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 PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF THE UNITED STATES BRIEF FOR PETITIONER TEAM # P5 Attorneys for Petitioner

2 TABLE OF CONTENTS Pages TABLE OF CONTENTS... i TABLE OF AUTHORITIES...ii QUESTIONS PRESENTED... vi OPINION BELOW... vi CONSTITUTIONAL PROVISIONS AND RULES... vi INTRODUCTION... 1 STATEMENT OF CASE... 4 I. STANDARD OF REVIEW... 8 II. THE FOURTEENTH CIRCUIT ERRED IN HOLDING THE PHOTOS VIEWED BY KRAMER ADMISSIBLE BECAUSE KRAMER ILLEGALLY OBTAINED THESE PHOTOS A. The private search doctrine is inapplicable because Kramer exceeded the scope of the private search i. Kramer exceeded the scope of the private search in viewing additional photos Nightingale did not view ii. Kramer exceeded the scope of the private search because he gained additional information by viewing the additional photos in the cell-phone iii. Kramer exceeded the scope of the private search because he could not have been virtually certain about the contents of the additional photos III. THE FOURTEENTH CIRCUIT COURT OF APPEALS FURTHER ERRED IN FINDING THE PHONE FOUND ON JENNINGS ADMISSIBLE BECAUSE POLICE CONDUCTED AN ILLEGAL SEARCH THROUGH THE USE OF A CELL-SITE SIMULATOR A. The use of a cell-site simulator to locate Petitioner s cell-phone was a search because it invaded a reasonable expectation of privacy i. Petitioner exhibited subjective expectation of privacy in her cell-phone location and the Government must have obtained a warrant before using the cell-site simulator to locate her State and Federal law reflect public attitude that there is an expectation of privacy in real-time cell-phone location B. Third-Party Doctrine is inapplicable to the use of cell-site simulators CONCLUSION i

3 TABLE OF AUTHORITIES CASES United States Supreme Court Pages Alderman v. United States, 394 U.S. 165 (1969) Boyd v. United States, 116 U.S. 616 (1886) Burdeau v. McDowell, 256 U.S. 465 (1921)... 8 California v. Acevedo, 500 U.S. 565 (1991)... 8 Carpenter v. United States, 137 S.Ct (2017) Jacobsen v. United States, 466 U.S. 109 (1984)... 8, 12, 13, 14, 23 Katz v. United States, 398 U.S. 347 (1967)... 7, 18, 19, 20 Kyllo v. United States, 533 U.S. 27 (2001)... 18, 19, 20, 21, 22 Minnesota v. Carter, 525 U.S. 83 (1998)... 18, 21 Minnesota v. Olson, 495 U.S. 91 (1990) Riley v. California, 134 S.Ct (2014)... 7, 9, 17, 18, 20, 21, 26 Silverman v. United States, 365 U.S. 505 (1961) ii

4 CASES (continued) Pages Smith v. Maryland, 422 U.S. 735 (1979)... 19, 23, 24, 25, 26 Walter v. United States, 477 U.S. 649 (1980)... 8, 9, 10, 11, 13, 14 United States v. Jones, 565 U.S. 400 (2012)... 17, 22 United States v. Karo, 468 U.S. 705 (1984)... 19, 20, 21, 22 United States v. Knotts, 460 U.S. 276 (1983) United States v. Miller, 425 U.S. 435 (1976)... 19, 23 United States Courts of Appeals United States v. Bowman, 904 F.2d. 63 (8th Cir. 1990) United States v. Davis, 785 F.3d. 498 (11th Cir. 2015)... 23, 24 United States v. Donnes, 947 F.3d (10th Cir. 1991) United States v. Graham, 796 F.3d. 332 (4th Cir. 2015) United States v. Jennings, 913 F.3d (14th Cir. 2017)... vi, 9, 11 United States v. Johnson, 806 F.3d (11th Cir. 2015)... 10, 11, 16 iii

5 CASES (continued) Pages United States v. Litchenberger, 786 F.3d. 478 (6th Cir. 2015)... 9, 10, 15 United States v. Lomeli, 676 F.3d. 734 (8th Cir. 2012)... 7 United States v. Richards, 301 Fed. Appx. 480 (8th Cir. 2008)... 13, 14 United States v. Rouse, 148 F.3d (8th Cir. 1998)... 9 United States v. Runyan, 275 F.3d. 449 (5th Cir. 2001)... 8, 9, 11, 12, 15, 16 United States v. Simpson, 904 F.2d. 607 (11th Cir. 1990)... 8 United States v. Tosti, 733 F.3d. 816 (9th Cir. 2013)... 16, 17 United States District Courts United States v. Rivera-Morales, 166 F.Supp.3d. 154 (D.P.R. 2015) United States v. Lambis, 197 F.Supp.3d. 606 (S.D.N.Y. 2016)... 18, 19, 21 United States v. Ellis, 270 F.Supp.3d (N.D. Cal. 2017) Other (Military Courts) United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F 2014) United States v. Buford, MC , 2014 WL , at *1 (A.F. Crim. App. Apr. 4, 2014) iv

6 CASES (continued) State Court Opinions Pages Tracy v. State, 152 So.3d. 403 (Fla. 2014) State v. Andrews 134 A.3d. 324 (Md. App. 2016)... 24, 25 United States v. Lewis, 147 A.3d. 236 (D.C. 2016) United States v. Taylor, 49 A.3d. 818 (D.C. 2012) CONSTITUTIONAL PROVISIONS U.S. Const. amend. IV.... vi, 7 SECONDARY SOURCES Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005) Brian L. Owsley, TriggerFish, StingRays, & Fourth Amendment Fishing Expeditions, 66 Hastings L.J. 183, 193 (2014) Stephanie K Pell. & Christopher Soghoian, A Lot More than a Pen Register, and Less than a Wiretap: What the Stingray Teaches Us About How Congress Should Approach the Reform of Law Enforcement Surveillance Authorities, 16 Yale J.L. & Tech. 134 (2013) OTHER SOURCES In re Application for Telephone Information Needed for Criminal Investigation, No. 15-XR , 2015 WL (N.D. Cal. July 29, 2015) Merriam-Webster Dictionary (2017) Barron s Educational Series, Inc., Law Dictionary (7th ed. 2016) v

7 QUESTIONS 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 those viewed by the private party. II. Whether and when the use of a cell-site simulator to identify the location of a target s mobile phone is a Fourth Amendment search. OPINION BELOW The decision of the United States Court of Appeals for the Fourteenth Circuit denying the motion to suppress is reported at United States v. Jennings, 913 F.3d (14th Cir. 2017), and is included in the record at pages The decision for the United States District Court for the District of Arcadia is unreported. CONSTITUTIONAL PROVISIONS AND RULES The Fourth Amendment of the United States Constitution provides: 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. U.S. Const. amend. IV. vi

8 INTRODUCTION Summary of Argument This Court should reverse the Fourteenth Circuit Court of Appeals decision to deny suppression of: (1) the photos on the phone used by Dr. Sam Owens ( Owens ) that Officer Kramer ( Kramer ) viewed that Larry Nightingale ( Nightingale ) did not and (2) the phone found on Petitioner Elizabeth Jennings ( Petitioner or Jennings ) at the time of her arrest. The Fourth Amendment generally protects citizens from unreasonable searches which may occur when the Government tramples on an individuals reasonable expectation of privacy. The Government here engaged in two impermissible searches that infringed on established Fourth Amendment protections. Each impermissible search will be addressed in turn. The Government, through Kramer, engaged in an unconstitutional search of the phone used by Owens. Kramer viewed photos unviewed by Nightingale a significant expansion of Nightingale s private search. The Government was required to obtain a warrant to view the additional photos on the phone. To deny redress for this constitutional violation would effectively nullify the warrant requirement. This case is about the police unconstitutionally expanding the scope of a private search to skirt the Fourth Amendment warrant requirement. At issue is the proper standard to be applied to Government expansions of private searches. Given the heightened privacy interests at stake when technology, such as a cell-phone, is involved the Fourteenth Circuit mistakenly applied the closed container doctrine. Such a doctrine, ordinarily applied to searches of physical containers, should have no application to electronic storage devices because the two items are fundamentally different. This Court should, therefore, adopt the actually viewed standard as the logical 1

9 evolution of constitutional search jurisprudence because this standard strikes the appropriate balance between Government interests and privacy rights. Analysis of the private search doctrine should be guided by the following three principles. First, viewing items additional to those viewed by a private searcher, without first obtaining a warrant, constitutes an unconstitutional expansion of the private search. Second, the Government expands the scope of the search when they gain additional knowledge, otherwise unavailable from the private searcher or exact replication of the private search. Lastly, the Government expands the scope of the private search in viewing additional materials if not virtually certain as to the contents of those materials. In light of these principles, any Government conduct expanding or altering the nature of the private search is presumptively unconstitutional, absent a valid warrant based on probable cause. The Government, additionally, engaged in an unconstitutional search of Petitioner s phone in utilizing a cell-site simulator, also called a Stingray device, to narrow her location from a 10-mile radius to within the walls of her own home. The real-time tracking procedures utilized in this case violate the Fourth Amendment s unreasonable search and seizure protections. To allow the Government unlimited and unprecedented incursion on privacy through real-time tracking, would not comport with the spirit of the Fourth Amendment. This case is about the use of a cell-site simulator for the non-consensual monitoring of an individual s real-time location. The pervasiveness and reliance on a cell-phone in American society, coupled with the inability to shield oneself from such an intrusion unless the phone is completely turned off, culminates in a subjective expectation of privacy. Earlier decisions by this Court acknowledge that society recognizes and expects this type of privacy to be protected by law. Furthermore, the third-party doctrine does not apply when a cell-site simulator is used 2

10 because a cell-site simulator, unlike cell-site location information ( CSLI ), exploits the communicative feature on a cell-phone, rather than collecting historical location information. A cell-site simulator has the ability to locate a person in the sanctity of their residence and absent a warrant, such is an unconstitutional Fourth Amendment search. Analysis of the cell-site simulator should be guided by the following three principles. First, use of the cell-site simulator violates the Fourth Amendment when it infringes on an individual s reasonable and subjective expectation of privacy. Second, society has expressed an objectively reasonable expectation of privacy in real-time cell-phone location information. Lastly, third-party doctrine does not apply when a citizen simply chooses to keep his or her cellphone on that in no way voluntarily shares his or her location with third-parties. In light of these principles, the use of a cell-site simulator is presumptively unconstitutional unless the Government obtains a valid warrant based on probable cause. 3

11 STATEMENT OF CASE Factual Background Jennings lives with her husband, Philip, and their two children in suburban Arcadia. R. at 2. Until recently, she lived an ordinary life as a loving mother and the co-manager of a small travel agency. Id. Owens however, a nuclear physicist by day and gambling addict by night, was several hundreds of thousands of dollars in debt. Id. at 2-3. Owens concedes he was drowning his debt-related sorrows in alcohol when he encountered Jennings in a bar. Id. at 3. According to Owens testimony, he was admittedly inebriated when he revealed to Jennings not only his massive debts, but also his work on the space laser at Network Simulations Company ( Nesimco ). Id. Owens is currently aiding the FBI in prosecuting Jennings. Id. Per Owen s point-of-view, Jennings allegedly suggested that she could help him with his financial problems in return for Owens taking pictures of the space laser and following through with a plan. Id. Jennings allegedly gave Owens a pay-as-you-go smartphone and asked Owens to take pictures of the space laser, tape the phone to the bottom of a park bench in Arcadia Central Park, and call a certain number as an alert for the phone to be picked up. Id. Yet, Owens in his intoxicated state, had to write down Petitioner s cell-phone number on a napkin because he was afraid he would forget it. Id. Owens then decided to take a picture of the napkin to ensure he kept the number of the woman who was nice enough to strike up a conversation with him. Id. The next day Owens chose to break into his supervisor s office where he knew space laser schematics were kept. Id. Owens spotted the schematics he sought on his supervisor s desk. Id. Owens then decided to take pictures of the classified information with a pay-as-you-go smartphone. Id. After gathering the classified information he sought, Owens abruptly left work. 4

12 Id. Next, Owens walked to Arcadia Central Park and called the number of the woman he allegedly chatted with at the bar. Id. After calling, Owens decided to fasten the phone containing the classified photographs to the bottom of a park bench. Id. Unbeknownst to Owens, a local community member, Nightingale, watched Owens abandon the phone. Id. Owens actions aroused Nightingale s suspicion. Id. Nightingale curiously retrieved the phone Owens left. Id. Nightingale then correctly guessed when the phone prompted Nightingale for a password. Id. Immediately, Nightingale opened the Photos application in an attempt to identify the phone s owner. Id. Nightingale opened several photos but viewed only one with a heading that read TOP SECRET UNAUTHORIZED DISTRIBUTION FORBIDDEN UNDER PENATLY OF LAW. Id. at 4. Nightingale stopped scrolling through the pictures and immediately contacted the police to describe the single photo he actually viewed which he found suspicious. Id. Kramer responded to the call. Id. Upon arrival, Nightingale handed Kramer the phone. Id. The phone was full zoomed in on the single image of the schematic Nightingale had discovered earlier. Id. After confirming the photo contained a suspicious schematic, Kramer did not attempt to obtain a warrant. Id. Kramer instead tapped the image to return to thumbnail view. Id. Thumbnail view allowed Kramer to view the rest of the photos unviewed by Nightingale. Id. Kramer then proceeded to scroll through the entire album roughly 100 photos. Id. While Nightingale had only accessed one photo containing the TOP SECRET heading, Kramer s expansive search revealed twenty-four additional photographs that depicted similar TOP SECRET headings. Id. Kramer saw various normal photos of animals and family pictures. Id. The last photo was of a napkin containing some writing. Id. Kramer could not read the writing in thumbnail view so he enlarged the last image. Id. Because Kramer scrolled through the entire 5

13 album and enlarged the last image, he found the photograph of Jennings number that Owens received the night before. Id. Arcadia Police transferred the investigation to the FBI. Id. The FBI had enough time to closely review the security footage of the park. Id. This time allowed the FBI to identify Owens as the person who left the phone under the bench. Id. Next, the FBI thoroughly interrogated Owens for an undisclosed amount of time. Id. Allegedly, the FBI was concerned with capturing the agent who solicited information from Owens. Id. Owens explained he had no idea who the woman from the bar was and only had her cell-phone number. Id. The FBI then had time to contact the cell provider for the number on the napkin. Id. The company voluntarily provided the FBI with CSLI. Id. The CSLI informed the FBI that the cell-phone s last location was within a ten-mile radius around Arcadia National Forest. Id. During this time, a warrant was not sought. See id. Instead, the FBI chose to use a cell-site simulator. Id. A cell-site simulator is a type of surveillance that the Government often hides from the public. Id. These simulators work by imitating cell-phone towers. Id. The cell-site simulator collects information by forcing cell-phones to send signals approximately every seven seconds. Id. The simulator forces all nearby phones within its range to produce otherwise private, personal information. Id. Cell-site simulators have the ability to identify in real time all nearby phones and pinpoint their location, to a high degree of accuracy. Id. The FBI drove around the Arcadia National Forest with the cell-site simulator. Id. at 5. They did so until the device informed them they were only 25-feet away from a cabin in which the cell-phone in question was located. Id. After parked on a rural street, only 25-feet away from the cabin, the FBI approached. Id. The FBI arrested Jennings around the back of the cabin and a cell-phone matching the number on the napkin was found at the time of the arrest. Id. 6

14 Procedural History The Petitioner was charged with conspiracy to obtain information related to national defense under 18 U.S.C Id. The parties stipulated, prior to trial, that Petitioner had standing to challenge the unconstitutional search of her phone and that the phone was not abandoned. Id. Prior to trial, Petitioner s counsel moved to suppress the photos viewed by Kramer specifically the photos Nightingale had not viewed. Id. The motion also sought suppression of the phone, the signal of which the Government utilized to circumvent the warrant requirement, found at the time Petitioner s arrest. Id. The District Court wisely granted defendant s motion, agreeing the Government acted unconstitutionally in searching the phone used by Owens and utilizing a cell-site simulator to locate Petitioner. Id. The Government has since appealed that ruling under 18 U.S.C Id. The Fourteenth Circuit Court of Appeals reversed the decision of the District Court, not affording due weight to the increased privacy concerns when technology is involved. Id. The Court of Appeals, in applying a doctrine utilized to test the constitutionality of physical spaces the closed container doctrine instead held Kramer s search of the phone used by Owens constitutional. Id. The Fourteenth Circuit drastically expanded the kinds of technology the Government can utilize to track anyone in real time in further holding the Government s use of a cell-site simulator was constitutional. Id. 7

15 ARGUMENT I. STANDARD OF REVIEW This Court reviews the lower court s factual findings for clear error. United States v. Lomeli, 676 F.3d. 734, 738 (8th Cir. 2012). Legal conclusions, however, are reviewed de novo, such as the determination that a cell-phone photo album is a closed container and that use of a cell-site simulator is not a Fourth Amendment search. See id. II. THE FOURTEENTH CIRCUIT ERRED IN HOLDING THE PHOTOS VIEWED BY KRAMER ADMISSIBLE BECAUSE KRAMER ILLEGALLY OBTAINED THESE PHOTOS. Kramer exceeded the scope of the private search by viewing additional photos on the cellphone that were unviewed by Nightingale. This expansion violates the Fourth Amendment because the Government did not first obtain a warrant. The Fourth Amendment protects against unreasonable searches. U.S. Const. amend. IV. Unreasonable searches may occur when the Government violates an individual s reasonable expectation of privacy. Katz v. United States, 398 U.S. 347, 351 (1967); see also Riley v. California, 134 S.Ct (2014) (holding that citizens have a reasonable expectation of privacy in their cell-phones). However, this protection extends only to Governmental action and is inapplicable to a search conducted by a private party. See Burdeau v. McDowell, 256 U.S. 465 (1921). Further, the private search doctrine is an exception to the warrant requirement permitting the police to conduct a warrantless search, subsequent to a private search, so long as it does not exceed the scope of the private search. See Jacobsen v. United States, 466 U.S. 109, (1984); see also Walter v. United States, 477 U.S. 649 (1980). Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit government use of the now non-private information. Jacobsen, 466 U.S. at 117. The Fourth Amendment is 8

16 implicated only when the Government uses information with respect to which the expectation of privacy has not already been frustrated. Id. Police exceed the scope of a private search when: (1) the police view more than the private searcher actually viewed; (2) the police gain additional information unavailable from the private search or a replication of the private search; or (3) the police are not virtually certain of what the expanded search will produce. See Jacobsen, 466 U.S. at 126; Walter, 477 U.S. at 657. In the context of the private search doctrine, the closed container doctrine is an exception allowing police to examine more items within a closed container than did private searchers, without unconstitutionally expanding the scope of the search. See United States v. Runyan, 275 F.3d. 449, 464 (5th Cir. 2001) (citing United States v. Simpson, 904 F.2d. 607, 610 (11th Cir. 1990) (holding police do not exceed the scope of the private search when they merely examine the same materials more thoroughly than the private searchers)). The same doctrine also allows police to examine materials more closely than private searchers did without expanding the scope of the private search. See Simpson, 904 F.3d. at 610. The closed container doctrine was first recognized in the context of searches of automobiles incident to arrest. See California v. Acevedo, 500 U.S. 565 (1991). Even without the complications accompanying searches of electronic storage devices such as cell-phones application of the closed container doctrine has resulted in inconsistent outcomes. Compare Runyan, 275 F.3d. at 464 with United States v. Rouse, 148 F.3d (8th Cir. 1998). 9

17 A. The private search doctrine is inapplicable because Kramer exceeded the scope of the private search. i. Kramer exceeded the scope of the private search in viewing additional photos Nightingale did not view. Kramer s viewing of the additional photos on the cell-phone, without first obtaining a warrant, was an extension of Nightingale s search because he viewed photos Nightingale the uncontested private searcher had not actually viewed. As the Fourteenth Circuit s dissent points out: the container analogy is ill-suited to take into account how information is stored and accessed on cell phones and computers. Jennings, 913 F.3d. at Physical containers and electronic storage devices such as cell-phones are similar only facially because both store things. However, searches of physical and electronic storage devices are vastly different for Fourth Amendment purposes because of the vast storage capabilities of electronic storage devices. See United States v. Litchenberger, 786 F.3d. 478, 487 (6th Cir. 2015); see Riley, 134 S.Ct. at 2489 (... [cell-phones] are in fact mini-computers that also happen to have the capacity to be used as a telephone. ). Riley is the seminal case declaring that tests and exceptions applicable to physical containers, such as the search incident to arrest exceptions, are unworkable when applied to electronic devices, such as cell-phones, because of the heightened privacy interests in the contents of a cell-phone. See 134 S.Ct. at Due to the fundamental differences between physical containers and cell-phones in reference to storage capacity, this Court should adopt the modern actually viewed standard. While this Court has yet to explicitly adopt the actually viewed standard for searches of electronic storage devices, such a standard comports with this Court s jurisprudence. See Walter, 447 U.S. at 656. This Court, in Walter, relied on the fact that the private searchers had not actually viewed the film, subsequently viewed by police, as dispositive on the question of whether the police exceeded the scope of the search. Id. (emphasis added). The private searchers 10

18 attempted to view the contents of the film by holding the film strips up to the light, but were unsuccessful. Id. at 652; see also Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 548 (2005) ( [I]n the case of a search by a private actor, Government agents may view only information obtained by the private searcher unless they obtain a warrant. ). Additionally, the Eleventh Circuit s precedent is on point here in United States v. Johnson, the court found a subsequent police search exceeded the breadth of the private search when the officer viewed a video unviewed by the private searcher. 806 F.3d. 1323, 1336 (11th Cir. 2015). That video s location in the same folder, as the rest of the photos and videos viewed by the private searcher, did not sway the court s decision. Id.; see also Litcheberger, 786 F.3d. at 487 (concluding the police exceeded the scope of the private search by viewing files and photos on a computer which were unopened by the private searcher). Additionally, courts explicitly adopting the actually viewed standard, yield easier applications and uniform outcomes than courts utilizing the closed container doctrine. See e.g., United States v. Rivera-Morales, 166 F.Supp.3d. 154 (D.P.R. 2015) (denying suppression of evidence because the police did not view more than the private searchers did); United States v. Buford, MC , 2014 WL , at *1 (A.F. Crim. App. Apr. 4, 2014) (reversed on other grounds) (citing United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F 2014)). Due to the additional privacy concerns and storage capacity when electronic storage devices are involved, this Court should adopt the standard that the constitutionality of a subsequent police search will be measured by what was actually viewed by the private searcher. Kerr, 119 Harv. L. Rev. at 548 (emphasis added); see id. ( [The exposure-based approach... treats hard drives as virtual warehouses of information and keys the doctrine to justifying the retrieval of individual pieces of information from a warehouse to zones of human observation. ). 11

19 The Court of Appeals mistakenly applied the closed container doctrine in concluding that Kramer did not exceed the private search by the examining additional items within the same container because they determined the photo album application on the cell-phone was a closed container. See Jennings, 913 F.3d. at 1135 (citing Runyan, 275 F.3d. at 464). This Court should adopt the actually viewed standard, exemplified by Johnson, as the logical extension of Walter where electronic storage devices are involved because, as discussed above, the closed container doctrine is unworkable when applied to searches of electronic storage devices. See Walter, 447 U.S. at 656; Johnson, 806 F.3d. at Here, Kramer viewed photos not viewed by Nightingale, similar to the police in Walter, who viewed film unviewed by the private searchers, because in both circumstances the police learned the contents of an item unviewed by the private searcher. Thus, in both circumstances the police exceeded the scope of the private search. See 447 U.S. at 656. Kramer should have ceased his inspection of the cell-phone as soon as he confirmed the information Nightingale provided that the phone contained photos of Top Secret schematics. Similar to Johnson, it is irrelevant here that the additional photos viewed by Kramer were in the same album as the Top Secret schematics photos because the proper inquiry is whether Kramer viewed more photos than Nightingale actually did. See 806 F.3d. at Given that Kramer viewed more photos than Nightingale did, the Court of Appeals erred in reversing the District Court s decision to grant the motion to suppress. Therefore, this Court should adopt the actually viewed standard because it is the appropriate balance between the Government s interest and a person s privacy concerns when electronic storage devices are involved. 12

20 ii. Kramer exceeded the scope of the private search because he gained additional information by viewing the additional photos in the cell-phone. Should this Court disagree with the above proposed modern standard for searches of electronic storage devices, Petitioner maintains the Fourteenth Circuit erred in concluding that Kramer s subsequent search was permissible because Kramer also gained significant knowledge, unavailable through replication of the private search or the private searcher s statements. See Runyan, 275 F.3d. at 461. An established alternative inquiry to the actually viewed standard is whether the police gained additional knowledge from the subsequent search, unavailable through replication of the private search or the private searcher s testimony. See Runyan, 275 F.3d. at 461 (citing Jacobsen, 466 U.S. at ). Additional privacy invasions, by a subsequent government, search must be measured by the degree to which such invasions exceed the scope of the initial private search. See Jacobsen, 466 U.S. at 115. Only de minimus extensions of the private search will be sustained as consistent with the private search doctrine. See id. at 126. A de minimus extension of a private search is one which does not rise to a level of sufficient importance to be dealt with judicially. Barron s Educational Series, Inc., Law Dictionary (7th ed. 2016); see also Merriam- Webster Dictionary (2017) (de minimus defined as: so minor as to merit disregard or lacking significance or importance ). To determine if the police exceeded the scope of a prior private search, the Fifth Circuit instructs that the proper inquiry is whether the Government learned something from the police search that it could not have learned from the private searcher s testimony. See Runyan, 275 F.3d. at 461. However, mere confirmation of information previously supplied to the Government does not violate the Fourth Amendment. See Jacobsen, 466 U.S. at Such confirmation is not constitutionally problematic because the 13

21 advantage the Government gained thereby was merely avoiding the risk of a flaw in the employees recollection. Id. When a subsequent police search provides the Government with significant information not available from the private search or the private searcher s testimony, that information must be suppressed. See Jacobsen, 466 U.S. at 120. The Supreme Court in Walter determined that the police exceeded the private search because they viewed film discovered by the private searchers. 447 U.S. at 657. The private searchers had been unable to discern what the film contained by holding the film strip up to the light. See id. at 652. Therefore, the court reasoned the police s viewing film was a significant expansion of the private search because the police learned the contents of the film. See id. at 657; see also United States v. Donnes, 947 F.3d (10th Cir. 1991) (holding police exceeded the scope of the private search in opening a camera lens case found inside a glove because the search of the lens case provided additional information that the glove contained narcotics). Conversely, when the subsequent police search provides the Government with no additional information, there is no Fourth Amendment violation requiring suppression. The Eighth Circuit held that police did not expand the scope of the private search when they stepped into the storage unit alleged by private searchers to contain child porn and peered around. United States v. Richards, 301 Fed. Appx. 480, 483 (8th Cir. 2008). The court reasoned that the officer s actions merely confirmed the presence of child pornography, as asserted by the private searchers. See id.; see also Jacobsen, 466 U.S. at 122 (holding that the police s field test to confirm the white powder was cocaine was a de minimus expansion because the test merely confirmed one fact previously unknown to the police). Kramer s search yielded information previously unknown, namely the additional photos of schematics, photo of the satellite, and the phone number in the last image. Kramer viewing the 14

22 last image was the most significant of the expansions of the private search because it afforded him information previously unavailable either by his survey of the images in thumbnail view or Nightingale s statement. As in Walter, Kramer learning the contents of the photo the phone number significantly and unconstitutionally expanded the scope of Nightingale s search. See 447 U.S. at 657. Further, Kramer s viewing of the photos should have ended once he confirmed the information Nightingale supplied that the phone contained what appeared to be Top Secret schematics because such confirmation is not a violation of the Fourth Amendment. See Richards, 301 Fed. Appx. at 483. However, Kramer viewed additional photos after confirming Nightingale s allegations. This is unlike the officers in Richards who merely stepped into the storage unit and peered around because the Richards officers only sought to confirm the information provided by the private searcher while Kramer set out on a fishing expedition. See id. Therefore, Kramer s viewing of the additional photos especially enlarging the last photo unconstitutionally exceeded the scope of the private search because this conduct provided Kramer with information previously unavailable. iii. Kramer exceeded the scope of the private search because he could not have been virtually certain about the contents of the additional photos. Should this Court be unpersuaded by the fact that Kramer gained significant knowledge from his search, this Court should also consider that Kramer could not be virtually certain what the additional photos would contain, given the vast storage capabilities of cell-phones. The Supreme Court first articulated in Jacobsen, that the Fourth Amendment requires subsequent police searchers to be virtually certain that they will find nothing else of significance in the course of their search, lest they risk expanding the scope of the private search. See 466 U.S. at 120 n.17. Put simply: the police exceed the scope of a prior private search when 15

23 they examine a closed container that was not opened by the private searchers unless the police are already substantially certain of what is inside the container based on the statement of the private searchers, their replication of the private search, and their expertise. Runyan, 275 F.3d. at 465 (emphasis added); see also Lichtenberger, 786 F.3d. at (adopting the virtual certainty standard to ascertain whether a subsequent Government search exceeded the scope of the prior private search). However, if the contents of an unopened container were rendered obvious by the private search, then the privacy interest in the container has already been frustrated. Runyan, 275 F.3d. at 463-4; see id. at 464 (discussing that this policy discourages police from going on fishing expeditions by opening closed containers ) (internal quotations omitted). Several circuits have defined the outer limits of permissible subsequent police searches as prohibiting police from widening the scope of the search unless they are virtually certain about what they will find. See e.g., Lithcenberger, 786 F.3d. at 490-1; Runyan, 275 F.3d. at 464; United States v. Bowman, 904 F.2d. 63, 65 (8th Cir. 1990). The Fifth Circuit held that the police exceeded the scope of the private search with respect to the disks unexamined by the private searchers because the police could not have known with substantial certainty that all of the disks contained child pornography. See id. at 464. The court reasoned that nothing on the outside of the disks, nor the private searcher s testimony provided any clue as to what the unviewed disks contained. See id. at 464 n.16 (noting that some of the disks actually contained family photographs); see also Litchenberger, 786 F.3d. at 488 (holding police opening additional files in a folder exceeded the scope of the private search because there was no virtual certainty as to what the photos would contain); but see Bowman, 904 F.2d. at 65 (concluding police did not unconstitutionally expand the scope of the private search when they opened the remaining 16

24 four of five identical bundles, unopened by private searchers, because there was substantial certainty the other bundles also contained cocaine). Additionally, the Ninth Circuit concluded that police did not exceed the scope of a private search in viewing enlarged versions of photos where the private searchers viewed the thumbnail versions. United States v. Tosti, 733 F.3d. 816, 822 (9th Cir. 2013). The court reasoned that because the police could tell from the thumbnails the images were child pornography, they could have been substantially certain about the image s contents. See id.; see also Johnson, 806 F.3d. at 1335 (concluding that an officer exceeded the scope of the private search in viewing a video because the private searcher had only viewed the video in thumbnail format). Kramer was not virtually or substantially certain about what the additional photos he viewed would contain. Kramer initially viewed a single photo of a TOP SECRET schematic. In zooming out to thumbnail view, there was no way for Kramer to know what he would find in the rest of the photo album, similar to the police in Runyan who viewed disks bearing no labels which were unviewed by the private searchers, because in both instances there was no indication as to what the rest of the photos and disks contained, respectively. See 275 F.3d. at 464. As discussed above, photos on an electronic storage device could be anything indeed, the album on the phone found by Nightingale contained over 100 images, including photos of cats and family members. Contemplating without conceding that Kramer could have been certain, from the thumbnail view, that photos containing the same TOP SECRET heading were also schematics, the same is not true about last photograph s contents. Kramer s reasoning for enlarging the last image was that he could not tell what was written on what appeared to be a napkin. Applying the progeny of Tosti, Kramer undoubtedly expanded the scope of the private search in opening the last photograph because he was unable to tell what the photo contained 17

25 from the thumbnail view and thus could not have been virtually certain. See 733 F.3d. at 822. Therefore, Kramer s actions in opening the last photo was an unconstitutional expansion of Nightingale s search because Kramer was not virtually certain about the contents of the additional photos. In sum, the Fourteenth Circuit erred in holding the photos on the cell-phone admissible because Kramer exceeded the scope of the private search by viewing more photos than Nightingale did and learning additional information from the photos without being virtually certain about the contents of the additional photos. III. THE FOURTEENTH CIRCUIT COURT OF APPEALS FURTHER ERRED IN FINDING THE PHONE FOUND ON JENNINGS ADMISSIBLE BECAUSE POLICE CONDUCTED AN ILLEGAL SEARCH THROUGH THE USE OF A CELL-SITE SIMULATOR. Citizens have a reasonable expectation of privacy in the sum of his or her movements, especially those in their private residence, as tracked by his or her cell-phone s connection. See United States v. Jones, 565 U.S. 400, 413 (2012) (Sotomayor, J., concurring). The Government conducts a Fourth Amendment search when it employs newly advanced technology, for the purposes of obtaining personal information, that would diminish any degree of privacy the individual reasonably expected prior to the technology s use. Jones, at 406. Using a cell-site simulator exposes the owner s intimate personal information: cell phone tracking can easily invade the right to privacy in one s home or other private areas. Tracy v. State, 152 So.3d. 403, 524 (Fla. 2014). [M]odern cell phones... are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. Riley, 134 S.Ct. at

26 A. The use of a cell-site simulator to locate Petitioner s cell-phone was a search because it invaded a reasonable expectation of privacy. A Fourth Amendment search occurs when the Government invades a matter in which a person has an expectation of privacy that society is willing to protect. Kyllo v. United States, 533 U.S. 27, 33 (2001). A reasonable expectation of privacy encompasses both a subjective and objective component. Katz, 389 U.S. at 357. In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he or she personally has an expectation of privacy in the place searched and that his or her expectation is reasonable. Minnesota v. Carter, 525 U.S. 83, 88 (1998). This Court, in Kyllo, recognized a person s expectation of privacy in his or her home and Riley recognized heightened privacy concerns when cell-phones are involved reading these precedents together, citizens have an expectation of privacy in their cell-phone location and the sum of those movements, especially in the privacy of their own home. Kyllo, 533 U.S. at 34; Riley, 134 S.Ct. at i. Petitioner exhibited subjective expectation of privacy in her cell-phone location and the Government must have obtained a warrant before using the cell-site simulator to locate her. A cell-site simulator works by simulating a local cell tower. United States v. Lambis, 197 F.Supp.3d. 606, 609 (S.D.N.Y. 2016). The simulator sends out broadcasts to phones just as a real cell-site would. Id. When a cell-site simulator is used in the neighborhood of the target phone or the phone is on, the simulator allows its user to pinpoint the location of that phone to a distance of a matter of feet. Id. A cell-site simulator allows the Government to precisely locate a cellphone users location. See Brian L. Owsley, TriggerFish, StingRays, & Fourth Amendment Fishing Expeditions, 66 Hastings L.J. 183, 193 (2014). The warrantless use of this technology erode[s] the privacy [rights] guaranteed by the Fourth Amendment. Kyllo, 533 U.S. at 34. At the very core of the Fourth Amendment stands the right of a man to retreat into his own home 19

27 and there be free from unreasonable Governmental intrusion. Kyllo, 533 U.S. at 31 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). The issue here is that Petitioner has a recognized expectation of privacy in her location. Citizens have a privacy interest in their real-time location information associated with their cellphones. In Smith v. Maryland, the court held the petitioner did not have a legitimate subjective expectation that the phone numbers he dialed would remain private, regardless of the fact that he used the telephone in his house, because petitioner conveyed that information voluntarily to the telephone company. 422 U.S. 735, 738 (1979); see also United States v. Miller, 425 U.S. 435, 444 (1976) (holding the bank depositor had no legitimate expectation of privacy in financial information voluntarily conveyed to... banks and exposed their employees in the ordinary course of business ). Here, Petitioner did not convey her location information and retreated into her own home to the exclusion of all others, thus exhibiting a subjective expectation that her actual location would remain private. This is unlike the petitioner in Smith, whom conveyed the numbers he dialed to his telephone provider, because Petitioner Jennings could not protect herself from the exploitation of the cell-site simulator. See 422 U.S. at 738. This Court has consistently held that individuals have a reasonable expectation of privacy in their homes. See e.g., United States v. Karo, 468 U.S. 705, 712 (1984); United States v. Knotts, 460 U.S. 276 (1983); Katz, 389 U.S. at 36. An electronic search for a cell-phone inside a person s home is far more intrusive than a canine sniff, because, unlike narcotics, cell phones are neither contraband nor illegal. Lambis, 197 F.Supp.3d. at 610. Furthermore this Court has already rejected the Government s argument in Karo that it should be able to monitor beepers in private residences without a warrant if there is a justification in the facts for believing that a crime is being or will be committed, Karo,

28 U.S. at 717. To hold the Petitioner did not have a subjective expectation of privacy in her cellphone location in her own home would directly contradict this Court s holding in Karo: [t]he monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights to those who have a justifiable interest in the privacy of the residence. See Karo, 468 U.S. at 706. (emphasis added). i. Society recognizes that citizens have an expectation of privacy in their cell-phone location. The Government engaged in a Fourth Amendment search when they trampled on an expectation of privacy that society has recognized as reasonable. Katz, 389 U.S. at 351. This Court has consistently held that a person has a legitimate expectation of privacy in their own home. See Katz, 389 U.S. at 361. This Court s longstanding test to determine when an expectation of privacy is reasonable looks to the everyday expectations of privacy that we all share. Minnesota v. Olson, 495 U.S. 91, 98 (1990); see also United States v. Ellis, 270 F.Supp.3d. 1134, 1145 (N.D. Cal. 2017) (holding that cellphone users have an expectation of privacy in their cell phone location in real time and that society is prepared to recognize that expectation as reasonable ). The Government thus engages in a search anytime it surveilles a detail inside a home that it could not have otherwise learned without physical intrusion. Kyllo, 533 U.S. at 34; see also Karo, 468 U.S. at 715. Moreover, this Court has already recognized that cell-phones are not just another technological convenience. Riley, 134 S.Ct. 2473, 2495 (2014). Cell-phones now contain, for many Americans, the privacies of life, Boyd v. United States, 116 U.S. 616, 625 (1886); therefore, the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Riley, 134 S.Ct. at A phone not only contains in digital form many sensitive 21

29 records previously found in the home; it also contains a broad array of private information never found in a home in any form unless the phone is [found in the home]. See id. at Thus, homeowners and cell-phone users have a reasonable expectation of privacy in the contents of a cell-phone within his or her home. See generally Alderman v. United States, 394 U.S. 165 (1969). Society has deemed this expectation of privacy reasonable because it directly stems from, concepts of real or personal property law or... understandings that are recognized and permitted by society. Carter, 525 U.S. at 88. The Government here, conducted an illegal search through the use of a cell-site simulator to locate Petitioner in her own home through real-time location of her own cell-phone. This Court held that the use of the electronic monitoring to confirm the presence of the container revealed a critical fact about the interior of the premises. Karo, 488 U.S. at 715. In Karo, law enforcement officers used surveillance technology to confirm a drum was located inside a suspect s home. Id. This Court reasoned that the wireless surveillance of a beeper, which resulted in learning a detail about the interior of the home, constituted a search under the Fourth Amendment. Id. at 716. In Kyllo, this Court held that a Fourth Amendment search occurred when Government agents used a thermal-imaging device to detect infrared radiation coming from a home. 533 U.S. at 40. This Court reasoned that observations and through-the-wall surveillance would leave the homeowner at the mercy of advancing technology including imaging that could discern all human activity in the home. Lambis, 197 F.Supp.3d. at 610 (quoting Kyllo, 533 U.S. at 35-36). Specifically, this Court held that if the Government 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 presumed unreasonable without a 22

30 warrant. Kyllo, 533 U.S. at 40. Additionally, a cell-site simulator is not a device in general public use. Id. The Petitioner has a reasonable expectation of privacy in the sum of her movements. That privacy extends to movements within her own residence. Jones, 565 U.S. at 400 (Sotomayor, J., concurring). The bright line rule that a home is to be free from Government intrusion protects the interior of the home from the rest of the world. Kyllo, 533 U.S. at 33-34, 40. The Government here crossed that line by using the cell-site simulator to learn a detail of the Petitioner s home specifically the location of a cell-phone within which was otherwise unavailable. Id. at 34. To hold that the Petitioner did not have an expectation of privacy in the cell-phone movements in her home, both of which society has recognized as protected from Government intrusion, would directly contradict this Court s previous holdings in both Karo and Kyllo. This Court should reinforce the previously stated rule that once the Government learns of any detail about the interior of a home, the Government violates a constitutionally-protected zone. Kyllo, 533 U.S. at State and Federal law reflect public attitude that there is an expectation of privacy in real-time cell-phone location. Congress, federal, and state law recognize the public attitude that there is an expectation of privacy in cell-phone location. Six states (Colorado, Maine, Minnesota, Montana, Tennessee, and Utah) have passed statutes expressly requiring law enforcement to apply for a search warrant to obtain this data. In re Application for Telephone Information Needed for Criminal Investigation, No. 15-XR-90304, 2015 WL (N.D. Cal. July 29, 2015). These changes in laws and statutes reflect states highest court s recognition of the public s strong objection to realtime cell-phone location tracking. 23