No IN THE SUPREME COURT OF THE UNITED STATES. ELIZABETH JENNINGS, Petitioner, UNITED STATES OF AMERICA, Respondents.

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES ELIZABETH JENNINGS, Petitioner, v. UNITED STATES OF AMERICA, Respondents. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR PETITIONER UNIVERSITY OF CALIFORNIA, LOS ANGELES CYBER CRIMES MOOT COURT COMPETITION Team 22 Attorneys for Petitioner

2 Table of Contents I. QUESTIONS PRESENTED... 1 II. OPINION BELOW... 1 III. CONSTITUTIONAL PROVISIONS AND RULES... 1 IV. INTRODUCTION... 1 V. STATEMENT OF THE CASE... 5 A. Statement of Facts... 5 B. Procedural Posture... 8 VI. ARGUMENT... 8 A. OFFICER KRAMER VIOLATED MS. JENNINGS FOURTH AMENDMENT RIGHTS BY EXCEEDING THE SCOPE OF MR. NIGHTINGALE S PRIVATE SEARCH Ms. Jennings retained her Fourth Amendment privacy interest in her cell phone under the Katz test According to this Court s decision in U.S. v. Jacobsen, to remain within the Private Search Exception, officers performing a subsequent warrantless search must be virtually certain as to what they will find Just as in Walter v. U.S., Officer Kramer exceeded the scope of the private search exception B. The Government s use of the Cell-Site Simulator to locate Ms. Jennings was an unconstitutional search The use of Cell-Site Simulators blur this court s bright line rulings in Kyllo and Karo, by invading the privacy of a home This Court must limit warrantless use of cell-site simulators to prevent erosion of the Fourth Amendment s protection of the home The Fourteenth Circuit s reliance on Knotts was misplaced The third party doctrine should not apply to the use of cell-site simulators because it provides the real time location of cell phone users VII. CONCLUSION... 20

3 Table of Authorities Cases Burdeau v. McDowell, 256 U.S. 465 (1921) Coolidge v. New Hampshire, 403 U.S. 443, 451 (1971)... 8, 9, 10 Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) Katz v. U.S., 389 U.S. 347, (1967) Kyllo v. U.S., 533 U.S. 27, (2001),... 4, 10, 16, 18, 19 Mapp v. Ohio, 367 U.S. 643, 654 (1961) Payton v. New York, 445 U.S. 573, 590 (1980) Riley v. California, 134 S.CT. 2473, 2490 (2014)... 2, 9-11 Silverman v. United States, 365 U.S. 505, 511 (1961) Smith v. Maryland, 442 U.S. 735 (1979)... 19, 20 U.S. v. Jacobsen, 466 U.S. 109, 114 (1984) , U.S. v. Lichtenberger, 786 F.3d 478 (6th Dist. 2015)... 2, 11 United States v. Jennings, 913 F.3d 1131 (14th Cir. 2017)... 1 United States v. Karo, 468 U.S. 705 (1984)... 4, 16, 17 United States v. Knotts, 460 U.S. 276, 282 (1983) United States v. Miller, 425 U.S. 435 (1976) Walter v. U.S., 447 U.S. 649, 662 (1980)... 2, 13 U.S. Constitution CONST. amend. IV... 1, 8, 9, 12 Statutes 18 U.S.C , 7

4 I. QUESTIONS PRESENTED 1. Did Officer Kramer violate Ms. Jennings Fourth Amendment rights by exceeding the scope of the private search when he viewed pictures not seen during the private search and without virtual certainty as to what he would find? 2. Did the FBI s use of a cell-site simulator violate Ms. Jennings Fourth Amendment rights by searching her location without a warrant? II. OPINION BELOW The opinion for the United States Court of Appeals for the Fourteenth Circuit is reported in United States v. Jennings, 913 F.3d 1131 (14th Cir. 2017). III. CONSTITUTIONAL PROVISIONS AND RULES 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. (CONST. amend. IV.) IV. INTRODUCTION Officer Kramer violated Ms. Jennings fourth amendment rights when he exceeded the scope of the private search by viewing all the photos in Ms. Jennings phone s photo album without having virtual certainty as to what he would find. The Fourth Amendment of the United States Constitution protects citizens from unwarranted searches and seizers. (CONST. amend. IV.; 1

5 see also U.S. v. Jacobsen, 466 U.S. 109, 114 (1984).) Searches without a warrant are presumptively unreasonable unless an exception applies. (Jacobsen, 466 U.S. at 114.) The exception the Government uses in this case to justify their unwarranted search of Ms. Jennings phone is the Private Search Doctrine. (Id. at (citing Walter v. U.S., 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)).) The Private Search Doctrine allows police to conduct subsequent searches when a private citizen frustrates the defendant s expectation of privacy by conducting their own private search of the defendant s property. (Id. at ) That private person must be acting on their own and not as an agent of the government. (Id.) The scope of subsequent government searches are limited to the initial private search. (Id. at ) According to this Court s decision in U.S. v. Jacobsen, for police searches to stay within the Private Search Exception of the Fourth Amendment, the officers performing a subsequent warrantless search must have virtual certainty as to what they will find. (Id. at ) If a subsequent government search exceeds the scope of a private search, all information obtained from the subsequent search is excluded as fruit from the poisonous tree. (Id.) Because this case involves a cell phone, the Court should narrow the scope of the subsequent government search to only include photos or data viewed in the initial private search. About 90 percent of the adult population carry cell phones which contain an extraordinary amount of information. (Riley v. California, 134 S.CT. 2473, 2490 (2014).) This Court in Riley v. California, found cell phones are unique devises that contain significantly more information than people used to carry on their person and therefore cell phones require special consideration. (Id. at ) The outcome of this case will have far reaching consequences for all Americans. Further, this Court should adopt the Sixth Circuit s test from U.S. v. Lichtenberger, to determine if subsequent searches of electronic devices exceed a private search. (U.S. v. 2

6 Lichtenberger, 786 F.3d 478 (6th Dist. 2015).) When reviewing subsequent government searches to see if they exceeded the scope of an initial private search, the court looks at how much information the government stands to gain and how certain they are about what they will find. (Id. at (citing Jacobsen, 466 U.S. at ).) The Litchenberger test stays true to this Court s prior decisions and would disturb the least precedent in the other circuits. When applying the Litchenberer test, this Court should find that Officer Kramer s search exceeded the scope of the private search because he viewed photos in the photo album not viewed in the private search and he did not have virtual certainty regarding what he would find. If this Court finds Officer Kramer s search of the cell phone exceeded the scope of the private search, then the phone number retrieved on the napkin and all subsequent information obtained using that phone number is fruit from the poisonous tree. Ms. Jennings location and the cell phone seized at the time of her arrest resulted directly from Officer Kramer s warrantless search. The only way the FBI would have obtained Ms. Jennings location is using the photo of a napkin with a handwritten phone number. No other evidence connected Ms. Jennings with Dr. Owens crime. Although the FBI could have retrieved the same information with a proper search warrant to look through the phone, they failed to do so. This Court should find the District Court properly excluded this evidence and reverse the Fourteenth Circuit s decision. Ms. Jennings also suffered an unreasonable search under the Fourth Amendment when the FBI used a cell-site simulator to find her in her remote cabin in Arcadia National Forest. FBI agents drove around with the cell-site simulator, which commandeers the location information of all cell phones in its signal area by acting as a fake cell tower. Once the agents in this case located the signal for Ms. Jennings s phone, they followed it until they found her cabin. When 3

7 they arrived, she went out the backdoor of the cabin, but the agents caught her and found an incriminating pay as you go phone. In Kyllo v. United States, 533 U.S. 27 (2001), this Court addressed technological advancements in policing, holding that when law enforcement uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant. (Id. at 40.) In United States v. Karo, 468 U.S. 705 (1984) law enforcement planted a beeper in an ether drum and monitored it as it entered a suspect s house and for awhile after as it was inside. (Id. at ) This Court ruled that [using] an electronic device to obtain information that it could not have gained by observation from outside the curtilage of the house, is an unreasonable search within the meaning of the Fourth Amendment. (Id. at 715.) Use of the cell-site simulator, or stingray, by FBI was a search under Kyllo and Karo. A cell-site simulator is not in general public use and it allows one to know details about the home that would otherwise be unknowable without physical intrusion, such as that a particular occupant and/or her phone is inside. It is an electronic device with which the police obtain information they could not have gained from observation outside the curtilage - again, whether a person or phone is inside. Therefore, because cell-site simulator use is a search within the Fourth Amendment, a warrant or exception to the warrant requirement is required. Here there was neither a warrant obtained nor an exception that applied, so the search was unlawful and the phone recovered from Ms. Jennings must be suppressed under the exclusionary rule. Based on the foregoing, this Court should find the District Court properly excluded photos found on Ms. Jennings s first prepaid phone that were outside the scope of the private 4

8 search and the second prepaid phone found on Ms. Jennings. It should, therefore, reverse the Fourteenth Circuit s decision. V. STATEMENT OF THE CASE A. STATEMENT OF FACTS Ms. Jennnings, wife and mother to two children, works as a co-manager of a small travel agency. (R. at 1131.) She is an American citizen and has worked hard to support her family. (Id.) Yet Ms. Jennings life turned upside down when FBI agents surrounded her cabin in Arcadia National Forest. (R. at 1134.) Scared and in a panic, Ms. Jennings bolted from the door and was subsequently chased and arrested by the FBI. (Id.) Why was Ms. Jennings in this situation? Because a few nights before, Ms. Jennings met a man, Dr. Owens, at a bar, wrote her phone number down on a napkin, and handed him a pre-paid phone. (R. at 1132.) Once Ms. Jennings left, Dr. Owens took a picture of the napkin using the pre-paid phone. (Id.) It is undisputed, the picture of the napkin was the only content on the phone at that point. (Id.) On the night in question, Ms. Jennings sat alone in her family vacation home with a second disposable pre-paid phone. (R. at 1134.) The pre-paid phone s number matched the number she had given Mr. Owens several nights before. (R. at 1132.) Based on pictures police viewed on the first pre-paid phone without a warrant and Mr. Owens testimony, the Government charged Ms. Jennings with conspiracy to obtain information relating to national defense in violation of 18 U.S.C. 79. (R. at 1134.) On a motion by the defense, the District Court suppressed photos found on Ms. Jennings first pre-paid phone that were not viewed during the private search. The District Court also suppressed the second prepaid phone found on Ms. Jennings at the time of her arrest. 5

9 This case centers around Mr. Owens use of the prepaid phone that Ms. Jennings gave him. Mr. Owens is a nuclear physicist employed by Network Simulations Company (Netsimco). (R. at 1131.) The U.S. Department of Energy contracted with Netsimco to develop space lasers that would destroy incoming nuclear weapons. (R. at ) Mr. Owens used the pre-paid phone Ms. Jennings gave him to take pictures of Netsimco s confidential space laser schematics. (R. at 1132.) Mr. Owens, who worked for Netsimco, was hundreds of thousands of dollars in debt. (Id.) After taking pictures of the confidential space laser schematics, Mr. Owen called the number Ms. Jennings left on the napkin, and taped the phone to the bottom of a park bench. (Id.) Mr. Nightingale, a bystander who regularly visits the park, observed Mr. Owens behavior and removed the phone from underneath the bench after Mr. Owens left. (R. at 1132.) Mr. Nightingale turned on the phone, guessed the password ( ), and opened the photos. (Id.) Mr. Nightingale observed several photos, one of which contained the words TOP SECRET UNAUTHORIZED DISTRIBUTION FORBIDDEN UNDER PENALTY OF LAW. (R. at ) Mr. Nightingale did not scroll through the entire album and therefore did not see the last picture, thumbnail or otherwise, containing Ms. Jennings phone number written on a napkin. (R. at 1133.) When Mr. Nightingale called the police, Officer Kramer responded to the call. (Id.) Officer Kramer arrived at the scene and, without a warrant, looked at all 100 photos in the album. (Id.) The cell phones photo album included pictures that were unrelated to the confidential documents, including two small children, a cat, and Ms. Jennings phone number written on a napkin. Arcadia Policy transferred this case to the FBI. (Id.) At no point did the Arcadia Police or the FBI seek a warrant connected with the pre-paid device found under the park bench. (Id.) 6

10 The FBI found Mr. Owens by using video surveillance of the park. (Id.) The FBI informed Mr. Owens they were primarily concerned with catching the person who solicited the information. (Id.) Mr. Owens then gave a description of events implicated Ms. Jennings and describing the cell phone number written on the napkin as the only way he knew how to reach her. (Id.) The FBI used the cell phone number retrieved during the warrantless search to ask the cell provider where the cell phone had last connected with a cell phone tower. (Id.) The cell phone company voluntarily gave information to the FBI that the cell phone recently connected with a cell phone tower that was in a 10-mile radius of the Arcadia National Forest. (Id.) The stingray with which the FBI agents were armed is a cell-site simulator that works by behaving as a fake cellphone tower. (Id.) Cell-site simulators such as the stingray have been used by dozens of police departments with little public knowledge until recently. (Id.) Stingrays are about the size of a suitcase, they are mobile, and they can be operated from an airplane, carried by hand, or used in a vehicle. (Id.) With some variation depending on the model, a cellsite simulator allows its user to identify in real-time all nearby phones and pinpoint their location with a high degree of accuracy. (Id.) It does this by exploiting cellphone vulnerabilities. (Id.) Cell phones send out signals, about every seven seconds, seeking the closest cell-site. (Id.) They do this whether or not the user is making a call. (Id.) In mimicking a legitimate cell phone antenna, the cell-site simulator forces all nearby phones within its range to provide it with identifying information, whether they are a target phone or not. (Id.) Once the FBI agents got to Arcadia National Forest with their stingray device, they drove around until it informed them that the cell phone they were looking for was 25 feet away. (R. at 1134.) At that moment, the agents were in a rural area, and the only structure around was a cabin about 25 feet away. (Id.) The FBI agents heard a door close, so they ran around to the back of 7

11 the cabin where they found Ms. Jennings running away. (Id.) The agents then caught up to Ms. Jennings and arrested her. (Id.) The cabin to which the agents had traced Ms. Jennings was a vacation home that she and her family had used for several years. (Id.) The FBI agents found the phone that their stingray was locating on Ms. Jennings s person. (Id.) It was also a pay-as-you go phone, and had as its phone number the number that Mr. Owens had written down and called. (Id.) The only contents were a record of the call from Mr. Owens. (Id.) B. PROCEDURAL POSTURE Based on pictures police viewed on the first prepaid phone without a warrant, Mr. Owens s testimony, and evidence from the second prepaid phone that the FBI agents located without a warrant through the walls of Ms. Jenning s cabin, the Government charged Ms. Jennings in the United States District Court for the District of Arcadia with conspiracy to obtain information relating to national defense in violation of 18 U.S.C. 79. (Id.) On a motion by the defense, the District Court suppressed photos found on Ms. Jennings s first prepaid phone that were not viewed during the private search, and also the second prepaid phone found on Ms. Jennings. (Id.) The Government appealed to the Fourteenth Circuit, which reversed. (Id.) This Court granted certiorari. VI. ARGUMENT A. OFFICER KRAMER VIOLATED MS. JENNINGS FOURTH AMENDMENT RIGHTS BY EXCEEDING THE SCOPE OF MR. NIGHTINGALE S PRIVATE SEARCH. This case is about overzealous Government agents engaged in the competitive enterprise of law enforcement who are attempting to stretch the Fourth Amendment s exceptions. (Coolidge v. 8

12 New Hampshire, 403 U.S. 443, 451 (1971).) If the Government is successful, 90 percent of adult American citizens will forgo their privacy rights, so that these agents may make a case against two people, Mr. and Ms. Jennings. (Id.; see also Riley v. California, 134 S.Ct. 2473, 2490 (2014) (finding 90 percent of adult citizens carry cell phones).) This Court must determine the scope of the private search exception when a private citizen views some images on a cell phone and turns the phone over to the police. (R. at ) The Government should not have carte blanch approval to warrantless review of all photos and data on a cell phone once a private citizen looks at a couple pictures in the cell phone s photo album. (Id.) Ms. Jennings prays this Court will limit the scope of subsequent government searches of cell phones to the data viewed during an initial private search. This Court has a duty to protect citizens from stealthy encroachments on their Fourth Amendment rights. (Coolidge, 403 U.S. at 454.) Once again, this Court must fulfil that duty by preventing stealthy encroachments on the average American citizen s Fourth Amendment rights to private cell phone data. (See, e.g., Riley, 134 S.Ct (invalidating warrantless search of cell phone data at the time of arrest despite longstanding incident to arrest exception).) 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... and no Warrants shall issue, but upon probable cause... particularly describing the place to be searched.... (CONST. amend. IV.) Because this Court liberally construes the Fourth Amendment to protect people and their property, searches without prior judicial approval are per se unreasonable. (Coolidge, 403 U.S. at 454; see also U.S. v. Jacobsen, 466 U.S. 109, 114 (1984.) There exist only a few bright line exceptions to the warrant procedure. (Coolidge, 403 U.S. at ) 9

13 1. MS. JENNINGS RETAINED HER FOURTH AMENDMENT PRIVACY INTEREST IN HER CELL PHONE UNDER THE KATZ TEST. To determine whether the Fourth Amendment is implicated, the Katz test requires that (1) the defendant maintain a subjective reasonable expectation of privacy in the item searched, and (2) society must be willing to accept that expectation of privacy as objectively reasonable. (Katz v. U.S., 389 U.S. 347, (1967) (Harlan, J., concurring); see also Kyllo v. U.S., 533 U.S. 27, (2001).) It is undisputed that Ms. Jennings has a Fourth Amendment privacy interest in her cell phone. The phone Dr. Owens taped to the bottom of a park bench belongs to Ms. Jennings. (R. at 1134.) The parties stipulated that (1) Ms. Jennings did not abandon the phone taped under a park bench, and (2) Ms. Jennings has standing to challenge the search of that phone. (Id.) Ms. Jennings had a reasonable subjective expectation to privacy because the phone had a lock code. (R. at 1132 (Mr. Nightingale broke into the phone by guessing the code.).) Further, society is willing to accept an objective expectation that cell phone data is private. (See generally Riley v. California, 134 S.Ct (2014) (requiring warrant to search cell phones seized at time of arrest).) Applying the Katz test, the search of Ms. Jennings phone implicates the Fourth Amendment. Therefore, it is presumptively unreasonable for the Government to search Ms. Jennings phone without a warrant. (Coolidge, 403 U.S. at 454.) At a motion to exclude, the Government must show that an exception to the Fourth Amendment applies. (CONST. amend. IV; see also Coolidge, 403 U.S. at ) If the Government exceeded the scope of their exception, then this Court must exclude all evidence obtained through the unconstitutional search of Ms. Jennings phone as fruit from the poisonous tree. (Mapp v. Ohio, 367 U.S. 643, 654 (1961).) 10

14 2. ACCORDING TO THIS COURT S DECISION IN U.S. V. JACOBSEN, TO REMAIN WITHIN THE PRIVATE SEARCH EXCEPTION, OFFICERS PERFORMING A SUBSEQUENT WARRANTLESS SEARCH MUST BE VIRTUALLY CERTAIN AS TO WHAT THEY WILL FIND. This Court must protect American citizens from stealthy encroachments on the Fourth Amendment s protections by limiting the scope of the private search exception for cell phones. Like the incident to arrest exception this Court limited in Riley v. California, the private search exception is a long-established exception to the Fourth Amendment warrant requirement. (See generally Riley v. California, 134 S.Ct (limiting the incident to arrest exception when cell phones are involved because of the vast amount of data cell phones contain); Burdeau v. McDowell, 256 U.S. 465 (1921) (allowing the Government to use defendant s private papers against him in court despite the fact another private citizen stole them from his safe).) The Fourth Amendment protects people from unlawful searches and seizers by the Government, but not from private actors. (Burdeau 256 U.S. at 475.) Although, a person may have a cause of action against the private actor who unlawfully searches and seizes their affects they cannot prevent the government from using evidence obtained during an unlawful private search. (Id.) The Government s subsequent search is within the scope of the private search exception when the government agent is virtual[ly] certainty that (1) they will not find [any]thing else of significance, and (2) their search will not reveal anything more than [they were] already... told. (Jacobsen v. U.S., 466 U.S. 109, 119 (1984); see also U.S. v. Lichtenberger, 786 F.3d 478, 488 (6th Cir. 2015) (describing Jacobsen s virtual certainty test).) U.S. v. Jacobsen clearly shows how government agents may use the private search exception. (See generally Jacobsen, 466 U.S. at 109 (government agents remain within the scope of the private search exception when they duplicate the private search).) In Jacobsen, the defendant used a private freight carrier 11

15 to ship a package containing cocaine. (Id. at 111.) During transit, the outside of the package was damaged and an employee opened the package to check for internal damage. (Id.) Inside the package, the employee found crumbled newspaper covering duct tape tubes. (Id.) The employee opened the duct tape tubes to find clear zip lock bags with white powder inside. (Id.) The private freight carrier called the DEA and placed the bags in the tubes and the tubes back inside the box until an agent arrived. (Id.) The DEA agent removed the tubes from the box, opened the tubes to retrieve the plastic bags, and cut the bags open to test the substance. (Id. at 112.) This Court addressed whether removing the tubes, and the bags with white powder inside the tubes, from the defendant s package violated the defendant s Fourth Amendment rights. (Id. at 118.) This Court found the agent could recreate the private search, by removing both the tubes and the ziplock bags, without implicating the defendant s Fourth Amendment rights. (Id. at ) The agent did not learn anything beyond the information obtained during the private search. (Id.) It was acknowledged that the private searcher could testify regarding the contents of the package; however government agents are not required to rely solely on the private searcher s recollection. (Id.) Therefore, removing the items from the package and re-examining them did not exceed the scope of the private search. (Id.) This Court went on to find that testing the substance, once removed, did not cause any constitutional issues because Congress rejected any legitimate privacy interest in possessing cocaine. (Id.at 124.) Expectation that authorities will not learn certain facts is not equivalent to having a privacy interest society is prepared to recognize. (Id. at ) Because the private searcher had already opened the package and examined its contents, the agent had virtual certainty re-examining the package and testing the powder would not disclose anything else of significance that he had not already heard. (Id. at ) 12

16 This case is distinguishable from Jacobsen because Officer Kramer did not have virtual certainty that there was nothing else of consequence in Ms. Jennings cell phone photo album nor was Officer Kramer certain he would find nothing more than Mr. Nightingale disclosed. (R. at ) Mr. Nightingale viewed a few pictures of documents that were clearly confidential. (Id.) Mr. Nightingale admits he did not view the entire album. (Id.) When Officer Kramer conducted a subsequent government search, he viewed the entire album. (Id.) Officer Kramer continued searching the phone until he got to the last image, the picture of a napkin with a cell phone number on it, and enlarged it. (Id.) Officer Kramer scrolled past images of children and a cat that were clearly not of the same character as the confidential documents Mr. Nightingale viewed. (Id.) Therefore, Officer Kramer did not have a reasonable expectation nothing else would be revealed during his search. Unlike the DEA agent in Jacobsen, Officer Kramer had no virtual certainty as to what he would find if he went beyond the photos Mr. Nightingale viewed. 3. JUST AS IN WALTER V. U.S., OFFICER KRAMER EXCEEDED THE SCOPE OF THE PRIVATE SEARCH EXCEPTION. There are limits to the use of a private search exception. (U.S. v. Jacobsen, 466 U.S. 109, (1984).) Any subsequent government searches that invade the defendant s privacy must be tested by the degree to which they exceed the scope of the private search. (Id. at 115.) Just as warrants must particularly specify the place searched and the items seized, similar limitations apply to a government search following a private search. (Id. at (citing Walter v. U.S., 447 U.S. 649, 657 (1980)).); see also CONST. amend. IV.). The Government cannot exceed the scope of the private search unless it has another independent right to perform the search. (Jacobsen, 466 U.S. at 116 (citing Walter v. U.S., 447 U.S. 649, 657 (1980)).) In Walters v. U.S., Justice Stevens found probable cause is not enough 13

17 for a government search to exceed the limited scope of a private search. (Walter v. U.S., 447 U.S. 649, 655 (1980).) Although a private search may have frustrated some of the defendant s legitimate expectation of privacy, it does not necessarily strip away all Fourth Amendment protections. (Id.) After a private search, any remaining unfrustrated expectations of privacy the defendant has remain protected by the Fourth Amendment. (Id. at 658.) Walter v. U.S. illustrates the private search exception s limitations. (See generally id. (invalidating use of projector to view film when government agents did not have virtual certainty as to what images the film contained).) In Walter, films that were shipped to L Eggs Products, Inc.. instead of Leggs, Inc., contained contraband sexually explicit images. (Id. at 651.) Several employees opened the package and saw sexually explicit film drawings and descriptions. (Id. at ) One employee attempted to view the contents by holding the film to the light, however he was unable to see images. (Id. at 652.) L Eggs Products contacted the FBI who retrieved the film and viewed it on a projector without attempting to seek a warrant. (Id. at 652.) Although the evidence obtained from a private search was not enough to support a conviction, the government agents failed to seek a warrant. (Id. at 655.) The government was free to look inside the package to verify what the private search revealed, but they could not expand that search by projecting the film without a warrant. (Id. at 656.) Ms. Jennings retained a more reasonable privacy expectation in the photos that were not viewed during the private search than the Walter defendant had in their film. In Walter, the FBI had reason to believe the film contained sexually explicit contraband based on the descriptions and drawings. In this case, photos of two children, a cat, and a phone number written on a napkin are of an entirely different character than the images of confidential documents. (R. at 1133.) Officer Kramer had no reason to believe he would find additional confidential images once he 14

18 started viewing images of a different nature. Just as the agents in Walter exceeded the private search by projecting the film, Officer Kramer exceeded the private search by scrolling through the entire album and enlarging a photo not viewed by Mr. Nightingale. Therefore, like in Walters, Officer Kramer exceeded the scope of the private search in this case. Despite having possession of the phone, no risk of destruction of the evidence, and time to seek a warrant, Officer Kramer did not halt his search. For these reasons, Officer Kramer unconstitutionally violated Ms. Jennings reasonable expectation of privacy in the remaining photos. B. THE GOVERNMENT S USE OF THE CELL-SITE SIMULATOR TO LOCATE MS. JENNINGS WAS AN UNCONSTITUTIONAL SEARCH 1. THE USE OF CELL-SITE SIMULATORS BLUR THIS COURT S BRIGHT LINE RULINGS IN KYLLO AND KARO, BY INVADING THE PRIVACY OF A HOME. [T]he Fourth Amendment draws a firm line at the entrance to the house. (Kyllo v. United States, 533 U.S. 27, 40 (2001) (quoting Payton v. New York, 445 U.S. 573, 590 (1980) ).) " At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. (Id. at 31 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).) With few exceptions, any warrantless search of a house is unreasonable and unconstitutional. (Id.; see Payton, 445 U.S. at 586; Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).) The use of a cell-site simulator at issue in this case is similar to the use of a thermalimager in Kyllo v. United States, approvingly cited by Judge O Brien s dissenting opinion below, in which this Court addressed the limits placed on police technologies by the Fourth 15

19 Amendment. (Kyllo, 533 U.S. at 34; R. at 1141.) In Kyllo, the police used a thermal-imaging device to scan the outside of petitioner s residence after a detective suspected petitioner was growing marijuana. (Id. at 29.) The scan showed differing amounts of heat emanating all over the house. (Id. at 30.) The police got a warrant to search petitioner s home based in part on this scan and discovered petitioner s marijuana grow operation. (Id.) This Court ruled that the thermalimage scan was a search within the meaning of the Fourth Amendment and adopted a test for similar technologies to [assure] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. (Id. at 34.) Where law enforcement uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant. (Id. at 40.) United States v. Karo, 468 U.S. 705 (1984) also dealt with law enforcement s technological intrusion into a home. (Id. at 707.) Law enforcement installed a beeper in a can of ether and tracked it to a suspect s house, then secured a warrant after monitoring the beeper in the suspect s residence for a period of time. (Id. at ) This Court held that, while the initial installation of the radio-location beeper was not a search, the monitoring of a beeper in a private residence, a location not open to visual surveillance was a Fourth Amendment violation. (Id. at 714.) By maintaining surveillance of the radio-location beeper in the suspect s house, the agents verified that the ether remained at the house while a warrant was sought. (Id. at 719.) For the purposes of the Fourth Amendment, the result here, law enforcement [using] an electronic device to obtain information that it could not have gained by observation from outside the curtilage of the house, is the same as if an officer decided to enter the house to verify that the 16

20 ether was actually in the house and had he done so surreptitiously and without a warrant. (Id. at 715.) Both are unreasonable searches within the meaning of the Fourth Amendment. (Id.) Cell-site simulators are powerful law enforcement tools that exploit cellphone vulnerabilities in a way in which average citizens cannot. They indiscriminately bring into their reach all cell signals in their range, and force owners phones to transmit information to the government that they otherwise would not. (R. at 1133.) Because of the wireless fashion in which they operate, they are able to tell an officer that a particular [phone] is actually located at a particular time in [a] private residence and is in the possession of the person or persons whose residence is being [sought] in the most closed off or difficult to find residence, something that would otherwise have been unknowable without physical intrusion. (Karo, 468 U.S. at 715; Kyllo, 533 U.S. at 40.) Cell-site simulators are used by only dozens of police departments nationwide. (R. at 1133.) They have not been in the public s knowledge until recently, and they are not in general public use. (R. at 1133; Kyllo, 533 U.S. at 40.) By attaching to the signal of targets while the targets are in houses and other constitutionally protected areas, cell-site simulators invade the paramount privacy interests of those in those spaces. (See Kyllo, 533 U.S. at 34; Karo, 468 U.S. at 715.) That it will be difficult for law enforcement to obtain warrants just for cases when cell-site simulators encroach on constitutionally protected spaces is no excuse for shirking constitutional responsibilities. The argument that a warrant requirement would oblige the Government to obtain warrants in a large number of cases is hardly a compelling argument against the requirement. (Karo, 468 U.S. at 718.) In situations, as here, where a suspect is tracked inside of a home, Kyllo and Karo require law enforcement to obtain a warrant if they want to track that suspect with a cell-site simulator; to hold otherwise would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. (Kyllo, 533 U.S. at 34.) 17

21 2. THIS COURT MUST LIMIT WARRANTLESS USE OF CELL-SITE SIMULATORS TO PREVENT EROSION OF THE FOURTH AMENDMENT S PROTECTION OF THE HOME. Though Ms. Jennings ran outside her cabin when the FBI came close, the agents were tracking her location information with their cell-site simulator while Ms. Jennings was inside. (R. at 1134, 1141) Because she was inside a constitutionally protected area, the protections of Kyllo and Karo were applicable. Hers was not a situation where the government tracked her to the cabin through visual surveillance or with the help of a tracking device. (See Karo, 468 U.S. at 719; United States v. Knotts, 460 U.S. 276, 282 (1983).) The FBI started within a 10-mile radius in Arcadia National Forest and relied solely on their Stingray to find out what would be otherwise unknowable without a physical intrusion that Ms. Jennings and her incriminating phone were in her cabin. This was an unreasonable search, because the FBI procured no warrant and no warrant requirement exception applied. (Kyllo, 533 U.S. at 40; Karo, 468 U.S. 705 at 715.) Accordingly, this Court should suppress Ms. Jennings s second pay as you go phone that was recovered when she was arrested by the FBI agents as fruit of the poisonous tree. 3. THE FOURTEENTH CIRCUIT S RELIANCE ON KNOTTS WAS MISPLACED. The Fourteenth Circuit s majority opinion below as to the cell-site simulator issue relied on United States v. Knotts, 460 U.S. 276, (1983). (R. at 1138.) The court used it for the proposition that individuals have no privacy expectation in their movements on public roads. (Id.) The proposition is correct and Knotts supports it. But it is the wrong proposition for this case. Cell-site simulators do not just reach public areas, as explained above. They reach into the most private, constitutionally protected areas as well, such as Ms. Jennings s cabin. The Knotts passage cited by the court also contains this proposition, more apropos to the instant 18

22 case: Respondent Knotts undoubtedly had the traditional expectation of privacy within a dwelling place insofar as the cabin was concerned (Knotts, 460 U.S. at 282.) Ms. Jennings was inside her cabin when the FBI tracked her phone through its walls with their cell-site simulator, so she had the attendant traditional expectation of privacy of a dwelling. (Kyllo, 533 U.S. at 37.) That is why Kyllo and Karo are pertinent to this case instead of Knotts. 4. THE THIRD PARTY DOCTRINE SHOULD NOT APPLY TO THE USE OF CELL-SITE SIMULATORS BECAUSE IT PROVIDES THE REAL TIME LOCATION OF CELL PHONE USERS. The majority opinion below also relied on Smith v. Maryland, 442 U.S. 735 (1979) and United States v. Miller, 425 U.S. 435 (1976) in holding that a person does not have a reasonable expectation of privacy in what she voluntarily turns over to a third party. (R. at ) The reasoning behind this third-party doctrine is that by "revealing his affairs to another" an individual "takes the risk that the information will be conveyed by that person to the government." (Miller, 425 U.S. at 443.) In Miller, this Court found that a petitioner had no expectation of privacy in financial statements, checks, and deposit slips because he had voluntarily conveyed them to the bank and exposed them to its employees. (Miller, 425 U.S. at 442; R. at 1139.) In Smith, this Court found that petitioner similarly had no expectation of privacy in the phone numbers he dialed, because, like the petitioner in Miller, he had voluntarily conveyed and exposed this information to the phone company. (Smith, 442 U.S. at 744; R. at 1139.) However, the third-party doctrine is inapposite to the question presented before this Court regarding if and when it is appropriate to use cell-site simulators under the Fourth Amendment. The question before the Court does not involve phone companies turning over location information, as did Ms. Jennings's phone company in this case prior to the FBI's use of the cell- 19

23 site simulator, when the company voluntarily informed the FBI that Ms. Jennings phone had connected to a tower within a 10-mile radius around Arcadia National Forest. (R. at 1133.) The issue of Fourth Amendment limits on the third-party doctrine regarding government collection of historical cell site location information is currently pending before this Court in the Supreme Court's pending decision in Carpenter v. United States, No The question before this Court in the instant case is whether law enforcement may seek and obtain locational information by directly interacting with a suspect's cellphone through a cell-site simulator. It cannot reasonably be said that the phone user has "voluntarily conveyed" locational information to anyone and thereby relinquished a reasonable expectation of privacy in the information in this case. (Smith, 442 U.S. at 744.) In using a cell-site simulator, law enforcement directly and coercively exploits vulnerabilities within the subject's phone to co-opt the phone's locational signal in real-time. Also, while historical cell-site location information can locate the general area of the subject, as did the phone company in the present case, cell-site simulators can target the subject very precisely. Smith and Miller are inapposite to this case, and the third-party doctrine does not apply, because the cell-simulator engages the target phone directly. VII. CONCLUSION For the foregoing reasons, the Petitioner requests that this Court reverse the Court of Appeals for the Fourteenth Circuit. Respectfully submitted, Attorneys for Petitioner 20