United States v. Damian Patrick
2016 U.S. App. LEXIS 21090
| 7th Cir. | 2016

Background

  • Damian Patrick, a parolee with an outstanding arrest warrant, was located by Milwaukee police using cell-phone location techniques and arrested while sitting in a car; officers observed and seized a gun, leading to federal prosecution under 18 U.S.C. § 922(g)(1).
  • Police obtained a warrant to locate Patrick by electronic means; the government later disclosed on appeal that a cell-site simulator ("Stingray") had been used to find his phone.
  • District court denied Patrick’s motion to suppress the gun; Patrick pleaded guilty while reserving his right to appeal the arrest/seizure’s validity and was sentenced to 57 months.
  • The majority held that because Patrick was arrested in public with probable cause and a valid arrest warrant that predated the location effort, suppression was not required; it declined to resolve broader Fourth Amendment questions about cell-site simulators.
  • The government conceded for litigation purposes that use of a cell-site simulator is a search, but the DOJ guidance describes simulators as providing only relative signal strength/direction and not content or subscriber data.
  • The dissent argued the record lacks essential facts about the simulator’s capabilities and use, raising potential Fourth Amendment and Title III issues (interception of communications), and urged remand for fact-finding and possible suppression.

Issues

Issue Patrick's Argument Government's Argument Held
Validity of arrest/seizure given cell-site simulator use Use of a simulator (and nondisclosure to magistrate) tainted the arrest; suppression required Arrest was supported by probable cause and a valid arrest warrant that predated the location effort; suppression not warranted Arrest and seizure admissible because public arrest with preexisting warrant; affirmed
Whether police must disclose execution methods (Stingray) to issuing judge Omission (or misleading) of simulator use invalidates warrant or at least warrants Franks-like hearing Manner of execution need not be specified ex ante; Dalia/Richards permit ex post review only Court declined to require pre-authorization or vindicate nondisclosure here because defendant lacked privacy interest in public location and arrest predated execution method
Whether use of a cell-site simulator is a Fourth Amendment search Simulator implicates privacy and may be a search (Plaintiff concedes standing only to challenge simulator use) Government argued comparable to carrier-provided location data; lower privacy intrusion; uses DOJ policy to limit scope Majority accepted government concession (treated as a search for purposes of litigation) but did not resolve broader doctrinal question;
Applicability of attenuation, good-faith, and other exclusionary doctrines Strieff does not apply because warrant was upstream and simulator use was purposeful concealment; good-faith exception and attenuation inapplicable; suppression may be required Strieff shows a valid arrest warrant precludes suppression even if arrest set in motion unlawfully; good-faith doctrines may apply Majority relied on Strieff and public-arrest rule to reject suppression; dissent disagreed and would remand for further fact-finding

Key Cases Cited

  • Warden v. Hayden, 387 U.S. 294 (1967) (rejects “mere evidence” rule; warrants may seek evidence to locate suspects)
  • Steagald v. United States, 451 U.S. 204 (1981) (search warrant to enter third party’s home to arrest a person)
  • United States v. Watson, 423 U.S. 411 (1976) (probable cause alone permits public-arrest without warrant)
  • Payton v. New York, 445 U.S. 573 (1980) (warrant required to enter private home to effectuate an arrest)
  • Utah v. Strieff, 136 S. Ct. 2056 (2016) (pre-existing valid arrest warrant can attenuate connection between unlawful stop and evidence)
  • Dalia v. United States, 441 U.S. 238 (1979) (warrant need not specify precise manner of execution; reasonableness reviewed after the fact)
  • Richards v. Wisconsin, 520 U.S. 385 (1997) (court cannot categorically forbid particular means of executing a warrant when reasonable)
  • Smith v. Maryland, 442 U.S. 735 (1979) (pen register use is not a Fourth Amendment search)
  • United States v. Knotts, 460 U.S. 276 (1983) (beeper tracking is not a search when it reveals only location)
  • United States v. Jones, 565 U.S. 400 (2012) (installation/use of GPS tracker can be a search; property-based trespass approach)
  • Kyllo v. United States, 533 U.S. 27 (2001) (use of technology to peer into a home implicates strong privacy interests)
  • Franks v. Delaware, 438 U.S. 154 (1978) (procedures for challenging warrant affidavits and requiring an evidentiary hearing)
  • United States v. Leon, 468 U.S. 897 (1984) (good-faith exception to exclusionary rule)
  • Riley v. California, 573 U.S. 373 (2014) (searches of cell phones generally require a warrant)
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