Lead Opinion
Opinion by Associate .Judge Beckwith for the court, except as to Part II.E.3.
Opinion by Senior Judge Farrell, concurring in part and concurring in the judgment, at page 725-26.
Dissenting opinion by Associate Judge
A jury, found appellant Prince Jones guilty of various offenses arising out of two alleged incidents of sexual assault and robbery at knifepoint.
I. Background
A. Investigation and Arrest of Mr. Jones
At the suppression hearing fa this case, Detective Rachel Pulliam, a member of the Sexual'Assault-Unit of the Metropolitan Police Department (MPD), testified that she investigated a sexual assault that occurred around 12:30 a.m. on October 9, 2013, and another that occurred around 1:30 a.m. on October 11.' The two sexual-assault complainants were women who had advertised escort services on the classified-advertising website Backpage, Detective Pulliam testified that on each occasion, the perpetrator
Detective Pulliam testified that in the morning following the second incident, she and her colleagues obtained telephone records for the sexual-assault complainants. The telephone records revealed a possible suspect: Both complainants had received calls from the same number during the relevant time periods. Detective Pulliam sought the assistance of the MPD’s Technical Services Unit (TSU) to track the suspect’s and the complainants’ phones.
Sergeant Todd Perkins, a supervisor in the TSU, testified about his office’s efforts to track the phones that morning. He testified that he and his team sought “subscriber information” for the suspect’s number from the provider associated with that number but were unsuccessful — the cellphone “was just a generic prepaid” with “no subscriber information whatsoever.” The TSU also sought and obtained information about the locations of the suspect’s and complainants’ cellphones from the relevant telecommunication providers.
Sergeant Perkins testified that the real-time location information they received that morning had a high degree of uncertainty — “several hundred meterfs]” — indicating that the phones’ GPS capabilities were inactive. He explained that “if it [had been] true GPS,” his team would have been “getting two meter, three meter, five meter hits.” Despite the lack of precision in the location information, Sergeant Perkins and his team were able to “tell that ... one of the [complainants’] phones and the [suspect’s] phone were traveling in the same general direction ... as if they were together.” The location information suggested that the two phones stopped in the general vicinity of the Minnesota Avenue Metro Station.
Based on this information, Sergeant Perkins and other TSU officers took a truck equipped with a cell-site simulator to the area of the Minnesota Avenue Metro station and used the device to track the suspect. Sergeant Perkins could not remember whether he and his team used the cell-site simulator to track the suspect’s phone or the complainant’s phone that they believed was traveling with it,
B. Cell-Site Simulator
Sergeant Perkins testified at the suppression hearing about “how [the cell-site simulator they used] works,” “based on the information that’s publicly available.” He explained that his team engages the cell-site simulator by programming into it a unique identifier — an MIN or IMSI number
Further information about the cell-site simulator was provided by Ben Levitan, an expert on “cellular telephone networks and systems” called by the defense.
C. Trial Court’s Ruling on the Motion To Suppress
In ruling on Mr! Jones’s motion to suppress, the trial court did not decide whether the use of a cell-site simulator was a search within the meaning of the Fourth Amendment or whether the government was required to obtain a warrant to use the cell-site simulator. Instead, the trial court focused on the issues of standing, exigent circumstances, and inevitable discovery.
On the issue of standing, the trial eourt stated that the suppression-hearing record did not reveal “with any great dégree of certainty” which phone — Mr. Jones’s or the complainant’s — the police had tracked using the cell-site simulator. The court believed that the burden was on the government to show that the police did not track Mr. Jones’s phone and found that the government had failed to meet this burden. The government did not' take issue with this allocation of the burden of proof and agreed with the court’s determination.
The trial court rejected the government’s argument that there were exigent circumstances justifying noncompliance
The trial court agreed with the government’s argument that regardless of whether there had been a. Fourth Amendment violation, the inevitable-discovery doctrine rendered the exclusionary rule inapplicable. The court found that “even ,if [the police] were using [Mr. Jones’s] phone on the cell site simulator, .,, had they switched over ... to use the [complainant’s] number instead, . they would have eventually gotten to the exact same place because the phones were together [a]nd it’s the same technology.” The court thus agreed with the government’s assertion that “there [was] a separate lawful means” by which the government “would have gotten to the exact same place.”
II. Discussion
Mr. Jones claims that the government’s use of a- cell-site simulator violated his Fourth Amendment rights and that the trial court erred in failing to grant his motion to suppress. In deciding' this Fourth Amendment claim, we defer to the trial court’s factual findings and review them only for clear error, but we review the trial court’s legal conclusions de novo. (Albert) Jones v. United States,
A. Fourth Amendment Search
Government conduct is a “search” within the meaning of the Fourth Amendment if it invades “an actual (subjective) expectation of privacy ... that society is prepared to recognize as reasonable.” Katz v. United States,
Our analysis begins with the obvious fact that most people have a cellphone and carry it with them practically everywhere they go.
Another consequence of cellphones’ “pervasiveness”
With a cell-site simulator, however, police no longer need to track a person visually from some starting location or physically install a tracking device on an object that is in, or will come-into, his or her possession. Instead, they can remotely activate the latent tracking function of a device that the person is almost certainly carrying in his or her pocket or purse: a cellphone. As the present case demonstrates, police officers first obtain subscriber information and real-time location information from the target’s telecommunications provider to narrow down the search area.
A final consideration is that when the police use a cell-site simulator to locate a person’s cellphone, the simulator does not merely passively listen for transmissions sent by the phone in the ordinary course of the phone’s operation. Instead, the cell-site simulator exploits a security vulnerability in the phone — the fact that cellphones are, in the words of the defense expert, “dumb devices,” unable to differentiate between a legitimate cellular tower and a cell-site simulator masquerading as one
The preceding considerations lead us to conclude that the use of a cell-site simulator to locate Mr. Jones’s phone invaded a reasonable expectation of privacy and was thus a search. First, given the potential for location information gathered by a cell-site simulator or other device to reveal sensitive personal facts, people justifiably seek to keep such information private. This is insufficient, in itself, to support our conclusion that the government invaded a legitimate expectation of privacy: Supreme Court precedent makes clear that certain forms of tracking do not invade a reasonable expectation of privacy. See Knotts,
The government’s argument to the contrary is unpersuasive. The government contends that because a cellphone “must continuously broadcast a signal,” a person who carries or uses a cellphone is.engaging in “conduct [that] is not calculated to keep [his] location private and ... thus[ ] has no reasonable expectation of privacy in his location.” The govenment cites for support United States v. Wheeler,
The government’s use of the cell-site simulator to locate Mr. Jones was therefore a search.
Our conclusion that the government violated Mr. Jones’s Fourth Amendment rights is not the end of our inquiry. We must decide whether Mr. Jones is entitled to a remedy, and if so what the scope of that remedy should be. As a general matter, the- “[exclusionary rule ... forbids the use of improperly obtained evidence at trial.” Herring v. United States,
B. Inevitable-Discovery Doctrine
The inevitable-discovery doctrine “shields illegally obtained evidence from the exclusionary rule if the government can show, by a preponderance of the evidence, that the evidence ‘ultimately or inevitably would have been discovered by lawful means.’ ” Gore v. United States,
The trial court found that “had [the police] switched [the cell-site simulator] over to use’ the [complainant’s phone] ... they would have eventually gotten to the exact same place because the phones were together.” Assuming for the sake of argument that the hearing evidence supports this finding,
The undisputed evidence in the record shows that the MPD possessed only a single operating cell-site simulator,
The government disagrees with this conclusion and argues that because the police had tracked the complainant’s phone using real-time location information from the provider and had obtained her phone’s identifying information, they “had begun the process necessary to locate her phone with the cell-[s]ite simulator.” Even if we agreed that these steps constituted the commencement of a lawful process, we would nonetheless find the second element of the inevitable-discovery test — the “requisite actuality” that the process would have led to the discovery of Mr. Jones— lacking. This is because the police either suspended or abandoned the purported lawful process when they chose to deploy the only operational cell-site simulator in their possession on Mr. Jones’s phone.
This court has found the inevitable-discovery doctrine applicable in eases in which the police engaged in lawful and unlawful processes in parallel. See Pinkney v. United States,
C. Good-Faith Exception
We turn next to the government’s argument that application of the exclusionary rule here “would not meaningfully deter police misconduct” because the use of the cell-site simulator to locate Mr. Jones was “not the type of ‘flagrant’ abuse for which the exclusionary rule was designed.” In support of this argument, the government notes that Sergeant Perkins and his team believed “exigent circumstances existed” and asserts that “at the time of this incident, no court had held that-using a simulator to locate a phone violates the Fourth Amendment.” The government further points out that the police received judicial approval for various secondary searches of the evidence recovered from Mr. Jones and Ms. Williams at the time of Mr. Jones’s arrest. Specifically, the police obtained warrants to search Mr. Jones’s Saturn and the phones they recovered from Mr.’ Jones -and Ms. Williams, and secured a court order to take’’a buccal swab from Mr. Jones,
Although it does not explicitly say so, the government is invoking the “good-faith exception ” Davis v. United States,
The Supreme Court has not, however, recognized the applicability of the good-faith exception in a situation remotely like the present one — where the police, not acting pursuant to a seemingly valid warrant, statute, or court opinion, conducted an unlawful search using a secret technology that they had shielded from judicial oversight and public scrutiny. See supra note 26. Indeed, assuming the police believed the warrantless use of the cell-site simulator to-be lawful, they could not have reasonably relied on that belief, given the secrecy surrounding the device and the lack of law on the issue.
The fact that some of the evidence was obtained in secondary searches pursuant to warrants and a court order does not change things. The police’s reliance on the warrants and order was not objectively reasonable because the warrants and order were based on information obtained in violation of Mr. Jones’s Fourth Amendment rights. See Evans v. United States,
The government’s final argument for not applying the exclusionary rule is that a change in Department of Justice (DOJ) policy has diminished the likelihood that excluding the evidence in this case will deter misconduct in the future. The government asserts that the MPD is bound by a new DOJ policy to “obtain a search warrant supported by probable cause” before deploying a cell-site simulator. Dep’t of Justice Policy Guidance: Use of Cell-Site Simulator Technology at 3-4 (Sept. 3, 2015), https://www.justice.gov/ opa/file/767321/download.
The government did not develop this argument in the trial court — and could not have, as the DOJ policy had not yet been issued — and we do not find it persuasive. The government has not cited any case in which a court has declined to apply the exclusionary rule based on the government’s representation that it will not engage in unlawful conduct in the future. The government cites Blair v. United States,
E. Fruit of the Poisonous Tree
Having decided that the exclusionary rule applies in this case, we must now decide which evidence should be excluded as “fruit of the poisonous tree” of the illegal search.
Mr. Jones argues that the following evidence and testimony should have been excluded as fruits of the poisonous tree: his knife, a statement he made to the police at the scene of his arrest, cellphones recovered from Ms. Williams’s purse at the scene of the arrest, evidence (including cellphones) recovered from his car (the
1. Prince Jones’s Statement
‘ Mr. Jones made an incriminating statement to the police qt the scene of the arrest: When asked what his address was, Mr. Jones gave the address of one of the sexual-assault complainants. The government argues that this statement should not be suppressed as a fruit of the unlawful eell-site-simulator .search because “[i]t would make little- sense to suppress evidence obtained merely as part of a routine booking procedure.” See Thomas v. United States,
2. Cellphones from Nora Williams’s Purse
When the police located Mr. Jones and Ms. Williams, they searched Ms. Williams’s, purse and found several cellphones, including two of the complainants’ phones and Mr, Jones’s, phone, The government argues that the contents of Ms. Williams’s purse are not fruits of the poisonous tree because Mr. Jones did “not have a reasonable expectation of privacy in the contents of MÍs. Williams’s purse” and because “Ms. Williams gave the officers consent to search her purse.”
Preliminarily, Mr. Jones’s expectation of privacy (or lack thereof) in Ms. Williams’s purse is not a material consideration in the fruit-of-the-poisonous-tree analysis. As one court has explained, “[wjhjle the fruit of the poisonous tree doctrine applies only when the defendant has . standing regarding the Fourth Amendment violation which constitutes the poisonous tree, the law imposes no separate standing requirement regarding the evidence which constitutes the fruit of that poisonous tree.”
The factors in Brown,
Second, Ms. Williams’s supposed consent was not a significant intervening circumstance. According to Detective Pulliam, Ms. Williams consented only after the police presented her with the following options: the police “would either have to take the purse and put it into police custody until [they] could get a search warrant and then search it or ... she could give [the police] consent to search it.” Given this threat and the fact thát her boyfriend, Mr. Jones,' had just been arrested in her presence, Ms. Williams’s consent was not sufficiently “the product" of free will [to] break ... the causal connection between the illegality and the” search of the purse. Brown,
And third, although the police officers’ warrantless use of the cell-site simulator here was not flagrant misconduct,
3; Nora Williams’s Testimony
Mr. Jones argues that Ms. Williams should have been barred from testifying
In United States v. Ceccolini,
First, it is undisputed that Ms. Williams was not a willing witness for the government. As the government points out, Ms. Williams was initially “not forthcoming about her knowledge and use of the ... items” stolen from the complainants, and only testified after “the government sought and received a court order granting her immunity.” Ms. Williams testified at trial that after she was granted immunity, she testified for the grand jury “[b]ecause [she] had no choice.” She expressed unhappiness about having to testify against Mr. Jones at trial, stating that she “didn’t want to go against him.”
Second, the government admits that the police “confronted [Ms. Williams] with the fact that stolen phones and other items were recovered from her purse and from the car.” This evidence, as explained above, was the product of the illegal search. The government’s attempt to minimize the significance of this fact is unpersuasive. The government contends that the “illegally obtained evidence ultimately did not play a great role in obtaining Ms. Williams’s testimony” and that it was the grant of immunity that was the decisive factor. But this argument fails to address the fact that the police questioned Ms. Williams before she was immunized, and is also speculative: It is plausible — indeed, likely — that both the grant of immunity and fact that Ms. Williams was found red-handed with the proceeds of the robberies played significant roles in her decision to testify.
Third, a very short period of time passed between the illegal search and Ms. Williams’s first contact with the police. Indeed, Ms. Williams was present at Mr. Jones’s arrest and was questioned at the scene. See United States v. Ramirez-Sandoval,
Fourth, although at trial the government offered in evidence surveillance footage of Ms. Williams using an ATM card stolen from one of the complainants, at the suppression hearing the government neither presented evidence nor argued that the police had this video before they conducted the illegal cell-site-simulator search or that the video would have enabled the police to locate Ms. Williams. Thus, based on the record before the court, it is not possible to conclude that the police were aware of Ms. Williams or her relationship with Mr. Jones before they located her through the illegal search. See also supra note 35.
The remaining factor favors the government. Specifically, there is no reason to believe that the police intended their use of the cell-site simulator to result in the discovery of a witness for the government. Rather, the record before the court suggests that the police were trying to locate Mr. Jones — and, as a necessary consequence of their use of cellphone tracking, Mr. Jones’s cellphone. Nonetheless, because the other four factors strongly weigh in favor of suppression, there is “a close[ ], ... direct link between the illegality and [Ms. Williams’s] testimony.” Ceccolini,
F. Harmless-Error Analysis
The introduction of evidence collected in violation of Mr. Jones’s Fourth Amendment right to be free from unreasonable searches and seizures is constitutional error. So we must reverse Mr. Jones’s convictions unless the government has “prove[d] beyond a reasonable doubt that the error ... did not contribute to the verdict.” Chapman v. California,
III. Conclusion
For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Notes
. Mr. Jones was convicted of two counts of first-degree sexual abuse while armed, D.C. Code §§ 22-3002 (a)(l)-(2), -3020 (a)(5), - 3020 (a)(6), -4502 (2012 Repl,); two counts of kidnapping while armed, id. §§ 22-2001, - 4502; four counts of robbery while armed, id. §§ 22-2801, -4502; and one count of threats, id. § 22-1810.
. The "StingRay” is a popular cell-site simulator produced by the Harris Coiporation. See Stephanie K. Pell & Christopher Soghoi-an, Ypur Secret Stingray’s No Secret Anymore: The Vanishing Government Monopoly over Cell Phone Surveillance and Its Impact on National Security and Consumer Privacy, 28 Harv. J.L. & Tech. 1, 14 (2014). The name has become ,a generic term for a cell-site simulator. Kim Zetter, Hacker Lexicon: Stingrays, the Spy Tool the Government Tried, and Failed, to Hide, Wired (May 6, 2016), https://www. wired.com/2016/05/hacker-lexicon-stingrays-spy-tool-governmenttried-failed-hide/. The record in this case does not reveal the name of the device used against Mr. Jones; in the suppression hearing, the trial court sustained the government’s objection to a question about the name of the device.
. See Nix v. Williams,
. See United States v. Leon,
. Detective Pulliam referred to the perpetrator as “the defendant,” but Mr. Jones was not known to the police at the time the complainants reported the crimes and only became known after the police tracked him down using the cell-site simulator.
. Officer Perkins testified that the TSU "declared an exigent situation” and was therefore "able to obtain the [real-time location] information without getting a warrant.” Officer Perkins admitted at the suppression hearing that his team had been operating under an erroneous belief that there had been a string of three sexual assaults by the same perpetrator within the preceding twenty-four ' hours.
. As explained in the testimony summarized below, a cell-site simulator interferes with the target phone’s ability to communicate with the cellular network. Records for the complainant’s phone show that there was a single communication error around the time the TSU officers were operating the cell-site simulator, and Sergeant Perkins inferred from this — and from other circumstantial information — that his team had probably been tracking the complainant’s phone. Other evidence, however, suggested that the TSU may have been tracking the suspect's phone. In particular, records for the suspect’s phone — which turned out to be Mr. Jones's phone — show seven failed calls during the relevant time period, and a data dump of the phone revealed that during that time period Mr. Jones sent a text message which said, "Our call dropped.”
. These identifying numbers are distinct from the seven- or ten-digit number that a person dials when he or she places a call. Sergeant Perkins testified that the TSU receives these numbers by requesting “subscriber information” for a phone number. He explained that "MIN” stands for “mobile identification number” and is the identifying number used by “Verizon, Cricket and Sprint” and that “IMSI” stands for "international mobile subscriber identification” and is used by "T-Mobile and AT & T.”
. Sergeant Perkins testified that it is also possible to enter multiple identifying numbers into the cell-site simulator. In this operating mode, he explained, "the equipment will just let us know one of those phones is present in the area” but will not provide location information.
. Sergeant Perkins explained the search process thus:
[T]here is a directional antenna, ... so we’re driving this way, the directional antenna knows the signal is coming from over here, so we know the phone's coming over there. And then it also measures the signal strength from the phone, so if the signal strength is real, real low, it’s probably somewhere behind you,
. The defense also submitted an affidavit by Mr. Levitan, which Mr. Levitan “adopt[ed] ... as part of [his] testimony,” without objection by the government.
. Mr. Levitan testified that a cell-site simulator causes not only the target phone, but "[a]ll cell phones that are in the vicinity,” to "attach ... to the newly found ... simulator.”
. Cell-site simulators are sometimes referred to as "IMSI catchers.” Pell & Soghoian, supra note 2, at 11.
. Mr. Levitan testified that when a cellphone is communicating with a legitimate cellular tower, it communicates with a particular sector antenna of the tower, and that the provider can thus determine "what side of the cell tower” the cellphone is on, Mr, Levitan indicated that cell-site simulators measure direction through a similar method. But see supra note 10 (Sergeant Perkins describing a somewhat different method of determining direction), And Mr. Levitan testified that a cell-site simulator can determine distance through a "trick” in which it "send[s] ... a signal [to the phone] and ask[s] it to send ... the signal back.” By "measuring] th[e] round trip time,” the distance between the cell-site simulator and the phone can be determined.
. We note that both witnesses’ testimony about the cell-site simulator is consistent with information in a Department of Justice memorandum on such devices. See Dep't of Justice Policy Guidance: Use of Cell-Site Simulator Technology (Sept. 3, 2015), https://www. justice.gov/opa/file/767321/download. The memorandum explains:
Cell-site simulators ... function by transmitting as a cell tower. In response to the signals emitted by the simulator, cellular devices in the proximity of the device identify the simulator as the most attractive cell tower in the area and thus transmit signals to the simulator that identify the device in the same way that they would with a networked tower.
Id. at 2. Once, the target cellphone is identified, the cell-site simulator "provide[s] ... the relative signal strength and general direction” of the phone. Id. The memorandum notes that the cell-site simulator can cause "cellular devices in the area [to] experience a temporary disruption of service from the service provider.” Id. at 5.
.The government has reversed course in this appeal and is now arguing that Mr, Jones bore the burden of proving that the,government searched his phone and failed to meet this burden. But because the government affirmatively — and repeatedly — conceded the standing issue in the trial court, the government has waived this argument.
. We consider it conceded that the government deployed the cell-site simulator on Mr. Jones's phone rather than on one of the complainants’ phones. See supra notes 7 & 16, as well as the accompanying text..
. See Riley v. California, — U.S. -,
. Riley, supra note 18,
. Mr. Jones has not argued in this appeal that the government violated his Fourth Amendment rights when it obtained real-time cell-site location information (CSLI) for his phone from his telecommunications provider. Also not involved in this case is historical CSLI — location information maintained by cellular companies in the ordinary course of business. Some courts have held that the Fourth Amendment protects real-time CSLI, e.g., Tracey,
. See also Pell & Soghoian, supra note 2, at 12 (explaining that active surveillance devices exploit the lack of an authentication mechanism in the 2G phone protocol design). ,
. But see (Antoine) Jones,
. We are accordingly unpersuaded by one court's suggestion that using cellular technology to track a suspect is .analogous to using "dogs ... to track a fugitive ... [by] his scent.” United States v. Skinner,
. Ordinarily, a person need not do anything affirmative to exhibit an actual subjective expectation that he or she will not be located and tracked by a cell-site simulator. In Katz, the defendant.was "entitled to assume” that his phone conversation was private based purely on the fact that he had “occupie[d] [the phone booth], shut[] the door behind him, and pa[id] the toll.”
. The government also cites United States v. Caraballo,
. Moreover, the factual premise of the government’s argument is erroneous. The events at issue in this case occurred in 2013, and at that time cell-site simulators were relatively unknown to the public. Law-enforcement agencies around the country that acquired the device had been required (and, for all we know, still continue to be required) to sign nondisclosure agreements with the Federal Bureau of Investigation. See Matt Richtel, A Police Gadget Tracks Phones? Shhh! It’s Secret, N.Y. Times, Mar. 15, 2015, https://www. nytimes.com/2015/03/16/business/a-police-gadget-tracks-phones-shhh-its-secret.html; Pell & Soghoian, supra note 2,.at 38. Indeed, amici curiae have provided us with a redacted copy of a nondisclosure agreement that the MPD signed. By signing this agreement, the MPD agreed that, among other things, "the equipment/technology and any information related to its functions, operation, and use shall ... [not be] disclos[ed] ... to the public in any manner including but not limited to: in press releases, in court documents, during judicial hearings, or during other public forums,”. See also Andrews,
. We need not rule on Mr. Jones's alternative argument that the government’s conduct here constituted a search under (Antoine) Jones,
But the question whether the holding of (Antoine) Jones extends beyond physical trespasses is still an open one. It is unclear, first of all, whether the holding of (Antoine) Jones depends on “the law of trespass as it existed at the time of the adoption of the Fourth Amendment” or whether new forms of the tort are relevant,
. Arguing that ‘‘bystanders['3 ... phones [can be] ensnared by the cell site simulator,” see supra notes 12 and 15, amici curiae ask us to adopt a requirement that'"any cell site simulator warrant must include provisions to minimize collection, retention, and use of bystanders' data.” See In re Application of the United States for an Order Relating to Telephones Used by Suppressed, No. 15 M 0021,
. Mr. Jones argues that this finding was clearly erroneous.because "[tjhe government presented no expert testimony about the functioning of the cell site simulator, choosing instead to present only lay testimony [by Sergeant Perkins] about how the field operators use the device.” In Mr. Jones's view, "there is no evidence in the record about the failure rate of the cell site simulator or whether it statistically works better with certain models of phones or on certain networks."
. In this regard, we note that not only did Mr. Jones concede that he lacked standing to contest a search involving the complainant's phone, but also the record suggests that the complainant consented to the police’s tracking of her phone. See United States v. Johnson,
.The MPD owned another unit, but it was not working properly the day of the search.
. Unlike our dissenting colleague, we are not persuaded by the government’s alternative argument that because Mr. Jones was carrying the stolen phones, which could have been located and tracked lawfully (it is assumed), Mr, Jones had no expectation of privacy in his location. This argument was not raised in the initial briefing or in the trial court — it was first raised at oral argument before this court in response to questions from the bench. Although after oral argument we requested supplemental briefing on- this argument, we ultimately conclude that the government’s failure to present it at an earlier stage constitutes a waiver of the argument under the circumstances of this case. See Tuckson v. United States,
. The Supreme Court has implicitly foreclosed the government’s argument that police can reasonably conclude from the complete lack of judicial precedent that their conduct is lawful. See Davis,
. The government cites United States v. McClain,
. In the trial court, Mr. Jones specifically moved to “[s]uppress [¡Identifications, [statements, and [t]angible evidence” resulting from the illegal search. The evidence and testimony that Mr. Jones identifies as fruits of the poisonous tree in this appeal clearly fall within these categories, and the government could not have reasonably doubted that Mr. Jones intended to have them suppressed. The government had a "full and fair opportunity” in the trial court to litigate this matter. Barnett v. United States,
. . One of the complainants testified at trial about the appearance of Mr. Jones’s genital area, and the photograph of Mr. Jones's groin was admitted in evidence at trial.
. United States v. Bowley,
. The proper inquiry here is not whether Ms. . Williams’s consent was a valid waiver of her own rights, but rather whether it constituted an intervening circumstance sufficient to purge the taint of the illegal search. Thus, we need not decide whether Ms. Williams could have had the evidence excluded had she herself been tried. See generally 4 LaFave, supra, § 8,2 (c) (discussing Fourth Amendment cases in which “the police have obtained consent to search after threatening that if consent were not given they would proceed to seek or obtain a search warrant”).
. But see supra text accompanying note 33.
. The government contends that even if the cellphones in Ms. Williams’s purse are fruits of .the poisonous tree, the "call detail records and location information obtained from the provider” for the cellphones “are not subject to exclusion.” Mr. Jones has not argued otherwise, and we see no reason for classifying this information as fruit of the poisonous tree.
The government also represents in its brief that "the government received an unsolicited offender hit from the FBI’s Combined DNA Index System (‘CODIS’) indicating that a sample obtained from [Mr, Jones] in connection with [a] prior Maryland conviction matches the crime scene sample obtained in this case,” Assuming that the government Can demonstrate this in the trial court, we agree with the government that it "should not be precluded from seeking another buccal swab [from Mr, Jones] based on the independent and' untainted CODIS hit,” This CODIS hit would not be a fruit, of the illegal ■ search.
; This part does riot constitute the opinion of the court, as it is not joined by Associate Judge Thompson or Senior Judge Farrell,
. To be entirely accurate, we have reached this conclusion with respect to all of the purported fruits except for the testimony of Ms. Williams. See supra note 41. The conclusion that the error was not harmless beyond a reasonable doubt nonetheless stands.
Concurrence Opinion
concurring in part and concurring in the judgment:
I agree with Judge Beckwith that the police’ use of the cell-site simulator to discover appellant’s precise location violated the Fourth Amendment because it was a “search” requiring a warrant. My analysis of why that is so is more limited than Judge Beckwith’s, however. I also agree that the government has not shown that the fruits of the use of the simulator would have been inevitably discovered by lawful means, and that this is not the sort of case in which the Supreme Court has found that suppression of the fruits would serve no deterrent purpose. Further, except that I would not decide whether the testimony of Nora Williams should have been suppressed, I agree that the evidence discussed in part II. E. of Judge Beckwith’s opinion was suppressible fruit of the war-rantless search. Finally, I explain briefly why I am not persuaded by Judge Thompson’s position in dissent that no search at
I.
As to inevitable discovery, a key argument by appellee in its original brief, I agree that the government has failed to show the “requisite actuality,” Hicks v. United States,
II.
The dispositive issue, then, is whether the use of the cell-site simulator was a “search” requiring the police to have obtained .a warrant beforehand (in the now-conceded absence .of exigent circumstances). To answer that question it is enough, I believe, to know how the simulator learns of a target cellphone’s location. It does so by effectively commandeering the cellphone as a police investigative tool in the way Judge Beckwith describes, namely, by “actively inducing] the phone to divulge its identifying information,” ante at 713, from which the phone’s direction and distance relative to the simulator can be determined. This process of “grabbing” the target phone and making it the instrument of its own locational disclosure explains why the government’s primary reliance on the third-party doctrine of Smith v. Maryland,
Smith held that an individual enjoys no Fourth Amendment protection “in information he voluntarily turns over to [a] third part[y].” Id. at 743-44,
When the police seek and obtain locational information by directly interacting with, indeed by taking functional control of, a suspect’s cellphone through a simulator, it cannot reasonably be said that the phone user has “voluntarily conveyed” locational information to anyone and thereby relinquished a reasonable expectation of privacy in the information. Smith,
III.
I also agree that suppression of most of the fruits of the unlawful search here will “pay its way,” United States v. Leon,
Exclusion of evidence was thus a proper remedy here, except that, unlike Judge Beckwith, I would not decide whether the testimony of Nora Williams should have been suppressed. Her testimony was given more than a year after the illegal search and only after, now represented by counsel, she had received use immunity for her testimony. Those circumstances present a difficult question of attenuation that we need not reach, because the admission of the immediate fruits of the search was not harmless error and requires reversal. In any new trial the parties can brief and the trial court resolve the issue of the admissibility of Williams’ testimony, should the issue arise.
Finally, I am not persuaded by Judge Thompson’s position in dissent that no Fourth Amendment search took place because appellant had no “reasonable expectation that the location of his cell phone would remain private while he was traveling on the public roads with a powered-on⅜ stolen cell phone.” Post at 735 (emphasis added). That contention, resting on appellant’s presumed awareness of how the police might have located him (via the stolen cell phone) but did not, closely resembles the inevitable discovery argument we have rejected. See Appellee’s Supp. Brief at 6 (“[A]ppellant has effectively conceded that the use of a cell site simulator to locate the stolen Sprint cell phone would have been a ‘lawful investigative process’ ” (emphasis added)). Moreover, the theory appears to assume a conclusion of wrongdoing — that appellant possessed a “stolen” phone — disputed by appellant’s not-guilty plea at the time the suppression motion was litigated.
, The fact that the Supreme Court will take up cell phone technology in relation to the Fourth Amendment is alone reason for us to decide the present issue narrowly and not opine in broad stokes about privacy and electronic information, locational or other,
. In McFerguson v. United States,
Dissenting Opinion
dissenting:
My colleagues in the majority are “properly and commendably concerned about the threats to privacy that may flow from advances in the technology available to the law enforcement profession.”
Described with the necessary specificity, this case is about the following: Police had near real-time cell-site location information from cell phone providers
I can agree with my colleagues that “under ordinary circumstances,” ante at 714-15, the government’s use of a cell-site simulator to locate an individual through the individual’s cellphone likely violates the legitimate expectation of privacy we all have in our location information.
In the pages that follow, I will explain my reasoning in more detail. But first, I must address a preliminary issue.
I.
After oral argument in this matter, this court directed the parties to submit supplemental briefs on the following issue:
What reasonable and legitimate expectation of privacy does a person have in his or her location information when the person possesses (outside his or her residence) a stolen cell phone capable of being located by a cell-site simulator or through real-time cell site location, information available to the cell phone owner or his or her telecommunications provider?
Asserting that the issue the court raised was waived by the government, appellant argues in his supplemental brief that “waiver rules preclude this court from affirming the trial court’s ruling on an alternative ground that the government did not raise at trial or on appeal.” I disagree in the strongest terms.
The Supreme Court’s decision in United States National Bank of Oregon v. Independent Insurance Agents of America, Inc.,
The case went to the Supreme Court, which concluded that “[t]he Court of Appeals ... had discretion to consider the validity of section 92,” and “did not stray beyond its constitutional or prudential boundaries” in doing so. Id. at 447,
Our court has applied the guidance of National Bank of Oregon in various circumstances. For example, in Martin v. United States,
in short, case law does not bind us to the approach of addressing only the arguments the parties have framed. The Supreme Court has not followed or dictated that approach,
As explained in the discussion below, “the antecedent question of whether there [wa]s a Fourth Amendment ‘search’ at all”
II.
The Fourth Amendment protects “[t]he right of the people: to be secure -in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Thus, in analyzing a Fourth Amendment claim, the threshold issue is whether there has been a “search” or “seizure.” That “antecedent question whether or not a Fourth Amendment ‘search’ has occurred is not so simple under [Supreme Court] precedent.” Kyllo,
It appears that police used the cell-site simulator to locate appellant’s phone rather than the stolen phone. However, appellant’s expectation of privacy with respect to the location of his phone need not come into play in our resolution of-this case because appellant exposed that location to discovery by being on the public roads with both his phone and the powered-on, stolen cell phone. Even if appellant generally had a subjective expectation that, information about his cell phone’s location would be private, he could not have .had a reasonable expectation that the location of his cell phone would remain private while he was traveling on the public roads with a powered-on, stolen cell phone.
The sexual assaults and robberies in this case occurred in 2013. Well before that time, Apple had introduced the Find My iPhone application (“app”). See In re J.A., No. A-1624-14T2,
Further, even aside from the apps available to cell phone owners, cellular service providers have long been able to supply cell phone locational data in close to real-time,
By traveling with the stolen cell phone that was susceptible to all the foregoing fínd-the-phone methods and devices, appellant exposed his location, too. I therefore find it impossible to conclude that appellant could reasonably have expected that his movements and location with the stolen phone in his possession would be private (and thus that he had an “expectation of privacy in his phone’s location”). Moreover, if appellant had such an expectation, I suspect that it is not one that society is prepared — and in my view it is not one that we should be prepared
To be clear, the 'analysis above does not rely on the inevitable-discovery doctrine to conclude that use of the cell-site simulator was lawful. As the majority opinion notes, the inevitable-discovery doctrine “shields illegally obtained evidence from the éxclu-sionary rule if the government can show, by a preponderance of the evidence, that the evidence ‘ultimately or inevitably would have' been discovered by lawful means.’ ” Gore v. United States,
United States v. Gbemisola,
B. The (assumed) fact that the police actually used the cell-site simulator as to appellant’s cell phone while it was on the public roads does not provide a basis for finding a Fourth Amendment violation.
My colleagues focus, however, on the apparent fact that the police entered the identifying number for appellant’s cell phone into the cell-site simulator and thus used it to locate appellant’s phone rather than the co-located stolen phone. They emphasize that “when it comes to the Fourth Amendment, means ... matter.” Ante, at 713-14 (quoting Maynard,
Moreover, while the “means ... matter” principle applies a fortiori when it comes to law enforcement efforts to learn about what is contained or is transpiring in a home,
My colleagues ultimately acknowledge that “certain forms of tracking [in public spaces] ... do not invade a reasonable expectation of privacy.” Ante at 713. What they seem to regard as dispositive is that by using the cell-site simulator, the police “actively induce[d] the phone to divulge its identifying information.” Ante at 713. Judge Farrell sees as the critical fact that with the cell-site simulator, the police TSU officers “commandeer[ed]” appellant’s cell phone, turning it into a “self-investigative” tool. I have several responses.
First, for a couple of reasons, I believe the foregoing characterizations somewhat overstate the facts. As one court has noted, “cell phones identify themselves by an automatic process called ‘registration,’ which occurs continuously while the cell phone is turned on regardless of whether a call is being placed.” Tracey,
In any event, my colleagues raise points that must be addressed when they emphasize that by using the cell-site simulator, the TSU officers took “functional control” of and “coopted [appellant’s] phone, forcing it to do something [he] surely never intended it to do: reveal its identifying and location information to an entity other than a telecommunications provider.” Ante, at 716 n.27. Judge Farrell finds it “unpersuasive” “to argue that appellant had no reasonable expectation of privacy in the police’ use of his phone” for this purpose. Ante, at 726. One major problem for my colleagues’ analysis, however, is that, as shocking or outrageous as the foregoing characterizations might sound, the officer’s use of the cell-site simulator did not constitute a “search” and thus was not a Fourth Amendment violation unless appellant had a reasonable and legitimate expectation of privacy with respect to the object of the challenged search: his location information. For the reasons already discussed, he did not while he was on the public roads with a trackable, stolen cell phone.
It is helpful to recall the facts of California v. Greenwood,
In my view, the intrusive police conduct in Greenwood, by which police officers converted thé entire contents of respondent’s trash into a database of information about his activities, was every bit as objectionable as the temporary “coopt[ing]” of appellant’s ' cell phone. I suspect most of us would be outraged at the effrontery of law enforcement officials in systematically inspecting our. trash. But that would not be enough to establish that police officers’ systematic rummaging' through our trash is a “search” for Fourth Amendihent purposes.
But even if we assume that the TSU officers’ taking “functional control” of and “coopt[ing] [appellant’s] phone” was a search and/or seizure for Fourth Amendment purposes, there is yet another consideration that, in my view, should preclude the court from concluding that the search/seizure was unlawful.
“Probable cause exists when based on the known facts and circumstances, a reasonably prudent person would believe that contraband or evidence of a crime will be found in the place to be searched.” United States v. Charles,
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What we should not do in resolving this appeal is to jump on the bandwagon of decrying what is claimed to be a Fourth Amendment violation from use of cell-site-simulator technology without recognizing how the particular, material facts of this case distinguish it from the cell-site simulator eases courts have decided before this one. The Supreme Court has recognized the need for “consideration of case-specific exceptions to the warrant requirement”;
For all the foregoing reasons, I respectfully dissent from the judgment reversing appellant’s convictions of two counts of first-degree sexual abuse while armed, two counts of kidnapping while armed, four counts of robbery while armed, and one count of threats.
. Kyllo v. United States,
. In re Application of United States for Historical Cell Site Data,
. United States v. Jones,
. As the majority opinion notes, ante at 712 n.20, appellant has not argued in this appeal that his Fourth Amendment rights were violated when the government obtained cell-site location information from cellular providers. See United States v. Graham,
. Police Technical Services Unit (“TSU”) Sergeant Perkins testified at the suppression hearing in this case that, as long as it’s "powered on,” a cell phone "is constantly transmitting to and receiving from a tower.”
. Actually, at the time appellant was arrested, he had in his car all four stolen cell phones involved in this case.
. I acknowledge that some courts have so held. See, e.g., United States v. Ellis, No. 13-CR-00818 PJH,
.That fact distinguishes this case from cell-site simulator cases on which appellant relies. See State v. Andrews,
In this case, the cell-site simulator alerted the officers that appellant’s phone was located in the 4000 block of Minnesota Avenue, N.E., a block on which there were several businesses, a District of Columbia government building, and a Metro station. There appears to be no evidence in the record that there were residential buildings in the block, but amici note that a large apartment building is also located on the block, at 4020 Minnesota Avenue. There appears to be no evidence in the record that the cell-site simulator came within range of that apartment building as the officers were "coming down southbound Minnesota [Avenue],"
. See Graham,
. A trespa.ssory search implicating the Fourth Amendment occurs when the government “gains evidence by physically intruding on constitutionally protected areas." Florida v. Jardines,
Appellant and the majority opinion cite cases suggesting that use of a cell-site simulator could constitute trespass to chattels, ante at 716-17 n.27, but my colleagues do not rely on that case law for their conclusion. Moreover, as Justice Alito noted in his concurrence in the judgment in Jones, '"today there must be some actual damage to the chattel before [an] action [for trespass to chattels] can be maintained.”
. "[C]oncerns about a general 'erosion of privacy’ with respect to cell phones ... revolve around protecting the large quantity of information stored 'on modem cell phones and on remote servers like the ‘cloud.’ If all that information were indeed at risk of disclosure [through the government’s obtaining cell-site location information], we would share this concern." Graham,
. Appellant is also incorrect in suggesting that the court directed briefing on an issue entirely absent from the government’s initial brief in this court and its arguments in the trial court, The government argued in its opening brief to us that in cases cited by appellant, “the cell-site simulator located the defendant’s phone inside a home, thus implicating Fourth Amendment privacy concerns .not raised here.” Our inquiry about the significance of the fact that appellant possessed the stolen cell phone outside his residence reflected in part that argument, Our inquiry also reflected the prosecutor’s repeated argument (to which she mistakenly referred as involving application of the "inevitable discovery" doctrine) to the trial court that suppression was not warranted because there was "a separate, lawful way [police] could have gotten'to the same thing” (emphasis added) — i.e., use of the cell-site simulator to target the stolen cell phone that was traveling with appellant’s phope.
. See also Anthony v. United States,
. See also Lesesne v. Doe,
. Commentators have frequently mentioned that in Erie Railroad Co. v. Tompkins,
. See, e.g., United States v. Rose,
. Albert Tate, Jr., supra note 15, at 127; see also Estate of Girard v. Laird,
. Riverdale Mills Corp. v. Pimpare,
. See, e.g., People v. Easton, No. H041704,
. Detective Pulliam testified that the Find My iPhone app showed her “[not] an exact, pinpointed location” but, at one point, “a general area ... in southeast” (perhaps the area of the District into which the phones traveled when, according to other evidence, they left Capitol Heights, Maryland, and headed toward Kenilworth Avenue).
. Commonwealth v. Wilson, No. 15-P-851,
. The evidence in this case showed that the police TSU received updated location information from the cellular service providers at least every fifteen minutes (every five minutes for the stolen Sprint phone), with only a one-to-three-minute lag time.
. The following observations made by that court in 2010 are notable: “Neither the user nor the carrier can predict how precise the next location data will be. For a typical user, over time, some of that [location] data will likely have locational precision similar to that of GPS”; “Emerging versions of the technology are even more precise”; “[T]he tech-sawy user may now understand that there is a risk that the provider can calculate and record his location and movements very precisely.” In re Application for United States for Historical Cell Site Data,
. Such considerations led the Second Circuit to observe that “any expectation of privacy that [the defendant] had in his cell-phone location [tracked over a less-than-two-hour period] was dubious at best." United States v. Caraballo,
. Appellant suggests that the evidence indicated that the cell-site simulator did not work with the stolen cell phone, but the trial court declined to so find. The court found instead that if the TSU officers “had ... switched over ... to use the Sprint number instead, ... they would have eventually gotten to the exact same place because the phones were together.”
. I have in mind the caution that where we may have been " 'conditioned' by influences alien to the well-recognized Fourth Amendment freedoms, a normative inquiry may be necessary to align” what we are prepared to recognize as legitimate privacy interests “with the protections guaranteed in the Fourth Amendment.” Tracey v. State,
. • My conclusion that appellant was traveling with a stolen phone as to which he had no locational-privacy interest does not depend on the juiy verdict that he was the thief, i.e., the perpetrator of the robberies. Cf. Godfrey v. United States,
. It might be suggested that the analysis in Gbemisola is a straightforward application of the Supreme Court’s ruling in United States v. Knotts,
. See Lucas v. United States,
. See, e.g., Kyllo,
. See also Copes,
. But see Andrews,
My colleagues also say that the cell-site simulator "exploits a security vulnerability" of cell phones. Ante at 713. I would not call what happened here as exploitation of a cell phone security flaw, but as law enforcement's taking advantage of a security-enhancement feature that aids in the recovery of stolen or lost phones, It may place a person who is traveling on the roads with a powered-on, stolen cell phone (that circumstances show he knew to be stolen) in the position either of accepting the risk that at any moment the stolen cell phone or his own cell phone could be converted into a tracking device or, alternatively, turning the phones off, but I do not see why that is an improper choice to foist on the person.
. Cf. Historical Cell Site Data,
. Another lesson from Greenwood is the principle on which Gbemisola, was decided: that if the individual does not have a reasonable expectation of privacy in the object of an activity that we would describe in ordinary parlance as a search, there is no search for Fourth Amendment purposes even if the manner in which law enforcement conducted ’ their garbage inspection was not available to most members of the public. The Supreme Court observed in Greenwood that the respondents' trash was readily accessible to "animals, children, scavengers, snoops, and other members of the public."
."A 'seizure' of property occurs when 'there is some meaningful interference with an individual's 1 possessory interests in that property.' ” Karo,
. See also California v. Carney,
. Cf. State v. Tate,
. Our request for supplemental briefing signaled, without explicitly suggesting, that the automobile exception might be implicated on the facts of this case (and amici briefly addressed its applicability in their initial brief),
. See Graham,
Again, this case does not involve a warrant-less search of any digital content (such as text messages, emails, contact lists, call logs, voi-cemail messages, photographs, videos, files, internet browsing history, apps that are revelatory of a person's interests, historic location information, etc.) stored on appellant's cell phone, the conduct for which, the Supreme Court determined in Riley v. California, — U.S. -,
. In addition, even if I assume arguendo that there was a Fourth Amendment violation, I am doubtful that suppression in this case would "pay its way,” United States v. Leon,
. Riley,