UNITED STATES OF AMERICA, v. ASHLEY GAUSE, D‘MARRELL MITCHELL, TERRANCE BRANHAM, DEAUNDRE BLOUNT, Defendants.
Crim. Action No. 23-0190 (ABJ)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
August 19, 2025
AMY BERMAN JACKSON
Defendants have moved to suppress records obtained from four cell phone providers pursuant to four substantially similar search warrants. See Def. Mitchell‘s Mot. to Suppress Tower Dump Records [Dkt. # 167] (“Mot.“).1 The warrants sought information, referred to by the parties as “tower dump” records, that identified all devices that interacted with the cell phone tower in the location associated with each of six individual robberies on that robbery‘s specific date and time. Mot. at 1. Defendants’ motion is premised on Carpenter v. United States, 585 U.S. 296 (2018). See Mot. at 1-2. In that case, the Supreme Court found that the government‘s acquisition of cell-site records that provided it with a “comprehensive chronicle of the user‘s past movements” over a period of several months was a “search” deserving of protection under the
On November 25, 2020, Special Agent Erik Potrafka of the F.B.I. applied for four warrants to search “information associated with particular cellular towers” stored at AT&T, Sprint, T-Mobile, and Verizon. See App. for Warrant, Ex. A to Opp. [Dkt. # 199-1] (“AT&T Warrant“) at 1; App. for Warrant, Ex. B to Opp. [Dkt. # 199-2] (“Sprint Warrant“); App. for Warrant, Ex. C to Opp. [Dkt. # 199-3] (“T-Mobile Warrant“); App. for Warrant, Ex. D to Opp. [Dkt. # 199-4] (“Verizon Warrant“).
Attachment A to each application identified the property to be searched as “[r]ecords and information associated with communications to and from” six cellular antenna towers during specific time frames on November 6, 9, 11, 12, and 17, 2020:
| Cell Towers | Dates | Times (EST) |
|---|---|---|
| The cellular towers that provided cellular service to 721 D St. SE, Washington, D.C. 20003 38.883606, -76.99529 | November 6, 2020 | 2:10 PM - 2:40 PM EST |
| The cell towers that provided cellular service to 5252 Wisconsin Ave. NW, Washington, D.C. 20015 38.958897, -77.085181 | November 9, 2020 | 1:05PM - 1:40 PM EST |
| The cell towers that provided cellular service to 2460 Market St. NE, Washington, D.C. 20018 38.921108, -76.954954 | November 11, 2020 | 11:10AM - 11:35AM EST |
| The cell towers that provided cellular service to 2027 North Capitol St. NE, Washington, D.C. 20002 38.917758, -77.008719 | November 11, 2020 | 11:30AM-12:00PM EST |
| The cell towers that provided cellular service to 7311 Macarthur Blvd., Bethesda, MD 20816 38.968783, -77.139 | November 12, 2020 | 7:45PM - 8:10PM EST |
| The cell towers that provided cellular service to 5301 Wisconsin Ave. NW, Washington, D.C. 38.968783, -77.139 | November 17, 2020 | 5:50PM - 6:10PM EST |
See, e.g., Attach. A to AT&T Warrant [Dkt. # 199-1] (“Attach. A“) at 4-5. Attachment B to the warrants called for the cellular service providers to disclose certain categories of information about the communications transmitted through the cell phone towers during the corresponding time frames, including:
- the telephone call number and unique identifiers for each wireless device in the vicinity of the cell tower (“the locally served wireless device“) that registered with the cell tower, including Electronic Serial Numbers (“ESN“), Mobile Electronic Identity Numbers (“MEIN“), Mobile Identification Numbers (“MIN“), Subscriber Identity Modules (“SIM“), Mobile Subscriber Integrated Services Digital Network Numbers (“MSISDN“), International Mobile Subscriber Identifiers (“IMSI“), and International Mobile Equipment Identities (“IMEI“);
- for each communication, the “sector(s)” (i.e. the face(s) of the tower(s)) that received a radio signal from the locally served wireless device;
- the date, time, and duration of each communication;
- the source and destination telephone numbers associated with each communication (including the number of the locally served wireless device and the number of the telephone that transmitted a communication to, or to which a communication was transmitted by, the locally served wireless device); and
the type of the communication transmitted through the tower (such as phone call or text message).
See, e.g., Attach. B to AT&T Warrant [Dkt. # 199-1] (“Attach. B“) at 6-7.
In the affidavit in support of the warrant, the agent explained:
Based on my training and experience and the above facts, information obtained from cellular service providers such as Sprint, T-Mobile, AT&T, and Verizon that reveals which devices used a particular cell tower (and, where applicable, sector) to engage in particular communications can be used to show that such devices were in the general vicinity of the cell tower at the time the communication occurred. Thus, the records described in Attachment A will identify the cellular devices that were in the vicinity of (1) 721 D St. SE, Washington, D.C. November 6, 2020 from 2:10 PM to 2:40 PM EST; (2) 5252 Wisconsin Ave. NW, Washington, D.C. November 9, 2020 from 1:05 PM to 1:40 PM EST; (3) 2460 Market St. NE, Washington, D.C. November 11, 2020 from 11:10 AM to 11:35 AM EST; (4) 2027 North Capitol St. NE, Washington, D.C. November 11, 2020 from 11:30 AM to 12:00 PM EST; (5) 7311 Macarthur [B]oulevard, Bethesda, MD November 12, 2020 from 7:45 PM to 8:10 PM EST, and (6) 5301 Wisconsin Avenue NW, Washington, D.C. on November 17, 2020 from 5:50PM to 6:10PM EST. This information, in turn, will assist law enforcement in determining which person(s) were present for multiple robberies and armed robberies in Washington, D.C. and Maryland.
Aff. in Supp. of App. for A Search Warrant [Dkt. # 199-1] (“Potrafka Aff.“) ¶ 67. Importantly, the affiant assured the Magistrate Judge that “[t]he government will seize only information relevant to phones that used more than one tower identified by the government.” Id. ¶ 68.
LEGAL STANDARD
Pursuant to Illinois v. Gates, 462 U.S. 213, 238-9 (1983), the task of an issuing magistrate is to make a practical, common-sense decision as to whether, given all the circumstances set forth in the affidavit supporting a request for a search warrant, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The duty of a reviewing court, on the other hand, is simply to ensure that the magistrate had a “substantial basis for . . . conclud[ing]” that probable cause existed, Gates, 462 U.S. at 236, and a magistrate‘s probable-cause
A valid search warrant must describe the place to be searched and the persons or things to be seized with particularity. Maryland v. Garrison, 480 U.S. 79, 84 (1987). Therefore, the affidavit must provide “reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). In other words, it must set out “a reasonable basis to infer” that relevant evidence will be found in the premises to be searched. United States v. Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 1993).
Moreover, pursuant to Franks v. Delaware, 438 U.S. 154 (1978), an affidavit supporting a search warrant is afforded the presumption of validity. Id. at 171. Defendants may not go beyond the face of the affidavit and cross examine the officer to challenge its veracity in an evidentiary hearing unless they make a substantial preliminary showing that a false statement was included in the affidavit knowingly and intentionally, or with reckless disregard for the truth, and that the allegedly false statement was necessary to the finding of probable cause. Id. at 155-56. Defendants do not attempt to make such a showing in this case.
ANALYSIS
In United States v. Miller, the Supreme Court held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. 425 U.S. 435, 443 (1976). The case arose when the government subpoenaed the defendant‘s banks, seeking several months of canceled checks, deposit slips, and monthly statements. Id. at 437-38. The Court rejected a
The Supreme Court applied the same principle three years later in Smith v. Maryland, 442 U.S. 735 (1979). In that case, the Court held that the government‘s use of a pen register — a device that recorded the outgoing phone numbers dialed on a landline telephone — was not a search for which a warrant was necessary. Id. at 745-46. The Court observed that a pen register is a tool of “limited capabilities,” and it “doubt[ed] that people in general entertain any actual expectation of privacy in the numbers they dial.” Id. at 742.
Defendants contend that these longstanding authorities illustrating the “third-party doctrine” do not govern the situation here. Mot. at 8. They maintain that this case is controlled instead by the Supreme Court‘s later decision in Carpenter v. United States, 585 U.S. 296, and that, following its guidance, the evidence obtained from the cell service providers should be suppressed. Id.
In Carpenter, the prosecutors applied for orders to obtain information from cell service providers under the terms of the
The Court found that the situation was not governed by the principles concerning third party records set out in the Miller and Smith opinions, and that a warrant based on probable cause was necessary. 585 U.S. at 309, 316. But it took pains to emphasize that its decision was “a narrow one.” Id. at 316.
We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information.
Given the marked difference between the privacy concerns implicated in the Carpenter case and the warrants here, and the fact that the opinion of the Court specifically carved “tower dumps” out of Carpenter‘s reach, id., it is not at all clear that the Supreme Court would find the request for real time cell tower information in this case to be a “search.”
Defendants’ characterizations of the warrants provide an inaccurate picture of what was requested and what was received in this case. According to their motion:
[E]ach warrant application sought data for devices connecting to the towers serving the six robbery locations identified for a combined total of 165 minutes. In other words, the Government sought data from the four cellular providers for a total of 660 minutes — or more than 11 hours — for every device connecting to any of the towers serving those locations, including detailed location data from the “sector” information.
Mot. at 2. With this calculation, defendants suggest that their phones — and therefore, their locations — were being tracked for eleven hours. Id.
But the warrant did not seek data about one phone for eleven hours; it sought data from each cell tower for a 30-minute period on November 6, 2020; a 35-minute period on November 9, 2020; 25-minute and 30-minute periods on November 11, 2020; a 25-minute period on November 12, 2020; and a 20-minute period on November 17, 2020. Attach. A at 1. That adds up to a total of only 165 minutes, or about 2 hours and 45 minutes from any one tower, spread over six different dates. A single cell phone would only be communicating with one of the four cell service providers, so multiplying 165 by 4 is both irrelevant and misleading.
In addition, the warrant only ordered the provider to disclose whether any particular phone “pinged” a particular tower during one or more of the very short 20-to-35-minute time frames; the warrant sought zero information as to where the phone went from there. Finally, the Special Agent averred that the F.B.I. would only seize information relevant to phones that communicated with more than one of the towers identified — that is, it was seeking cell phone subscription information only to help identify the people, if any, who were present in the vicinity of more than one of the robberies at the specific times of those robberies.
In sum, defendants’ complaint that “these warrants effectively authorized the Government to go digging through the data of every cellular device of every single individual near the crime scenes in the vain hope of finding someone . . . guilty,” Mot. at 11, is hyperbolic and inaccurate.
The instant situation cannot be compared to ongoing surveillance, such as the installation of a GPS tracking device on the defendant‘s vehicle for 28 days which prompted five of the justices in United States v. Jones, 565 U.S. 400, 402-03 (2012), to agree that “longer term GPS monitoring . . . impinges on expectations of privacy.” Id. at 430 (Alito, J., concurring); id. at 415 (Sotomayor, J., concurring). See also id. (“[S]ociety‘s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual‘s car for a very long period.“). This case cannot be compared to Jones, or to the situation in Carpenter — “the ability to chronicle a person‘s past movements through the record of his cell phone signals,” which the Court likened to the GPS tracking in Jones. Carpenter, 585 U.S. at 309. “Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.” Id.
Indeed, the Court found the circumstances even more problematic than those presented in Jones.
A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor‘s offices, political headquarters, and other potentially revealing locales. Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone‘s user.
The scope of what the requested data would include was another fact that animated the Court‘s decision to reject the suggestion that the defendant had parted with it voluntarily.
Virtually any activity on the phone generates CSLI, including incoming calls, texts, or e-mails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates. Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily ‘assume[] the risk’ of turning over a comprehensive dossier of his physical movements.
585 U.S. at 315 (edit in original), quoting Smith, 442 U.S. at 745.
The concerns underlying the decision in Carpenter are not present here, and that is why other courts have found that tower dump information does not fall within the scope of the
Defendants point to the Fifth Circuit‘s opinion in Smith v. United States, 110 F. 4th 817 (5th Cir. 2024), to argue otherwise. Mot. at 10-11. In that case, the panel relied on Carpenter to compare what are known as “geofence warrants” to general warrants, which are categorically prohibited under the
Unlike a warrant authorizing surveillance of a known suspect, geofencing is a technique law enforcement has increasingly utilized when the crime location is known but the identities of suspects [are] not. Thus, geofence warrants effectively “work in reverse” from traditional search warrants. In requesting a geofence warrant, “[l]aw enforcement simply specifies a location and period of time, and, after judicial approval, companies conduct sweeping searches of their location databases and provide a list of cell phones and affiliated users found at or near a specific area during a given timeframe, both defined by law enforcement.”
Id. at 822 (edits in original) (internal citations omitted). The Fifth Circuit viewed the technique as presenting “the exact sort of ‘general, exploratory rummaging’ that the Fourth Amendment was designed to prevent.” Id. at 837, quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). This is because, with a geofence warrant, “law enforcement cannot obtain its requested location data unless Google searches through the entirety of its [location history database] — all 592 million individual accounts — for all of their locations at a given point in time.” Id. In other words, “[w]ith ‘just the click of a button,’ the government can search the pinpoint locations of over half a billion people with [l]ocation [h]istory enabled.” Id. at 833, quoting Carpenter, 585 U.S. at 311. See also id. at 834 (“Of particular concern is the fact that a geofence will retroactively track anyone with [l]ocation [h]istory enabled, regardless of whether a particular individual is suspicious or moving within an area that is typically granted Fourth Amendment protection.“).
Whatever the problems surrounding geofence warrants may be, the Fifth Circuit‘s decision in Smith is both not binding on this Court and inapposite. A tower dump does not provide law enforcement with the sweeping information enabled by a geofence warrant but, rather, a circumscribed collection of phone locations in a set period of time. It is therefore more akin to a
Confronted with that fact, defendants can find little that is objectionable about the warrant application. Defendants do not point to any of the factors set out in Franks v. Delaware that would authorize the Court to go behind the affidavit; their motion comes down to a claim that the evidence should be excluded because the warrant was not particularized as to them, see Mot. at 10-11, citing Ybarra v. Illinois, 444 U.S. 85 (1979), and the search was therefore improper.
Defendants’ suggestion that the F.B.I. should not have been able to obtain a warrant for information that was not directed at anyone in particular seems inconsistent with the fundamental contention of their motion: that the request to the cell service providers was an invasion of their personal privacy in the first place. But even if one were to assume that the limited cell tower information sought here implicates privacy considerations that trigger application of the
The fact that the warrant did not name anyone in particular does not render it deficient, and the case defendants rely on for that proposition says nothing of the sort.
The application here was sufficient to show what it had to show: that there was a fair probability that evidence of a crime would be found in the particular place to be searched. The Constitution does not require that the F.B.I. must know who it is looking for before it conducts an investigation to find that out. Moreover, in the unlikely event the warrant was defective as a matter of law, the F.B.I. was entitled to rely in good faith upon the judgment of the Magistrate Judge. See United States v. Leon, 468 U.S. 897, 921 (1984). Since the defendant has not pointed to any circumstances that would support a finding that the issuing judge was misled by information in the affidavit that the affiant knew was false, that the Magistrate Judge abandoned her judicial role or neutrality, that the affidavit was so lacking in indicia of probable cause to make reliance unreasonable, id., or that a reasonably well-trained officer would have known the search was illegal, see id.; Herring v. United States, 555 U.S. 135, 145 (2009), the remedy of suppression would be inappropriate in this case.
For all of these reasons, defendants’ motion to suppress the tower dump information [Dkt. # 167], which was obtained pursuant to a search warrant authorized by a Magistrate Judge in accordance with the
DATE: August 19, 2025
AMY BERMAN JACKSON
United States District Judge
Notes
Green, 2025 WL 2314662, at *8. The Court of Appeals then held that the use of the pole camera that captured Green‘s activities was not a “search” under theThe cell-site location data in Carpenter, like the GPS data in Jones, “provide[d] an all-encompassing record of the holder‘s whereabouts,” revealing “not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.‘” Carpenter, 585 U.S. at 311, quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring). Those kinds of data have a “retrospective quality” that allows the government to reconstruct a suspect‘s past — surveilling him before he was ever a suspect — and to access “a category of information otherwise unknowable.” Id. at 312.