Case No In the SUPREME COURT OF THE UNITED STATES SPRING TERM, 2018 ELIZABETH JENNINGS, Petitioner, UNITED STATES OF AMERICA, Respondent.

Transcription

1 Case No In the SUPREME COURT OF THE UNITED STATES SPRING TERM, 2018 ELIZABETH JENNINGS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. BRIEF FOR PETITIONER Team 15 Counsel for the Petitioner

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii QUESTIONS PRESENTED...iv OPINIONS BELOW...v CONSTITUTIONAL PROVISIONS AND RULES...vi INTRODUCTION...1 STATEMENT OF THE CASE...1 ARGUMENT...5 I. THE CIRCUIT COURT INCORRECTLY REVERSED THE DISTRICT COURT S ORDER GRANTING THE MOTION TO SUPPRESS BECAUSE THE PHOTOGRAPHS NOT VIEWED BY NIGHTINGALE WERE BEYOND THE SCOPE OF THE PRIVATE SEARCH...6 II. THE CIRCUIT COURT INCORRECTLY REVERSED THE DISTRICT COURT S ORDER GRANTING THE MOTION TO SUPPRESS BECAUSE THE FRUITS FROM THE USE OF THE CELL-SITE SIMULATOR WITHOUT A WARRANT WAS AN IMPROPER SEARCH UNDER THE FOURTH AMENDMENT...15 A. Jennings has a reasonable expectation of privacy in the sum of her movements, specifically those within her private residence under the Fourth Amendment...15 B. Jennings had a legitimate privacy interest in her location information in which the Third-Party Doctrine would not apply because she did not voluntarily convey that information...23 CONCLUSION...29 i

3 TABLE OF AUTHORITIES United States Supreme Court Cases Burdeau v. McDowell, 256 U.S. 465 (1921)...6, 14 Coolidge v. New Hampshire, 403 U.S. 443 (1971) 14 Katz v. United States, 398 U.S. 347 (1967)..16, 17, 24, 25 Kyllo v. United States, 533 U.S. 27 (2001)...19 Riley v. California, 134 S.Ct (2014)..6, 7 Smith v. Maryland, 442 U.S. 735 (1979) 16, 24, 27 United States v. Jacobsen, 466 U.S. 109 (1984) 6, 12 United States v. Jones, 132 S. Ct. 945 (2012)..17, 18, 20, 28 United States v. Karo, 468 U.S. 705 (1984) 15, 22 United States v. Knotts, 460 U.S. 276 (1983).23 United States Court of Appeals Cases In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013)..19 Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012)...14 United States v. Davis, 785 F.3d 498 (11th Cir. 2015)..26 United States v. Graham, 796 F.3d 332 (4th Cir. 2015)..6, 21, 22, 24, 25 United States v. Johnson, 806 F.3d 1323 (11th Cir. 2015) 13 United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015)...9, 10 United States v. Rouse, 148 F.3d 1040 (8th Cir. 1998)...7, 8 United States v. Runyan, 275 F.3d 449 (5th Cir. 2001).. 8, 9 United States v. Simpson, 904 F.2d 607 (11th Cir. 1990)..11 ii

4 United States v. Skinner, 690 F.3d 772 (6th Cir. 2012)...27, 28 United States v. Sparks, 806 F.3d 1323 (11th Cir. 2015) 6 States Court Cases Jones v. United States, 168 A.3d 703 (D.C. 2017)..17, 18 State v. Andrews, 134 A.3d 324 (2016).17 Constitutional Provisions U.S. Const. amend. IV...15 iii

5 QUESTION PRESENTED I. Under what circumstances the private search exception to the Fourth Amendment permits a law enforcement agent to view photos on a cell phone beyond the view by the private party. II. Whether and when use of a cell-site simulator to identify the location of a target s mobile phone a Fourth Amendment search. iv

6 OPINION BELOW The opinion for the United States Court of Appeal for the fourteenth Circuit is reported in United States v Jennings, 913 F.3e 1131 (14 th Cir. 2017). v

7 CONSTITUTIONAL PROVISIONS AND RULES The Fourth Amendment of the United States Constitution provides: The right of the people to be secure in their person, houses, papers, and effects, and against unreasonable searches and seizures, and 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. vi

8 INTRODUCTION This case is about the unreasonable searches and seizures of the Petition, Elizabeth Jennings, which led to an invasion of privacy that should have never occurred. This Court has the chance to reverse the Circuit Court of Appeals incorrect decision; reversing the United States District Court for the District of Arcadia decision, granting the motion to suppress the evidence from the unlawful searches by the government against Jennings under the Fourth Amendment. First, the Circuit Court incorrectly reversed the District Court s order granting the motion to suppress because the photographs not viewed by Nightingale were beyond the scope of the private search under the Fourth Amendment of the United States Constitution. Second, the Circuit Court incorrectly reversed the District Court s order granting the motion to suppress because the fruits from the use of the cell-site simulator without a warrant was an improper search under the Fourth Amendment. This is due to Jennings reasonable expectation of privacy in the sum of her movements as well as, her legitimate privacy interest in her location information in which she did not voluntarily convey. STATEMENT OF THE CASE Appellee-defendant Elizabeth Jennings ( Jennings ), lives in suburban Arcadia with her husband Philip and their two children. (R. at 1131). Jennings is a co-manager of a small travel agency. (R. at 1131). The FBI alleges that Elizabeth Jennings and her husband Philip Jennings entered the United States under false identities and are both undercover agents working as recruiting agents for the Russian FSB. (R. at 1131). Dr. Sam Owens ( Owens ), is a nuclear physicist employed by a private corporation called Network Simulations Company ( Netsimco ). (R. at 1131). Netsimco is on a contract with the U.S. Department of Energy and 1

9 has been working on developing a space laser which would destroy incoming nuclear weapons. (R. at ). According to Owens, he met Jennings when he sat down next to Jennings at a bar. (R. at 1132). While Owens was intoxicated he disclosed to Jennings that he was working on a space laser at Netsimco and was deeply in debt. (R. at 1132). Owens suffered from a severe gambling addiction and was several hundreds of thousands of dollars in debt around December (R. at 1132). Jennings allegedly suggested that she could help Owens with his financial problems in return for a service. (R. at 1132). Jennings allegedly requested that Owens take pictures of the space laser schematics with a pay-as you-go smartphone provided by Jennings. (R. at 1132). Owens agreed to assist Jennings and she allegedly handed Owens a pay-as you-go phone. (R. at 1132). Jennings requested that Owens (1) take pictures of the space laser and its schematics with the phone; (2) tape the phone to the bottom of a certain park bench in Arcadia Central Park; and (3) call a specified phone number, allow it to ring four times, and then hang up. (R. at 1132). The final step would signal to Jennings to come and collect the phone from the bench. (R. at 1132). According to Owens Jennings instructed him to remove the battery from the phone until he was ready to use it. (R. at 1132). Owens agreed to follow the instructions, and Jennings left the bar. (R. at 1132). Uncertain that he would remember the phone number due to his intoxication, Owens wrote the phone number Jennings told him on a napkin and took a photo of the napkin with the phone Jennings had given to him. (R. at 1132). The next day, Owens entered his supervisor s office when he knew that his supervisor was busy meeting with the Secretary of Energy. (R. at 1132). As he suspected, the space laser schematics were on his supervisor s desk. (R. at 1132). Owens then photographed the space laser 2

10 schematics and then secretly photographed the prototype of the space laser with the pay-as-yougo phone Jennings gave him. (R. at 1132). Later that evening, Owens walked to the agreed upon park bench in Arcadia Central Park, he called the number Jennings had indicated, allowed it to ring four times, and then hung up. (R. at 1132). Owens then fastened the phone containing the photographs to the bottom of the park bench and he left. (R. at 1132). Unseen by Owens, Larry Nightingale ( Nightingale ), a local community watch member, had watched Owens tape the phone to the bench. (R. at 1132). Intrigued by what he saw, Nightingale removed the phone after Owens had left and turned it on. (R. at 1132). When prompted for a password, Nightingale guessed , and was surprised that the phone unlocked and its contents became accessible. (R. at 1132). Nightingale opened the Photos application in an attempt to identify the phone s owner. (R. at 1132). Nightingale opened several photos and saw one containing: TOP SECRET UNAUTHORIZED DISTRIBUTION FORBIDDEN UNDER PENALTY OF LAW. (R. at ). He did not scroll through the entire album because he was alarmed by the headline, instead he immediately contacted the police and described the image that he saw. (R. at 1133). Officer Kramer ( Kramer ), an Arcadia police officer, arrived on the scene, and was showed the image. (R. at 1133). Kramer took the phone and then zoomed out (by tapping the image) to a screen full of smaller thumbnail images. (R. at 1133). The album had around one hundred photos. (R. at 1133). Kramer scrolled through the album, and focused his attention on the photographs that depicted schematics. (R. at 1133). He saw approximately twenty-four other unseen photographs that all depicted schematics and bore the same Top Secret heading, including another photograph of a large instrument that resembled a satellite. (R. at 1133). Kramer could see the entirety of the images, albeit in a smaller format, except for the final photograph. (R. at 1133). The final photograph in the album 3

11 was of an unreadable phone number that was handwritten on a napkin. (R. at 1133). Unable to read the number as a thumbnail, Officer Kramer tapped on the image to enlarge the image, and recorded the phone number. (R. at 1133). Arcadia Police transferred the investigation to the FBI and the FBI used security footage of the park and quickly identified Owens as the person who left the phone under the bench. (R. at 1133). The FBI interrogated Owens, and indicated they were principally concerned with capturing the agent who solicited information from him. (R. at 1133). Owens explained that he had no idea who the woman and that he had no idea how to contact her other than the number on the napkin. (R. at 1133). The FBI began their investigation with the number that Officer Kramer had reported to them that was on the napkin. (R. at 1133). The FBI agents contacted the cell provider for the number, and the company voluntarily conveyed to the FBI that the phone had most recently connected with a cell phone tower somewhere within a 10-mile radius around the Arcadia National Forest. (R. at 1133). With this information, the FBI agents use a stingray device and set out to the forest area with the without a warrant. (R. at 1133). Stingrays devices are commonly referred to as cell-site simulators, a type of surveillance equipment that has been used by police departments with little public knowledge until recently. (R. at 1133). Stingray devices are about the size of a suitcase, mobile and can be operated from an airplane, carried by hand, or, as in this case, from a vehicle. (R. at 1133). Stingrays collect information by exploiting cellphone vulnerabilities by behaving as fake cellphone towers. (R. at 1133). Cell phones send out signals seeking the closest cell-site usually located on a tower approximately every seven seconds, whether the user is making a call or not. (R. at 1133). Since stingrays mimics a legitimate cell phone tower antenna, it forces all nearby phones within its range to provide it with 4

12 identifying information. (R. at 1133). The device can identify in real time all nearby phones and pinpoint their location with a high degree of accuracy. (R. at 1133). FBI agents drove around the forest area until their stingray device informed them that they were only twenty-five feet away from the cell phone they were looking for. (R. at 1134). The FBI agents parked on a rural street about twenty-five feet away from a cabin, when they heard the sound of a door closing. (R. at 1134). The FBI went around to the back of the Jennings vacation cabin where they discovered her running away, the agents caught up to her and arrested her. (R. at 1134). On her person at the time of the arrest, FBI agents discovered the pay-as-yougo phone with the number Owens had written on the napkin and called. (R. at 1134). The phone contented just a record of a call placed from Owens phone (R. at 1134). The government charged Elizabeth Jennings 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). The District Court granted defendant s motion to suppress the photos viewed by Officer Kramer that were not viewed by Nightingale on the phone Owens used, and the phone found on Jennings at the time of her arrest. (R. at 1134). The government now appeals. (R. at 1134). For the reasons below, we REVERSE the order of the District Court. (R. at 1134). ARGUMENT This court should reverse the Fourteenth Circuit Court s ruling denying the motion to suppress and, grant the motion because of the government s violation of the Fourth Amendment. The Fourth Amendment gives protection against unlawful searches and seizures, and its protection applies to governmental action. It is intended as a restraint upon the activities of 5

13 sovereign authority, and is not intended to be a limitation upon others. Burdeau v. McDowell, 256 U.S. 465, 576 (1921). In applying the law to the facts while reviewing a motion to suppress, the Court should interpret the facts in the light most favorable to the party that prevailed in the District Court. United States v. Sparks, 806 F.3d 1323, 1334 (11th Cir. 2015). This Court should review the District Court s evidentiary rulings for abuse of discretion, as well as, the District Court s legal conclusion that the Fourth Amendment violation occurred when the government discovered Jennings location through use of a cell-site simulator through the standard of review de novo. United States v. Graham, 796 F.3d 332, 343 (4th Cir. 2015). This Court will conclude that the Fourteenth Circuit Court ruled incorrectly and will grant the motion to suppress due to the government s violation of the Fourth Amendment. I. THE CIRCUIT COURT INCORRECTLY REVERSED THE DISTRICT COURT S ORDER GRANTING THE MOTION TO SUPPRESS BECAUSE THE PHOTOGRAPHS NOT VIEWED BY NIGHTINGALE WERE BEYOND THE SCOPE OF THE PRIVATE SEARCH. The Circuit Court incorrectly reversed the District Court s order granting the motion to suppress because the photographs not viewed by Nightingale were beyond the scope of the Private Search. A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon. United States v. Jacobsen, 466 U.S. 109, 1656 (1984). When analyzing a Private Search, any additional invasions of privacy by the government must be tested by the degree in which they exceeded the scope of the private search. See Jacobsen, 466 U.S. at In Riley, the Supreme Court of the United States held, that under the Fourth Amendment, the government may not conduct a warrantless search of the contents of a cellphone seized absent exigent circumstances. Riley v. California, 134 S. Ct. 2473, 2477 (2014). The police searched David Riley and seized his smartphone from his pocket. Id. The police searched the 6

14 smartphone and used it as evidence at trial. The court stated that, According to one poll, nearly three quarter of smartphone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phoned in the shower. Id. at Which led to its reasoning that, the search of the data on a cell phone is a major invasion of privacy due to the quality and quantity of personal information stored on cellphones. Id. at Similar to the evidence found in Riley, the government s use of the evidence would lead to a major invasion of privacy. Additionally, like the government s warrantless search of the data on Riley s phone, the officer scrolling beyond the photos that Nightingale had viewed and therefore, unreasonable and should be suppressed by this Court. In Rouse, the court held that seizure of items already discovered by airline employees did not violate the Fourth Amendment, but the seizure of other items, which the officers had no information prior to their own search is unconstitutional. United States v. Rouse, 148 F.3d 1040, 1040 (8th Cir. 1998). Mr. Rouse appeared for a last-minute flight which he paid for in cash. Id. Airline employees marked Mr. Rouse s carry-on luggage with stickers to alert security personnel at the entrance to search Mr. Rouse s carry-on luggage. Id. When Mr. Rouse presented himself at the gate to retrieve his luggage he was redirected to the security post. Id. However, Mr. Rouse departed from the airport leaving his luggage behind. Id. at Airline employees were advised to intercept and search Mr. Rouse s luggage. Id. The airline employee s searched Mr. Rouse s luggage and found a number of identification cards and blank social security card. Id. These items seemed suspicious, so she decided to contact the airport police. The police additionally discovered a laminating machine and material for laminating cards inside of the luggage. Id. Since the search in this case was conducted without a warrant, the District Court acknowledged that the warrantless search of Mr. Rouse s luggage is presumptively unreasonable 7

15 and thus unconstitutional. Id. Since the police in our present case and the airport police in Rouse, discovered additional items that were unseen by a private individual. The court in Rouse, establish that the search of Mr. Rouse s luggage was warrantless and acknowledged that a search warrant is required before conducting a search of this kind. The police s search of the cell phone in our present case therefore, exceeded the scope of Nightingale s prior search and would thus requires a search warrant. Therefore, the police should have obtained a search warrant before exploring additional photographs found in the cell phone, without a warrant the search is presumptively unreasonable and is thus unconstitutional. In Runyan, the Court of Appeals, held that the police officers exceeded the scope of a private search when they failed to confine their examination of computer disks to those disk that the defendant s wife had examined. United States v. Runyan, 275 F.3d 449, 449 (5th Cir. 2001). Robert Runyan lived on a ranch in Texas with his ex-wife Judith Runyan. Id. at 452. Judith left some of her belongings at the residence and made several visits to retrieve her items while Robert was not present. Id. at 453. Judith was unaware that Robert installed a fence surrounding the ranch. She was forced to jump the fence and climb through a window of the residence to retrieve her personal belongings. Id. Judith returned to the ranch with her friend Brandie and found a black duffel bag that contained pornography along with Judith s desktop computer. Id. Brandie assisted Judith with reassembling the computer and viewed approximately twenty CD s and floppy disks that had been removed from the ranch and discovered they contained images of child pornography. Id. Brandie and Judith were unable to view any of the images on the ZIP disks because they did not have the necessary hardware to view the ZIP disks. Id. After viewing the images, they contacted the sheriff s department and turned in over twenty-two CD s, ten ZIP 8

16 disks, a desktop computer, and eleven floppy disks to the officer. Id. The officers who examined the materials provided by Judith and Brandie and, examined a greater number of disk than Brandie and Judith. Id. They viewed the ZIP disk that Brandie and Judith did not view. Id. at 460. The court reasoned that, the police exceeded the scope of the private search in this case when they examined disks that the private searchers did not examine. Id. at 464. Such an expansion of the private search should not provide the police with additional knowledge that they did not already obtain from the underlying private search. Id. at 463. Similarly, to the ex-wife who jumped the fence to enter the residence of Runyan and discovered the disk and turned them over to the Police, in this case Nightingale discovered a cellphone that was password protected, he unlocked the phone by guessing the combination and discovered suspicious photographs, after viewing a few photographs Nightingale turned over the cell phone to the police. The ex-wife in Runyan, did not viewed all of the materials she turned over to the police because of this the police examined a greater number of photographs and viewed photographs that were not previously viewed in the private search. Consequently, the police gained additional knowledge that they did not already obtain from the private search. Likewise, Officer Kramer exceeded the scope of his search when he scrolled through twenty-four additional photos that were unseen by Nightingale. Since Officer Kramer gained additional knowledge when he viewed the additional photos, the private search exception should not be extended to Officer Kramer s search. In Lichtenberger, the Court of Appeals, held that the private search doctrine applied to a girlfriend s search of defendant s laptop computer, but the officer s search of the laptop exceeded the scope of the girlfriend s prior search, and thus, violated the Fourth Amendment. United States v. Lichtenberger, 786 F.3d 478, 478 (6 th Cir. 2015). The defendant was arrested at 9

17 the home he shared with his girlfriend, for failing to register as a sex offender with the local authorities. Id. at 479. After the defendant was arrested the defendant s girlfriend retrieved his laptop from their bedroom. Id. at 480. The laptop was password protected, but the defendant s girlfriend managed to unlock his laptop by running a password recovery program. Id. The defendant s girlfriend accessed the laptop and clicked on different folders and eventually found thumbnails images of child pornography. Id. The girlfriend contacted the police and told them what she had found on the defendant s laptop and that she had viewed approximately one hundred images of child pornography saved in several subfolders inside of a folder entitled private. Id. at 481. The defendant s girlfriend was unsure whether she opened the same images she had seen with the officer as she had seen in her original search. Id. The defendant was charged with possession, receipt, and distribution of child pornography. Id. at 478.The Courts reasoning, searches of physical spaces and the items they contain differ in significant ways from the searches of complex electronic devices under the Fourth Amendment. Id. at 487. The Court has noted that cell phones are in fact minicomputers that also happen to have the capacity to be used as a telephone One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Id. Similar to the girlfriend s unlocking of the laptop and viewing photos in which she subsequently contacted the police over in Lichtenberger, Nightingale unlocked the cellphone and accessed the photo album embedded in the phone. After a few suspicious photos, Nightingale contacted the authorities and stop viewing the album. Though the girlfriend in Lichtenberger, viewed approximately one hundred photos, she was uncertain which photos she had accessed and was uncertain if the photos she had viewed during her private search were the same photos that the officers had found when the officer conducted a search. However, in the case before the 10

18 Court, after Nightingale discontinued his private search, Officer Kramer intervened and opened the photo album and discovered twenty-four additional photos that were unseen by Nightingale. Since, Nightingale s search of the cellphone is considered to be a private search the search conducted by Officer Kramer exceeded the scope of Nightingale s prior search, and would thus, violated Jennings Fourth Amendment rights. In Simpson, the court held that the government agents did not exceed the scope of the private search. United States v. Simpson, 904 F.2d 607, 607 (11th Cir. 1990). A Federal Express office received a cardboard box that was missing the address label. Id The Federal Express employees were unable to ship the box without the label so they forwarded the box to the company s lost in found located in Memphis, Tennessee. Id. The employees at the lost in found followed the company s standard policy and opened the box. Id. Once the package was opened the employees found a magazine and loose-leaf folders that contained nude photographs of children and video s. Id. The box was turned over to security and the security officer viewed the tapes and determined that the tapes contained images of children. Id. The security office turned the items over to the United States Attorney s office which was then turned over to the FBI. Id. Information in the company s computer revealed that the box should have been delivered to Simpson. Id. Simpson contacted both the Federal Express office and the lost and found department to report that he had not yet received his package and wanted the package untouched because he had sexually explicit materials. Id. The Courts reasoned that, the FBI and the United States Attorney office did not exceed the scope of the prior private search conducted by Federal Express employees. Id. at 610. The seizure of the box without a warrant did not violate Simpson s Fourth Amendment rights. Id. 11

19 Differing from the FBI agents examination of the materials that had already been fully examined in a prior private search, Nightingale turned over a cell phone that contained images that had not already been fully examined during his private search. Officer Kramer scrolled through the photo album and saw the entirety of all the images, images that had not yet been seen in the prior private search. Therefore, officer Kramer exceeded his scope of the prior private search and violated the Fourth Amendment rights. In Jacobsen, the Supreme Court of the United States held, the Fourth Amendment does not require agents to obtain a warrant before re-examining a damaged package s contents. United States v. Jacobsen, 466 U.S. 109, 119 (1984). A package was damaged in transit and the policy for packages that are damaged in transit are requires the carrier to open it. Id. at 111. The employees observed a white powdered substance, which was originally sealed within eight layers of wrapping. FedEx called a Federal agent, who took a sample of the contents without a warrant to test. Later another agent came with a warrant to obtain the address on the box. Then Jacobsen s got arrested. Id. at 112. The court reasoned, that due to the private search by the FedEx employees, the protected privacy interest had already been frustrated and therefore the reexamination is constitutionally reasonable. Id. at 126.The dissenting opinion stated, the court expanded the reach of the private search doctrine far beyond its logical bounds. The dissenting continued by saying it is difficult to understand how respondents can be said to have no expectation of privacy in a closed container simply because a private party has previously opened the container and viewed its contents. Id. at 134. Unlike the damaged package in which the employees had to open because of protocol in Jacobsen, Nightingale being intrigued by what he saw removed the phone after Owens had left and activated the phone by guessing the password on the phone. He had no reasons or protocol 12

20 guiding him to search the phone. Additionally, this court should rule with the dissenting opinion that, the government expanded the reach of the private search beyond its logical bounds which is exactly what happen in the Circuit Court of this case. In Johnson, the court held that the officer exceeded the scope of the prior private search before receiving a warrant, when he viewed one additional video, but the error had no effect on the state courts determination of probable cause supporting the issuance of the two search warrants. United States v. Johnson, 806 F.3d 1323 (11th Cir. 2015). Johnson and Sparks went to Walmart and left their cell phone at the store. Id. at A Walmart employee named Linda Vo, discovered the cell phone and agreed to return the phone to Johnson and Sparks. Id. Vo, decided to look at the contents of the phone and discovered hundreds of images and videos of child pornography. Id. Unbeknownst to Johnson and Sparks, Vo decided not to return the phone but instead, she turned the phone over to law enforcement. Id. Johnson and Sparks did not return to the store to look for their phone and deliberately abandoned it within three days of having lost it. Id. Since the phone was abandoned the two relinquished their possessory interest in the phone and thus, the Fourth Amendment is not violated. Id. at In contrast with the deliberate abandonment of the cell phone, Owen s use of a pay-asyou-go cell phone and the placement of the cellphone being securely fastened under the bottom of a park bench with the intention of the phone being retrieved later shows a lack of abandonment in the present case. In regards to the search in Johnson, the officers had probable cause to search the device, they were in the process of being granted a search warrant and examined the defendants cell phone prior to receiving the warrant and viewed some of the content in the phone. The officer that examined the cell phone left by Owens did not file or 13

21 obtain a warrant to view the additional content found after the prior private search and therefore, exceeded the scope of the prior private search by Nightingale. In Rann, the court held that, the police did not exceed the scope of a private search when they subsequently viewed images contained on digital media devices provided to them by the victim and her mother. Rann v. Atchison, 689 F.3d 832, 832 (7th Cir. 2012). Rann, took pornographic photographs of his biological daughter with a digital camera that he owned. Id. at 834. The victim went to her parents bedroom to retrieved the digital camera, she took out the memory card that contained her photographs and hand delivered the memory card to the Sheriff s department. Id. The Court reasoning is that the victim and her mother are considered to be private parties and a private party that provides police with evidence obtained in the course of a private search the police need not stop her or avert their eyes. Id. at 836; see Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971). The Fourth Amendment does not apply to private searches. Id.; see Burdeau v. McDowell, 256 U.S. 465 (1921). The search conducted by the police did not exceed or expand the scope of the initial private searches conducted by the victim and her mother. Id. at 838. Since the victim and her mother knew the contents of the digital media device when they delivered them to the police, the police were substantially certain the device contained child pornography. Id. Distinguishable from the police in Rann, who viewed images on a digital camera given to them by the victim, Officer Kramer viewed additional photos unseen by Nightingale. The distinction between Rann and this present case is that the victim and her mother knew the content on the digital device when they delivered the photographs to the police, the police were substantially certain that the images displayed were the victim and Rann because of the information given by the victim. Whereas the photos found by Nightingale were unclear as to 14

22 what the content of the photo were. Therefore, Officer Kramer did not have substantially certain of what the photos contained, instead he scrolled through the entirety of the photos until he discovered images that provided clarity, images that were unseen in the prior private search and therefore, a violation of the Fourth Amendment. Therefore, this Court should conclude that the Circuit Court s incorrectly reversed because the photographs not viewed by Nightingale were beyond the scope of the private search. II. THE CIRCUIT COURT INCORRECTLY REVERSED THE DISTRICT COURT S ORDER GRANTING THE MOTION TO SUPPRESS BECAUSE THE FRUITS FROM THE USE OF THE CELL-SITE SIMULATOR WITHOUT A WARRANT WAS AN IMPROPER SEARCH UNDER THE FOURTH AMENDMENT. The Circuit Court incorrectly reversed the District Court s order granting the motion to suppress because the fruits from the use of the cell-site simulator without a warrant was an improper search under the Fourth Amendment. The Fourth Amendment protects citizens against unreasonable governmental searches of citizen s persons, houses, papers, and effects. U.S. Const. amend. IV. At the core of the Fourth Amendment is the right to retreat into your own homes and be free from unreasonable governmental intrusion there. Kyllo, 533 U.S. at 31. Searches and seizures inside a home without a warrant are presumptively unreasonable. United States v. Karo, 468 U.S. 705, (1984); Kyllo v. United States, 533 U.S. 27, 31 (2001). A. Jennings has a reasonable expectation of privacy in the sum of her movements, specifically those within her private residence under the Fourth Amendment. The Circuit court incorrectly determining Jennings did not have a reasonable expectation of privacy because they incorrectly applied the law by analyzing Jennings specific activity incorrectly. Analyzing her cellphone s radio transmission rather than, the sum of her movements (including her private residence through the tracking of her cell phone) under the Fourth 15

23 Amendment. It is important for the court to determining if the nature of the person s specific activity should have a reasonable expectation of privacy. Smith v. Maryland, 442 U.S. 735, 741 (1979). When deciding on this issue the court looks a two requirement: (1) the individual must exhibit an actual, subjective expectation of privacy; and (2) the expectation must be one that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, In Katz, the Supreme Court of the United States held, the electronic surveillance was unconstitutional. Katz v. United States, 398 U.S. 347, 359 (1967). Katz was convicted of violating the federal gambling laws. Id. At trial and against Katz s objection, the prosecution entered evidence of a recording from the end of a phone conversation of Katz. Id. at 349. The recordings were obtained after the FBI placed a wire-tap on the outside of the public phone booth where Katz placed the call. Id. The Court reasoning was, individual have a reasonable expectation of privacy in their private telephone calls. Katz v. United States, 398 U.S. 347, 353 (1967). Though there is no physical invasion, wire-tapping a public phone booth is a fourth Amendment search and seizure. Id. at 362. Katz was justified in assuming that, his phone conversation would remain private even though the phone booth is at all other times for public use. Id. at 362. Analogous to the unconstitutional surveillance through wiretapping in Katz, the government s surveillance through a cell-site simulator. A cell-site simulator is a type of surveillance equipment that has been used by dozens of police departments which sends out signals identifying information from all nearby phones and their pinpoint location with a high degree of accuracy from towers, every seven seconds, whether making a call or not. Similar to people having a reasonable expectation of privacy within the private telephone, so should they with their location information. Additionally, the cell-site simulator is equipped to infringe on 16

24 telephone call s during the times where the signal is on and, to protect the rights Katz established we must require the government to have a warrant before the use of a cell-site simulator because the Fourth Amendment protects unlawful electronic surveillance. In Andrews, the court held that, under the Fourth amendment, People have a reasonable expectation that their cell phones will not be used as a real-time tracking device. State v. Andrews, 134 A.3d 324, 327 (2016). On the evening of May 5, 2014, the Baltimore City Police Department ( BPD ) used an active cell site simulator, without a warrant, to locate Appellee Kerron Andrews who was wanted on charges of attempted murder. Id. at 326. The cell-site simulator, forced Andrews s cellphone into transmitting signals that allowed the police to track it to a precise location inside a residence. Id. The officers found Andrews sitting on the couch in the living room and arrested him pursuant to a valid arrest warrant. Id. The cellphone was in his pants pocket. Id. After obtaining a warrant to search the residence, the police found a gun in the couch cushions. Id. at 329. The court reasoned, cellphone users have an expectation that their cell phones will not be used as real-time tracking devices through the direct and active interference of law enforcement. Id. at 327. On point with the government in Andrews, the government here used a cell-site simulator to locate Jennings and force her pay-as-you- go cell phone to transmit her real-time location which the police used to tracked her to her cabin in which she was caught fleeing from and found the phone in her pants pocket. Since the government used her cell phone as a real-time tracking device, they are in violation of Jennings reasonable expectation of privacy in which the government will not use her cell phone as a real-time tracking device. In Jones, the court held that the use of a cell-site simulator to locate the defendant s cellphone invaded a reasonable expectation of privacy, and was thus a search for purposes of the 17

25 Fourth Amendment. Jones v. United States, 168 A.3d 703, 703 (D.C. 2017). Jones was convicted of two sexual assaults. Id. These women had been contacted by Jones through their escort service advertisements and he arranged to pay them for sexual services. Id. at During the assaults both women were robbed of their cellphones. Id. at 708. Police tracked these phones in which, telephone records revealed a possible suspect due to both women receiving calls from the same number. Id. The police were able to tell that one of the woman s phones and the suspect s phone were traveling in the same general direction as if they were together. Id. The police took a cell-site simulator to the area and used the device to track the suspect. Id. One of the cellphone s signal led them to a parked car with Mr. Jones and his girlfriend where inside. Id. at 709. Police were able to locate the knife used on the two women and recovered the suspect s and the one woman s cellphones. Id. The court reasoned, under ordinary circumstances, the use of a cell-site simulator to locate a person through his or her cellphone invades the person's actual, legitimate, and reasonable expectation of privacy in his or her location information and is a search. Id. at The use of cell-site simulator to discover the precise location of the appellant violated the Fourth Amendment because it was a search requiring a warrant. Id. at 725. The use of a cell-site simulator to locate Mr. Jones s phone invaded a reasonable expectation of privacy and was thus a search. Id. at 713. Analogous to police use of phone records and the cell-site simulator in Jones, the FBI traced the telephone number by contacting the cell provider, the provider voluntarily informed the FBI with the last known cell site location and this information was then used to located Jennings at her cabin through the cell-site simulator. The use of a Cell-site simulator to locate Jennings cell phone invaded Jennings reasonable expectation of privacy and thus an unlawful search. 18

26 Additionally, in Kyllo, the Supreme Court of the United States held, the use of a thermal imaging device constitutes a search under the Fourth Amendment. Kyllo v. United States, 533 U.S. 27, 40 (2001). Kyllo was arrested for growing marijuana in his home. The Police, through a thermal imaging device on the street outside Kyllo s home, detected the marijuana due to the high intensity lamps used to grow the plants inside. Id. at 30. The Court reasoned, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable. Kyllo, 533 U.S. at 40. What transpires within homes are intimate and protected by the Fourth Amendment unless they are freely observable by the public and the use of a device is not available to the public to observe the inside of a home makes the search unreasonable under the Fourth Amendment. Id. at 47. Like Kyllo, being in his home, Jennings was in her vacation home when, the cell-site simulator informed the FBI that they were only 25 feet away from the pay-as-you go cell phone of Jennings and the only thing within that area was her home. Since Jennings has a reasonable expectation of privacy free of governmental intrusion without a warrant in her private residences, makes it justifiable to say that the use of the cell-site simulator was unconstitutional. Also, just like the thermal imaging device, the cell-site simulator is not readily available to the public to observe inside a home and therefore makes the search unreasonable under the Fourth Amendment. Also in, In re Application of the U.S for Historical Cell Site Data, the court denied the governments application under the Stored Communication Act ( SCA ), on the basis that the SCA s authorization of such orders violated the Fourth Amendment. In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, (5th Cir. 2013). The 19

27 government brought applications, seeking to compel cell phone service providers to produce cell site information for targeted cell phones that would track the phones over two months. Id. at 601. Each application requested a court order to compel the cell phone service provider for a particular cell phone to produce sixty days of historical cell site data and other subscriber information for the phone. Id. at 602. The government requested information for when the phone sent a signal to a tower to obtain service for a call and the period when the phone is in an idle state. Id. The Court reasoned that, the records requested by the government would show the date, time, called, number, and location of the telephone when the call was made. Id. at 603. These data are constitutionally protected from this intrusion and therefore such orders violate the Fourth Amendment. Id. Comparable to the governments requesting cellphone providers to disclose cell site information for targeted cell phones, the FBI agents in Jennings contacted the cellphone provider and the provider voluntarily conveyed the most resent location leading the FBI to Jennings. The government requested data disclosing the location of the telephone at the time a call is placed or in idle state while in the present case, the government used the cell-site simulator to collect information by forcing all nearby phones within its range to transmit their real-time location. Since the government did not seek a warrant before using a device to track Jennings cellphone, the government infringe on her reasonable expectation of privacy under the Fourth Amendment. In United States v. Jones, the Supreme Court of the United States held, the government s installation of a GPS on a target s vehicle and, its use of that device to monitor the vehicle s movements, constitutes a search. United States v. Jones, 132 S. Ct. 945, 949 (2012). Jones was under suspicion of trafficking in narcotics. Id. at 948. Agents installed a GPS tracking device on the undercarriage of a vehicle registered to Jones wife while, it was parked in a public 20

28 parking lot. Id. Over the span of twenty-eight days, the Government used the device to track the vehicle s movements. Id. The concurring opinion, written by Justice Sotomayor, stated, Under the common law trespassory test, the government physically occupied private property for the purpose of obtaining information. Such a physical intrusion would have been considered a search within the meaning of the Fourth Amendment when it was adopted. Id It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. Id. at 957. Just like the GPS device, the cell-site simulator monitors the movements and locations of Jennings every seven seconds. The government intruded on the private cellphone to obtaining information and therefore should be considered unconstitutional under the Fourth Amendment. In Graham, the Court of Appeals held that the government s warrantless procurement of cell site location information recorded by the defendant s cellphone service provider violated the defendant s Fourth Amendment rights. United States v. Graham, 796 F.3d 332, 332 (4th Cir. 2015). Aaron Graham and Eric Jordan appealed their convictions for several offenses arising out of a series of six armed robberies of business establishments. Id. at 338. They challenged the district court's admission of testimonial and documentary evidence relating to cell site location information recorded by their cellphone service provider. Id. Since the government sought and obtained two court order for the disclosure of calls and text message transmitted to and from Graham and Jordan s cellphone. Id. at 341. The government was able to secure court orders under the SCA for 221 days worth of historical cell site location information from Sprint/Nextel. Id. at 342. The court reasoned, cellphone users have an objectively reasonable 21

29 expectation of privacy in their information. Id. at 345. A cellphone user cannot be said to voluntarily convey to her service provider information that she never held but was instead generated by the service provider itself without the user s involvement. Id. at 356. Analogous the government in Graham, cell phone users should have an objectively reasonable expectation of privacy in the information they store in their cell phone. Thus, individuals like Jennings that own cell phones cannot be said to voluntarily convey information to their service provide when the information that is generated to the carrier is information that the cell phone user unknowing sends approximately every seven seconds. In Karo, the Supreme Court of the United States held, there was no Fourth Amendment seizure when a party unknowingly receives a container containing a tracking device. United States v. Karo, 468 U.S. 705, 707 (1984). An informant for the Drug Enforcement Agency ( DEA ) said that Karo and two others had ordered large quantity of ether to extract cocaine from clothing smuggled into the U.S. Id. at 708. The DEA did a swap of the container and placed an electronic tracking device in one of the containers. Id. at 707. The Court reasoned the placement of the tracking device may constitute a technical trespass, however, Karo s possessory interest in the containers was not infringed and the government did not meaningfully interfere with that interest. Id. at 729. Distinguishable to the tracking device in Karo, the cell-site simulator did infringe on Jennings possessory interest of the pay-as-you-go smartphone because the government did not place the tracking device on to the phone. If fact, the government, in this case, collected information by exploiting Jennings cell phone vulnerabilities. Jennings possessory interest was infringed upon. Therefore, Jennings was subjected to an unreasonable search. 22

30 In Knotts, the Supreme Court of the United States held, the use of an electronic device to track a suspect s movements in public spaces did not invade a reasonable expectation of privacy. United States v. Knotts, 460 U.S. 276, 282 (1983). A chemical company informed officers that Armstrong was stealing chemical to make drugs. Id. Police investigate and learned Armstrong was also buying chemicals from an additional company. Id. at 278. That company allowed the police to place transmitters (a.k.a beeper) inside a container of chloroform which they gave to Armstrong during his next visit. Over the next three days, the police gathered evidence through surveillance to obtain a search warrant for Knotts cabin in Wisconsin. Id. Knotts filed a motion to suppress. The court decision was made because, Petschen voluntarily travelled to Knotts cabin on public roads and made his direction and destination public information. Knotts expectation of privacy in his cabin and the surrounding area did not extend to Petschen s car because all the evidence gathered against Knotts could have been obtained by visual surveillance. Id. at 282. Unlike the evidence gathered in Knotts, the government s evidence gathered through the cell-site simulator would have not been gathered or obtained without the cell-site simulator. Additionally, the tracking in public spaces in Knotts, differ from how the government tracking which, invaded a private space (Jennings cabin). Since the government couldn t obtain the location of Jennings from visual surveillance and the track was of involuntary data and of a private residence, Jennings had a reasonable expectation of privacy. Therefore, this court should conclude that Jennings has a reasonable expectation of privacy in the sum of her movements under the Fourth Amendment. B. Jennings had a legitimate privacy interest in her location information in which the Third-Party Doctrine would not apply because she did not voluntarily convey that information. 23