
211 W. Fort St., Suite 2001
Detroit, MI 48226
s/ Maria Mannarino
Maria Mannarino P39531
Counsel for Defendant
431 Gratiot
Detroit, MI 48226
Telephone: (248) 761-7347
mmannarino@comcast.net

14