CA7: Where there already was PC for def’s arrest warrant, the use of a Stingray to find him didn’t violate any 4A rights

Officers had a warrant for defendant’s arrest for a state parole violation, and they found him in a public place and arrested him. They used a Stingray device to locate him rather than rely on the cell phone company to track his location. The case raises interesting issues of whether use of a Stingray is a “search,” which the government here concedes, and whether it even matters because defendant was arrested in a public place. He sought remand to explore the issue, but the court passes on the use of a Stingray here, waiting for a more concrete case, because the arrest was in a public place. “A person wanted on probable cause (and an arrest warrant) who is taken into custody in a public place, where he had no legitimate expectation of privacy, cannot complain about how the police learned his location. Recall that the cell-site simulator (unlike the GPS device in Jones) was not used to generate the probable cause for arrest; probable cause to arrest Patrick predated the effort to locate him.” The exclusionary rule will not be applied. United States v. Patrick, 2016 U.S. App. LEXIS 21090 (7th Cir. Nov. 23, 2016):

If the Department’s description is accurate (a question not explored in this litigation) law-enforcement officials get the same sort of information that a phone company could provide using its own facilities, and they get it in real time rather than waiting for the phone company to turn over data. But instead of collecting information on just one person, as the warrant in this proceeding entitled the police to learn Patrick’s location, a cell-site simulator collects the relative location of everyone whose phone is induced to connect to the simulator—though it may discard that information before alerting officials to the presence of the sought-after person (just as the phone company, which has location data about all of its customers, would disclose only one person’s location).

One potential question posed by use of a cell-site simulator would be whether it is a “search” at all, or instead is covered by Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979), and United States v. Knotts, 460 U.S. 276, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). The former holds that a pen register is not a search because it reveals the making of a call, and the number called, but not the call’s communicative content. The latter holds that the use of a beeper is not a search, because it reveals a suspect’s location but nothing else. Recent decisions such as United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc), and United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), apply these principles to hold that tracking a person via data from phone companies is not a search within the scope of the Fourth Amendment. (Graham involved historical cell-tower location information and Carpenter involved “transactional records” from phone companies, so both cases dealt with the sort of information covered by the location warrant in this proceeding.) Police freely use databases, containing information such as the addresses associated with automobile license plates and persons licensed to drive, to track down suspects; they search trash for credit card receipts showing where he made purchases; they consult a suspect’s relatives and friends (and sometimes his enemies) to learn his whereabouts; no one thinks that those methods require a search warrant.

A contrary line of argument analogizes cell-site simulators to GPS locators, which are treated as searches when police enter private property to install them, see United States v. Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012), and may be searches when used for extended durations even if installed with a vehicle owner’s consent, id. at 954-64 (concurring opinions of Sotomayor and Alito, JJ.). If a cell-site simulator is like a GPS tracker, and if the approach of the concurring opinions in Jones is adopted, then it would be necessary to know how long the police used a simulator while searching for Patrick and just how accurate is the location information it provides. (Is it information that leaves uncertainty about where in several city blocks a suspect may be, such as the beeper in Knotts, or is it closer to the precise location supplied by a GPS tracker?) Cf. Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (thermal image of the inside of a house is a search, given a person’s strong privacy interest in his dwelling).

The United States has conceded for the purpose of this litigation that use of a cell-site simulator is a search, so we need not tackle these questions. The parties join issue, however, on the significance of the fact that police did not reveal to the state judge who issued the location-tracking warrant that they planned to use a cell-site simulator—indeed, implied that they planned to track him down using his phone company’s data. Patrick says that leaving the judge in the dark (perhaps misleading the judge by omitting a potentially material fact) makes the location-tracking warrant invalid. This poses the question whether a judge is entitled to know how a warrant will be executed.

The Fourth Amendment requires that warrants be based “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Supreme Court stated in Dalia v. United States, 441 U.S. 238, 256, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979), that neither constitutional text nor precedent suggests that “search warrants also must include a specification of the precise manner in which they are to be executed.” The manner of search is subject only to “later judicial review as to its reasonableness.” Id. at 258. And the Justices added in Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997), that courts cannot limit a warrant so as to foreclose a particular means of execution. In Richards the police sought a warrant that would have authorized a no-knock entry to conduct a search. The judge denied that request but issued a warrant for a regular search. After the police conducted a no-knock entry anyway, the Court held that this was proper because it was reasonable to carry out the search that way under the circumstances.

This means that the police could have sought a warrant authorizing them to find Patrick’s cell phone and kept silent about how they would do it. Or affidavits and the warrant itself might have said that “electronic means that reveal locations of cell phones” will be used. Professor Kerr has concluded from Dalia and Richards, and other considerations, that the Fourth Amendment forbids judges to attempt to regulate, ex ante, how a search must be conducted, and confines the judiciary to ex post assessments of reasonableness. Orin S. Kerr, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241, 1260-71 (2010).

We can imagine an argument that it will often be unreasonable to use a cell-site simulator when phone company data could provide what’s needed, because simulators potentially reveal information about many persons other than the suspects. (The contrary argument is that data from simulators is current, while data relayed through phonecompanies’ bureaucracies may arrive after the suspect has gone elsewhere.) But if the problem with simulators is that they are too comprehensive, that would not lead to suppression—though it might create a right to damages by other persons whose interests were unreasonably invaded. Patrick is not entitled to invoke the rights of anyone else; suppression is proper only if the defendant’s own rights have been violated. See, e.g., United States v. Payner, 447 U.S. 727, 100 S. Ct. 2439, 65 L. Ed. 2d 468 (1980).

Patrick contends that, even if ex ante authorization of the method is unnecessary, the police must be candid with the judiciary when they mention potential methods of executing a search warrant. He seeks, at a minimum, a remand to explore those questions, after the fashion of a Franks hearing (see Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978)), at which the court would decide whether the warrant still would have issued if the affidavits had been more forthcoming.

But for the reasons given earlier we conclude that the answers do not control this appeal. A person wanted on probable cause (and an arrest warrant) who is taken into custody in a public place, where he had no legitimate expectation of privacy, cannot complain about how the police learned his location. Recall that the cell-site simulator (unlike the GPS device in Jones) was not used to generate the probable cause for arrest; probable cause to arrest Patrick predated the effort to locate him. From his perspective, it is all the same whether a paid informant, a jilted lover, police with binoculars, a bartender, a member of a rival gang, a spy trailing his car after it left his driveway, the phone company’s cell towers, or a device pretending to be a cell tower, provided location information. A fugitive cannot be picky about how he is run to ground. So it would be inappropriate to use the exclusionary rule, even if the police should have told the judge that they planned to use a cell-site simulator to execute the location warrant.

The Department of Justice announced last September that in the future it would ordinarily seek a warrant, plus an order under the pen-register statute, 18 U.S.C. § 3123, before using a cell-site simulator, but it has not conceded that this is constitutionally required. Questions about whether use of a simulator is a search, if so whether a warrant authorizing this method is essential, and whether in a particular situation a simulator is a reasonable means of executing a warrant, have yet to be addressed by any United States court of appeals. We think it best to withhold full analysis until these issues control the outcome of a concrete case.