Petitioner and Cross-Respondent, Respondent and Cross-Petitioner. In the Supreme Court of the United States UNITED STATES, DAVID ELLIS,

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1 In the Supreme Court of the United States UNITED STATES, v. Petitioner and Cross-Respondent, DAVID ELLIS, Respondent and Cross-Petitioner. On Writ of Certiorari to The United States Court of Appeals For the Ninth Circuit BRIEF OF RESPONDENT Team R2 + Respondent

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii QUESTIONS PRESENTED... v OPINIONS BELOW... v CONSTITUTIONAL PROVISIONS AND RULES... v INTRODUCTION... 1 STATEMENT OF THE CASE... 2 ARGUMENT... 5 I. The Court of Appeals for the Ninth Circuit properly reversed the District Court s judgment in favor of the Appellant-Respondent David Ellis finding that the exclusionary rule applies to the evidence procured from CWO Tyrell s PCAviolating investigation where he provided direct military assistance, where any evidence obtained through that violation is excluded as fruit of the poisonous tree to deter future misconduct arising from PCA violations A. The exclusionary rule applies to evidence obtained in violation of the PCA because Navy Chief Warrant Officer Tyrell was acting in his official capacity, when he was directly involved in civilian law enforcement, where that involvement did not serve any military purpose B. The exclusionary rule applies to evidence obtained in violation of the PCA because a Fourth Amendment violation occurred, direct causation exists and there is need to safeguard Fourth Amendment protections C. The exclusionary rule applies to evidence obtained in violation of the PCA because deterrence benefits outweigh the minimal social costs II. The Court of Appeals for the Ninth Circuit incorrectly held that the provision of the Stored Communications Act allowing the government to obtain Ellis cell site location data without a warrant based on probable cause does not violate the Fourth Amendment based on a lack of an expectation of privacy in the cell site location data that does not fall under the scope of information protected by the Fourth Amendment i

3 A.Obtaining the cell site location data records was a search under the Fourth Amendment because Ellis had a reasonable subjective and objective expectation of privacy in that information B.Ellis use of his cell phone was not a voluntary transmission of his location data to a third party and there is a reasonable objective expectation of privacy in location data C. The Stored Communications Act violates Ellis Fourth Amendment guarantee of a warrant based upon probable cause CONCLUSION SIGNATURE BLOCK ii

4 TABLE OF AUTHORITIES Cases Davis v. U.S., 131 S.Ct (2011)... 11, 12 Hudson v. Michigan, 547 U.S. 586 (2006)... 8, 9 In re App. of the U.S. for Historical Cell Site Data (Historical Cell Site Data), 724 F.3d 600 (5th Cir. 2013)... 24, 25, 26 In re App. of U.S. for an Order Directing a Provider of Elec. Comm. Serv. To Disclose Records to Gov t (Order Directing a Provider), 620 F.3d 304 (3rd Cir. 2010)... 19, 20, 21 Katz v. U.S., 389 U.S. 347 (1967)... 14, 15, 16 Kyllo v. U.S., 533 U.S. 27 (2001)... 15, 17 Smith v. Maryland, 442 U.S. 735 (1979)... 19, 21 U.S. v. Jones, 132 S. Ct. 945 (2012)... 14, 16 U.S. v. Miller, 425 U.S. 435 (1976)... 20, 22 U.S. v. Powell, 943 F. Supp. 2d 759 (E.D. Mich. 2013)... 24, 25 United States v. Chon, 210 F.3d 990 (9th Cir. 2000)... 5, 6, 7 United States v. Hitchcock, 286 F.3d 1064(9th Cir.), amended by 298 F.3d 1021 (9th Cir. 2002)... 6, 7 United States v. Leon, 468 U.S. 897 (1984)... 5, 10, 11 United States v. Roberts, 779 F.2d 565 (9th Cir. 1986)... 5, 11 United States v. Walden, 490 F.2d 372 (4th Cir. 1974)... 5, 6, 10, 11 United States v. Wolffs, 594 F.2d 77 (5th Cir. 1979) iii

5 Statutes 18 U.S.C. 2703(d) U.S.C.S Constitutional Provisions U.S. Cont. art. IV iv

6 QUESTIONS PRESENTED I. Whether the Ninth Circuit Court of Appeals properly held that the exclusionary rule applies to evidence obtained in violation of the Posse Comitatus Act, 18 U.S.C. 1385, due to a need to deter repeated direct involvement of the military in civilian law, where the government benefited from military power by obtaining evidence without good faith in probable cause violating the Fourth Amendment. II. Whether the Ninth Circuit Court of Appeals incorrectly held that the provision of the Stored Communications Act, 18 U.S.C. 2703(d), allowing the government to obtain Ellis cell site location data without a warrant based upon probable cause does not violate the Fourth Amendment based on a lack of an expectation of privacy in the cell site location data that does not fall under the scope of information protected by the Fourth Amendment. OPINIONS BELOW 902 F.3d 221 (9th Cir. 2013) CONSTITUTIONAL PROVISIONS AND RULES U.S. Const. art. IV 10 U.S.C U.S.C. 1385, 2703(c), 2703(d) v

7 INTRODUCTION This analysis examines whether the Ninth Circuit Court of Appeals erred in determining the Silk Road message logs were obtained in violation of the Posse Comitatus Act under the Walden analysis and its progeny. In particular, this analysis first addresses that Navy Chief Warrant Officer Tyrell s online weapons investigation was not indirect involvement because his actions were expressly prohibited by Department of Defense (DoD) Directive and ultimately pervaded Crane s police investigation. Second, this brief identifies the presence of direct causation and the absence of any other means Detective Crane obtained evidence from Ellis home. Lastly, this brief analyzes the conduct and evidentiary criteria necessary for a finding of objective reasonableness. This Court should find that the Ninth Circuit Court of Appeals correctly held exclusion is appropriate for widespread violations of the PCA as a deterrent for negligent or willful police conduct. Second, this analysis assesses whether the appellate court erroneously concluded obtaining cell site location data without a probable cause warrant under the Stored Communications Act does not fall within the protection of the Fourth Amendment. Specifically, this analysis addresses that the information that was obtained constitutes a search under the Katz two-prong test. Next, this argument focuses on the cell site data location not knowingly and voluntarily being turned over to a third party, showing a reasonable expectation of privacy in that information. Finally, this analysis evaluates the Stored Communications Act s 1

8 lesser standard in obtaining information, in violation of the Fourth Amendment s protection against unreasonable searches and seizures. This Court should find that the Ninth Circuit Court of Appeals incorrectly held that the provision of the Stored Communications Act allowing the government to obtain cell site location data without a warrant based on probable cause does not violate the Fourth Amendment. STATEMENT OF THE CASE This case arises from a violation of the Fourth Amendment protection against unreasonable searches and seizures as well as the protection that warrants need to be based on probable cause. Chief Warrant Officer (CWO) Tyrell chose to investigate all gun activity on Silk Road and did not limit his search to only those involving military affairs. He turned over the evidence of message logs to local civilian law enforcement. The San Diego Police Department used that information to obtain a search warrant to search Ellis computer. The SDPD also obtained cell site location data without a probable cause warrant, pursuant to the Stored Communications Act, subsection (d). Ellis moved to suppress both the evidence obtained from CWO Tyrell and the cell site location data. The District Court denied both motions and Ellis was convicted of all but one charge. The Ninth Circuit Court of Appeals reversed the judgment of the District Court finding the exclusionary rule should apply to the message logs turned over by CWO Tyrell, and affirmed the finding of no Fourth Amendment violation and the admissibility of the cell site location data that was obtained without a probable cause warrant. The government then filed a petition for writ of certiorari, which was granted on both issues. 2

9 On February 13, 2012, two police officers pulled over a vehicle with three occupants matching the description of three suspects in an armed robbery of a 7- Eleven earlier that day. (R. at 3.). All three individuals were arrested, including Respondent David Ellis ( Ellis ). Id. Detective Crane of the San Diego Police Department ( SDPD ) obtained a search warrant for Ellis computer based on information received from Navy Chief Warrant Officer Tyrell ( CWO Tyrell ). Id. Crane also obtained information without a probable cause warrant pursuant to subsection (d) of the Stored Communications Act for the cell phone information of Ellis including the numbers dialed and received, the duration of the calls, and the cell site location data when calls were dialed or received for the last sixty days. Id. CWO Tyrell s involvement is as follows: Tyrell began investigating online weapon trafficking. Id. at 2. He used an online market known as Silk Road, through a program called Tor, which allows its users to use the internet anonymously so as not to have their activity tracked. Id. On January 15, 2012, Tyrell posted an advertisement for the sale of five semi-automatic pistols on Silk Road. Id. The following day, Tyrell received a message from the username 0nion_Kn1ght interested in purchasing the pistols so long as the serial numbers were scratched off. Id. Tyrell and 0nion_Kn1ght exchanged messages and agreed upon a meeting and exchange for the next day. Id. Tyrell waited at the meeting place, with four Bureau of Alcohol, Tobacco and Firearms agents stationed two blocks away, but 0nion_Kn1ght never showed. Id. at 2-3. Two days later, on January 19, 2012, 0nion_Kn1ght messaged Tyrell that he no longer needed the 3

10 firearms because he found guns from other people that wanted to rob a few 7-11s in a couple weeks. Id. at 3. At this point, Tyrell forwards this information to the SDPD. On February 1 and 7, 2012, two convenience stores were robbed, followed by the incident on February 13 that led to Ellis arrest. Id. Tyrell learned of Ellis arrest and decided to run his name through the military database, but the search returned no results. Id. Tyrell then resubmits the Silk Road message logs to the SDPD, at which point Crane used them to obtain his search warrant for Ellis computer. Id. The computer showed evidence of the use of Tor and the username 0nion_Kn1ght. Id. The cell site location data from Ellis phone indicated that Ellis dialed or received calls near the locations of all three robberies. Id. Ellis moved to suppress the Silk Road message logs because CWO Tyrell obtained them in violation of the Posse Comitatus Act (PCA), which prohibits certain military personnel from participating in civilian law enforcement functioning. Id. Ellis also moved to suppress the cell site location data because the information was obtained without a probable cause search warrant in direct violation of the Fourth Amendment. Id. The District Court denied suppression on both issues. Id. Ellis was charged with several counts of Hobbes Act robbery, conspiracy, knowing possession of a firearm in furtherance of a crime of violence, and attempted receipt of a firearm which has had the manufacturer s serial number removed. Id. Ellis was convicted of all but the last charge and appealed on the two issues of suppression. Id. at 4. 4

11 ARGUMENT I. The Court of Appeals for the Ninth Circuit properly reversed the District Court s judgment in favor of the Appellant- Respondent David Ellis finding that the exclusionary rule applies to the evidence procured from CWO Tyrell s PCAviolating investigation where he provided direct military assistance, where any evidence obtained through that violation is excluded as fruit of the poisonous tree to deter future misconduct arising from PCA violations. The provisions of the Posse Comitatus Act (PCA) and PCA like restrictions reflect traditional resistance to military intrusion in civilian law. United States v. Walden, 490 F.2d 372, 375 (4th Cir. 1974). Direct involvement in civilian law enforcement by the military is permissible when an independent military purpose exists. United States v. Chon, 210 F.3d 990, 994 (9th Cir. 2000). Repeated PCA violations not remedied by the military trigger the need for a judicial deterrent to prevent future violations. United States v. Roberts, 779 F.2d 565, 568 (9th Cir. 1986). Courts have adopted the exclusionary rule as a remedy to deter repeated police misconduct contrary to the Fourth Amendment. Walden, 490 F.2d at 376. The deterrence of willful or negligent police conduct outweighs the social cost of exclusion. United States v. Leon, 468 U.S. 897, 919 (1984). A. The exclusionary rule applies to evidence obtained in violation of the PCA because Navy Chief Warrant Officer Tyrell was acting in his official capacity, when he was directly involved in civilian law enforcement, where that involvement did not serve any military purpose. The PCA and PCA like restrictions are Congressional and Executive responses to reflect traditional resistance in American history to direct military 5

12 involvement in civilian law. Walden, 490 F.2d at 378. Indirect military assistance is permitted because it does not subject civilians to the use of military power. United States v. Hitchcock, 286 F.3d 1064, 1069 (9th Cir.), amended by 298 F.3d 1021 (9th Cir. 2002). The Navy s direct involvement in civilian affairs is permissible only when it serves an independent military purpose. Chon, 210 F.3d at 994. The Army and Air Force are prohibited from participating in civilian law enforcement under the PCA. 18 U.S.C.S The Navy is bound by the same PCA like restriction promulgated under 10 U.S.C.S. 375 and Secretary of the Navy Instruction B. Chon, 210 F.3d at 993. These prohibitions recognize the inherent danger of the Armed Forces whose personnel are trained to preserve constitutional freedoms and if necessary at the expense of civil liberties. Walden, 490 F.2d at 375. As a result, it has become U.S. policy to utilize civilian officers, not military personnel, to preserve the law and provide order. Id. at 373. Due to this danger, the Navy is specifically prohibited from participating in searches and seizures. Hitchcock, 286 F.3d at Law enforcement is also restricted from using military personnel as investigators, interrogators and for surveillance. Id. Departments within the Navy, such as the Naval Criminal Investigative Service (NCIS) are bound by 10 U.S.C.S. 375 restrictions because the department operates under the strength and authority of the military. Chon, 210 F.3d at 993. Further holding, the department is not exempt from 10 U.S.C.S. 375 restrictions because personnel in this unit are not acting in their private capacity but rather under the command and control of a military member. Id. 6

13 However, these departments along with other military personnel may provide indirect passive assistance to civilian law enforcement. Hitchcock, 286 F.3d at Actions that do not subject civilians to the exercise of military power, direct execution of the laws, or influence civilian authority are considered indirect. Id. Direct military assistance that furthers a military function, such as the enforcement of the Uniform Code of Military Justice (UCMJ), serves an independent military purpose and is authorized under the PCA. Chon, 210 F.3d at 994. In Chon, the Court determined the Navy s investigation of civilian defendants regarding theft of Navy government property was permissible because it served an independent military purpose. Id. Any incidental benefit to civilian authorities resulting from direct assistance due to an independent military purpose is permitted under the PCA. Hitchcock, 286 F.3d at Based on the previous cases, exclusion should apply to the facts before the Court because Navy CWO Tyrell s investigation violated PCA like restrictions when his direct military involvement was unrelated to any military purpose. Similar to Hitchcock, where Navy and Army participation was considered direct because the military engaged in the investigation of civilians, CWO Tyrell conducted an open investigation of online weapon trafficking. CWO Tyrell investigated by conducting surveillance of the online market, by posing as an undercover weapons dealer and by setting up a sting operation. In Hitchcock, the Court declined to accept the involvement as indirect because the DoD expressly prohibited the military from participating in those activities regardless of how limited or supervised the action. 7

14 Here, CWO Tyrell is not only expressly prohibited from performing the investigation acts he initiated but he also assisted law enforcement three times regarding the fruits of his investigation even after he confirmed David Ellis was a civilian. While the PCA does not limit the private individual from participating in law enforcement activities, the genesis of CWO Tyrell s investigation occurred when he joined an ongoing investigation initiated by other Naval Officers. Thus, exclusion is necessary where military personnel violated the PCA by acting as an investigator in civilian law enforcement without serving an independent military purpose. B. The exclusionary rule applies to evidence obtained in violation of the PCA because a Fourth Amendment violation occurred, direct causation exists and there is need to safeguard Fourth Amendment protections. Police conduct contrary to the protection of civil liberties can violate an individual s Fourth Amendment rights. Hudson v. Michigan, 547 U.S. 586, 590 (2006). Federal statutes provide traditional protection to citizens and have been adopted by the Supreme Court as a command of the Fourth Amendment. Hudson, 547 U.S. at 589. Suppression requires the constitutional violation to be a but for cause of obtaining the evidence. Id. at 592. Excluding the fruits of the violation is appropriate to vindicate the interest protected by the Fourth Amendment and to guard the victim against police misconduct. Id. at 593. Direct causal connection occurs when evidence is obtained by no other distinguishable means than through exploiting the illegal act. Id. Causality is a necessary condition for suppression of evidence. Id. In Hudson, attenuation was found where no direct causal connection existed because the police had a valid 8

15 search warrant for the exact drugs and firearms found inside the residence prior to entering the defendant s home. Id. at 592. The Court reasoned, regardless of the manner of entry the police would have discovered the evidence obtained through the execution of the valid warrant. Id. In addition to direct causal connection, the interest protected by the Fourth Amendment must be served by suppressing the evidence obtained. Id. at 593. Where the rule protects an interest other than seizure of evidence, attenuation exists and Fourth Amendment interests are not served. Id. at 594. In Hudson, the Court identified exclusion as the appropriate remedy to vindicate interests violated which coincide with evidence seized. Id. Based on the previous cases, the exclusionary rule should be applied because the evidence obtained in Ellis home was seized through the exploitation of a 10 U.S.C.S. 375 violation when it was used to establish probable cause and where the interests violated are related to seizure of evidence. In Hudson, the Court determined the police did not exploit the manner of their illegal entry. Despite the initial violation by police of the knock and announce rule, the evidence obtained is attributed to a valid search warrant supported by probable cause. In our case, the evidence obtained from Ellis home is not attributed to a search warrant because it was unsupported by probable cause. Crane entered Ellis home without probable cause and seized evidence exploiting the initial violation of the PCA. The illegal entry was a but for cause of discovering the information found on the computer 9

16 where without the violation the police would not have obtained a warrant to search Ellis home. Moreover, suppressing the evidence taken inside Ellis home would serve the purpose of the rule that made the search and seizure illegal. A warrant issued under probable cause is imposed to protect Ellis home from governmental scrutiny. Since the evidence was obtained through no other distinguishable means, exclusion in this case would be appropriate to vindicate the interests protected by a warrantless search. Thus, exclusion is necessary to guard against police misconduct where a direct causal connection exists to safeguard the Fourth Amendment. C. The exclusionary rule applies to evidence obtained in violation of the PCA because deterrence benefits outweigh the minimal social costs. Repeated and widespread violations of the PCA demonstrate the need of the exclusionary rule as a judicial deterrent. Walden, 490 F.2d at 372. The sole purpose of the exclusionary rule is to deter police conduct exhibiting a negligent disregard for Fourth Amendment rights. Leon, 468 U.S. at 919. Objective reasonable reliance on a magistrate s error is permitted unless there were no reasonable grounds to do so. Id. at 922. Deference to a magistrate s finding of probable cause is not given if the affidavit for the warrant is without substantial basis for that conclusion. Id. at 915. Suppression will deter repeated and direct military enforcement of civilian law. Walden, 490 F.2d at 372. In Walden, the Fourth Circuit determined the pervasive use of Marines in an undercover investigation by the Alcohol, Tobacco and 10

17 Firearms Division violated various military regulations prohibiting the use of the armed services to enforce civilian laws. Id. at 373. Similarly, in Roberts, the Ninth Circuit held the Navy s direct assistance to the Coast Guard violated Naval Instruction policy specifically prohibiting Navy personnel from intercepting and interrupting vessels. United States v. Roberts, 779 F.2d at 567 (9th Cir. 1986). Furthermore in Wolffs, while the Fifth Circuit declined to officially rule that Army personnel posing as an undercover informant for civil law enforcement violated the PCA, the court identified further actions such as those would warrant the application of the exclusionary rule. United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979) These direct violations of the PCA and PCA like restrictions indicate observable benefits outweighing the minimal costs of applying the exclusionary rule. Roberts, 779 F.2d at 568. Imposing an exclusionary remedy is permissible where military failure to comply with Instruction has pervaded law enforcement causing others to be illegally charged and obtained. Walden, 490 F.2d at 377. Deterrence outweighs any cost for unlawful police conduct indicating the officer had reason to know the search was unconstitutional. Leon, 468 U.S. at 919. Especially when the actions of police result in misleading a judge to acquire a finding of probable cause in the execution of a search warrant. Id. at 923. In Davis, the Supreme Court narrowed the scope of the exclusionary rule to include into evidence the fruit of an illegal search, as long as the search was conducted by using objective reasonable reliance or good faith. Davis v. U.S., 131 S.Ct. 2419,

18 (2011). While the officer s application did not amount to substantial basis for the magistrate to find probable cause, the Court held both the magistrate and the officer had reasonable belief probable cause existed. Davis, 131 S.Ct. at 926. The Court made this determination by reviewing the warrant application and the affidavit submitted by the officer. Id. Despite the absence of substantial basis, the affidavit submitted by the officer detailed the results of a thorough investigation the police department conducted to determine the reliability of information received from an informant. Id. at 900. Based on the previous cases, the exclusionary rule should apply to the facts of this case because the benefits of deterrence outweigh the social costs. Unlike the violation in Hudson where the only consequence to disregarding the knock and announce rule was minimal, violating the PCA results in grave consequences to civil liberties. Based on the violations in the 4th Circuit, 9th Circuit and 5th Circuit, massive deterrence is necessary to proscribe the use and force of the military by law enforcement in civilian affairs. The need is illustrated in this case where the Navy s repeated and direct involvement in the broad investigation of online weapon trafficking was used by civilian law enforcement as the basis in an application for a search warrant. Unlike Hudson where the rule can be undermined on site by officer discretion upon a finding of reasonable suspicion, the PCA cannot be suspended without an independent military purpose or express authorization by the DoD. Thus exclusion should apply to deter military personnel like CWO Tyrell from conducting and sharing the results of sweeping investigations with law enforcement officers 12

19 who are then incentivized to use that information in breach of Fourth Amendment protections. Furthermore, Crane s actions did not amount to objective reasonable reliance. In Davis the Court held evidence obtained in violation of the Fourth Amendment will not be excluded as long as the officer did not negligently disregard the Fourth Amendment. However, unlike Davis where the officer relied on previous Supreme Court ruling, Crane relied on the magistrate s issuance of a search warrant upon a finding of probable cause based on the application he personally submitted. Unlike Davis Crane made no effort to corroborate the information he obtained from an outside source. While the magistrate in this case could have erred in finding probable cause, at the very least Crane could not reasonably believe that bare bones information such as the one he submitted would substantiate probable cause. While the costs associated with excluding evidence will result in the dismissal of reliable evidence and the release of wrongdoers, it is more important to deter police misconduct to ensure greater care is provided for the rights of the accused. Thus, exclusion should apply and deference to objective reasonable reliance should not be given to Crane because the information he submitted did not amount to substantial basis and would not cause any disagreement on the existence of probable cause. 13

20 II. The Court of Appeals for the Ninth Circuit incorrectly held that the provision of the Stored Communications Act allowing the government to obtain Ellis cell site location data without a warrant based on probable cause does not violate the Fourth Amendment based on a lack of an expectation of privacy in the cell site location data that does not fall under the scope of information protected by the Fourth Amendment. The Stored Communications Act ( SCA ) provides for a lesser standard than probable cause in issuing a court order, if it is reasonably believed that the information pertains to an ongoing criminal investigation based on specific and articulable facts. 18 U.S.C. 2703(d). The Fourth Amendment requires that no warrants are to be issued except based upon probable cause. U.S. Cont. art. IV. Probable cause warrants are necessary when there is a search. Katz v. U.S., 389 U.S. 347, 357 (1967). A search is determined by a subjective and objective reasonable expectation of privacy in the information. Id. at 361. If both prongs, the subjective and objective, have been met, a search warrant must be based upon probable cause to obtain that information. Id. at 353, 357. A.Obtaining the cell site location data records was a search under the Fourth Amendment because Ellis had a reasonable subjective and objective expectation of privacy in that information. An unreasonable search and seizure occurs when there is a violation of privacy that was justifiably relied on. Katz, 389 U.S. at 353. Searches must be conducted with a probable cause warrant to be constitutionally lawful. Id. at 357. Instances involving merely the transmission of electronic signals without trespass are subject to the Katz analysis. U.S. v. Jones, 132 S. Ct. 945, 953 (2012). When technology that is not available to the general public is used to enhance senses to 14

21 gather information that only could have otherwise been obtained with a physical intrusion, a search has occurred. Kyllo v. U.S., 533 U.S. 27, 34 (2001) Searches must be conducted based upon probable cause, and a search is unreasonable when there is a violation of a reasonable expectation of privacy. Katz, 389 U.S. at 353, 357. In Katz, FBI agents placed an electronic listening device to the outside of a public phone booth where the defendant placed calls. Id. at 348. The government used the defendant s statements from the phone calls and the defendant was convicted of violating a federal statute for transmitting wagering information by telephone. Id. The Supreme Court stated that the Fourth Amendment protects people, not places and that what a person knowingly exposes to the public is not protected by the Fourth Amendment, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Id. at 351. The Fourth Amendment does not only protect search and seizure of tangible property. Id. The Court found that the government electronically listening to and recording the defendant s conversation was a search and seizure that violated the privacy he justifiably relied upon while using the phone booth. Id. at 353. Searches conducted without a warrant based upon a probable cause showing have been held unlawful and searches conducted without judicial process are per se unreasonable. Id. at 357. Most notably, Justice Harlan in his concurrence explained that the Fourth Amendment protection is a two pronged requirement first that a person have exhibited an actual (subjective) 15

22 expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable. Id. at 361. Searches involving the transmission of electronic signals fall under the Katz two prong analysis. Jones, 132 U.S. at 953. In Jones, the government received a warrant in the District of Columbia to use an electronic tracking device on the car registered to defendant s wife, to be installed within ten days. Id. at 948. The day after the warrant expired, officers installed the GPS tracking device to the car while in Maryland and then used the GPS to track the vehicle for twenty-eight days, relaying over 2,000 pages of data. Id. Using the data collected on public roads, the defendant was found guilty and sentenced to life imprisonment. Id. at The Supreme Court held that the installation and use of the GPS constituted a search. Id. The Court stated that the Fourth Amendment has a close connection with property, as the phrase in their persons, houses, papers, and effects is used in the language of the amendment, not just a term relating to the person. Id. The government argued that the defendant had no reasonable expectation of privacy in the part of the vehicle the device was attached to or its locations being monitored on public roads visible to anyone, but the Court pronounces that the defendant s Fourth Amendment rights do not rise or fall with the Katz formulation. Id. at 950. The Court stated, however, that instances involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis. Id. at

23 Searches that normally could only be conducted through physical intrusion but are made possible through sense-enhancing technology that is not available to the public are still considered searches subject to the Fourth Amendment. Kyllo, 533 U.S. at 34. In Kyllo, the government used a thermal imager to scan the outside defendant s home for levels of heat that could indicate use of heat lamps for growing marijuana. Id. at The results of the thermal imaging, as well as other evidence, were used to obtain a warrant to search defendant s house. Id. at 30. The Court held that the sense-enhancing technology used to gather the information that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, constitutes a search where the technology is not available to or used by the general public. Id. at 34 (internal citations omitted). Based on that, the use of the thermal imager was a search. Id. at The Court acknowledged that technology has affected the Fourth Amendment, and the Court must decide the limits that must be placed on technology decreasing guaranteed privacy. Id. at The previous cases outline how to determine when a search has occurred and when an individual has a reasonable subjective and objective expectation of privacy in order to analyze the case at hand. Similar to Katz, Ellis had a reasonable expectation of privacy in his locations just as Katz had a reasonable expectation of privacy in the phone booth. The Fourth Amendment protects people, and while it does not protect what one knowingly exposes to the public, Ellis did not knowingly expose to the public his locations based on cell site data location services. Without 17

24 probable cause to justify the intrusion into Ellis privacy in his locations, there is an unconstitutional search in direct violation of the Fourth Amendment. Ellis had an actual subjective expectation of privacy that his locations were not being monitored and stored by the cell phone provider. Ellis also had an objective expectation of privacy, one that society should recognize as reasonable because it is not common knowledge that cell phones relay every location of the person carrying the phone, even if the phone does have some sort of GPS application on it. The use of the cell site location data constitutes a search under the Fourth Amendment. The search in Jones is similar to the search in Ellis case. While the Court in Jones related the installation and use of the GPS device on the car to the theory of trespass and determined that transmission of electronic signals is still subject to the Katz analysis, Jones is still helpful in determining that the use of cell site data location is a search because while Ellis may have been in a public place while using his cell phone, just as Jones was on public roads, Ellis still had a reasonable expectation of privacy not only in his person but also in his effects. The information of the transmission of electronic signals still being subject to Katz is met in Ellis case because he had a reasonable expectation of privacy, as well as an objective expectation of privacy. Individuals, like Ellis, do not assume that just because they are walking with their cell phone in public means that they are subject to having location data from their phone used in a criminal investigation. The cell site location data is a search under the Katz analysis and is consistent with Jones. 18

25 Just as Kyllo involved officers using technology not available to the general public, the cell site location data obtained in this case takes advantage of the technology that cell phone service provider s use, which is not available to the general public. The general public does not have access to information obtained from cell towers, including the locations of each cell phone that pings off of cell towers as well as the registered name related to the cell phone. As technology advances, people may become more aware of a lessened sense of privacy, but so long as that technology is not commonly ascertainable, people still have a reasonable expectation of privacy in their cellular information. Therefore, the use of the cell site location data was a search in violation of Ellis Fourth Amendment rights because he did have a reasonable legitimate expectation of privacy that society could recognize as reasonable. B.Ellis use of his cell phone was not a voluntary transmission of his location data to a third party and there is a reasonable objective expectation of privacy in location data. Even if 2703(d) of the Stored Communications Act (SCA) is permissible, cell phone users do not knowingly and voluntarily transmit their location to cell phone service providers when they receive calls, the only information they voluntarily provide are the numbers they dial. In re App. of U.S. for an Order Directing a Provider of Elec. Comm. Serv. To Disclose Records to Gov t (Order Directing a Provider), 620 F.3d 304, 317 (3rd Cir. 2010). There is no legitimate expectation of privacy in numbers dialed because they are voluntarily released to third parties. Smith v. Maryland, 442 U.S. 735, (1979) Information a person 19

26 knowingly exposes is not protected by the Fourth Amendment, even if the person believes the information is only being used for a limited purpose. U.S. v. Miller, 425 U.S. 435, (1976). While 2703(d) of SCA is permissible, cell phone users do not voluntarily transmit cell site location data to third parties. In re App. of U.S. Order Directing a Provider, 620 F.3d at 317. In Order Directing a Provider, the government applied for a court order under the Stored Communications Act, 2703(d) to receive the historical cellular tower data, or cell site location information, from the cell phone provider. Id. at 305. The Third Circuit Court of Appeals found that 2703(d) of the Stored Communications Act requiring only specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation, is permissible, and only sparingly should the magistrate exercise the option, with a full explanation, to require a warrant based upon probable cause. Id. at 319. The Court also noted that a cell phone customer has not voluntarily shared his location information with a cellular provider in any meaningful way and it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information. Id. at 317. Therefore, [w]hen a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed and there is no indication to the use that making the call will 20

27 also locate the caller; when a cell phone user receives a call, he hasn t voluntarily exposed anything at all. Id. There is no legitimate expectation of privacy in numbers dialed on a phone because that information is voluntarily transmitted to a third party. Smith, 442 U.S. at In Smith, during a robbery investigation the government had the telephone company install a pen register to record the numbers dialed from the defendant s home. Id. at 737. The register showed that the defendant had placed a call to the victim s home, and using this information and other evidence, police obtained a search warrant for the defendant s house, and he was ultimately convicted of robbery. Id. The Supreme Court held that the defendant likely had no subjective expectation of privacy in the numbers dialed, and that if there was a subjective expectation, there is no expectation that society is willing to recognize as reasonable. Id. at 743, 745. There is no legitimate expectation of privacy in numbers dialed on a telephone because telephone users should realize that the number dialed is transmitted to the phone company to place the call, and the phone company records the numbers dialed as seen on monthly phone bills for long distance calls. Id. at 742. Even if the defendant did assert he had a subjective expectation of privacy in the numbers he dialed, the argument fails on the second prong of the Katz test because a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Id. at (internal citations omitted). 21

28 Information knowingly exposed to a third party is not protected by the Fourth Amendment. Miller, 425 U.S. at 442. In Miller, based on subpoenas, one of the defendant s banks provided records to the government including viewing microfilm records and copies of a deposit slip and one or two checks, and the other bank provided copies of checks, deposit slips, two financial statements, and three monthly statements. Id. at The Court held that the defendant had no Fourth Amendment protection interest in the disclosures by the bank. Id. at 440. The documents were not protected because they contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. Id. at 442. In applying Katz, a search and seizure is unreasonable when there is a violation of privacy that one relies on, but what a person knowingly exposes to the public is not protected by the Fourth Amendment. Id. Even if the information is only given based on the assumption that it will be used for a limited purpose, once it is revealed to the third party, the Fourth Amendment protection does not apply. Id. at 443. Turning to the case at hand, Ellis had an objective expectation of privacy and did not voluntarily transmit his location data to a third party. Just as in Order Directing a Provider, while the Third Circuit found that the SCA lesser standard of specific and articulable facts was permissible, the court still stated that most individuals do not voluntarily provide their location to cell phone providers, but rather only voluntarily provide the numbers that they dial. That most people are unaware that cell phone providers are not only collecting but also storing all of this 22

29 location data shows there is no knowingly voluntary exposure of one s location to a third party. Ellis did not knowingly and voluntarily expose his location through his cell phone to the service provider, and as such there is a reasonable objective expectation of privacy in that cell site location data. Unlike Smith, where the government only obtained the information of the numbers dialed, the government here obtained historical cell site location data from Ellis phone. Had the government merely sought the numbers dialed from the cell phone service provider, there would have been no reasonable expectation in that information that was turned over to the third party. However, the government also obtained the location of Ellis cell phone for the previous sixty days. Smith states that a person is aware that phone companies log the information of numbers dialed, because often times if you have placed long distance calls from your phone, those appear on your statement. Cell phone bills do not relate to an individual their location, even if roaming charges may appear on a bill, which indicates that one has gone out of his/her network s service, but does not show any indication that the phone company is monitoring his/her every location and storing that data. There is a reasonable expectation of privacy in cell site location data and Ellis did not voluntarily give that information to a third party. Unlike Miller, where the defendant had no reasonable expectation of privacy in his bank records, Ellis has a reasonable expectation of privacy in his cell site location data. In Miller, the information obtained was all part of business records of the bank that the defendant turned over to employees. Though the defendant might 23

30 have thought the information was only being used for a limited purpose, he still voluntarily turned it over to the third party. That is not the situation here. Ellis did not give his location to the cell phone service provider for any reason, or in what is considered the ordinary course of business. In using his cell phone to receive or dial calls he was not knowingly exposing the location of his whereabouts to the cell phone service providers. Therefore, there is a reasonable objective expectation of privacy in cell site location data and Ellis did not voluntarily transmit that information to a third party. C. The Stored Communications Act violates Ellis Fourth Amendment guarantee of a warrant based upon probable cause. Warrants based upon probable cause are necessary for long term real time cell site location data information. U.S. v. Powell, 943 F. Supp. 2d 759, 778 (E.D. Mich. 2013). The SCA s authorization of a less than probable cause standard for historical cell site data is not per se unconstitutional. In re App. of the U.S. for Historical Cell Site Data (Historical Cell Site Data), 724 F.3d 600, 602, 615 (5th Cir. 2013) Probable cause is required for a warrant seeking long term real time cell site location data. Powell, 943 F. Supp. 2d at 778. In Powell, the defendants challenged warrants authorizing real-time cell site location data from their cell phone companies, claiming that they were not based on probable cause. Id. at The District Court for the Eastern District of Michigan analyzed different jurisdictions approaches to cell site data, finding that the majority of jurisdictions required probable cause warrants for real time cell site location data, a minority of 24

31 jurisdictions use a standard of less than probable cause, some jurisdictions require probable cause for historic cell site location data, but most view historic cell site data as stored communications subject to less than a probable cause showing. Id at The District Court distinguished Skinner, and concluded that a probable cause warrant was required for long term real time tracking of cell site location data. Id. at 773, 774, 778. Not just public-thoroughfare data was collected in this situation, but also included was cell site data from the defendant s home where he had a legitimate expectation of privacy. Id. at 774. The lesser standard authorized by SCA is not per se unconstitutional. Historical Cell Site Data, 724 F.3d at 602, 615. In Historical Cell Site Data, the government sought a court order to compel cell phone service providers to produce the historical cell cite data for sixty days from a cell phone. Id. at 602. The magistrate judge denied the request for the cell site location, even with a showing of specific and articulable facts required by the SCA, and determined that the warrantless (for lack of probable cause) disclosure of the cell site data was a violation of the Fourth Amendment. Id. The Fifth Circuit stated that while the magistrate judge had discretion to require a warrant based on probable cause under the statute, he did not have the authority to determine that the constitutionality of the SCA in requiring a lesser standard than probable cause. Id. at 608. The Court determined that the use of cell phones is voluntary, and people are aware that phone companies use the cell phone location to get service from the company s network of towers. Id. at 613. The Court held that the SCA s authorization of 25

32 historical cell site data under a lesser standard than probable cause is not per se unconstitutional. Id. at 602, 615. As the Eastern District of Michigan held in Powell, that a probable cause warrant was required for long term real time tracking of cell site locations, this Court should extend that requirement to the historical cell site location data and find the provision of the SCA authorizing only specific and articulable facts necessary to be a constitutional violation of the Fourth Amendment. Probable cause standards should still apply to historical cell data even if it is considered to be stored communications because it is likely that information collected includes data from places where individuals have a legitimate expectation of privacy, such as the home, and not just public thoroughfare information. Just as in Powell where the extensive search included information from when the defendant was at home, it is likely that information from the cell site location data retrieved from the cell phone service provider for sixty days of Ellis phone would include information from when Ellis was in the privacy of his own home. Being able to track all of the locations of an individual based on cell site location and not just the public locations, is a violation of a person s legitimate expectation of privacy and violates the Fourth Amendment requirement of a probable cause warrant. The government s use of SCA to obtain information without a probable cause is a violation of the Fourth Amendment protection against unreasonable searches and seizures. While the Fifth Circuit Court of Appeals in Historical Cell Site Data held that the SCA authorization of a lesser standard that probable cause was not per se 26

33 unconstitutional, this Court should find that it is unconstitutional as applied to historical cell site location data because individuals do not voluntarily turn location data over to cell phone providers. As such, individuals have a reasonable and legitimate subjective and objective expectation of privacy, so the SCA provision allowing searches based on specific and articulable facts is an unreasonable search in violation of the Fourth Amendment. Ellis did not voluntarily and knowingly expose information of his location to a third party, the objective expectation of privacy is then satisfied, and the use of his cell site location data was a violation of the Fourth Amendment. In conclusion, this analysis shows that the use of historic cell site location data does constitute a search, based on a Ellis reasonable and legitimate subjective expectation of privacy, as well as an objective expectation of privacy that society recognizes as reasonable. There is no voluntary transmission of location data when a cell phone customer uses his or her cell phone, further satisfying the objective prong of Katz. As such, this Court should reverse the Ninth Circuit Court of Appeals finding that Ellis Fourth Amendment rights were not violated, and this Court should find that the SCA is an unconstitutional violation of the Fourth Amendment protection against unreasonable searches and seizures. CONCLUSION For the foregoing reasons, Appellant-Respondent, David Ellis respectfully requests that this Court affirm the exclusionary ruling of the Ninth Circuit Court of 27