In the Supreme Court of the United States

Transcription

1 No In the Supreme Court of the United States ELIZABETH JENNINGS, Petitioner, V. UNITED STATES OF AMERICA, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR THE PETITIONER TEAM 16 Counsel of Record for Petitioner 1

2 TABLE OF CONTENTS TABLE OF CONTENTS I! TABLE OF AUTHORITIES III! QUESTIONS PRESENTED V! OPINIONS BELOW V! CONSTITUTIONAL AND STATUORY PROVISIONS INVOLVED V! I.! FOURTH AMENDMENT V! II.! ESPIONAGE ACT OF 1917 VI! INTRODUCTION 1! I.! STATEMENT OF THE CASE 1! II.! SUMMARY OF THE ARGUMENT 4! III.! STANDARD OF REVIEW 7! ARGUMENT 7! I.! SUPRRESION OF THE CELL PHONE IMAGES WAS APPROPRIATE BECAUSE OFFICER KRAMER S SEARCH OF THE CELLPHONE WAS A SEPARATE SEARCH WHICH EXCEEDED THE SCOPE OF THE PRIVATE SEARCH AND VIOLATED MS. JENNINGS CONSTITUTIONAL RIGHTS. 7! A.! B.! Ms. Jennings possessed and retained an expectation of privacy in the password-protected cell phone. 9! Officer Kramer exceeded the scope of the private search because he did not possess virtual or substantial certainty that a police search of the cellphone would reveal new information and Ms. Jennings retained her expectation of privacy. 11! II.! THE GOVERNMENT PERFORMED AN UNREASONABLE SEARCH UNDER THE FOURTH AMENDMENT WHEN A CELL-SITE SIMULATOR WAS USED TO IDENTIFY THE LOCATION OF ELIZABETH JENNINGS BECAUSE IT VIOLATED HER REASONABLE EXPECTATION OF PRIVACY. 15! i

3 A.! B.! C.! When an individual is within his home he has a subjective expectation that his location and movements are private. 17! There is an objective expectation of privacy when the government uses technology that is not in general public use to explore otherwise unknowable details of the home. 23! The third-party doctrine should only apply when the information in question was voluntarily given to a third-party and was obtained directly from the third-party. 28! CONCLUSION 30! ii

4 TABLE OF AUTHORITIES Cases! Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574 (1921) Chimel v. California, 395 U.S. 752, 89 S. Ct (1969)... 9 Florida v. Jardines, 569 U.S. 1 (2013) , 26, 27 In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) , 28 Jones v. United States, 168 A.3d 703 (D.C. 2017) Jones v. United States, 357 U.S. 493,, 78 S. Ct. 1253, (1958) Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967)... 8, 9 Kyllo v. United States, 533 U.S. 27 (2001) , 25, 26 Riley v. California, 134 S. Ct (2014)... 8, 24, 25 Segura v. United States, 468 U.S. 796, 104 S. Ct. (1984) Silverman v. United States, 365 U.S. 505 (1961) Smith v. Maryland, 442 U.S. 735 (1979)... 17, 18 United States v. Bowers, 594 F.3d 522 (6th Cir.2010) United States v. Cardoza-Hinojosa, 140 F.3d 610 (5th Cir. 1998) United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc) , 28 United States v. Hardin, 539 F.3d 404 (6th Cir.2008) United States v. Jacobsen, 466 U.S. 109, 104 S. Ct (1984)... 11, 12 United States v. Jones, 565 U.S. 400 (2012) United States v. Karo, 468 U.S. 705 (1984) , 21, 22 iii

5 United States v. Knotts, 460 U.S. 276 (1983)... 18, 20, 21, 24 United States v. Krupa, 633 F.3d 1148 (9th Cir. 2011) United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430 (1950)... 9, 11 United States v. Runyan, 275 F.3d 449 (5th Cir. 2001).... 7, 12, 13 United States v. Skinner, 690 F.3d 772 (6th Cir. 2012) , 24, 28 United States v. White, 401 U.S. 745 (1971) Walter v. United States, 447 U.S. 649, 100 S. Ct (1980) , 14 Weeks v. United States, 232 U.S. 383 (1914) Statutes! Espionage Act of 1917, 18 U.S.C. 793(c).... vi Constitutional Provisions! U.S. CONST. amend. IV.... vi, 8, 16 iv

6 QUESTIONS PRESENTED 1)! Does the private search exception to the Fourth Amendment permit a law enforcement agent to view photos on a cell phone which were not viewed by private party if the officer is not virtually certain of the extent of the contents of the phone? 2)! Is the warrantless use of a cell-site simulator to identify the location of a target s mobile phone a search under the Fourth Amendment? OPINIONS BELOW Petitioner Elizabeth Jennings ( Ms. Jennings ) brought the instant Motion to Suppress Evidence in the United States District Court for the District of Arcadia. The District Court granted Petitioner s Motion to Suppress. Respondent, the U.S. government, appealed the District Court s decision before the United States Court of Appeals for the Fourteenth Circuit, which denied Petitioner s Motion to Suppress based on the reasoning that 1) images from Ms. Jennings s cell phone were improperly suppressed, and 2) the use of a cell-site simulator did not constitute a search in violation of the Fourth Amendment. The decision below is reported at United States v. Jennings, 913 F.3d 1131 (14th Cir. 2017). CONSTITUTIONAL AND STATUORY PROVISIONS INVOLVED I.! FOURTH AMENDMENT This instant Motion arises from the Fourth Amendment of the United States Constitution: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon v

7 probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 1 II.! ESPIONAGE ACT OF 1917 Additionally, this cases raises issues based on provisions of the Espionage Act of 1917, which dictates in pertinent part: (c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter[.] 2 1 U.S. CONST. amend. IV U.S.C. 793(c). vi

8 INTRODUCTION The 14th Circuit Court of Appeals erred when it reversed the District Court s order granting the motion to suppress the photos viewed by Officer Kramer that Nightingale had not seen on the phone Owens used, and the phone found on Jennings s person at the time she was arrested. On the first issue the 14th Circuit held that the images obtained from Jennings s cell phone were improperly suppressed, challenging the dissent s highlighting of the rationale seen in Riley v. California. Per the majority, police should not be handicapped just because Jennings may have had other private information, or private photos, on her cell phone. The 14th Circuit also held that the use of a cell-site simulator is not a search under the Fourth Amendment. The Court held that Jennings did not have a subjective or objective expectation of privacy when her location inside of her cabin was precisely tracked through her phone. Furthermore, the Court held that any Fourth Amendment claims were forfeited when she conveyed her location information to a third party. I.! STATEMENT OF THE CASE Dr. Sam Owens is a nuclear physicist employed by government contractor, Network Simulations Company ( Netsimco ). (R. at 1131). Netsimco is responsible for developing a space laser for the U.S. Department of Energy that is capable of destroying incoming nuclear weapons. (R. at ). Mr. Owens, who has a severe addiction to gambling and has recently found himself in several hundreds of thousands of dollars in debt, claims that the Petitioner, Ms. Elizabeth Jennings, is a Russian undercover agent who attempted to procure images and schematics for the Netsimco laser. (R. at ). Mr. Owens claims that, in December 2015, he was inebriated at a local bar when Ms. Jennings approached him. (R. at 1132). According to Mr. Owens, he drunkenly revealed to Ms. 1

9 Jennings that he was a physicist working on the space laser. (R. at 1132). Mr. Owens also allegedly revealed the facts of his significant gambling debt at that time. (R. at 1132). Mr. Owens then claims that Ms. Jennings offered to help Mr. Owens pay off his financial debt if Mr. Owens would procure images of the space laser. (R. at 1132). According to Owens, Ms. Jennings provided him with a pay-as-you-go cellular phone and asked Mr. Owens to perform the following: (1) Remove the battery from the phone until he was ready to use it. (2) take pictures of the space laser and its schematics with the phone; (3) tape the phone to the bottom of a certain park bench in Arcadia Central Park; (4) call a specified phone number, allow it to ring four times, and then hang up as a signal to Jennings to come and collect the phone from the bench. (R. at 1132). Mr. Owens claims that he wrote the phone number from Step (4) down on a napkin and took a photo of it because he feared he would forget it due to his intoxication. (R. at 1132). The next day, Mr. Owens alleges that he photographed the space laser prototype and its schematics with the cell phone. (R. at 1132). Later in the evening, Owens claims he went to the Arcadia Central Park, where he called the number he wrote down on the napkin and followed the other Steps mentioned above. (R. at 1132). At some point, a private citizen, Larry Nightingale, observed the activities of Mr. Owens. After Owens left the park, Mr. Nightingale removed the cell phone from the bench and activated it. (R. at 1132). Although the phone was password protected, Mr. Nightingale managed to guess the password and unlock the phone. (R. at 1132). Mr. Nightingale then opened the photo application on the phone. (R. at 1132). In the photos application, Mr. Nightingale viewed a few of the photos, including a single photo of a document labeled with the heading TOP SECRET UNAUTHORIZED DISTRIBUTION FORBIDDEN UNDER PENALTY OF LAW. (R. at 2

10 ). Mr. Nightingale did not scroll through the album or view any other images depicting the phrase top secret. (R. at ). Instead, he became suspicious based on the circumstances of the situation and contacted the police. (R. at 1133). Arcadia Police Officer Kramer met Mr. Nightingale at the park a short time later.(r. at 1133). Mr. Nightingale showed Officer Kramer the image of the top secret document. (R. at. 1132). After only viewing the single image of the document, Officer Kramer took the phone from Mr. Nightingale, zoomed out, and scrolled through an album of approximately 100 small thumbnail images. (R. at 1133). Officer Kramer viewed approximately 24 thumbnail photographs not viewed by Mr. Nightingale, all of which depicted the laser, its schematics, and bore the top secret document heading. (R. at 1133). Officer Kramer could not, however, properly view the final thumbnail photograph, which depicted Mr. Owen s napkin with the phone number. (R. at 1133).. Consequently, Officer Kramer tapped on the image to enlarge it and wrote down the phone number on the napkin. (R. at 1133).. At that point, Arcadia Police transferred the investigation to the FBI. (R. at 1133).. The FBI used security footage from the park to identify Mr. Owens as the person who taped the phone to the park bench. (R. at 1133).. Mr. Owens was interrogated by the FBI but told them he had no knowledge of who the woman who allegedly solicited information from him was; all he knew was that her phone number was written down in the photo of the napkin. (R. at 1133).. Accordingly, the FBI contacted the cell provider for the phone number. (R. at 1133).. The cell company told the FBI that the number in question had been recently connected to a cell tower within a 10-mile radius of the Arcadia National Forest. (R. at 1133).. The FBI subsequently went to the National Forest without a warrant to find the cell phone using a stingray device, which is a cell-site simulator used by police to collect 3

11 information by exploiting cell phone vulnerabilities (R. at 1133).. The stingray acts as a fake cell tower operated from a motor vehicle. (R. at 1133). The stingray mimics genuine cell towers and forces all nearby cell phones to provide identify information in order to identify and pinpoint the location of a particular phone in real time. (R. at 1133). The FBI agents drove around the National Forest with the stingray until it picked up a nearby signal from the cell number in question. (R. at 1134). The only building nearby was a cabin located on a rural street. (R. at 1134). The FBI heard a door close and observed Ms. Jennings leaving the cabin. (R. at 1134). The FBI approached Ms. Jennings and arrested her. (R. at 1134). On her person at the time of her arrest was a pay-as-you-go cell phone using the number written on the napkin by Mr. Owens. (R. at 1134). Ms. Jennings was charged with conspiracy to obtain information relating to national defense that she was not entitled to receive in violation of 18 U.S.C (R. at 1134). The government and defense have stipulated that (1) Jennings had standing to challenge the search of her phone; and (2) the phone was not abandoned. (R. at 1134). II.! SUMMARY OF THE ARGUMENT This case is not about the government using its available tools in the name of national defense. This case is about the government trying to circumvent the Fourth Amendment and allow itself warrantless access to a tiny device that holds more of our intimate thoughts, pictures, conversations, and memories than we would capable of fitting into an entire house: Our cell phones. This Court should reverse the 14th Circuit s holding on issue one. Private searches are not covered by the Fourth Amendment. However, when the police perform a search, subsequent 4

12 to a private search, they should obtain a warrant if they intend to search beyond the scope of the private search. The search by Officer Kramer was an unreasonable search in violation of the Fourth Amendment under this analysis. Officer Kramer exceeded the scope of the private search conducted because 1) he did not possess virtual or substantial certainty that his search would reveal information not revealed during the private search and 2) Ms. Jennings possessed and retained an expectation of privacy in the images on the cell phone. Therefore, 3) the search conducted by Officer Kramer constitutes a separate search which was unreasonable under the Fourth Amendment. Consequently, all the evidence obtained during the unreasonable search should be suppressed to further justice. This Court should also reverse the 14th Circuit s holding, and allow for the suppression of the cell phone found on Jennings, on the second issue. When the government used a cell-site simulator to identify the location of Jennings and her cell phone it performed a warrantless search under the Fourth Amendment. The Fourth Amendment protects individuals against unreasonable searches. When the government invades an individual s reasonable expectation of privacy without a warrant it has conducted an unreasonable search. Jennings s expectation of privacy was reasonable because she had both a subjective expectation of privacy, society would recognize her expectation as reasonable, and the third-party doctrine does not apply to Jennings. Jennings had a subjective expectation of privacy because rather than being tracked on public roads, or being in a situation where she was subject to the public eye, she was inside of her home. This Court acknowledged that important fact in Karo. Unlike the tracking of an individual on roads that are capable of visual surveillance, once the individual is being tracked inside of his home it is an impermissible search. When the sole use of the stingray was to 5

13 precisely locate Jennings and her phone inside of her home, they violated her clear expectation of privacy. Jennings also had an expectation of privacy that is objectively reasonable. While society might be willing to acknowledge that certain privacy expectations are forfeited when knowingly giving information to a third party, or driving on public roads, once the government utilizes technology that is not generally used by the public it has gone beyond society s desires. When the government uses technology to hone in on the exact location of a person, doing so in a manner that none of us would be able to, that goes well beyond the pale of reasonableness, and is an objectively unreasonable search. Finally, the lower courts analysis of the third-person doctrine simply should not apply to Jennings. There are numerous cases that support the third-party doctrine but they all have one thing in common that doesn t apply to this case: The information used by the government was voluntarily given to a third-party, and that information was forwarded to the government. Here, while the government uses information like this to narrow the search within ten miles, it pretends to be the third party to capture the exact location emitted from the cell phone. When a third-party doctrine analysis starts, and ends, with information that was not voluntarily given to a thirdparty, the analysis fails immediately, and further discussion is unnecessary. 6

14 III.! STANDARD OF REVIEW In reviewing the Fourteenth Circuit s denial of Petitioner s Motion to Suppress Evidence, this Court considers the District Court's conclusions of law and application of the law to the facts... de novo. 3 This Court reviews the district court's factual findings for clear error. 4 When a court makes a determination on a motion to suppress, the facts underlying the suppression determination should be viewed in the light most favorable to the prevailing party in this case, Ms. Jennings. 5 Although Ms. Jennings carries the initial burden of proving a Fourth Amendment violation, the burden shifts to the Government once Ms. Jennings has met her burden. 6 At that point, the Government must demonstrate why the exclusionary rule should not apply to the fruits of any illegal searches. 7 ARGUMENT I.! SUPRRESION OF THE CELL PHONE IMAGES WAS APPROPRIATE BECAUSE OFFICER KRAMER S SEARCH OF THE CELLPHONE WAS A SEPARATE SEARCH WHICH EXCEEDED THE SCOPE OF THE PRIVATE SEARCH AND VIOLATED MS. JENNINGS CONSTITUTIONAL RIGHTS. 3 United States v. Bowers, 594 F.3d 522, 525 (6th Cir.2010) (quoting United States v. Hardin, 539 F.3d 404, 416 (6th Cir.2008)) (internal quotation marks omitted). 4 United States v. Krupa, 633 F.3d 1148, 1151 (9th Cir. 2011). 5 United States v. Runyan, 275 F.3d 449, 456 (5th Cir. 2001)

15 The Fourth Amendment protects against warrantless searches and seizures. 8 A warrantless search is per se unreasonable under the Fourth Amendment 9, and [i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. 10 The U.S. Supreme Court has clearly stated that exceptions to the Fourth Amendment are jealously and carefully drawn[.] 11 While the Fourth Amendment does not apply to searches conducted by a private individual, police searches subsequent to a private search may not exceed the scope of the private search. Any warrantless police search which exceeds the scope of the private search would constitute an unreasonable search in violation of the Fourth Amendment. Evidence obtained in during an unreasonable search should be excluded from criminal prosecutions. 12 The exclusionary rule applies equally to evidence obtained as a direct result of an unreasonable search and evidence later discovered as the result of an unreasonable search aka the fruit of the poisonous tree. 13 Here, the images obtained from Ms. Jennings cell phone were properly suppressed by the trial court because such evidence was obtained during an unreasonable search in violation of Ms. Jennings Fourth Amendment rights. Officer Kramer exceeded the scope of the private search conducted because 1) Ms. Jennings possessed and retained an expectation of privacy in the images on the cell phone and 2) Officer Kramer did not possess virtual or substantial certainty 8 U.S. CONST. amend. IV. 9 Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967). 10 Riley v. California, 134 S. Ct. 2473, 2482 (2014). 11 Jones v. United States, 357 U.S. 493, 499, 78 S. Ct. 1253, 1257 (1958). 12 Weeks v. United States, 232 U.S. 383, 398 (1914). 13 Segura v. United States, 468 U.S. 796, 804; 104 S. Ct (1984). 8

16 that his search would reveal information not revealed during the private search and Therefore, the search conducted by Officer Kramer Constitutes a separate search which was unreasonable under the Fourth Amendment. Consequently, in order to all evidence obtained during the unreasonable search should be suppressed in order to further justice. A.! Ms. Jennings possessed and retained an expectation of privacy in the password-protected cell phone. Officer Kramer s search of the cellphone constituted an unreasonable search under the Fourth Amendment because Ms. Jennings retained an objectively reasonable expectation of privacy in the cellphone and all its data when she password-protected the cell phone. While the Fourth Amendment applies to searches conducted by police officers, it does not apply to searches conducted by private citizens or police searches conducted subsequent to a private search. 14 However, police searches subsequent to a private search are not limitless, and any subsequent police searches that constitute, for all intents and purposes, exploratory searches cannot be undertaken by officers without a warrant. 15 More importantly, police perform a Fourth Amendment search of a cell phone when a person has exhibited an actual (subjective) expectation of privacy and the expectation [is] one that society is prepared to recognize as reasonable Burdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574 (1921). 15 United States v. Rabinowitz, 339 U.S. 56, 62, 70 S. Ct. 430, 434 (1950), overruled on other grounds by Chimel v. California, 395 U.S. 752, 89 S. Ct (1969) (emphasis added). 16 Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516 (1967). 9

17 To determine whether a person has a reasonable expectation of privacy, the court considers five factors. While none of the five factors is necessarily decisive, together they represent the concerns that should be addressed in determining whether a defendant has standing to object to a search under the Fourth Amendment. 17 The five factors are: 1) whether the defendant has a property or possessory interest in the thing seized or the place searched; 2) whether he has the right to exclude others from that place; 3) whether he has exhibited a subjective expectation of privacy that it would remain free from governmental intrusion: 4) whether he took normal precautions to maintain privacy, and 5) whether he was legitimately on the premises In this case, Ms. Jennings satisfies the five factors of an objectively reasonable expectation of privacy in the entire cell phone. The parties have stipulated that Ms. Jennings had a possessory interest in the cell phone. (R. at 1134). Likewise, as a person with a possessory interest, Ms. Jennings had the right to exclude others from viewing the contents of the phone. As such, Ms. Jennings exhibited her expectation of privacy and took normal precautions to maintain that privacy when she password protected the phone and requested Mr. Owens remove the battery. (R. at 11342). Consequently, Ms. Jennings had a reasonable expectation of privacy in the cell phone and its contents because she satisfies the five factors in Katz. Once Ms. Jennings reasonable expectation of privacy has been proven, the Court must then turn its analysis to whether the private party search of the property exhausted the defendant s expectation of privacy. 17 United States v. Cardoza-Hinojosa, 140 F.3d 610, 616 (5th Cir. 1998). 10

18 B.! Officer Kramer exceeded the scope of the private search because he did not possess virtual or substantial certainty that a police search of the cellphone would reveal new information and Ms. Jennings retained her expectation of privacy. Police may not carry out a warrantless search on the basis of an earlier private search unless the private search completely frustrates the expectation of privacy of the owner. A private search will not frustrate the expectation of privacy so as to permit a subsequent police search when the police lack a virtual certainty that nothing else of significance 18 will be revealed during the police search. This policy is meant to act as a safeguard to avoid exploratory searches 19, and prevent the police from performing a wild-goose chase through a person s belongings. Essentially, the police may only perform a warrantless search subsequent to a private search when the police are certain they will not go beyond the scope of the private search. 20 In Jacobsen, for example, the Supreme Court upheld a police search subsequent to a private search conducted on a package opened by FedEx employees. The FedEx employees opened a sealed cardboard tube which contained plastic bags of white powder that eventually turned out to be cocaine. 21 The FedEx employees reported the packages to federal agents who then searched the boxes and opened the plastic bags of powder. 22 The Court found the search of the plastic bags within the single container to be constitutional because there was a virtual 18 United States v. Jacobsen, 466 U.S. 109, 119, 104 S. Ct. 1652, 1660 (1984). 19 Rabinowitz, 339 U.S. at 56, 62, 70 S. Ct. at Jacobsen, 466 U.S. at

19 certainty that nothing else of significance was in the package and that a manual inspection of the tube and its contents would not tell [the federal agent] anything more than he already had been told. 23 Consequently, the police search did nothing more than avoid[] the risk of a flaw in the [FedEx] employees recollection. 24 Conversely, the court in United States v. Runyan found that a subsequent police search exceeded the scope of a private search of various computer disks. In Runyan, the defendant was charged with possession of child pornography based on a police search subsequent to a private search conducted by the wife of the defendant and one of her friends. 25 The wife discovered several floppy disks, CDs, and ZIP disks belonging to her husband. A friend of the wife viewed around twenty of the disks, which contained images of child pornography. However, the wife s friend could not view any of the ZIP disks. 26 The wife and friend later turned over twenty-two CDs, ten ZIP disks, and eleven floppy disks to law enforcement. 27 Law enforcement viewed some of the disks and printed out several images and showed them to the District Attorney. 28 The Court s decision rested on whether the police exceeded the scope of the private search when they examined the entire collection of containers (i.e., the disks) turned over by the private 23 at (emphasis added). 24 at United States v. Runyan, 275 F.3d 449, 453 (5th Cir. 2001)

20 searchers, rather than confining their search to the selected containers examined by the private searchers. 29 The Court found that the police exceeded the scope of the private search because 1) the police examined disks which the private searchers did not view and 2) the police did not have virtual certainty that the disks not viewed during the private search contained illegal images. 30 Likewise, in Walter v. United States, 447 U.S. 649, (1980), the Supreme Court rejected the argument that a private search allows the police unlimited access to private property. In Walter, shipment of sealed packages containing films depicting homosexual activities was delivered by a private carrier to a third party rather than to the consignee. 31 Employees of the third party opened the packages. One employee opened up several of the boxes and unsuccessfully tried to view the contents of the films by holding them up to the light. 32 FBI agents later viewed the films on a projector before obtaining a warrant. 33 The Court held that the subsequent viewing of the films was unconstitutional based on the reasoning that exceed the scope of the private search unless it has the right to make an independent search. 34 The Court in Walter compared the requirements of warranted police searches with police searches subsequent to private searches, and found that: 29 at Walter v. United States, 447 U.S. 649, 649, 100 S. Ct. 2395, 2397 (1980). 32 at at

21 If a properly authorized official search is limited by the particular terms of its authorization, at least the same kind of strict limitation must be applied to any official use of a private party's invasion of another person's privacy. 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 re-examination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search. 35!! Additionally, the Court found that the private search did not completely frustrate the defendant s expectation of privacy because the film cartons were securely wrapped and had no markings indicating what they contained. 36 Here, the Officer Kramer exceeded the scope of the private search because he viewed more images than Mr. Nightingale viewed without being virtually certain of what the remaining photographs contained. Like the police in Walter, who exceeded the scope of the private search because they had no reason to make an independent search of the packages, Officer Kramer exceed the scope of Mr. Nightingale s search because he had no reason to perform an independent search on the cell phone. While Mr. Nightingale viewed a single image of a document with the phrase TOP SECRET UNAUTHORIZED DISTRIBUTION FORBIDDEN UNDER PENALTY OF LAW, (R. at 1133), neither Mr. Nightingale nor Officer Kramer had any reason to believe that the presence of the top secret document was inherently illegal. In fact, neither Mr. Nightingale nor Officer Kramer had any reason to believe that the photograph of the document was actually a genuinely top secret document. All that Officer Kramer knew 35 at 657 (emphasis added)

22 was that a photograph of such a document existed. This knowledge alone would hardly be sufficient evidence for an official warrant to be produced for the cell phone. And, unlike the officer in Jacobsen who was virtually certain that nothing else of significance was in the search container, Officer Kramer had no certainty of what the remainder of the cell phone would contain. In actuality, this case is more similar to Runyan where the officer s search of disks not viewed during a private search was unconstitutional. Similarly to Runyan, the only evidence Mr. Nightingale viewed were several photos which he scrolled through and one single document containing the phrase top secret. (R. at ). According to the record, Mr. Nightingale did not look through the entire cell phone album or view any other images which displayed the words top secret. Indeed, the images viewed by Mr. Nightingale present the police with even less certainty than the evidence in Runyan. In Runyan, the twenty photos viewed by the private searchers were not enough to trigger an exception to the Fourth Amendment. It is unreasonable in light of Jacobsen, Walter, and Runyan, that the single image of a top secret document was sufficient to trigger a warrantless search. Accordingly, the search conducted by Officer Kramer exceeded the scope of the private search because 1) Officer Kramer was not virtually certain of the contents of the entire photo album and 2) the evidence discovered in the private search was not significant enough to frustrate Ms. Jennings reasonable expectations of privacy. As such, any images viewed during the police search should be excluded as fruits of the poison tree of Officer Kramer s unconstitutional search. II.! THE GOVERNMENT PERFORMED AN UNREASONABLE SEARCH UNDER THE FOURTH AMENDMENT WHEN A CELL-SITE SIMULATOR WAS USED TO 15

23 IDENTIFY THE LOCATION OF ELIZABETH JENNINGS BECAUSE IT VIOLATED HER REASONABLE EXPECTATION OF PRIVACY. This Court should reverse the 14th Circuit s holding and rule that the government s use of a cell-site simulator (stingray device) to identify the location of Elizabeth Jennings was an improper search under the Fourth Amendment. The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 37 The Fourth Amendment is not an absolute right to privacy. 38 The Fourth Amendment protects individuals against certain kinds of governmental intrusion. 39 It is presumptively unreasonable for the government to invade an individual s reasonable expectation of privacy without a search warrant. 40 A reasonable expectation of privacy requires (1) that a person exhibit an actual/subjective expectation of privacy, and (2) that society is prepared to recognize this expectation as reasonable. 41 (This second prong is often mentioned as an objective prong rather than the subjective nature of the first prong). Here, Elizabeth Jennings exhibited an actual 37 U.S. CONST. amend. IV (emphasis added). 38 Katz v. United States, 389 U.S. 347, 350 (1967) , at 361 (Harlan, J., concurring)

24 expectation of privacy, there was a reasonable objectiveness to her expectation, and the thirdparty doctrine does not apply here. A.! When an individual is within his home he has a subjective expectation that his location and movements are private. This Court analyzes the question of if an individual had a subjective expectation of privacy by asking if that individual was trying to keep something private. 42 This Court has written that At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. 43 Attaching a GPS to an individual s car, without a warrant, is also an unreasonable search under the Fourth Amendment. 44 However, a violation of the Fourth Amendment is not solely limited to physical intrusion of a defendant s property , at 351; Smith v. Maryland, 442 U.S. 735, 740 (1979). 43 Silverman v. United States, 365 U.S. 505, 511 (1961). (Holding that the attachment of a spike mike to the defendant s home was a Fourth Amendment violation because the officers physically touched the defendant s home without a warrant). 44 United States v. Jones, 565 U.S. 400 (2012). (Scalia focused on the car being an effect under the Fourth Amendment, and that the government trespassed onto the defendant s property). 45, at 414 (Sotomayor, J., concurring); Katz, at

25 A conversation by an individual in an enclosed phone booth has been held to represent a subjective expectation of privacy despite there being no physical trespass under local law. 46 The phone numbers that are dialed, however, do not represent this same kind of subjective expectation of privacy. 47 Some Circuit Courts have expanded the logic of Smith to hold that individuals do not have a subjective expectation of privacy when police use the communications between a cell phone and the cellular company s tower. 48 When a person is using public thoroughfares in a vehicle then he has no reasonable expectation of privacy. 49 The use of a beeper signal to supplement the visual surveillance of the defendant s movements on public roads is not a search under the Fourth Amendment. 50 However, 46 Katz, at 353, Smith, 442 U.S. at See United States v. Skinner, 690 F.3d 772, 778 (6th Cir. 2012) (Comparing the use of a pen register to the cell tower information about the defendant s pay-as-you-go phone); See In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 610 (5th Cir. 2013) (distinguishing between the government collecting, or requiring a third party to collect, and a third party voluntarily collecting the data in a manner that the defendant is aware of); United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc) (Holding that the use of historical cell-site location information is not a search under the Fourth Amendment). 49 United States v. Knotts, 460 U.S. 276, 281 (1983). 50, at

26 using that same technology to monitor the movements of an individual inside of a home does violate his subjective expectation of privacy, and did not violate the Fourth Amendment. 51 In Katz the government had attached an electric listening and recording device outside of a public telephone booth the defendant had used to make calls. 52 The Court of Appeals allowed the recordings because there was no physical intrusion into the area the defendant occupied. 53 Without physical penetration, the government argued, the case does not warrant a Fourth Amendment analysis. 54 Justice Harlan s concurrence focuses on the fact that the defendant shut the door of the phone booth behind him. 55 Once the defendant closed the door, closing off access to the public, his momentary expectations of privacy are reasonable. 56 Twelve years later this Court looked at another case involving the use of a phone. In Smith v. Maryland this Court held that the use of a pen register was not a Fourth Amendment search and that a warrant was not required. 57 In Smith, when the victim of a robbery was receiving threatening and obscene phone calls from a man who identified himself as the robber, 51 United States v. Karo, 468 U.S. 705 (1984). 52 Katz, 398 U.S. at , at , at , at 361 (Harlan, J., concurring) Smith, 442 U.S. at

27 police identified the defendant through surveillance and tracing his license plate number. 58 The police furthered their investigation by having the telephone company install a pen register to record the numbers dialed from the defendant s home. 59 The pen register device revealed that a call was placed from the defendant s home to the victim s home, the police obtained a warrant to search the defendant s home, and the ensuing search found further evidence linking the defendant to the robbery. 60 This Court acknowledged that a pen register has limited capabilities and wrote that an individual does not have any actual expectation of privacy in the numbers they dial. 61 Knotts stands for the proposition that surveillance of an individual s driving of a vehicle on public roads can be augmented with the installation of a beeper device. 62 In Knotts, the government installed a beeper inside a five-gallon drum of chloroform. 63 The company that owned the drum gave the government permission to install this beeper. 64 Government agents visually surveilled the defendant for an extended period of time, until the defendant was able to 58, at Knotts, 460 U.S. at , at

28 eventually evade the agents. 65 The defendants in Knotts eventually arrived at their cabin, and once they were stationary the beeper informed the agents of the location of the agents. 66 This Courts held that a person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. 67 The arrival of the defendant to the cabin by car was visible to the public eye. 68 For these reasons this Court held that a search had not taken place under a Fourth Amendment analysis. 69 In United States v. Karo this Court again looked at a case involving the use of a beeper device to monitor the actions of an individual that could not be obtained through visual surveillance. The government received consent from an informant to replace a can of ether with one of the government s cans. 70 The government installed and monitored a beeper in the substituted ether can. 71 Once the defendant picked up the can of ether from the informant the government began following him through visual and beeper surveillance. 72 The government used 65 66, at , at , at at Karo, 468 U.S. at

29 the beeper to monitor the movement of the ether inside of the homes of the various defendants. 73 The government agents further tracked the ether to a commercial storage facility after realizing it was no longer transmitting from within one of the defendant s homes. 74 This Court held that the installation and transfer of the beeper to the defendant s control did not infringe on his privacy. 75 It was the monitoring of the beeper inside of a private residence that violated the Fourth Amendment. 76 If a search of a home requires a warrant, according to this Court so should the electronic surveillance inside of the home. 77 The government s use of a stingray here shares similarities with the device used in Katz. The issue goes beyond a trespass analysis and focuses on the subjective intent of the defendant. If the shutting of a public phone booth door demonstrates an expectation of privacy, so does being present in one s enclosed domicile. Unlike Katz, where the privacy interest was related to spoken words, here it is the actual presence of Elizabeth Jennings that was being tracked. This presence, or touching, in her home is a sense in a similar way to visual and audio senses and should be a protected privacy like in Katz. The majority in the 14th Circuit compared the present circumstances to the pen register used in Smith. These cases should be compared, but in doing so the differences between the two , at , at , at

30 stand out. As mentioned above, this Court acknowledged the limited capabilities of a pen register. Rather than simply identifying phone numbers that were made, the stingray physically tracked the location of Ms. Jennings to being inside of her home. This sort of information goes well beyond the limited capabilities of the pen register. Unlike in Smith, a third party did not install a device to track information it held. The stingray was owned by the government and was utilized independently by them to track Ms. Jennings s location. The distinctions between Karo and Knotts applies to the present facts in this case. Unlike in Knotts, the device was not used to supplement visual surveillance. The movements of Ms. Jennings on public roads were not being tracked at all. The stingray only pinged Ms. Jennings s phone when she was already present in her vacation home. This Court was very clear in Karo that the movements of an individual in his home do not fall under the holding of Knotts. There was no ability to visually see Ms. Jennings or her phone from the public eye, and that is important to distinguish from Knotts. Using the logic of the Karo holding, Ms. Jennings clearly had a subjective expectation of privacy. B.! There is an objective expectation of privacy when the government uses technology that is not in general public use to explore otherwise unknowable details of the home. The second prong of the Katz analysis requires that an individual s expectation of privacy is one that society would recognize as reasonable. 78 The arguments that an individual does not 78 Katz, 398 U.S. at

31 have a subjective expectation of privacy when traveling on public roads or using their phones are often restated during this second prong analysis. 79 The evolution of cell phone technology provides access to information above and beyond anything the human eye can catch. 80 It is the person who is not carrying a cell phone, with all that it contains, who is the exception. 81 The software on a phone can help an individual manage intimate details of just about his entire life. 82 Use of technology to detect thermovision imaging has been found by this Court to be a search under the fourth amendment. 83 If the information requires physical intrusion to obtain, it is presumptively unreasonable without a warrant. 84 When the police do physically intrude on an individual s property to gather evidence with the use of a trained police dog this Court has held 79 Smith, 442 U.S. at 742; Knotts, 460 U.S. at ; Skinner, 690 F.3d at 781 (In this case the 6th circuit acknowledged a likely subjective expectation of privacy and mainly challenged the arguments of the defendant on objective grounds). 80 See Riley v. California, 134 S.Ct. 2473, (2014). 81, at , at Kyllo v. United States, 533 U.S. 27 (2001). 84, at

32 that to be a search without even requiring a Katz analysis. 85 The concurrence in Jardines went further, comparing the use of a trained dog to that of the technology used in Kyllo. 86 In Riley this Court was asked to look at two cases in which police seized the cell phones of the defendants. 87 In the first case the phone in question was a modern day smart phone. 88 This Court was looking at the reasonableness of searching the phones, not only at the time of arrest, but after the phone was at the police station. 89 In determining that the search incident to arrest doctrine did not apply to cell phones, Chief Justice Roberts focused on the difference between the information found on a phone and the physical evidence that might be destroyed at an individual s home or car. 90 This Court held that the privacy interests of the individual outweighed the need to perform a warrantless search because of the intimate details that are found on a cell phone. 91 In Kyllo the police used a thermal imager to detect infrared radiation emanating from the defendant s home. 92 The device showed that the roof of the garage, as well as one side of the 85 Florida v. Jardines, 569 U.S. 1, 11 (2013). 86, at 14 (Kagan, J., concurring). 87 Riley, 134 S.Ct. at , at , at , at Kyllo, 533 U.S. at

33 home, were significantly warmer than the remainder of the home as well as the homes of nearby neighbors. 93 The government claimed that because actual details of what was going on in the home were not detected, and only heat leaving the home was being picked up, that the action did not violate the defendant s reasonable expectation of privacy. 94 For the majority, Justice Scalia ultimately focused on the fact that the thermal imaging device was not one that was in general use, and thus was a search. 95 Jardines was a case in which this Court looked at the use of a drug-sniffing police dog on the defendant s porch. 96 After a brief visual surveillance of the home, the officers approached the home with the trained canine. 97 After the dog identified the smell of narcotics the police used that information to obtain a search warrant. 98 While the state and dissent argued that the holding in Kyllo implied the use of an animal in a practice that has been around for centuries is not a search because it is not device, this argument was dismissed. 99 While the holding of this Court focused 93 94, at Jardines, 569 U.S. at , at

34 on a property rubric, the concurrence compared the trained dog to the technology used in Kyllo. 100 Once again the facts of the case here can be distinguished from Smith and Knotts. The stingray device was not simply tracking phone numbers, like in Smith, or the travels on public roads, like in Knotts. Even if those factual situations establish that society is unwilling to recognize the privacy of the individual, the situation her is not comparable to those fact patterns. Here, like in Riley, the information gathered is well beyond what society would be comfortable saying is not private. Just like analysis in Riley, focusing on the fact that our lives exist on our phones, being able to find someone s exact location using a stingray is clearly an objective violation of one s privacy. Even if the public is willing to accept that who we call, and where we are going on public roads is ok, it would not want instantaneous discovery of where we are located. The holding in Kyllo and concurrence in Jardines is what this Court should look at to find there was an objective expectation of privacy. Like the thermal imaging device in Kyllo, or the trained drug-sniffing police dog in Jardines, the stingray device is not one that is used by the public generally. This advanced technological device is utilized by the police for purposes like the defendant in Kyllo. It is meant to circumvent the privacy in the home of the individual. With technology constantly evolving, law enforcement agents will regularly have bigger and better devices to use in investigations. However, those devices, excluded from the public s general use, 100, at

35 should not be allowed to circumvent the Fourth Amendment, and should be considered a search when there is a societal expectation of privacy in the situation. C.! The third-party doctrine should only apply when the information in question was voluntarily given to a third-party and was obtained directly from the third-party. When an individual has voluntarily conveyed information to a third party, then that information is often said to have no expectation of privacy. 101 Both this Court and many Circuit Courts have used this argument in allowing the introduction of evidence that is received from a third party. If an individual voluntarily converses with an unknown informant, and is overheard by monitoring a radio transmission, then the defendant cannot claim his Fourth Amendment rights were violated Smith, 442 U.S. at United States v. White, 401 U.S. 745, 749 (1971). Similar arguments were made in Skinner, Historical Cell Site Data, and Graham. Skinner, 690 F.3d at 778 (Holding it is ok to track a pay-as-you-go phone because it is communicating with the cell phone company towers); See In re Application of the United States for Historical Cell Site Data, 724 F.3d at 610 (as mentioned in section A: distinguishing between the government collecting, or requiring a third party to collect, and a third party voluntarily collecting the data in a manner that the defendant is aware of); Graham, 824 F.3d at 421 (en banc) (Holding that the use of historical cell-site location information is not a search under the Fourth Amendment because this information was voluntarily given to the cellular company). 28