SUPREME COURT OF THE UNITED STATES OF AMERICA

Transcription

1 DOCKET NO OCTOBER TERM 2015 SUPREME COURT OF THE UNITED STATES OF AMERICA ALBERT GREENE, Petitioner V. UNITED STATES OF AMERICA, Respondent ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT BRIEF FOR THE RESPONDENT TEAM 22 Counsel of Record Attorneys for Respondent OCTOBER 17, 2015

2 ISSUES PRESENTED I. WHAT IS THE PROPER SCOPE OF A SEARCH UNDER THE PRIVATE SEARCH DOCTRINE AS IT APPLIES TO ELECTRONIC DATA STORAGE DEVICE? II. WHETHER THIRD-PARTY DOCTRINE APPLIES TO HISTORICAL CELL SITE LOCATION INFORMATION RECORDS. i

3 TABLE OF CONTENTS Page(s) ISSUES PRESENTED... i TABLE OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 I. Factual Background of the Private-Search Argument... 1 II. Factual Background of the Third-Party Doctrine Argument... 1 III. Procedural Posture... 2 STANDARD OF REVIEW... 2 SUMMARY OF THE ARGUMENT... 2 I. Summary of the Private-Search Argument... 2 II. Summary of the Third-Party Doctrine Argument... 4 ARGUMENT... 5 I. THE CIRCUIT COURT CORRECTLY HELD THAT THE PHOTOS SMITH VIEWED ON PETITIONER S HARD DRIVE ARE ADMISSIBLE... 5 A. SMITH S EXAMINATION OF THE PHOTOS WAS PERMISSIBLE UNDER THE PRIVATE-SEARCH APPLICATION OF PLAIN-VIEW DOCTRINE Introduction: Private-Search Doctrine s Scope Rule Is An Application Of Plain- View Doctrine Smith s Examination Of Petitioner s Photos Was Within The Scope Of The Private Search Under Jacobsen Jacobsen Remains The Proper Test For The Search Of EDSDs B. IF THE COURT FINDS RILEY S CONCERNS APPLICABLE HERE, IT SHOULD ADDRESS THEM, WITHOUT ABROGATING JACOBSEN, BY RECOGNIZING DISCRETE CONTAINERS WITHIN ELECTRONIC DATA STORAGE DEVICES ii

4 C. EVEN IF THE SEARCH WAS UNCONSTITUTIONAL, ITS FRUITS FALL WITHIN THE GOOD-FAITH EXCEPTION TO THE EXCLUSIONARY RULE.. 16 II. THE FOURTH AMENDMENT DOES NOT BAR THE ADMISSION OF THE HISTORICAL CELL SITE LOCATION INFORMATION RECORDS A. THIRD-PARTY DOCTRINE IS APPLICABLE TO HISTORICAL CELL SITE LOCATION INFORMATION CSLI Records Are Business Records Maintained Within The Ordinary Course Of Business Containing Information Voluntarily Conveyed By Cell Phone Users Finding Third-Party Doctrine Applicable To CSLI Facilitates Justice And Efficient Policing While Maintaining An Adequate Balance With Privacy Interests B. WHILE THE IMPACT OF MODERN TECHNOLOGIES ON CRIMINAL PROCEDURE WARRANTS CONSIDERATION, IT IS A MATTER BEST SUITED TO THE DEMOCRATIC PROCESS C. IF THIS COURT FINDS THIRD-PARTY DOCTRINE INAPPLICABLE TO CSLI RECORDS, THEY ARE STILL ADMISSIBLE HERE UNDER THE GOOD-FAITH EXCEPTION CONCLUSION iii

5 TABLE OF AUTHORITIES Page(s) U.S. Supreme Court Cases Burdeau v. McDowell, 256 U.S. 465 (1921)... 6 Chimel v. California, 395 U.S. 752 (1969)... 3, 14 Coolidge v. New Hampshire, 403 U.S. 443 (1971)... 6 Davis v. United States, 131 S. Ct (2011) Herring v. United States, 555 U.S. 135 (2009)... 4, 16, 25 Illinois v. Andreas, 463 U.S. 765 (1983)... 3, 7, 10, 14 Illinois v. Krull, 480 U.S. 340 (1987)... 5, 16, 25 Katz v. United States, 389 U.S. 347 (1967)... 4, 15, 17, 18 Mapp v. Ohio, 367 U.S. 643 (1961) Miller v. United States, 425 U.S. 435 (1976)... 4, 17, 18, 19 Olmstead v. United States, 277 U.S. 438 (1928) Ornelas v. United States, 517 U.S. 690 (1996)... 2 Riley v. California, 134 S. Ct (2014)... 3, 5, 13, 23 Smith v. Maryland, 442 U.S. 735 (1979) Texas v. Brown, 460 U.S. 731 (1983)... 3, 7, 13 Trupiano v. United States, 334 U.S. 699 (1948) United States v. Jacobsen, 466 U.S. 109 (1984)... 2, 3, 6, 7, 8, 9, 10 United States v. Jones, 132 S. Ct. 945 (2012)... 5, 23 United States v. Knotts, 460 U.S. 276 (1983)... 21, 22 United States v. Leon, 468 U.S. 897 (1984)... 16, 25 iv

6 U.S. Supreme Court Cases cont d United States v. Watson, 423 U.S. 411 (1976) Walter v. United States, 447 U.S. 649 (1980)... 6, 7 U.S. Court of Appeals Cases In re U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013)... 4, 19, 20, 23, 24 Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012)... 9, 12 United States v. D Andrea, 648 F.3d 1 (1st Cir. 2011)... 8, 9 United States v. Davis, 690 F.3d 226 (4th Cir. 2012) United States v. Davis, 785 F.3d 498 (11th Cir. 2015)... 4, 19, 20, 21 United States v. Ellyson, 326 F.3d 522 (4th Cir. 2003)... 5 United States v. Feffer, 831 F.2d 734 (7th Cir. 1987)... 5 United States v. Forrester, 512 F.3d 500 (9th Cir. 2008) United States v. Graham, 796 F.3d 332 (4th Cir. 2015)... 20, 25 United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015) United States v. Martin, 157 F.3d 46 (2d Cir. 1998)... 8 United States v. Miller, 769 F.2d 554 (9th Cir. 1985)... 8 United States v. Moore, 943 F.2d 884 (8th Cir. 1991)... 8 United States v. Rouse, 148 F.3d 1040 (8th Cir. 1998) United States v. Runyan, 275 F.3d 449 (5th Cir. 2001)... 3, 9, 11, 12 United States v. Simpson, 904 F.2d 607 (11th Cir. 1990) United States v. Skinner, 690 F.3d 772 (6th Cir. 2012)... 5, 21, 22 United States v. Telfair, 507 F. App x 164 (3d Cir. 2012) United States v. Tosti, 733 F.3d 816 (9th Cir. 2013) v

7 U.S. Court of Appeals Cases cont d United States v. Walther, 652 F.2d 788 (9th Cir. 1981)... 5 United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) United States v. Young, 573 F.3d 711 (9th Cir. 2009)... 9 U.S. District Court Cases United States v. Madison, No CR, 2012 WL (S.D. Fla. July 30, 2012).. 4, 20 Constitutional and Statutory Provisions U.S. Const. amend. IV... 6, U.S.C (1986)... 5, 24 Other Authorities Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009) vi

8 STATEMENT OF THE CASE I. Factual Background of the Private-Search Argument James Tejada and petitioner Albert Greene ( petitioner or Greene ) shared an apartment ( the apartment ) in Arcadia. R. at 2, 24, 31. On August 10, 2015, petitioner was out of town for the weekend. R. at 24, 31. Tejada called the Arcadia Police Department and reported that he had found some photos on petitioner s external hard drive showing illegal drugs. R. at 3, 26. According to Tejada s testimony, he made this find when he opened a folder labeled photos on petitioner s computer earlier that day. R. at 26. At the time, the Drug Enforcement Agency ( DEA ) was dealing with an active drug trafficking problem in the area. R. at 2, 31. Aaron Smith, a DEA agent, arrived at the apartment later that afternoon. R. at 3. At Smith s behest, Tejada scrolled through the photos. R. at 3, 26, 31. Smith testified that he prompted Tejada to show [Smith] the images that [Tejada] had viewed earlier that day. R. at 32. In Tejada s words, Tejada then opened the photos folder and started scrolling through the photos [he] had seen. R. at Then, Tejada stumbled upon photos of firearms and petitioner that he had not noticed during his initial perusal. R. at 27. He testified, Smith asked me why I didn t mention those photos and I told him I didn t notice them the first time. R. at 27. II. Factual Background of the Third-Party Doctrine Argument Upon viewing the information contained in the external hard drive, Smith suspected that petitioner might be involved in an illegal trafficking operation. R. at 32. Continuing the investigation, Smith conducted a records search and obtained petitioner s personal cell phone number. R. at 32. With this information and the photographs from petitioner s hard drive, the government sought an order from United States Magistrate Judge Timothy J. Thomas requiring Verizon Wireless, Inc. ( Verizon ) to provide cell site location information ( CSLI ) of 1

9 petitioner s cell phone. R. at 3, 45, 47. Judge Thomas granted the order directed Verizon to hand over petitioner s CSLI records. R. at 3, 47. The CSLI records revealed that petitioner used his cell phone near his residence and in a rural area roughly seventeen miles east of downtown Arcadia. R. at 33. There is only one road that leads out to that area, and the cell phone tower that transmitted the CSLI was located near that road. R. at 34. After reviewing the CSLI records, Smith investigated the general location and observed a large warehouse 3.5 miles off the main road. R. at 4, 34. Over the course of several days, Smith conducted surveillance on the area. R. at 4, 34. Petitioner was seen traveling to and from the warehouse on multiple occasions at odd times during the night. R. at 4, 34. III. Procedural Posture The United States District Court for the Southern District of Arcadia granted Greene s motion to suppress the evidence discovered as a result of the search of Greene s external hard drive and the CSLI records. R. at 5. The government appealed, and the Court of Appeals for the Thirteenth Circuit reversed. R. at 5. This Court granted Greene s petition for writ of certiorari. STANDARD OF REVIEW This Court will leave undisturbed the district court s factual findings as they are not in dispute, R. at 13, and will review all conclusions of law de novo. See Ornelas v. United States, 517 U.S. 690, 691 (1996). SUMMARY OF THE ARGUMENT I. Summary of the Private-Search Argument A government agent who, based on a precedent private search, is virtually certain that a container contains contraband or evidence of a crime, may search the container without a warrant. United States v. Jacobsen, 466 U.S. 109, 125 (1984). This holding, authored by Justice Stevens, 2

10 established the virtual certainty expansion of plain-view doctrine he had advocated for in Texas v. Brown, 460 U.S. 731, 751 (1983) (Stevens, J., concurring in the judgment), and in his dissent in Illinois v. Andreas, 463 U.S. 765, 782 (1983) (Stevens, J., dissenting). Petitioner s hard drive is a container covered by Jacobsen. See United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001). Thus, once Tejada s precedent private search revealed that the hard drive contained photos of illegal drugs, R. 3, 26, Smith was virtually certain that it contained incriminating evidence, and he was permitted to search the hard drive without a warrant. Accordingly, all the images Smith stumbled upon in the course of that search involve no Fourth Amendment violation and are admissible. See Runyan, 275 F.3d at 465. This Court recently held the search-incident-to-arrest exception to the warrant requirement inapplicable to cell phones because of the vast quantum of private data they carry. Riley v. California, 134 S. Ct (2014). Riley is inapposite here because it involved a warrant exception, which necessarily requires a weighing of interests. See Chimel v. California, 395 U.S. 752, 759 (1969). Plain-view doctrine is not an exception; it is predicated upon the theory that no legitimate expectation of privacy exists when incriminating evidence is visible, or as good as visible. See Andreas, 463 U.S. at 771. Riley cases also present a real concern that, without knowing what they are looking for, officers may engage in fishing expeditions a concern less relevant in Jacobsen cases, where the officers know exactly what they are looking for. If the Court nonetheless favors limiting Jacobsen s holding in relation to electronic data storage devices ( EDSDs ), it should not do so by abandoning Jacobsen, a workable and logical doctrine. The Court need only recognize separate file-folders as separate containers to both maintain Jacobsen and address the Riley concerns. Smith s search satisfies this construction because all the photos in question were in one file-folder. R. at 15. Moreover, even if the Court 3

11 limits Jacobsen further, the circuit court s ruling should not be reversed, because Smith conducted his search in good faith. This accords with what the Court has established on a number of occasions: that there is a good-faith exception to the Fourth Amendment s exclusionary rule. See, e.g., Herring v. United States, 555 U.S. 135, 144 (2009). II. Summary of Third-Party Doctrine Argument What a person knowingly exposes to the public... is not a subject of Fourth Amendment protection. Katz v. United States, 389 U.S. 347, 351 (1967). This principle was expanded in Miller v. United States, where the Supreme Court held there were no protectable Fourth Amendment interests in documents that were: (1) business records of transactions to which the business was a party; and (2) voluntarily conveyed by the defendant. 425 U.S. 435, 443 (1976). In the present case, there is no dispute as to whether Verizon s CSLI records are business records under Miller. The location information is collected by the third-party service provider and stored on the company s own accord for legitimate business purposes, meeting the Miller criteria. See Miller, 425 U.S. at 443. Furthermore, the information contained within these documents was voluntarily conveyed by petitioner. As the Fifth Circuit found in In re U.S. for Historical Cell Site Data, 724 F.3d 600, 612 (5th Cir. 2013) ( Historical Cell ), the existence of privacy policies which expressly state a provider collects location data from a customer s cell phone makes the cell phone user aware of the conveyance. This, coupled with general knowledge as to how cell phones operate, manifests a voluntary conveyance of information by continued usage of the cell phone. See United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015); United States v. Madison, No CR, 2012, WL , at *8 (S.D. Fla. 2012). Finally, finding that third-party doctrine applies would adequately facilitate interests of justice while maintaining 4

12 interests of privacy as they relate to modern technology. See United States v. Skinner, 690 F.3d 772, 778 (6th Cir. 2012). This Court has acknowledged the challenge the judiciary faces when attempting to balance privacy interests with the needs of law enforcement. See Riley, 134 S. Ct. at 2397 (Alito, J., concurring); United States v. Jones, 132 S. Ct. 945, 962 (2012) (Alito, J., concurring). With respect to CSLI, Congress already gauged changing public attitudes in enacting the Stored Communications Act, 18 U.S.C. 2703(d) (1986). If this Court determines that third-party doctrine is inapplicable to CSLI, government officials would be required to obtain a warrant under the Fourth Amendment. Such a result would necessarily declare 2703(d) unconstitutional. Therefore, to defer to the standards established by Congress, this Court should find that third-party doctrine applies. Even if this Court finds third-party doctrine inapplicable to CSLI, the records are nevertheless admissible under the good-faith exception to the exclusionary rule because the government acted in reasonable reliance on a statute. See Illinois v. Krull, 480 U.S. 340, 342 (1987). ARGUMENT I. THE CIRCUIT COURT CORRECTLY HELD THAT THE PHOTOS SMITH VIEWED ON PETITIONER S HARD DRIVE ARE ADMISSIBLE 1 1 Writing in dissent, Judge Stiles would have found none of the photos admissible. R. at Judge Stiles would have found that the DEA advertisements inviting information leading to narcotics and firearm arrests, R. at 2, established Tejada as a government agent. This analysis is flawed because Fourth Amendment jurisprudence clearly requires government knowledge before a searcher is deemed an agent. See United States v. Walther, 652 F.2d 788, 792 (9th Cir. 1981) ( [T]wo of the critical factors in the instrument or agent analysis are: (1) the government s knowledge and acquiescence, and (2) the intent of the party performing the search. ); accord United States v. Ellyson, 326 F.3d 522, 527 (4th Cir. 2003); United States v. Feffer, 831 F.2d 734, 739 (7th Cir. 1987). The rationale for the knowledge requirement is that the Fourth Amendment is intended to deter government action. See infra, Pt. I-A.1. Finding that government agents exist without government knowledge adds nothing substantial to the deterrent effect. Also, the DEA did 5

13 A. SMITH S EXAMINATION OF THE PHOTOS WAS PERMISSIBLE UNDER THE PRIVATE-SEARCH APPLICATION OF PLAIN-VIEW DOCTRINE 1. Introduction: Private-Search Doctrine s Scope Rule Is An Application Of Plain- View Doctrine The Fourth Amendment provides that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. U.S. Const. amend IV. The Court marked the Amendment s outer boundaries nearly a century ago, refusing to extend it to searches conducted by private parties, reasoning that its origin and history clearly show that it was... not intended to be a limitation upon other than governmental agencies. Burdeau v. McDowell, 256 U.S. 465, 475 (1921). The greater need for constitutional protection from those with lawmaking or law-enforcement authority than from private parties is undeniable. Accordingly, the Court has held that whether searches by private parties are accidental or deliberate, and whether they [are] reasonable or unreasonable, they [do] not violate the Fourth Amendment. Jacobsen, 466 U.S. at 115. It is well-settled that if a private search occurs, the government may reexamine the object of the private search. See Walter v. United States, 447 U.S. 649, 656 (1980) (plurality opinion) ( [T]here was nothing wrongful about the government s acquisition of the packages or its examination of their contents to the extent that they had already been examined by third parties. ). not encourage private searches, it simply asked for the public s help in fighting crime. R. at 2. Judge Stiles ignores what this Court has long held, that it is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability the apprehension of criminals. Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971). Besides, even if Judge Stiles were correct, petitioner lacks standing. The district court noted that petitioner s suppression motion only seeks to suppress those photos Tejada did not see during his initial search. R. at 5. If petitioner meant to advance on an agency theory, however, there would be no distinction between the initial search and the second; both would be government searches. Therefore, petitioner has clearly failed to advance on this theory, and the issue is unpreserved for appeal. 6

14 The theory behind this scope-of-private-search rule ( the scope rule ) has not been clearly articulated by this Court. Some language in the Walter plurality, authored by Justice Stevens, suggests its origin is in plain-view doctrine, 2 which says an owner s privacy interest in an item is lost if the item is visible. See Andreas, 463 U.S. at 771. That is, a private search of a container deems its contents to the extent privately searched as good as visible, and thus within plainview doctrine. To put the relationship between plain-view doctrine and the scope rule into context, it cannot be ignored that in the year prior to Jacobsen, the seminal case on the matter, Justice Stevens twice promoted an expansion of plain-view doctrine based on a virtual certainty test. He argued that plain-view doctrine should support the search of a container if its contents are known to a degree of certainty equivalent to plain view. Brown, 460 U.S. at 751 (Stevens, J., concurring in the judgement); Andreas, 463 U.S. at 782 (Stevens, J., dissenting). Other than these mentions of virtual certainty by Justice Stevens, no member of the Court had employed the term in the search-and-seizure context prior to Jacobsen. In Jacobsen, FedEx employees opened a box, found an opaque tube wrapped in newspaper, opened the tube, and discovered a zip-lock bag of white powder encased in three outer zip-lock bags. Prior to the DEA s arrival, they returned the bags to the tube and the tube with its wrappings to the box. A DEA agent arrived, removed the bags from the tube, took a trace of the substance, and conducted a field test identifying it as cocaine. 466 U.S. at Writing for the Court, 2 Even though some circumstances for example, if the results of the private search are in plain view when materials are turned over to the government may justify the government s reexamination of the materials, surely the government may not exceed the scope of the private search. Walter, 447 U.S. at 657 (plurality opinion). This seems to suggest that a search not exceeding the scope of the private search would be supported by plain-view doctrine. 7

15 Justice Stevens first noted that the legality of the governmental search must be tested by the scope of the antecedent private search. Id. at 116. The Court then analogized this to third-party doctrine: It is well-settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information... even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in a third party will not be betrayed. Id. at 117 (citation omitted). Applying the scope rule to the facts, the Court found that the DEA agent did not exceed the scope of the precedent private search. The Court reasoned: Id. at Even if the white powder was not itself in plain view because it was still enclosed in so many containers and covered with papers, there was a virtual certainty that nothing else of significance was in the package and that a manual inspection of the tube and its contents would not tell him anything more than he already had been told. The Court s straddling of third-party and plain-view language has generated some confusion. Some courts saw Jacobsen as an expansion of plain-view doctrine. United States v. Martin, 157 F.3d 46, 55 (2d Cir. 1998) ( In [Jacobsen,] the Supreme Court ruled that... the plain view exception allows the officials to re-open the package. ); accord United States v. Miller, 769 F.2d 554, 559 (9th Cir. 1985). Others rejected this. United States v. Moore, 943 F.2d 884, 888 (8th Cir. 1991) ( [Jacobsen]... was not predicated on a plain view analysis. ). Accord United States v. D Andrea, 648 F.3d 1, 8 (1st Cir. 2011). Instead, they saw Jacobsen as grounded in third-party doctrine. The plain-view reading of Jacobsen is plainly the better view. As noted, Walter s language suggests a dynamic between the scope rule and plain-view doctrine. Furthermore, the Court s virtual certainty analysis, authored by Justice Stevens, is clearly intended to establish his own 8

16 position in Brown and Andreas. Jacobsen fixates on virtual certainty, employing the term again in footnote 17 to refute Justice White s claim that Jacobsen supports warrantless searches on probable cause alone, id. at 120, and again to justify the field test, id. at 125. Conversely, the Court only mentions the third-party analogy once, before arriving at the meat of the case. Finally, as a conceptual matter, virtual certainty makes sense if, like plain-view, it vitiates the expectation of privacy in the container that would have deemed a search prohibited in the first place. But if the point is that the risk was assumed by dint of the private searcher s own discovery, the government s virtual certainty plays absolutely no meaningful role. Clearly, Jacobsen s virtual certainty holding is more properly seen as founded on plain-view doctrine. 3 In light of this analysis, Jacobsen s holding should be characterized as follows: A government agent who, based on a precedent private search, is virtually certain that a container contains contraband or evidence of a crime, may search the container without a warrant. This holding expands plain-view doctrine, tracking Justice Stevens s positions in Walter, Brown, and Andreas. There is some debate over whether Jacobsen requires a virtual certainty that the container exclusively contains contraband, as some Jacobsen language suggests, or only that the container contains contraband. See D Andrea, 648 F.3d at 9 (holding Jacobsen requires nothing but contraband ); accord United States v. Young, 573 F.3d 711, 721 (9th Cir. 2009). Contra Rann v. Atchison, 689 F.3d 832, 838 (7th Cir. 2012) (holding Jacobsen was satisfied because police were substantially certain the devices contained child pornography ); accord Runyan, 275 F.3d at 464. Rann and Runyan are clearly correct, given that in Brown and Andreas, Justice Stevens only spoke 3 Accordingly, Jacobsen s passing reference to third-party doctrine should be interpreted as merely illustrating the concept that a breach of privacy can frustrate an owner s expectation of privacy. 9

17 of the presence of contraband, not the exclusive presence of contraband and, as argued above, Jacobsen cemented Justice Stevens s virtual certainty expansion of plain-view doctrine. Also, plain-view doctrine ordinarily allows police to search a container so long as it certainly contains contraband. See Andreas, 463 U.S. at Jacobsen s nothing but language is properly construed as case-specific dicta, not intended to limit the general rule that so long as the police are virtually certain a container contains contraband, virtual certainty is met. Finally, while Jacobsen involved contraband, virtual certainty is met when it relates to any incriminating evidence. No meaningful distinction exists between contraband and other incriminating evidence as far as the rationale for the government search is concerned that the high degree of certainty deems the contents as good as visible. See, e.g., United States v. Davis, 690 F.3d 226, 235 (4th Cir. 2012) (upholding bag search when virtually certain that pants inside contained blood and a bullet hole); United States v. Telfair, 507 F. App x 164, 173 (3d Cir. 2012) (upholding refrigerator search when bullet holes on door rendered evidence of shooting inside immediately apparent). Thus, Jacobsen s holding extends to all containers purporting by a virtual certainty through a precedent private search to contain incriminating evidence. 2. Smith s Examination Of Petitioner s Photos Was Within The Scope Of The Private Search Under Jacobsen Here, Tejada reported that he saw photos on petitioner s hard drive showing illegal drugs. R. at 3, 26. The government had been dealing with an active drug trafficking problem. R. at 2, 31. These parallel Jacobsen s facts, where the DEA was informed by private employees that they 4 Additionally, nothing but contraband is an unrealistic misnomer. There is never nothing but contraband even the Jacobsen box also contained newspapers, plastic bags, and a tube. What nothing but contraband must mean is nothing significant but contraband. Yet this necessarily introduces a relentlessly subtle inquiry what is significant? Thus, the presence of contraband rule is by far more practical for implementation by police officers on a daily basis. 10

18 examined the contents of a box and found a suspicious substance. 466 U.S. at 111. Thus, like the Jacobsen agent, Smith was virtually certain the hard drive contained the drug photos, and the circuit court correctly held that Smith s reexamination of Tejada s initial search was proper. R. at Because the drug photos seen by Tejada placed the contents of the hard drive within plainview doctrine s reach, Smith was permitted to search the entire hard drive. This was the opinion of the circuit court, R. at 16, reflecting the opinion of a number of its sister circuits. See United States v. Simpson, 904 F.2d 607, 610 (11th Cir. 1990) (police permitted to search box and videotapes more thoroughly than private searcher); accord Runyan, 275 F.3d at 465. Contra United States v. Rouse, 148 F.3d 1040, 1041 (8th Cir. 1998) (agents prohibited from searching baggage more thoroughly than private searching). As the Runyan court rightly observed, [Rouse] is inconsistent with the objectives underlying the warrant requirement and the exclusionary rule. Under the reasoning of [Rouse,] police would exceed the scope of a private investigation and commit a warrantless search in violation of the Fourth Amendment each time they happened to find an item within a container that the private searchers did not happen to find. Police would thus be disinclined to examine even containers that had already been opened and examined by private parties for fear of coming across important evidence that the private searchers did not happen to see and that would then be subject to suppression. The [Rouse] approach would over-deter the police, preventing them from engaging in lawful investigation of containers where any reasonable expectation of privacy has already been eroded. This approach might also lead police to waste valuable time and resources obtaining warrants based on intentionally false or mistaken testimony of private searchers, for fear that, in confirming the private testimony before obtaining a warrant, they would inadvertently violate the Fourth Amendment if they happened upon additional contraband that the private searchers did not see. 275 F.3d at 465. Consequently, no violation of the Fourth Amendment occurred when, at Smith s behest, Tejada scrolled through the photos, R. at 3, 26, 31, stumbling upon photos of firearms he had not noticed during his initial perusal, R. at 27. The external hard drive was the container opened by Tejada as the box was the container opened by the employees in Jacobsen, and just as 11

19 the agent in Jacobsen was permitted to search the box more thoroughly than the employees had, Smith was permitted to search the hard drive more thoroughly than Tejada had. Therefore, the circuit court properly reversed the district court s grant of petitioner s suppression motion. 3. Jacobsen Remains The Proper Test For The Search Of EDSDs In granting petitioner s motion, the district court relied on United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015). R. at 7. There, a woman hacked her boyfriend s laptop, found child pornography images, and invited the police to have a look. The Lichtenberger court found that the nature of the electronic device greatly increases the potential privacy interests at stake, adding weight to one side of the scale while the other remains the same. 786 F.3d at 488. The court reasoned that there was absolutely no virtual certainty that the search of Lichtenberger s laptop would have revealed only what Officer Huston had already been told, id. (internal quotation marks omitted), concluding that Huston s search exceeded the scope of the private search. In reversing the district court s grant, the circuit court distinguished Lichtenberger, relying instead on Runyan. R. at There, Runyan s estranged wife had come across numerous computer disks at his residence. She opened some and found child pornography images. She then turned the collection over to law-enforcement officials, who also opened several of the disks, finding child pornography images. Applying Jacobsen, the Fifth Circuit held that the disks she opened were covered by the scope rule even though the officers examined them more thoroughly than she had. Runyan, 275 F.3d at 465. Similarly, the Seventh Circuit, also relying on Runyan, held a memory card and a zip drive were properly examined by police who were substantially certain, based on information from the individuals who turned them in, that they contained child pornography. Rann, 689 F.3d at 838. The circuit court below reasoned that since Lichtenberger involved a laptop, it necessarily implicated greater privacy interests than those at stake in Runyan 12

20 and Rann, and that the external hard drive here is more analogous to the disks in Runyan and Rann than the laptop in Lichtenberger because it lacks computational abilities, location information, and other kinds of particularly sensitive information contained in computers. R. at 16. Therefore, the circuit court declined to adopt Lichtenberger s holding in this case. The circuit court was correct in its reasoning, 5 but it did not go far enough. Lichtenberger itself was wrongly decided, as it fundamentally misunderstands the Jacobsen virtual certainty inquiry. As argued above, the proper question is not whether the container only contains incriminating evidence, but, as properly understood by Rann and Runyan, simply whether it contains incriminating evidence. Lichtenberger s laptop was virtually certain to contain child pornography; that is where the inquiry should have ended. Lichtenberger also erred in that it relied on Riley. In Riley, the Court held that the searchincident-to-arrest warrant exception, allowing police officers to search anything on an arrestee s person, does not extend to cell phones. 134 S. Ct. at The Court reasoned that the wealth of data stored in modern cell phones is incomparable to the kinds of privacy concerns originally intended for the exception to disturb. Id. Finding Riley instructive, Lichtenberger found society s interest in apprehending criminals outweighed by the privacy interest inherent in EDSDs. 786 F.3d at 487. One flaw in this application is that it ignores the analytical point that, unlike Riley, Jacobsen cannot be accurately described as defining a warrant exception. 6 A search incident to an 5 It might be characterized as distinguishing mere storage devices from more capable devices. 6 Plain view is perhaps better understood... not as an independent exception to the warrant clause, but simply as an extension of whatever the prior justification for an officer s access to an object may be. Brown, 460 U.S. at (internal quotations marks omitted). 13

21 arrest should, pursuant to the privacy interest, require a warrant, but the Court located an exception which grows out of the inherent necessities of the situation at the time of the arrest. Chimel, 395 U.S. at 759 (quoting Trupiano v. United States, 334 U.S. 699, 708 (1948)). Accordingly, it was sensible for the Court in Riley to hold that taking the exception as far as cell phones would upset the balance, because the weight of the cell phone privacy interest outweighs the exigency concerns. On the other hand, plain-view doctrine is not an exception. It rests on its own bottom, hinging on the theory that a container known to contain evidence of a crime no longer supports a legitimate expectation of privacy. See Andreas, 463 U.S. at 771. It does not say the privacy interest is outweighed by another interest, it says the privacy interest is vitiated. Therefore, Riley s balance is wholly inapplicable here. Another major distinguishing factor ignored by Lichtenberger is that in Riley cases, there is no automatic link between an arrestee s crime and his phone, so searching the phone can amount to a fishing expedition. Conversely, in Jacobsen cases, the only reason the police are searching the device is because someone has already seen what it contains. Thus, the concern that police will engage in fishing expeditions is far less significant in Jacobsen cases, and the circuit court below was correct to ignore Riley in its analysis. Indeed, both Rann and Runyan involved EDSDs, and both successfully completed typical Jacobsen analyses without seeking a modified standard. See also United States v. Tosti, 733 F.3d 816, 819 (9th Cir. 2013) (upholding search where officer viewed full-sized images on computer that private searcher only viewed as thumbnails). Lichtenberger was wrongly decided, because Jacobsen is as applicable to laptops as it is to external hard drives, other disks, and cardboard boxes. As the old saying goes, if it ain t broke, don t fix it. 14

22 B. IF THE COURT FINDS RILEY S CONCERNS APPLICABLE HERE, IT SHOULD ADDRESS THEM, WITHOUT ABROGATING JACOBSEN, BY RECOGNIZING DISCRETE CONTAINERS WITHIN ELECTRONIC DATA STORAGE DEVICES Even if the Court finds privacy concerns inherent in EDSDs to be of such a character as to merit reconsideration of its Jacobsen plain-view analysis, it need not and should not abrogate Jacobsen s workable and coherent doctrine with respect to such devices. These privacy concerns can be accounted for by viewing file-folders as separate containers. Conceptually segregating EDSDs this way reflects society s perception of these devices, tracking the qualification to the Fourth Amendment s search and seizure ban that the expectation [of privacy] be one that society is prepared to recognize as reasonable. Katz, 389 U.S. at 361 (Harlan, J., concurring). The initial search occurred when, according to Tejada, he opened a folder labeled photos. R. at 26. When Smith came by the apartment, Tejada opened the photos folder and started scrolling through the photos [he] had seen. R. at While Smith s own testimony is unclear on whether Tejada opened a folder or a photo browsing application, R. at 32, the circuit court inferred that the only way to access the images on the hard drive was via a folder labeled photos, R. at 15. Ergo, Smith s search did not exceed the scope of the initial search, because it was limited to the file-folder he was virtually certain contained drug photos. The Riley Court itself was unable to locate a similar middle-ground for the very reason that it involved the search-incident-to-arrest exception. The question was whether the officers could examine an arrestee s cell phone, and in such cases there is no logical reason for the police to limit their search to one particular file-folder the whole purpose of such a search is to determine whether the phone contains anything significant. Therefore, there was no specific container within the phone that Riley could have logically limited the search-incident-to-arrest exception to. Riley was accordingly left with an all-or-nothing dilemma, so it chose nothing. Here, there is a 15

23 justifiable middle ground that comports with the traditional Jacobsen rule and accounts for modern privacy concerns: viewing separate file-folders as separate containers. Therefore, instead of doing away with Jacobsen when dealing with EDSDs, the Court should take the nuanced approach of parsing out separate, closed containers within such devices, and should accordingly find that Smith s search was limited to the container initially searched by Tejada. C. EVEN IF THE SEARCH WAS UNCONSTITUTIONAL, ITS FRUITS FALL WITHIN THE GOOD-FAITH EXCEPTION TO THE EXCLUSIONARY RULE Even if Smith s search violated petitioner s Fourth Amendment rights, its fruits fall within the exclusionary rule s good-faith exception. The Court has often articulated that the exclusionary rule is intended to deter government from violating the Fourth Amendment. See, e.g., Mapp v. Ohio, 367 U.S. 643, 648 (1961) (exclusionary rule is a deterrent safeguard ). Accordingly, the Court came to recognize a good-faith exception. See United States v. Leon, 468 U.S. 897, 926 (1984) (search conducted pursuant to warrant); Krull, 480 U.S. at (search conducted pursuant to statute); Davis v. United States, 131 S. Ct. 2419, (2011) (search conducted pursuant to court interpretation of statute). In Herring, the Court said: To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. 555 U.S. at 144 (search conducted pursuant to arrest based on incorrect police computer records). The facts here simply do not rise to the level described in Herring. At the outset, Smith testified that when he arrived at the apartment, he merely prompted Tejada to show [Smith] the images that [Tejada] had viewed earlier that day. R. at 32. Nothing about this statement suggests that Smith was asking to see more than what Tejada had seen earlier. On the contrary, Tejada s testimony suggests Smith was under the impression Tejada had already seen all the photos. Agent 16

24 Smith asked me why I didn t mention those [gun] photos and I told him I didn t notice them the first time. R. at 27. Smith did what any reasonable officer would do under the most limited reading of Jacobsen; he asked Tejada to show him what Tejada had already seen. It was not Smith s fault that Tejada showed him more; he was certainly not grossly negligent. Therefore, even if the Court should choose to institute a new, sweeping, Riley-like rule here, Smith s search was conducted in good faith, and its fruits should not be suppressed. II. THE FOURTH AMENDMENT DOES NOT BAR THE ADMISSION OF THE HISTORICAL CELL SITE LOCATION INFORMATION RECORDS A. THIRD-PARTY DOCTRINE IS APPLICABLE TO HISTORICAL CELL SITE LOCATION INFORMATION The Fourth Amendment guarantees [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const. amend IV. Prior to 1967, the Fourth Amendment was interpreted as a protection only against physical trespasses. See, e.g., Olmstead v. United States, 277 U.S. 438, 458 (1928). In Katz, the Court expanded its Fourth Amendment analysis by eliminating the requirement of a physical trespass and instead focusing on expectations of privacy. 389 U.S. at 351. Concurring, Justice Harlan developed a two-part framework to determine whether particular privacy interests are protected under the Fourth Amendment. The test asks whether: (1) the person exhibited a subjective expectation of privacy; and (2) the expectation was one that society is prepared to recognize as reasonable. Id. at 361 (Harlan, J., concurring). The Court expounded upon Katz and created what would come to be known as third-party doctrine in 1976, in Miller. There, the respondent attempted to suppress bank records maintained by the bank in compliance with the requirements of the Bank Secrecy Act. Id. at 435. The Court stated, [w]hat a person knowingly exposes to the public... is not a subject of Fourth Amendment 17

25 protection. Miller, 425 U.S. at 442 (quoting Katz, 389 U.S. at 351). The Court concluded that the bank documents, required to transact business, contained information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. Miller, 425 U.S. at 442. From there, the Court determined: [T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Id. at 443. In other words, a person cannot claim a legitimate expectation of privacy in information voluntarily conveyed to third parties. The Supreme Court reaffirmed third-party doctrine in Smith v. Maryland, 442 U.S. 735 (1979). In Smith, police used a pen register to record the numbers dialed from Smith s telephone. Id. at 735. The Court found that Smith lacked a subjective expectation of privacy, reasoning that telephone users typically know that they must convey numerical information to the phone company... and that the phone company does in fact record this information for a variety of legitimate business purposes. Id. at 735. Further, the Court found that even if Smith had shown a subjective expectation of privacy, it was not one that society is prepared to recognize as reasonable. Id. Smith voluntarily conveyed... information to the telephone company and exposed that information to its equipment in the ordinary course of business, thus assuming the risk that third-party phone company would reveal this information to the police. Id. The principle behind third-party doctrine is fairly simple and well-entrenched in Fourth Amendment case law. In essence the principle instructs that individuals cannot claim a privacy interest in information that is voluntarily exposed to the public gaze. 1. CSLI Records Are Business Records Maintained Within The Ordinary Course Of Business Containing Information Voluntarily Conveyed By Cell Phone Users 18

26 In instant case, this Court is asked to determine whether third-party doctrine is applicable to CSLI. This issue has been addressed in the circuit courts with varying results. The Fifth and Eleventh Circuits, in Historical Cell, 724 F.3d at 612, and Davis, 785 F.3d at 512, respectively, correctly found that CSLI records are covered by third-party doctrine. The analysis of both courts, while not directly stating so, was predicated largely around the Supreme Court s reasoning in Miller. There, the Supreme Court held there were no protectable Fourth Amendment interests in documents that were: (1) business records of transactions to which the business was a party; and (2) voluntarily conveyed by the defendant. Miller, 425 U.S. at 440, 443. This Court should find that third-party doctrine is applicable in the case at bar under the same reasoning. There is no question that CSLI records are business records of transactions to which telephone companies are parties. As the Fifth Circuit noted, CSLI is the service provider s own records of transactions to which it is a party. Historical Cell, 724 F.3d at 612. The information is collected by a third party service provider and stored on the company s own accord for legitimate business purposes. Id. at 612. Indeed, like the bank customer in Miller and the phone customer in Smith, [a cell phone user] can assert neither ownership nor possession of the third party s business records. Davis, 785 F.3d at 511. Furthermore, CSLI does not contain private communications of the subscriber. Accordingly, classifying CSLI records as business records fits well within the historical distinction between communicational content and location information. 7 See United States v. Forrester, 512 F.3d 500, 511 (9th Cir. 2008). In addition to finding that the CSLI records are business records, this Court should find that the information as voluntarily conveyed by petitioner for two reasons. First, while not 7 Courts have typically held that communications between two subscribers were not accessible without a warrant based on probable cause. See, e.g., United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010). 19

27 expressly disclosed by the record, it is standard practice for telephone providers to include a privacy policy in its terms of agreement. See Historical Cell, 724 F.3d at 613; United States v. Graham, 796 F.3d 332, 345 (4th Cir. 2015). Thus, the existence of one between petitioner and Verizon may be presumed. It is typical of such privacy policies to expressly state that a provider uses the subscriber s location information to route his or her cell phone calls. [T]hese documents inform subscribers that the providers not only use the information, but collect it. Historical Cell, 724 F.3d at 613. These policies generally make it clear that the providers will turn over these location records if served with a court order. See Graham, 796 F.3d at 345; Historical Cell, 724 F.3d at 613. As the Fifth Circuit found, the existence of such a policy which the cell phone user should be aware of points to the logical conclusion that cell phone users understand that their service providers record the location information broadcasted from their phones. Historical Cell, 724 F.3d at 613. Consequently, by choosing to conduct business with a provider with such a privacy policy, and by voluntarily using their cell phones with this knowledge, cell phone users voluntarily convey location information over to cell phone companies. Id. Second, even if the exact details of the privacy policy are unknown, cell phone users know that cell phones: transmit signals to cell towers within range, that the cell tower functions as the equipment that connects the calls, that users when making or receiving calls are necessarily conveying or exposing to their service provider their general location within that cell tower s range, and that cell phone companies make records of celltower usage. Davis, 785 F.3d at 511; see also Madison, 2012 WL , at *8 ( [C]ell-phone users have knowledge that when they place or receive calls, they, through their phones, are transmitting signals to the nearest cell tower, and, thus, to their communications service providers. ). For example, the term roaming is nearly universally understood in the cell phone context. It is known 20

28 that when one travels beyond the cell tower coverage of the service provider, one will incur additional charges. It is also understood that, in order for this to occur, telephone companies have to maintain location data. If a cell phone user does not want to reveal his location to a cellular carrier, he [can] turn off [his] cell phone. Davis, 785 F.3d at 520 (Pryor, J., concurring). This knowledgeable usage functions as a voluntary conveyance. See Skinner, 690 F.3d at 777 (finding no reasonable expectation of privacy in location data transmitted by a cell phone). Because petitioner voluntarily conveyed the CSLI via his implied agreement to the privacy policy, and because of cell phone users continued usage of cell phones with knowledge as to their transmitting functions, petitioner clearly transmitted the CSLI voluntarily. 8 In sum: (1) CSLI records are business records maintained in the ordinary course of business and (2) petitioner voluntarily conveyed the information contained in the CSLI. Therefore, petitioner had no reasonable expectation of privacy in the CSLI under both Miller and Katz. 2. Finding Third-Party Doctrine Applicable To CSLI Facilitates Justice And Efficient Policing While Maintaining An Adequate Balance With Privacy Interests As the Sixth Circuit noted in Skinner, law enforcement tactics must be allowed to advance with technological changes, in order to prevent criminals from circumventing the justice system. Skinner, 690 F.3d at 778. There, the court found there was no Fourth Amendment violation because one has no legitimate expectation of privacy in CSLI. Id. at 777. The Sixth Circuit s analysis departed from the typical two-pronged third-party inquiry, instead relying on notions of justice as expressed in United States v. Knotts, 460 U.S. 276 (1983). Skinner, 690 F.3d at In a dissenting opinion, Judge Stiles argued that cell phone users only voluntarily convey solicited communications. R. at 20, 21. Judge Stiles concluded that, because petitioner never responded to certain solicited messages, he could not be aware of their existence as a data point on the CSLI. R. at 20, 21. This deduction, however, is flawed as it is based purely on petitioner s state of mind at the time of each particular message. Such a particularized test is illogical and nearly impossible to apply. In addition, it ignores the objective test of Katz. 21