Id. Aug … [*] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT *576 William G. McNairy argued the cause for petitioner in No. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MARYLAND Syllabus. 17, 2016) (“[A] Los Angeles Police Department ․ Officer ․ used a ‘Find My iPhone App‘ [in 2012] to locate Schulz‘s cell phone that had been taken during the robbery events. Unpub. See Stephanie K. Pell & Christopher Soghoian, Your 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. LEXIS 3695, *2 (Feb. 10, 2015) (“After the victim reported the robbery [in 2012], the police tracked the iPhone, through a ‘Find My iPhone‘ mobile application, to a house on Washington Street.”); State v. Coleman, No. My colleagues ultimately acknowledge that “certain forms of tracking [in public spaces] ․ do not invade a reasonable expectation of privacy.” Ante at 18. Saw the Largest Mass Arrest in U.S. History, and ACLU Responded. In the pages that follow, I will explain my reasoning in more detail. Id. Id. Unpub. 2004). 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, 730 A.2d 657, 659 (D.C. 1999), that tracking the complainants‘ cellphones with the simulator, had that taken place, would have led to the same seizure of incriminating evidence. See United States v. Graham, 824 F.3d 421, 428 (4th Cir. 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. I have several responses. 1991) (“Only if one adopts an absolutist approach to the adversary system can one contend that courts must never address unargued issues, no matter how obvious their proper resolution may be. “We must determine whether the court‘s denial of the motion to suppress is sustainable under any reasonable view of the evidence,” and “[i]t is well settled that [we] may affirm a decision for reasons other than those given by the trial court.” Alston v. United States, 518 A.2d 439, 440 n.2 (D.C. 1986). 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. The conclusion that the error was not harmless beyond a reasonable doubt nonetheless stands. Instead, the trial court focused on the issues of standing, exigent circumstances, and inevitable discovery. 3. The court stated that “any expectation of privacy that [the defendant] had in his cell-phone location was dubious at best.” Id. 35. Restatement (Second) of Torts § 217 (Am. There was at least arguably a seizure here, because, according to the testimony, use of the cell-site simulator may have caused calls appellant tried to make from his phone to drop. at 37–38. 2017) (tracking of fugitive‘s real-time GPS location data for approximately seven hours did not amount to a Fourth Amendment search). And given that the DOJ policy memorandum does not describe any sort of enforcement mechanism that would ensure compliance with the policy, and given that the present administration or a subsequent one may well revise this policy, we are not convinced that the need to deter future constitutional violations is lacking. United States v. Jones, 565 U.S. 400, 404 (2012). at 973–74. Circuit concluded that no warrant was required for their use of the electronic device that reported when the box was opened because the “decisive issue ․ [was] not what the officers saw but what they could have seen.” Id. at 441, 444. Because CSLI is information the individual has already “ ‘exposed‘ ․ to the phone company‘s ‘equipment in the ordinary course of business,‘” that person has “ ‘assumed the risk‘ that the phone company would disclose their information to the government.” Id. But because the government affirmatively—and repeatedly—conceded the standing issue in the trial court, the government has waived this argument. “[W]hether an expectation of privacy is reasonable depends in large part upon whether that expectation relates to information that has been ‘exposed to the public.‘” Maynard, 615 F.3d at 558 (internal alterations omitted) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)). 39. The police arrested Mr. Jones and recovered evidence from Mr. Jones‘s person and his car and from Ms. Williams, including a folding knife and the complainants‘ and the suspect‘s cellphones. Once the target cellphone is identified, the cell-site simulator “provide[s] ․ the relative signal strength and general direction” of the phone. Jones (Prince) v. United States. 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. 2021. See also California v. Carney, 471 U.S. 386, 393 n.2 (1985) (“With few exceptions, the courts have not hesitated to apply the vehicle exception to vehicles other than automobiles.”); id. Additionally, a warrant should be required because cell site simulators interact with the cell phones of other people in the vicinity, forcing their phones to drop (or be unable to make) calls and transmitting data to the government that they would not otherwise have transmitted to the government. Apr. 137 (1814) (holding that the plaintiff could sue for trespass to chattels where the sound of the defendant‘s gunshot frightened the plaintiff‘s horse, resulting in damage to the plaintiff‘s carriage); see also W. Page Keeton et al., Prosser and Keeton on Torts § 14 n.8 (5th ed. I suspect most of us would be outraged at the effrontery of law enforcement officials in systematically inspecting our trash. 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.”. JONES . 2004) (holding that to rely on the inevitable-discovery doctrine the government must prove a lawful means by which it would have obtained the evidence, and that it is insufficient to prove merely that “the evidence would have been discovered as a consequence of [an] illegal search of [a third party], to which [the defendant] could not object”). denied, 137 S. Ct. 654 (2017), a case in which the police obtained real-time cell-site location information without a warrant. 1992)). But although the kind of device used in Knotts and Karo is probably more reliable than a human tracker—less prone to discovery than a human and harder to elude—at their core these devices merely enable police officers to accomplish the same task that they could have accomplished through “[v]isual surveillance from public places.” Knotts, 460 U.S. at 282; see also Karo, 468 U.S. at 713. 29, 2016). United States v. Bowley, 435 F.3d 426, 430–31 (3d Cir. United States Court of Appeals for the Ninth Circuit . 36. LEXIS 478, at *6 (“A cell site simulator ․ takes advantage of the fact that a cell phone — when turned on — constantly seeks out nearby cell towers, even if the user is not making a call ․ When the cell site simulator is close enough, the target phone will connect to it as though it were a cell tower.”); In re Application for Tel. 10 (Apr. Our court has applied the guidance of National Bank of Oregon in various circumstances. The government argues that this statement should not be suppressed as a fruit of the unlawful cell-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, 731 A.2d 415, 421 (D.C. 1999) (recognizing “a routine booking question exception” to the rule of Miranda v. Arizona, 384 U.S. 436 (1966)). The information came in the form of geographic coordinates—latitude and longitude—with a “degree of uncertainty” specified in meters. Rptr. at 446-47 (internal alterations omitted) (quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)). 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 phone. 2016). 16. at 106 (“[T]he fact that the question of the degree of privacy that adheres to these sorts of information, to date, divides those Circuit courts that have spoken to the issue reinforces the conclusion that the intrusion here was not to an established, core privacy value.”). Last Updated on June 1, 2019, by eNotes Editorial. If the lawful search never occurred, it did not “commence[ ] before the constitutionally invalid seizure” of Mr. Jones. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Author Ta-Nehisi Coates attended Jones' memorial service, and later wrote at length about Jones' life and death in his 2015 book Between the World and Me, noting that the tragedies of racism are impossible to escape for Black … Sergeant Perkins testified that the TSU receives these numbers by requesting “subscriber information” for a phone number. Ct. App. For the reasons already discussed, he did not while he was on the public roads with a trackable, stolen cell phone. 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. ↑ "Fauquier County Genealogist Joan Peters to Speak on Use of Local Records, 17 April," The Newsletter of the Prince William County Genealogical Society, Vol. Jun 27, 1997. LEXIS 466, *3 (Apr. 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. §§ 22-2801, -4502; and one count of threats, id. My colleagues express concern that “[a] cell-site simulator allows police officers who possess a person‘s telephone number to discover that person‘s precise location remotely and at will.” Ante at 17. §§ 5570-5578, is constitutional and valid. The police here did not have probable cause to believe that there was evidence of a crime inside Mr. Jones‘s car until they used the cell-site simulator to locate Mr. Jones‘s cellphone. It is helpful to recall the facts of California v. Greenwood, 486 U.S. 35 (1988). D’Quan Young’s Family Files Third FOIA Request Seeking Information... D.C. to Pay $1.6 Million to Settle Claims from 2017 Inauguration... Surveillance Legislation is on the Horizon! Indeed, the taxi driver himself could have seen the event simply by looking in his rear-view mirror or turning around.” Id. United States v. Jones Case Brief. 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.” 565 U.S. at 419 n.2 (Alito, J., concurring in judgment) (internal quotation marks omitted); see also Restatement (Second) of Torts § 218 cmt. Ins. 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. It appears that the detective was referring to her ability to use the Find My iPhone app in an effort to locate the Apple iPhone 4S cell phone stolen from the woman the police referred to as complainant number one‘s cousin (who was robbed but not sexually assaulted at the end of the first of the two incidents involved in this case). 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.”. LEXIS 478, *5 n.4 (July 28, 2017) (citing a November 2011 publication entitled “How to Use Find My iPhone to Get Your Stolen iPhone Back”); People v. Foy, 199 Cal. United States v. Riley, 858 F.3d 1012, 1013 (6th Cir. 21. 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. 28. Prince Jones (1975-2000) Prince Jones. Get free access to the complete judgment in JONES v. PRINCE GEORGE'S COUNTY on CaseMine. Mr. Jones made an incriminating statement to the police at the scene of the arrest: When asked what his address was, Mr. Jones gave the address of one of the sexual-assault complainants. See Graham, 824 F.3d at 434 (rejecting the argument that cell-site location information should be treated as “content” for Fourth Amendment purposes).Again, this case does not involve a warrantless search of any digital content (such as text messages, emails, contact lists, call logs, voicemail messages, photographs, videos, files, internet browsing history, apps that are revelatory of a person‘s interests, historic location information, etc.) See Graham, 824 F.3d at 435 (noting that in Jones, “the concurring justices recognized a line between ‘short-term monitoring of a person‘s movements on public streets,‘ which would not infringe a reasonable expectation of privacy, and ‘longer term GPS monitoring,‘ which would” (quoting Jones, 565 U.S. at 430)). Jones, 565 U.S. at 429 (Alito, J., concurring in judgment).24 Further, it was reasonable to expect that the owner of the stolen cell phone would seek help from the police and put in motion their efforts, with whatever cell-site location information and devices were at their disposal, to locate the stolen phone. 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, 435 U.S. at 278. With him on the briefs were Claude C. Pierce, Edward C. Winslow, and John H. Small. 2d 827, 833-34, 845 (S.D. Id. Shhh! It does so by effectively commandeering the cellphone as a police investigative tool in the way Judge Beckwith describes, namely, by “actively induc[ing] the phone to divulge its identifying information,” ante at 17, from which the phone‘s direction and distance relative to the simulator can be determined. Unlike in a situation in which the government determines a person‘s location through visual surveillance or by employing the older generation of tracking devices, see Karo, 468 U.S. at 719; Knotts, 460 U.S. at 282, it cannot be argued that “the information obtained by [the government] in this case was ․ readily available and in the public view,” Andrews, 134 A.3d at 348. at 427-28 (quoting Smith, 442 U.S. at 744). (I note that to the extent that the presence of the cell-site simulator in the area caused dropped calls or other disruption of the cell phones of other people in the area, appellant has no standing to complain.). at 39, but reasoned nevertheless that the police conduct did not constitute a Fourth Amendment violation (because respondents “could have had no reasonable expectation of privacy in the inculpatory items that they discarded”). The fact that some of the evidence was obtained in secondary searches pursuant to warrants and a court order does not change things. 38. 3d at 524; see also United States v. Karo, 468 U.S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.”). Cir. In this case as always, this court‘s task is to “consider[ ] the briefs and the oral argument, and [to] test[ ] them against the record and the law,” Watson v. United States, 536 A.2d 1056, 1068 (D.C. 1987) (en banc), not merely to choose the better or best of the arguments presented in support of a claim. Petty was able to use his computer to track the phone‘s location to a general vicinity of Division and Waddell Street.”); Pirozzi v. Apple, Inc., 966 F. Supp. Decided February 25, 1957. Brief Fact Summary. 25. In November 2014, Prince Jones was convicted for rape and robbery. Some courts have held that the Fourth Amendment protects real-time CSLI, e.g., Tracey, 152 So. 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. 18. 2013) (quoting a statement from Apple‘s website that “In the event your iPhone is lost or stolen, Find My iPhone allows you to locate it on a map[. And second, even a person‘s public movements, as observed by a cell-site simulator or other means of cellphone tracking, can reveal sensitive information about the person‘s “familial, political, professional, religious, and sexual associations.” United States v. (Antoine) Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring). Id. 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. The government does not argue otherwise. Our responsibility as an appellate court is to decide cases in accordance with the law, and that responsibility is not to be diluted by how counsel have framed the issues or by limitation to the specific authorities counsel have cited. Moreover, the police began using the simulator a considerable length of time after appellant had come into possession of the complainants‘ cellphones, and even then some 30–45 minutes elapsed before the simulator directed them to appellant‘s car and cellphone. 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. 533 U.S. at 40. 21. See Matt Richtel, A Police Gadget Tracks Phones? 33. Ante at 17. Supreme Court of United States. Tracey, 152 So. 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”). 2011) (“[T]he court concludes that established normative privacy considerations support the conclusion that the reasonable expectation of privacy is preserved here, despite the fact that cell-site-location records [are] disclosed to cell-phone service providers.”). The court approved the officers‘ actions under the exigency exception. It appears that police used the cell-site simulator to locate appellant‘s phone rather than the stolen phone. filed. 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. 12. 13. It is in this sense that a cell-site simulator is a locating, not merely a tracking, device: A cell-site simulator allows police officers who possess a person‘s telephone number to discover that person‘s precise location remotely and at will. Printz v. United States stands for the proposition that Congress cannot commandeer a State’s executive branch for federal purposes. See generally Marjorie A. Shields, Annotation, Applicability of Common-Law Trespass Actions to Electronic Communications, 107 A.L.R.5th 549 (2003).But the question whether the holding of (Antoine) Jones extends beyond physical trespasses is still an open one. 132 . 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). The detective searched through the trash and found items indicative of narcotics use. Barnett v. United States, 525 A.2d 197, 200 (D.C. 1987). Sergeant Todd Perkins, a supervisor in the TSU, testified about his office‘s efforts to track the phones that morning. 288 (1952) Staples v. United States132 S. Ct. 593, 181 L. Ed. Assuming that the former is the case, it is also not clear whether “the[ ] recent decisions [recognizing electronic trespass to chattels] represent a change in the law or simply the application of the old tort to new situations.” Id. Decided. 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 17. See Tuckson v. United States, 77 A.3d 357, 366 (D.C. 2013); Rose v. United States, 629 A.2d 526, 535 (D.C. 1993); see also Greenlaw v. United States, 554 U.S. 237, 244 (2008) (“We wait for cases to come to us, and when they do we normally decide only questions presented by the parties. 3d at 507 n.1.31 That observation accords with the testimony by defense telecommunications technology expert Ben Levitan in this case. Stefanie Schneider, Public Defender Service, with whom Samia Fam and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant. 68 (1970), reprinted in APPELLATE JUDICIAL OPINIONS 128 (Robert A. Leflar ed., 1974); see also Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases. See id. 29. See Gore, 145 A.3d at 549 n.32 (“[T]he argument that ‘if we hadn't done it wrong, we would have done it right‘ is far from compelling.” (quoting 6 LaFave, supra, § 11.4 (a)) (internal quotation marks omitted)).32. 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. Smith held that an individual enjoys no Fourth Amendment protection “in information he voluntarily turns over to [a] third part[y].” Id. 2000), illustrates the point. ]”); United States v. Flores-Lopez, 670 F.3d 803, 808 (7th Cir. 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