Supreme Court of The United States

TEAM 2 DOCKET NO. 10-1011 IN THE Supreme Court of The United States ELIZABETH JENNINGS, PETITIONER, V. UNITED STATE OF AMERICA, RESPONDENT. ON WRIT OF CERTIORARI FROM THE UNITED STATES COURT OF APPEALS, FOURTEENTH CIRCUIT BRIEF FOR RESPONDENTS COUNSEL FOR RESPONDENTS FEBRUARY 16, 2018

TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii QUESTIONS PRESENTED... v OPINIONS BELOW... vi CONSTITUTIONAL PROVISIONS AND RULES... vi INTRODUCTION... 1 Summary of the Argument... 1 Standard of Review... 3 STATEMENT OF THE CASE... 4 Statement of Facts... 4 Procedural History... 6 ARGUMENT... 8 I. THIS COURT SHOULD AFFIRM BECAUSE OFFICER KRAMER DID NOT IMPLICATE THE FOURTH AMENDMENT WHEN VIEWING OF PHOTOS ON JENNINGS S MOBILE DEVICE.... 8 A. Under the private search doctrine, Officer Kramer s interaction with the photos on Jennings s phone did exceed the scope of the previous private search.... 8 B. Officer Kramer s viewing of the cell phone did not violate the Fourth Amendment because Jennings made the phone freely available for his inspection.... 13 II. THIS COURT SHOULD AFFIRM BECAUSE THE FEDERAL AGENTS ACQUISITION OF CELL PHONE SIGNALS USING A CELL-SITE SIMULATOR WAS NOT AN UNREASONABLE SEARCH UNDER THE FOURTH AMENDMENT.... 15 A. Jennings cannot satisfy her burden of demonstrating that she had a subjective expectation of privacy in the CSLI received by the cell-site simulator.... 16 1. Jennings words and conduct showed she did consider private her CSLI....16 2. Regardless of whether Jennings insists that she expected her phone s CSLI to remain private, it is too much to believe that she had a subjective expectation of privacy because she voluntarily conveyed CSLI to third parties....17 B. Even if Jennings did have a subjective expectation of privacy in her cellular information received by the cell-site simulator, it was not one that society is prepared to recognize as reasonable.... 18 CONCLUSION... 24 CERTIFICATE OF SERVICE... Error! Bookmark not defined. i

TABLE OF AUTHORITIES Cases California v. Ciraolo, 476 U.S. 207, 211 (1986)... 8 California v. Greenwood, 486 U.S. 35, 40 (1988)... 13, 14, 15 Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971)... 9 Illinois v. Caballes, 543 U.S. 405, 408 (2005)... 15 In re Application of U.S. for an Order Directing a Provider of Elec. Commc n Serv. to Disclose Records to Gov t, 620 F.3d 304, 312 (3d Cir. 2010)... 21 In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013)... 20, 22, 23 Katz v. United States, 389 U.S. 347, 351 (1967)... 8, 15, 18 Kyllo v. United States, 533 U.S. 27, 33 (2001)... 8, 21 People v. Emerson, 766 N.Y.S.2d 482, 489 (N.Y. Sup. Ct. 2003)... 11 Pierce v. Underwood, 487 U.S. 552, 558 (1988)... 3 Rann v. Atchison, 689 F.3d 832, 838 (7th Cir. 2012)... 10, 11 Riley v. California, 134 S. Ct. 2473 (2014)... 12, 19, 22 Smith v. Maryland, ii

442 U.S. 735, 741 (1979)... 16, 17, 18, 19, 20, 23 United States v. Borowy, 595 F.3d 1045, 1047 (9th Cir. 2010)... 14, 15 United States v. Carpenter, 819 F.3d 880, 888 (6th Cir. 2016), cert. granted, 137 S. Ct. 2211 (2017)... 18, 20, 22, 23 United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015)... 17, 22 United States v. Donnes, 947 F.2d 1430, 1434 (10th Cir. 1991)... 10 United States v. Durdley, 436 F. App x 966, 968 (11th Cir. 2011)... 13, 14 United States v. Graham, 824 F.3d 421, 429 (4th Cir. 2016)... 20, 22, 23 United States v. Jacobsen, 466 U.S. 109, 113 (1984)... 8, 9, 10, 13 United States v. Jennings, 913 F.3d 1131 (14th Cir. 2017)... v, 1, 16 United States v. Jones, 565 U.S. 400, 404-13 (2012)... 8, 23 United States v. Karo, 468 U.S. 705 (1984)... 20, 21 United States v. King, 509 F.3d 1338, 1341 42 (11th Cir. 2007)... 15 United States v. Kinney, 953 F.2d 863, 866 (4th Cir. 1992)... 10 United States v. Knotts, 460 U.S. 276 (1983)... 20, 21 United States v. Lichtenberger, 786 F.3d 478, 481 (6th Cir. 2015)... 9, 12 iii

United States v. Miller, 425 U.S. 435, 443 (1976)... 13, 18, 19, 20, 23 United States v. Nixon, 418 U.S. 683, 709 (1974)... 19 United States v. Perrine, 518 F.3d 1196, 1204 05 (10th Cir. 2008)... 14 United States v. Rouse, 148 F.3d 1040, 1041 (8th Cir. 1998)... 10 United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001)... 10, 11 United States v. Sparks, 806 F.3d 1323, 1331 (11th Cir. 2015)... 12 United States v. Stimler, 864 F.3d 253, 263 (3d Cir. 2017)... 21, 22 United States v. Stults, 575 F.3d 834, 842 43 (8th Cir. 2009), cert. denied, 130 S.Ct. 1309 (2010)... 14 United States v. Tosti, 733 F.3d 816, 822 (9th Cir. 2013)... 12 Statutes 2703(a), (c)... 23 2701-2712... 23 18 U.S.C. 793... 6 18 U.S.C. 3121-3127... 23 U.S. Const. amend. IV.... vi, 8 iv

QUESTIONS PRESENTED I. The Fourth Amendment does not prohibit the government from using information that has been rendered non-private by a non-governmental search. A police officer saw photos in a party s cell phone album shortly after a private citizen accessed and viewed the album himself. Did the officer s viewing of the photos constitute a Fourth Amendment search? II. Individuals lack a reasonable expectation of privacy in information they voluntarily convey to third parties. A party s cell phone was turned on and transmitting a signal. Federal agents obtained the party s cell-site location information from the signal using a cell-site simulator. Did the federal agents use of the cell-site location information constitute a search under the Fourth Amendment? v

OPINIONS BELOW The opinion and order of the Fourteenth Circuit are recorded at United States v. Jennings, 913 F.3d 1131 (14th Cir. 2017). CONSTITUTIONAL PROVISIONS AND RULES The Fourth Amendment to 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

INTRODUCTION Respondent, United States of America, Appellant in United States v. Jennings, 913 F.3d 1131 (14th Cir. 2017), before the United States Court of Appeals, Fourteenth Circuit, respectfully submit this brief on the merits and ask the Court to affirm the Fourteenth Circuit s decision below. Summary of the Argument The case at bar presents two important issues involving the Fourth Amendment to the United States Constitution. This Court should affirm the circuit court s decision because Petitioner, Elizabeth Jennings, has failed to show a Fourth Amendment violation. Neither the viewing of photos by Officer Kramer nor the use of a cell-site simulator by federal agents violated Jennings s rights under the Constitution. Beginning with the photos viewed by Officer Kramer, the Fourth Amendment does not apply to searches carried out by private individuals. In this case, Larry Nightingale, a private individual not representing the government, opened the pictures folder on Jennings s phone. He scrolled through the album, viewing several photos, and then turned over the phone to the police. At that point, Jennings could not claim an expectation of privacy in the photos in the phone s folder. Under the private search doctrine, Officer Kramer s later examination of several photos in that album did not exceed the scope of the previous private search. Therefore, his actions did not violate the Fourth Amendment. Moreover, when Jennings instructed Owens to place her phone in a public park, she exposed it to the public, extinguishing any privacy expectation she may have had. It is well established by this Court that when an individual makes her information freely accessible to the public, she has no reasonable expectation of privacy in that information. Here, when Jennings 1

had her phone left in a public park she assumed the risk that other people might access her phone s pictures. Therefore, she did not have an expectation of privacy in her phone s photos. Accordingly, the Circuit Court properly held that Officer Kramer did not search her phone under the Fourth Amendment. As to the use of cell-site simulators, the federal agents use of the simulator to discover Jennings s general location did not violate the Fourth Amendment because she did not have an actual expectation of privacy in this information that society recognizes as reasonable. Here, Jennings voluntarily conveyed her cell-site location information (CSLI) to her telephone company. She could have turned her phone off or set it to use WiFi, but she instead chose to keep her phone on, knowing it would convey this information. Moreover, she explained to Owens that she knew the government could track her using this information to Owens. This Court has recognized that it is not believable that individuals could have a subjective expectation of privacy in the numbers they dial with phones. The circuit courts have applied that same reasoning to CSLI. Even assuming that Jennings had a subjective expectation of privacy, this Court has repeatedly held that, under the third party doctrine, an individual does not have a reasonable (objective) expectation of privacy in the information she voluntarily conveys to third parties. In applying this Court s ruling, every circuit court examining whether individuals have a reasonable expectation of privacy in CSLI has ruled that they do not. Here the federal agents appropriately examined information Jennings s voluntarily turned over to a third party. Therefore, the use of this information was not a search and did not implicate the Fourth Amendment. Finally, this Court recently modified the search incident to arrest exception as it pertained to cell phones. The change resulted from the privacy concerns about the abundance of sensitive 2

information that today s cell phones may carry. This ruling must not affect the third party doctrine because the privacy concerns there are not present in third party doctrine cases where the defendant lacks a reasonable expectation of privacy. For these reasons explained in detail below, the United States of America asks the Court to affirm the Fourteenth Circuit s decision. Standard of Review This Court deems questions of law reviewable under a de novo standard. Pierce v. Underwood, 487 U.S. 552, 558 (1988). Both issues on appeal turn on questions of law, therefore, this Court should review them de novo. 3

STATEMENT OF THE CASE Statement of Facts The FBI alleges that Elizabeth Jennings ( Jennings ) and her husband are agents of the Russian government involved in a web of espionage. (R. at 1131). Jennings denies the allegation. (R. at 1131). The substance of this appeal is not the merits of the FBI s case, but the sequence of events that follows. In December 2015, Dr. Sam Owens ( Owens ) was working as a nuclear physicist for Netsimco Simulations Company ( Netsimco ). (R. at 1131). Netsimco s projects included a space laser system ( the Laser ) for the United States government. (R. at 1131). Designed to destroy nuclear weapons, the Laser and its specifications were classified secrets. (R. at 1132-33). That month, Owens alleges that Jennings approached him at a bar and offered a financial reward in exchange for pictures of the Laser. (R. at 1132). Jennings provided Owens with a payas-you-go smartphone ( the Phone ), instructing him to snap photos of the Laser with the Phone. (R. at 1132). Owens was then supposed to tape the Phone to the bottom of a park bench in Arcadia Central Park, call another phone number ( the Number ), and let the phone ring four times as a signal that Jennings could collect the Phone. (R. at 1132). Jennings warned Owens that... [the government] can track everyone now, so Owens should remove the Phone s battery until just prior to use. (R. at 1132). After agreeing to take the pictures, Owens wrote the Number down on a napkin, photographed of the napkin with the Phone, and then destroyed the napkin. (R. at 1132). The following day, Owens took pictures of the Laser s schematics with the Phone. (R. at 1132). He also took pictures of the Laser s prototype. (R. at 1132). Owens then went to Arcadia Central Park at night and followed Jennings s instructions: placing the Phone beneath the park 4

bench and dialing the Number. (R. at 1132). Unbeknownst to Owens, a local member of the community, Larry Nightingale ( Nightingale ), had observed the placement of the Phone under the bench. (R. at 1132). After Owens left, Nightingale took the Phone from its location, turned it on, and guessed the password. (R. at 1132). Surprisingly, Nightingale s guess of 1-2-3-4 proved correct. (R. at 1132). Having gained access to the Phone, he opened the Photos application hoping to uncover the identity of the Phone s owner. (R. at 1132). Initially, although he did not scroll through the whole album, Nightingale opened several pictures. (R. at 1132-33). One of the pictures ( the Photo ) included a document with the words TOP SECRET UNAUTHORIZED DISTRIBUTION FORBIDDEN UNDER PENALTY OF LAW. (R. at 1133). Nightingale then called the police and described the Photo. (R. at 1133). Accordingly, Officer Kramer ( Kramer ) of the Arcadia Police came to the scene. (R. at 1133). Nightingale showed the Photo to Kramer. (R. at 1133). Kramer then zoomed out and viewed the album in smaller thumbnail format; the album contained about 100 images. (R. at 1133). Next, Kramer scrolled through the album in thumbnail format, seeing 24 images Nightingale had not. (R. at 1133). These 24 images contained schematics and the words top secret. (R. at 1133). One of the images depicted a large instrument like a satellite. (R. at 1133). Kramer did not zoom in on any of these images, except one containing a number written on a napkin. (R. at 1133). Kramer enlarged that image by tapping on the Phone and was able to read the number. (R. at 1133) Soon after, the FBI took charge of the investigation. (R. at 1133). Security footage implicated Owens, who then told the FBI that he did not know the identity of the woman in the bar. (R. at 1133). He further revealed that his only means of contact with her was the Number. 5

(R. at 1133). The FBI then approached the cell provider; the cell provider voluntarily informed the FBI that the phone associated with that Number had transmitted a signal to a tower somewhere within ten miles of Arcadia National Forest. (R. at 1133). As such, FBI agents went to Arcadia National Forest with a stingray device. (R. at 1133). The portable stingray device operated as a cell-site simulator, acting as a fake cell phone tower and receiving signals from cell phones within range. (R. at 1133). The stingray could thus obtain identifying information from cell phones, including the location of a phone. (R. at 1133). Although the FBI agents did not have a warrant, they drove around Arcadia National Forest with the stingray. (R. at 1133). Later, the FBI agents parked on a street that was deserted except for a cabin located twenty-five feet away. (R. at 1134). The stingray revealed that the cell phone in question was within twenty-five feet of the agents location. (R. at 1134). At that moment, the agents heard a door close nearby. (R. at 1134). Moving toward the source of the sound, the agents saw Jennings running away from the cabin. (R at 5). They then apprehended Jennings. (R. at 1134). Jennings had the cell phone with the number the agents had sought. (R. at 1134). The phone was a pay-asyou-go smartphone. (R. at 1134). Procedural History The government charged Jennings with violating 18 U.S.C. 793, conspiracy to obtain information relating to national defense. (R. at 1134). Jennings filed a motion to suppress ( the Motion ), seeking to exclude both the photos viewed by Kramer that Nightingale had not seen and the cell phone found on her person after her arrest. (R. at 1134). Both parties stipulated that Jennings had standing and that the Phone was not abandoned. (R. at 1134). The District Court granted the Motion. (R. at 1134). The government appealed. (R. at 1134). A divided panel of the 6

Fourteenth Circuit reversed, finding that neither the viewing of the photos nor the tracking of the cell phone violated Jennings s Fourth Amendment rights. (R. at 1134). This appeal followed. 7

ARGUMENT The Fourth Amendment protects individuals against unreasonable searches. U.S. Const. amend. IV. A search occurs when the government either: (1) obtains information by physically trespassing on a constitutionally protected area, or (2) violates a subjective expectation of privacy that society recognizes as reasonable. United States v. Jones, 565 U.S. 400, 404-13 (2012). The first type of search derives from common-law trespass jurisprudence, while the second, established in Katz v. United States, is focused on individual privacy expectations. Id. at 406, 409 (citing Katz v. United States, 389 U.S. 347, 351 (1967)). The present case involves electronic information: photos stored on a cell phone and cellsite location information (CSLI). (R. at 1132-34). Facts concerning electronic information rather than a physical trespass require the Katz analysis. See Id. at 411 ( Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis. ). Under the expectation of privacy analysis applied by the Supreme Court, a Fourth Amendment search does not occur... unless the individual manifested a subjective expectation of privacy in the object of the challenged search, and society is willing to recognize that expectation as reasonable. Kyllo v. United States, 533 U.S. 27, 33 (2001) (quoting California v. Ciraolo, 476 U.S. 207, 211 (1986). I. THIS COURT SHOULD AFFIRM BECAUSE OFFICER KRAMER DID NOT IMPLICATE THE FOURTH AMENDMENT WHEN VIEWING PHOTOS ON JENNINGS S MOBILE DEVICE. A. Under the private search doctrine, Officer Kramer s interaction with the photos on Jennings s phone did not exceed the scope of the previous private search. The Fourth Amendment proscribes governmental action and is inapplicable to searches, whether reasonable or not, by private citizens not acting with the participation or knowledge of any government official. United States v. Jacobsen, 466 U.S. 109, 113 (1984). The Constitution 8

does not prohibit the government from using information that has been rendered non-private as a result of a non-governmental search. Jacobsen, 466 U.S. at 116. Instead, the Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated. Id. at 117. Thereby, subsequent law enforcement searches violate the Fourth Amendment only to the degree to which they exceeded the scope of the private search. Id. at 115. Indeed, if a private party presents law enforcement authorities with evidence obtained during an unlawful search, it is not incumbent on the police to stop her or avert their eyes. Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971). This Court s decision in Jacobsen articulated the private search doctrine. United States v. Lichtenberger, 786 F.3d 478, 481 (6th Cir. 2015); See Jacobsen, 466 U.S. at 116. In Jacobsen, FedEx employees inspected a damaged box. Id. at 111. The employees opened the box and discovered a tube covered in sheets of newspaper. Id. The employees then cut open the tube and found zip-lock bags containing a white, powdery substance. Id. Next, the employees placed the bags back in the tube, put the tube back in the box, and called the authorities. Id. An agent arrived, observed that the tube inside had a slit cut into it, and removed the bags from the tube. Id. After seeing the white powder, the agent tested the substance for the presence of cocaine. Id. This Court held that the agent s replication of the search done by FedEx employees did not exceed the scope of the original private search. Id. at 119. As for the testing, the court found that although it was an additional intrusion not carried out by the private party, it was de minimis and constitutionally reasonable. Id. In the years following the Jacobsen decision, several Circuit Courts have indicated that police do not exceed the scope of a prior private search until they examine objects or containers that the private searchers did not examine. See, e.g., United States v. Rouse, 148 F.3d 1040, 1041 9

(8th Cir. 1998); United States v. Kinney, 953 F.2d 863, 866 (4th Cir. 1992); United States v. Donnes, 947 F.2d 1430, 1434 (10th Cir. 1991). When applying the private search doctrine to digital containers storing data, such as photos, videos, music, and documents, courts should look to whether the digital storage device was opened by a private party and therefore subject to examination by the authorities. Jacobsen, 466 U.S. at 121. Accordingly, the Fifth and Seventh Circuits have held that once a private party opens and views data in a digital container, police may subsequently view the data because the owner no longer has a reasonable expectation of privacy in the container. Rann v. Atchison, 689 F.3d 832, 838 (7th Cir. 2012); United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001). In Runyan, the defendant s wife and her friend searched roughly twenty of the defendant s CDs and floppy disks and discovered child pornography. Id. at 453. The wife and friend then turned over these electronic containers and additional ones to law enforcement. Id. Officers viewed images on the devices the wife and her friend had searched, along with images on the devices that they had not searched. Id. The Fifth Circuit, applying Jacobsen, held that police did not exceed the scope of a prior private search when they examined the storage devices that the friend and wife had opened and viewed. Id. at 465. Moreover, the court held that it made no difference whether the police viewed images on the storage device that the wife and friend had not themselves seen. Id. The court reasoned that once the device was opened and its contents viewed, the privacy expectation in the entire device became frustrated. See Id. The Seventh Circuit adopted the Fifth Circuit s approach. Rann v. Atchison, 689 F.3d at 834. In Rann, the defendant s biological daughter reported to the police that the defendant sexually assaulted her and took pornographic pictures of her. Id. Later, the daughter and her 10

mother gave the police a computer zip drive that contained pornographic images of the daughter and her half-sister. Id. The court held that police did not exceed the scope of the private searches performed by the daughter and her mother when they subsequently viewed the images contained on the digital media devices. Id. The court s holding was not affected by whether the police searched the devices more thoroughly than did the daughter and mother, nor was it swayed by whether the police viewed images unseen by the daughter and her mother. Id. at 836. Respondent asks this Court to affirm a case with facts similar to Runyan and Rann. Mr. Nightingale opened Jennings s phone, opened the photos folder within the phone, and scrolled through the album, albeit not the entire album. (R. at 1132-33). He saw several photos within the album before handing over the phone to Officer Kramer for examination. (R. at 1132). At that point, not only did Nightingale open the digital container, but also the photos folder inside. (R. at 1132-33). Cf. Rann, 689 F.3d at 834; Runyan, 275 F.3d at 465. Consequentially, Jennings s expectation of privacy in the contents of her phone was frustrated by Nightingale s intrusion. See Id. Without an expectation of privacy, a subsequent search of Jennings s phone by Officer Kramer did not implicate the Fourth Amendment. See Id. Noteworthily, Officer Kramer did not view the phone s contacts, internet browser history, emails, call log, text messages, or anything else other than the contents of the album opened by Nightingale. (See R. at 1132-33). Thus, even if this Court were to take a narrower approach to the private search doctrine that the phone s folders themselves are containers Officer Kramer stayed within the folder to which Nightingale gained access. Cf. People v. Emerson, 766 N.Y.S.2d 482, 489 (N.Y. Sup. Ct. 2003) (even if police viewed several more files in the folder than did the private party, there was no incremental expectation of privacy that the Fourth Amendment protects). Once Jennings s expectation of privacy in the photos disappears, whether 11

Office Kramer viewed the photos in the thumbnail format or as an enlargement does not matter. See United States v. Tosti, 733 F.3d 816, 822 (9th Cir. 2013); See also United States v. Sparks, 806 F.3d 1323, 1331 (11th Cir. 2015). Therefore, the Fourteenth Circuit correctly determined that Officer Kramer did not exceed the scope of the private search. After this Court s decision in Riley v. California, 134 S. Ct. 2473 (2014), the Eleventh and Eighth Circuits improperly applied Riley s reasoning to the private search doctrine. Cf. Sparks, 806 F.3d at 1336 (Analyzing the private search doctrine with special recognition to this Court s note that cell phones hold for many Americans the privacies of life ) (Quoting, Riley, 134 S. Ct. at 2494-95); Lichtenberger, 786 F.3d at 488 ( [U]nder Riley, the nature of the electronic device greatly increases the potential privacy interests at stake, adding weight to one side of the scale while the other remains the same ). Citing Riley s privacy concerns, these courts restrict the private search doctrine to its narrowest interpretation, holding that the government search improperly exceeds the scope of a private search if the government sees anything that private searcher did not. Sparks, 806 F.3d at 1336; Lichtenberger, 786 F.3d at 488. Riley requires a warrant for a cell phone search incident to arrest because of the vast amount of sensitive private information that phones can contain. See Riley, 134 S. Ct. at 2489. Applying Riley s concern to the private search doctrine in this case poses two problems. First, the argument that a cell phone may contain a vast amount of diverse private information is entirely inconsequential in this case, because Officer Kramer did not access nor attempt to access this type of information. (See R. at 1132-33). Second, when analyzing the private search doctrine, Riley s reasoning is inapposite. The doctrine does not concern the Fourth Amendment searches that Riley does. Rather, it focusses on what is not a search under the Fourth Amendment. Jacobsen, 466 U.S. at 117. Accordingly, the heightened privacy stakes discussed 12

in Riley are not present in cases where expectations of privacy have disappeared. See Id. The Fourteenth Circuit properly applied the private search doctrine to this case because Nightingale frustrated Jennings s expectation of privacy when he accessed her phone. Consequently, Officer Kramer s subsequent search remained within the scope of Nightingale s private search. Therefore, this Court should affirm. B. Officer Kramer s viewing of the cell phone did not violate the Fourth Amendment because Jennings made the phone freely available for his inspection. The Fourth Amendment also does not prohibit government examination of information revealed to a third party and later conveyed to the government thanks to the actions or communications of the third party. See Jacobsen, 466 U.S. at 117. When an individual reveals information to another, she runs the risk that the information will make its way to the government. United States v. Miller, 425 U.S. 435, 443 (1976). Moreover, taking actions that expose information to the public eye, whether or not done intentionally, destroys a legitimate expectation of privacy under the Fourth Amendment. E.g., United States v. Weast, 811 F.3d 743, 748 (5th Cir. 2016) cert. denied, 137 S. Ct. 126 (2016). For example, when an individual exposes her information in an area she knows the public may access, she lacks an objective expectation of privacy in that information. California v. Greenwood, 486 U.S. 35, 40 (1988); United States v. Durdley, 436 F. App x 966, 968 (11th Cir. 2011). In Greenwood, the police searched the contents of a garbage bag. Greenwood, 486 U.S. at 39. The bag was inside in a garbage can. Id. The garbage can was on the curb in front of the defendant s house. Id. at 39. The police discovered narcotics. Id. Despite the defendant s efforts to conceal the contents of the trash bag, the court found that the defendant lacked the requisite objective expectation of privacy because she placed the contents of the bag in a place where the public had access. Id. at 40. 13

The Eleventh Circuit applied the same reasoning to information stored in digital devices. Durdley, 436 F. App x at 968. In Durdley, the defendant plugged a storage device (thumb drive) into a computer located in a workplace common area. United States v. Durdley, No. 1:09-CR- 00031-MP-AK, 2010 WL 916107, at *1 (N.D. Fla. Mar. 11, 2010). The defendant left the computer without retrieving his thumb drive. Id. Later, another employee accessed the computer and searched through the folders and files on the thumb drive. Id. at *1-2. The employee discovered and accessed several files containing child pornography and notified a supervisor, who then told the authorities. Id. at *2. The police conducted a complete warrantless search of the flash drive and discovered child pornography in both photographic and video formats. Id. The Eleventh Circuit held that the police search was not a Fourth Amendment search because the defendant extinguished his expectation of privacy by placing his thumb drive in a shared computer located in a common area. Durdley, 436 F. App x at 968. Several other circuit courts have similarly applied this Court s reasoning in Greenwood to cases where contents of a digital device were left open to the public. See United States v. Weast, 811 F.3d at 748; United States v. Borowy, 595 F.3d 1045, 1047 (9th Cir. 2010); United States v. Stults, 575 F.3d 834, 842 43 (8th Cir. 2009), cert. denied, 130 S.Ct. 1309 (2010); United States v. Perrine, 518 F.3d 1196, 1204 05 (10th Cir. 2008). In this case, Jennings took affirmative steps to have the contents of her phone exposed to the public. Jennings placed her device in the hands of Owens, a stranger she had just met. (R. at 1132). Similar to leaving her information on her front curb, as in Greenwood, or in a public computer, as in Durdley, Jennings instructed Owens to affix her mobile device to a public park bench. (R. at 1132). By arranging for her phone to be left in Arcadia Central Park, a park open to 14

and frequented by members of the public, Jennings sacrificed any reasonable expectation of privacy she had in the contents of her phone. (R. at 1132). Moreover, her futile attempts to prevent access to her information by utilizing a passcode and by having it attached to the bottom of the bench did not preserve any expectation of privacy. Greenwood, 486 U.S. at 39 (used opaque, sealed trash bags to hide contents); See e.g., United States v. King, 509 F.3d 1338, 1341 42 (11th Cir. 2007) (believed computer was secure enough to prevent public access); Borowy, 595 F.3d at 1048 (attempted to engage feature of program software that prevented others from accessing computer files). Jenningss did not protect her phone with a unique or complex password that would have concealed its contents. (R. at 1132). Undeniably, her phone required no special technology or hardware to access. (R. at 1132). Yet, even the phone s ineffective password is not enough to revive an expectation of privacy in its contents. Greenwood, 486 U.S. at 39. Thus, she exposed her device to public access just like the defendant did in Greenwood. Indeed, government conduct that does not compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405, 408 (2005). As Officer Kramer s viewing of the pictures on Jennings s phone was not a search under the Fourth Amendment, the Fourteenth Circuit properly reversed the suppression of the images obtained from that phone. Thus, this Court should affirm the Fourteenth Circuit s ruling. II. THIS COURT SHOULD AFFIRM BECAUSE THE FEDERAL AGENTS ACQUISITION OF CELL PHONE SIGNALS USING A CELL-SITE SIMULATOR WAS NOT AN UNREASONABLE SEARCH UNDER THE FOURTH AMENDMENT. As discussed above in Section I, The Katz, this Court provided a two-prong test to determine whether a search requiring a warrant has taken place. Katz, 389 U.S. at 361 (Harlan, J., concurring). The first prong asks whether a person has shown an actual (subjective) 15

expectation of privacy, and the second asks whether that expectation is one that society is prepared to recognize as reasonable. Id. A Fourth Amendment search is present only when a party satisfies both prongs. See Id. Thus, if either the subjective or the objective expectation of privacy is lacking, there is no Fourth Amendment search under the Katz test. Smith v. Maryland, 442 U.S. 735, 741 (1979). Importantly, a defendant seeking to invoke the Fourth Amendment s protection bears the burden of proving both prongs of the Katz test. Katz, 389 U.S. at 361. In this case, Jennings has not done so. A. Jennings cannot satisfy her burden of demonstrating that she had a subjective expectation of privacy in the CSLI received by the cell-site simulator. An individual s subjective expectation of privacy depends on whether she seeks to preserve something as private. Id. at 351. It is measured by her conduct that could be calculated to preserve her privacy. Smith, 442 U.S. at 743. Nothing contained in the record shows efforts by Jennings to preserve her privacy. (See R. at 1131-34). Instead, the record reveals just the opposite. (See R. 1132). 1. Jennings words and conduct showed she did consider her CSLI private. In Smith, this Court found that the defendant had no subjective expectation of privacy in phone numbers that he called since he voluntarily and knowingly conveyed those same numbers to the telephone company. Id. Jennings, like the defendant in Smith, did not seek to preserve her CSLI as private because she voluntarily and knowingly conveyed the information to nearby cell phone towers. (See R. 3-4). Notwithstanding their ubiquitous nature, cell phones always come with a way to turn them off. When an individual chooses to turn their cell phone on, the phone continuously sends and receives signals to and from cell phone towers containing CSLI. United States v. Jennings, 913 F.3d 1131, 1133 (14th Cir. 2017). By keeping her cell phone on, Jennings voluntarily shared the location of her phone with third parties. See Id. Not only could Jennings 16

have turned off her phone, but she also could have deactivated her phone s data function and connected to WiFi. Jennings s use of a pay-as-you-go phone did not negate her subjective expectation of privacy. Rather, her attempt to keep her phone from being traced back to her showed her understanding that cell phones convey location information through towers. Cf. United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (taking steps to avoid the phone being traced to the owner demonstrates an understanding that such cell tower location information is collected and may be used to incriminate the cell phone user). Like most cell phone users, Jennings knew that phone companies track a cell phone s location for purposes such as imposing surcharges for roaming, providing directions, or locating lost or stolen phones. Cf. Davis, 785 F.3d at 511 ( cell users know that they must transmit signals to cell towers within range ). Most importantly, Jennings verbally expressed her knowledge of CSLI released to cell towers when explaining to Owens that they can track everyone now. (R. at 1132). By saying this, she recognized her lack of privacy in her CSLI communicated to third parties. Thus, she effectively disclaimed any claims of privacy in this data. 2. Regardless of whether Jennings insists that she expected her phone s CSLI to remain private, it is too much to believe that she had a subjective expectation of privacy because she voluntarily conveyed CSLI to third parties. There is no formula to gauge a subjective expectation of privacy. Smith, 442 U.S. at 743. Still, this Court held in Smith that it was too much to believe that a phone user had an expectation of privacy in the phone numbers he dialed. Id. Circuit Courts aptly followed this Court s reasoning by finding that, under binding precedent, cell phone users did not have a subjective expectation of privacy in their cellular information released to cell towers. See, e.g., 17

United States v. Carpenter, 819 F.3d 880, 888 (6th Cir. 2016), cert. granted, 137 S. Ct. 2211 (2017). Therefore, under Smith, Jennings did not have a subjective expectation of privacy. Although the way in which the federal agents used Jennings s CSLI was different than the way her cell phone company uses it, this distinction does not alter the expectation of privacy in the information itself. Cf. Smith, 442 U.S. at 744. Just as the service provider in Smith used transmitted phone numbers in a different way than the police used them, Id., likewise, Jennings s cell service provider used the CSLI broadcasted by her cell phone in ways quite distinct from how federal agents used it. (R. at 1133-34). Jennings failed her burden of showing an expectation of privacy in her cell phone s CSLI. Without a subjective expectation of privacy, the federal agents use of the cell-site simulator was not a search under the Fourth Amendment. Smith, 442 U.S. at 741. Thus, this Court need not venture further into the Katz analysis. Id. The Fourteenth Circuit s decision should be affirmed. B. Even if Jennings did have a subjective expectation of privacy in her cellular information received by the cell-site simulator, it was not one that society is prepared to recognize as reasonable. Questioning whether society is prepared to recognize an expectation of privacy as reasonable is another way of asking whether an individual s subjective expectation of privacy is legitimate. See Smith, 442 U.S. at 744. This Court has repeatedly held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. E.g., Id. at 743 44; Miller, 425 U.S. at 442 444. Under this third party doctrine, information voluntarily conveyed to a third party is not protected by the Fourth Amendment. See Miller, 425 U.S. at 442 444. Furthermore, this Court s recognition that individuals lack a reasonable 18

expectation of privacy in information they disclose to third parties has deep historical roots. See United States v. Nixon, 418 U.S. 683, 709 (1974). In United States v. Miller, this Court held that individuals do not have a reasonable expectation of privacy in the documents they provide to banks. Miller, 425 U.S. at 443. In that case, Federal agents were investigating the defendant and received several months of his bank records without a warrant. Id. at 437-38. Using the bank records, the defendant was indicted. Id. The majority held that the government could obtain these documents without a warrant, even though the defendant assumed that the bank would only use them for a limited purpose. Id. at 443. This Court reasoned that the defendant did not have a reasonable expectation of privacy in the documents he provided to his bank, a third party. Id. Similar to bank records provided to third parties, there is no reasonable expectation of privacy in the phone numbers an individual dials. Smith, 442 U.S. at 735. In Smith, this Court considered whether the warrantless installation and use of a pen register to collect the telephone numbers dialed from a telephone at the defendant s home constituted a search within the meaning of the Fourth Amendment. Id. at 736-37. Because the telephone user voluntarily conveyed phone numbers to the phone company, the user had no legitimate expectation of privacy. Id. at 741. In both Miller and Smith, this Court examined whether the importance of using a phone and bank to an individual s life would prevent the application of the third party doctrine. Miller, 425 U.S. at 451 (Brennan, J., dissenting); Smith, 442 U.S. at 750. In both cases, this Court rejected that argument. Id. Similarly, that a cell phone may be pervasive and insistent part of daily life, Riley, 134 S. Ct. at 2484, does not alter the application of this Court s wellestablished third party doctrine. 19

Like the defendants in Miller and Smith, when Jennings voluntarily exposed her cellular information to surrounding cell towers, she lost any legitimate expectation of privacy she could have had in that information. (R. at 1133-1134). As discussed above, Jennings could have turned off her phone, or if that was not an option, she could have turned off her data function on her phone and used WiFi. It can hardly be questioned that Jennings voluntarily conveyed CSLI to third parties. See Smith, 442 U.S. at 743. After all, if she did not, then who did? Cf. United States v. Graham, 824 F.3d 421, 429 (4th Cir. 2016) (asking the same question about defendant). Third parties only received information from Jennings s cell phone when she used the provider s network. See Graham, 824 F.3d at 429. Moreover, Jennings expected that, at the least, if she chose to make and receive calls, successful conveyance of information to a cell phone tower is necessary. See In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013) ( Cell phone users recognize that, if their phone cannot pick up a signal (or has no bars ), they are out of the range of their service provider s network of towers. ); See also Carpenter, 819 F.3d at 887 88 ( [A]ny cellphone user who has seen her phone s signal strength fluctuate must know that, when she places or receives a call, her phone exposes its location to the nearest cell tower and thus to the company that operates the tower. ). Like the defendants in Smith and Miller, Jennings assumed the risk of her diminished privacy when she voluntarily conveyed her CSLI to a third party. Smith, 442 U.S. at 745. Thus, under Miller and Smith, the federal agents use of Jennings s cellular information was not a search under the Fourth Amendment. Additionally, this Court s holdings in Knotts and Karo are instructive. Cf. United States v. Knotts, 460 U.S. 276 (1983); United States v. Karo, 468 U.S. 705 (1984). Knotts involed the warrantless installation of a radio transmitter inside a drum of chemicals sold to illegal drug manufacturers. Knotts, 460 U.S. at 276. The use of the transmitter to follow their movements 20

implicated no Fourth Amendment concerns. Knotts, 460 U.S. at 281-82. This Court reasoned that the drug manufacturers had no reasonable expectation of privacy while they were in plain view on public highways. Id. The following year, this Court held that where a radio transmitter similarly placed inside a chemical drum was then used to monitor the transmitter in a private residence, a location not open to visual surveillance, the Fourth Amendment is violated. Id. at 714. The Karo Court distinguished Knotts, explaining, the beeper [in Knotts] told the authorities nothing about the interior of Knotts cabin... here, as we have said, the monitoring indicated that the beeper was inside the house, a fact that could not have been visually verified. Id. at 715. The Knotts and Karo opinions make clear that digital information regarding an individual s whereabouts does not implicate the Fourth Amendment until that information is used to track the defendant s movements inside a private house. See Id. This Court again analyzed thermal imaging technology that enables the government to view details inside a private residence in Kyllo. Kyllo, 533 U.S. at 27. In that case, the Court further discussed the heightened privacy interests an individual has in the home. Id. at 31. Although there was no physical trespass, this Court held that because the technology was not in general public use and it explored details inside of the home, the surveillance is a search. Id. at 41. Although stingrays may not be in general public use, CSLI information does not allow the government to monitor inside a private residence like the radio transmitters in Knotts and Karo or the thermal imaging in Kyllo. United States v. Stimler, 864 F.3d 253, 263 (3d Cir. 2017) (citing In re Application of U.S. for an Order Directing a Provider of Elec. Commc n Serv. to Disclose Records to Gov t, 620 F.3d 304, 312 (3d Cir. 2010)). Here, the federal agents knew that Jennings s phone was within twenty-five feet, but they did not know the phone was even in 21

Jennings s cabin. (R. at 1134). Right around the time they discovered that they were within twenty-five feet, Jennings was outside fleeing. (R. at 1134). The CSLI did not provide any details about the inside of the cabin, nor did it assure the police that the phone was inside. (R. at 1134). If there had been another cabin nearby, the CSLI might not have indicated the presence of the phone in one cabin or the other. Jennings bears the burden of proving a legitimate expectation of privacy, but the record contains no information to support a privacy expectation. (See R.4-5). The government did not monitor her movements or explore details inside Jennings s cabin, nor did they attempt to do so. (R. at 1134). Therefore, under Knotts, Karo, and Kyllo the federal agents actions were not a search. Accordingly, although this Court has not addressed the issues of CSLI as it relates to the Fourth Amendment, every circuit court that has done so held that cell phone users have no reasonable expectation of privacy in their phone s CSLI. See, e.g., Carpenter, 819 F.3d at 883; Graham, 824 F.3d at 429; United States v. Davis, 785 F.3d at 500 (holding the same for 67 days worth of CSLI); In re Application of U.S. for Historical Cell Site Data, 724 F.3d at 615; Stimler, 864 F.3d at 263. Appropriately, of recent concern by this Court has been technological progress s effect on individual privacy. Riley, 134 S. Ct. at 2489. This Court held in Riley that police must obtain a warrant before performing a Fourth Amendment search of the contents of a cell phone seized incident to an arrest. Id. at 2495. This departure from the previously understood exception to the warrant requirement was a necessary recognition of the touchstone of a Fourth Amendment search: reasonableness. Id. at 2482. However, under the third party doctrine, the Fourth Amendment is not implicated when an individual voluntarily conveys information to a third party. Unlike in Riley, where a search under the Fourth Amendment occurred, Jennings s phone 22

was not searched by the federal agents because she lacked a privacy interest in the CSLI conveyed. See Carpenter, 819 F.3d at 883. Therefore, this Court s decision in Riley does not alter the third party doctrine s application. Notably, stare decisis, in this case, is not a threat to American privacy when faced with technological advances. Congress is in prime position to increase privacy protections in CSLI as it deems necessary. See Graham, 824 F.3d at 436. Indeed, the legislature is well equipped to respond to advancements in technology. See Jones, 565 U.S. at 429-30 (Alito, J., concurring in the judgment) ( A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way. ); see also In re Application of U.S. for Historical Cell Site Data, 724 F.3d at 615 (explaining that that the proper recourse for those seeking increased privacy is often in the market or the political process ). The Fourth Amendment provided baseline protection that the legislature adds to as it deems appropriate. Following this Court s decisions in Miller and Smith, Congress enacted legislation to increase the Constitutional minimums protecting communications to third parties. See, e.g., 18 U.S.C. 3121-3127. Congress has passed legislation regulating CSLI too. See 2701-2712. The Stored Communications Act requires the government to meet a higher burden when acquiring the contents of a wire or electronic communication from a provider of electronic communication service than when obtaining a record pertaining to a subscriber or customer from the provider. 2703(a), (c) (emphasis added). The act demonstrates that Congress can, and does, provide even greater privacy protections than the Fourth Amendment for CSLI at issue in this case. Id. Therefore, as this Court need not depart from well-established Fourth Amendment doctrines, the Fourteenth Circuits application of the third party doctrine should be affirmed. 23

CONCLUSION The Fourteenth Circuit correctly found no Fourth Amendment violation here. First, Kramer s viewing of the photos was not a Fourth Amendment search. There was no search because Jennings had lost any expectation of privacy when Nightingale viewed the Phone and because Jennings made the Phone available for Kramer s inspection. Second, the use of the cellsite simulator to track Jennings s phone was not a Fourth Amendment search. There was no search because Jennings could not show a subjective and objective expectation of privacy. For the foregoing reasons, Respondent respectfully requests that this Court AFFIRM the ruling of the Fourteenth Circuit. Respectfully submitted, Attorneys for Respondent 24