Criminal Law Blog

Newsflash! MPD’s warrantless use of a cell-site simulator constitutes an unlawful search

Jones v. United States (decided September 21, 2017).

Players: Associate Judges Thompson and Beckwith, Senior Judge Farrell.  Opinion by Judge Beckwith.  Partial concurrence/dissent by Judge Farrell.  Dissent by Judge Thompson.  PDS for Mr. Jones.  ACLU and Electronic Frontier Foundation as amicus.  Trial judge: Jennifer M. Anderson.

Facts: Evidence at the suppression hearing established that in October of 2013, officers of the Metropolitan Police Department were investigating two reports of sexual assault.  The complainants in both cases reported that the perpetrator had contacted them by phone to arrange to pay for sexual services in response to advertisements the complainants had posted.  At the arranged meetings, the perpetrator sexually assaulted the women at knifepoint and stole their cell phones.  MPD investigation revealed that each complainant had received a call from the same number during the relevant time periods. 

Police then obtained information about the location of the suspect’s and complainants’ phones from the relevant cell phone companies.  The data they received indicated that one complainant’s phone and the suspect’s phone appeared to be together in the vicinity of the Minnesota Avenue Metro station.  MPD officers took a cell-site simulator to the area and used the device to track the Mr. Jones’s phone.  The signal led them to a parked car.  Inside the car were Mr. Jones and his girlfriend, Nora Williams.  The police arrested Mr. Jones and recovered evidence from his person and his car, and from Ms. Williams. 

Cell-site simulators work as follows: The police first obtain subscriber information and real-time location information from a target’s cell phone service provider to narrow down a search area.  Then police proceed to that area with a cell-site simulator.  When the simulator detects the target phone, it “grabs” the target phone.  The simulator then begins reporting location and signal strength information that can be used to locate the target phone.  Because cell phones are “dumb devices,” as the defense expert put it, and are unable to differentiate between a legitimate cell tower and a cell-site simulator, the simulator induces the phone to divulge its indentifying information.  Slip. op at 16-17.  (The “StingRay” is a popular cell-site simulator produced by the Harris Corporation.  The record in this case does not include the name of the device used against Mr. Jones.  Slip op. at 2 n.2.) 

The trial court denied the suppression motion, ruling that the inevitable-discovery doctrine rendered the exclusionary rule inapplicable.  This appeal follows Mr. Jones’s conviction at trial.

Issue: Whether the government’s use of a cell-site simulator to locate Mr. Jones’s cell phone constituted a search for purposes of the Fourth Amendment. 

Holding: Yes.  The Court distinguished this case from Supreme Court precedent in which location data transmitted by trackers was found not to constitute a search.  See, e.g., United States v. Jones, 565 U.S. 400, 402-03 (2012) (GPS tracker placed on the defendant’s wife’s car); United States v. Karo, 468 U.S. 705, 708 (1984) (tracker placed in container of chemicals the defendants purchased).  Unlike a tracking device, the Court reasoned, a cell-site simulator enables police to locate a person whose whereabouts were previously “completely unknown.”  Slip op. at 15.  “A cell-site simulator allows police officer’s who possess a person’s telephone number to discover that person’s precise location remotely and at will.”  Id. at 17.  Furthermore, unlike a person’s location that can be observed through visual surveillance, the information obtained by a cell-site simulator is not “readily available and in the public view,” Slip op. at 19 (quoting Andrews, 134 A.3d at 348).  Therefore, “under ordinary circumstances, the use of a cell-site simulator to locate a person through his or her cell phone invades the person’s actual, legitimate, and reasonable expectation of privacy in his or her location information and is a search.”  Slip op at 20-21.  As the government’s use of the cell-site simulator to locate Mr. Jones was a search for which the police did not obtain a warrant, their conduct violated the Fourth Amendment. 

Of Note:

The question of whether the government is required to obtain a warrant before using a cell-site simulator to locate a cell phone was an issue of first impression not only here in the District, but virtually everywhere in the country.

The Court considered and rejected the government’s arguments that a warrant was not required:

  • Exigent circumstances: The trial court rejected the government’s argument that exigent circumstances justified noncompliance with any otherwise applicable warrant requirement, given the ten hours that elapsed between the sexual assault and Mr. Jones’s arrest.  Slip op. at 11. 
  • Inevitable-discovery doctrine: This exception to the exclusionary rule applies if the government can show that the evidence would have been discovered by lawful means.  The lawful process by which the evidence would have been discovered must have commenced before the constitutionally invalid seizure of evidence.  Here, it was undisputed that MPD had only one functioning cell-site simulator, that it could locate only a single phone at a time, and that police were using it to search for Mr. Jones’s cell phone.  Since the lawful search of the complainant’s phone never occurred, it could not have commenced before the illegal search.  Therefore, the inevitable-discovery doctrine did not apply.  Slip op. at 26-30.
  • Good-faith exception: Evidence obtained when the police act with an objectively reasonable good-faith belief that their conduct is legal is not subject to the exclusionary rule.  The Court reasoned that it was not reasonable for police to believe that their warrantless use of the cell-site simulator was lawful, given the secrecy surrounding the device and the lack of law on the issue.  Slip op. at 31-34. 
  • Change in DOJ policy:  The government argued that a change in Department of Justice policy has made it unlikely that exclusion in this case would deter future police misconduct.  In September of 2015, the DOJ issued guidance requiring law enforcement to obtain a search warrant supported by probable cause before using a cell-site simulator.  According to the government, MPD is bound by this policy.  The Court was not persuaded by this argument, reasoning that there is no precedent for not applying the exclusionary rule based on the government’s representation that it will avoid in future unlawful conduct.  The Court also noted that there is no enforcement mechanism described in the DOJ policy to ensure compliance, and that the policy could be changed by the present administration or a future one. 

The Court determined whether the following evidence should be excluded as “fruits of the poisonous tree:” 

  • Mr. Jones’s statement: At the scene of his arrest, police asked Mr. Jones for his address.  He gave the address of one of the sexual-assault complainants.  The government argued that this statement was obtained merely as part of a routine booking procedure, so the rationale for using exclusion to deter police misconduct did not apply.  The Court rejected this argument, reasoning that “very little time and no substantial intervening circumstances” separated the illegal search from Mr. Jones’s statement.  Slip op. at 37-38. 
  • Cell phones in Ms. Williams’s handbag: When the police searched Ms. Williams’s handbag, they found two of the complainants’ phones and Mr. Jones’s phone.  The government argued that Mr. Jones had no standing to contest the search of Ms. Williams’s bag, and that Ms. Williams consented to the search.  Applying the factors described in Brown v. Illinois, 422 U.S. 590, 603-4 (1975), the Court determined that the contents of Ms. Williams’s purse constituted tainted fruits: (1) Little time passed between the unlawful search and recovery of the evidence; (2) Ms. Williams’s consent was not a significant intervening circumstance (given that she was faced with the options of consenting to the search or surrendering the purse to the police while they obtained a warrant); and (3) the recovered phones were closely related to the underlying illegality, since the police were using the cell-site simulator to locate the phones.  Slip op. at 39-41.
  • Ms. Williams’s testimony: Judge Beckwith applied the four factors articulated in United States v. Ceccolini, 435 U.S. 268 (1978) to determine whether Ms. Williams’s testimony against Mr. Jones at trial was tainted by the illegal search.  Judge Beckwith noted that (1) Ms. Williams was not a willing witness and testified only pursuant to a court order granting her immunity from prosecution; (2) in questioning Ms. Williams, police confronted her with the unlawfully seized cell phones; (3) little time passed between the illegal search and Ms. Williams’s first contact with the police; and (4) the evidence at the suppression hearing did not establish that police would have learned of Ms. Williams without the illegal search.  While the fifth Ceccolini factor – whether the police intended their illegal search to find a witness to testify against the defendant – favored the government, Judge Beckwith found that it was outweighed by the other four factors, and that the testimony therefore constituted a fruit of the unlawful search.  Slip op. at 41-45.  However, as Judge Farrell did not join this portion of the opinion and Judge Thompson dissented, this ruling was not the opinion of the Court.  NG

Read full opinion here.