No IN THE SUPREME COURT OF THE UNITED STATES. Elizabeth Jennings, Petitioner. United States of America, Respondent.

No. 10-1011 IN THE SUPREME COURT OF THE UNITED STATES Elizabeth Jennings, Petitioner v. United States of America, Respondent. On Writ of Certiorari to the United States Supreme Court of the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR RESPONDENT TEAM 4 Counsel for Respondent 1

Table of Contents QUESTIONS PRESENTED... iii OPINIONS BELOW... iii CONSTITUTIONAL PROVISIONS AND RULES...iv INTRODUCTION... 1 STATEMENT OF THE CASE... 3 ARGUMENT... 7 I. THE FOURTEENTH CIRCUIT PROPERLY REVERSED THE DISTRICT COURT S SUPPRESSION OF THE PHOTOS BECAUSE THE PRIVATE SEARCH DOCTRINE PERMITTED OFFICER KRAMER TO SEARCH THE PHONE S PHOTO ALBUM IN GREATER DETAIL.... 7 A. WHEN A PRIVATE SEARCH REVEALS ILLEGAL CONDUCT, THE BROAD INTERPRETATION OF THE PRIVATE SEARCH DOCTRINE BEST ENCOMPASSES THE REASONABLENESS STANDARD OF THE FOURTH AMENDMENT.... 9 B. OFFICER KRAMER REMAINED WITHIN ONE CONTAINER WHEN HE SEARCHED THE CELL PHONE AND, THEREFORE, REMAINED WITHIN THE SCOPE OF NIGHTINGALE S SEARCH.... 11 C. THE GOVERNMENT S INTEREST IN PROMOTING PUBLIC HEALTH AND NATIONAL SECURITY GREATLY OUTWEIGHS PETITIONER S INTEREST IN SOLICITING CONFIDENTIAL GOVERNMENT INFORMATION. 13 II. THE FOURTEENTH CIRCUIT S DECISION SHOULD BE UPHELD BECAUSE THE USE OF A CELL-SITE SIMULATOR IS NOT A SEARCH UNDER THE FOURTH AMENDMENT WHEN PETITIONER DID NOT EXHIBIT AN ACTUAL EXPECTATION OF PRIVACY AND SOCIETY IS NOT PREPARED TO RECOGNIZE HER EXPECATION OF PRIVACY AS REASONABLE.... 15 A. PETITIONER DID NOT EXHIBIT AN ACTUAL EXPECTATION OF PRIVACY BECAUSE SHE KNEW INFORMATION WAS CONVEYED THROUGH THE VOLUNATRY USE OF A CELL PHONE.... 16 B. PETITIONER S OBJECTIVE EXPECTATION OF PRIVACY IS UNREASONABLE BECAUSE SHE VOLUNTARILY DISCLOSED HER LOCATION INFORMATION TO THIRD PARTIES.... 21 C. PETITIONER S OBJECTIVE EXPECTATION OF PRIVACY IS UNREASONABLE BECAUSE THE SURVEILLANCE DONE BY AUTHORITIES WAS LESS INTRUSIVE THAN PRECEDENT.... 22 CONCLUSION... 24 i

TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES Burdeau v. McDowell, 256 U.S. 465 (1921)... 7, 9 Coolidge v. New Hampshire, 403 U.S. 443 (1971)... 7 Katz v. United States, 389 U.S. 347 (1967)... 15, 16, 21 Riley v. California, 134 S. Ct. 2473 (2014)... passim Smith v. Maryland, 442 U.S. 735 (1979)... passim United States v. Jacobson, 466 U.S. 109 (1984)... passim United States v. Jones, 132 S. Ct. 945 (2012)... 7, 20, 22, 23 United States v. Knotts, 460 U.S. 276 (1983)... 17, 18 United States v. Miller, 425 U.S. 435 (1976)... 21 OTHER FEDERAL CASES Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012)... passim U.S. v. Skinner, 690 F.3d 772 (2012)... 16, 17, 19, 23 United States v. Forest, 355 F.3d 942 (6th Cir. 2004)... 18 United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015)... 8, 10, 13 United States v. Runyan, 275 F.3d 449 (5th Cir. 2001)... passim United States v. Sparks, 806 F.3d 1323 (11th Cir. 2015)... 8, 9 CONSTITUTIONAL PROVISIONS U.S. Const. amend. IV... 7, 15 STATUTES 18 U.S.C. 793... 13 OTHER SOURCES About DOJ, The United States Department of Justice, https://www.justice.gov/about (Feb. 9, 2018)... 12 ii

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 use of a cell-site simulator to identify the location of a target s mobile phone is a Fourth Amendment search. OPINIONS BELOW The United States District Court for the District of Arcadia ( District Court ) granted Petitioner s motion to suppress the photos viewed by Officer Kramer that were not viewed by Larry Nightingale on the phone Dr. Sam Owens used, and the phone found on Petitioner at the time of her arrest. The United States Court of Appeals for the Fourteenth Circuit ( Fourteenth Circuit ) reversed the order of the District Court in United States v. Jennings because, under the private search doctrine, the photographs were improperly suppressed and the use of a cell-site simulator is not a search because there is no expectation of privacy in information conveyed through the voluntary use of a cell phone. Jennings, 913 F.3d 1131, 1134, 1136 (14th Cir. 2017). iii

CONSTITUTIONAL PROVISIONS AND RULES The Fourth Amendment of the U.S. Constitution: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon 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. Gathering, transmitting or losing defense information: (a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense; or (b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or (c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or (d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, iv

plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or (e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or (f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer-- Shall be fined under this title or imprisoned not more than ten years, or both. (g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy. (h)(1) Any person convicted of a violation of this section shall forfeit to the United States, irrespective of any provision of State law, any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, from any foreign government, or any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, as the result of such violation. For the purposes of this subsection, the term State includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. (2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1) of this subsection. v

(3) The provisions of subsections (b), (c), and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853(b), (c), and (e)- (p)) shall apply to-- (A) property subject to forfeiture under this subsection; (B) any seizure or disposition of such property; and (C) any administrative or judicial proceeding in relation to such property, if not inconsistent with this subsection. (4) Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund in the Treasury all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law. 18 U.S.C.A. 793 (West). vi

INTRODUCTION This Court should affirm the Fourteenth Circuit s opinion because it correctly held that the private search doctrine permitted Officer Kramer to search the phone s photo album in greater detail. Additionally, the Fourteenth Circuit correctly held that the use of a cell-site simulator is not a search under the Fourth Amendment when Ms. Jennings did not exhibit an actual expectation of privacy, and even if Ms. Jennings did exhibit an actual expectation of privacy, society is not prepared to recognize her expectation of privacy as reasonable. The Fourteenth Circuit correctly held that the private search doctrine permitted Officer Kramer to search the phone s photo album in greater detail. The Fourth Amendment protects citizens from unreasonable searches and seizures; however, that protection is only valid against government action and is inapplicable to a search performed by a private party. The private search doctrine permits law enforcement officials to perform a warrantless search of a container when the reasonable expectation of privacy in that container has already been frustrated by a private party. When Ms. Jennings s phone was found in a public park, opened by a private party, and disclosed illegal conduct, Ms. Jennings lost all privacy interests in that specific container. Although the private search doctrine has been applied to digital devices inconsistently, the broad interpretation best equips law enforcement to carry out its mission of ensuring public safety, preventing and controlling crime, and safeguarding our nation s security against foreign or domestic threats. Ms. Jennings s solicitation of confidential government documents was in direct violation of a federal statute and thus Officer Kramer should be permitted, under the broad interpretation of the private search doctrine, to search the phone s photo album in greater detail. Additionally, the Fourteenth Circuit correctly held that the use of a cell-site simulator is not a search under the Fourth Amendment. A search under the Fourth Amendment is a two- 1

pronged inquiry. The first prong that must be addressed is whether the individual, by his conduct, has exhibited an actual expectation of privacy. The second prong is whether the individual s actual expectation of privacy is one that society is prepared to recognize as reasonable under the circumstances. In determining whether Ms. Jennings had an actual expectation of privacy, the Court inquires whether the individual sought to preserve the information as private. There has been a line of precedent cases of more than twenty years that has held that there is no constitutional difference between trailing a defendant and tracking him via technology. This case falls right in line with precedent because the FBI used a cell-site simulator to track the location services of Ms. Jennings s cell phone. Furthermore, she told Dr. Owens explicitly that the FBI is able to track anyone now. Even if Ms. Jennings did exhibit an actual expectation of privacy, society is not ready to declare her expectation of privacy as reasonable. The Courts have consistently held that a person has no legitimate expectation of privacy in the information he or she voluntarily turns over to third parties. In this instance, Ms. Jennings, in using the cell phone, voluntarily handed over her information to the cell-phone company. Additionally, the Court has looked at the operative facts surrounding surveillance in precedent cases and has held that surveillance for even a few days does not entitle Ms. Jennings to an expectation of privacy that society is ready to declare reasonable. 2

STATEMENT OF THE CASE This case involves the use of a cell phone to perpetrate crime and threaten national security. Elizabeth Jennings (hereinafter Petitioner ) was a co-manager of a small travel agency and lived in suburban Arcadia with her two children and her husband, Philip. (R. at 1131). By her own account, Petitioner lived an entirely ordinary life. (R. at 1131). The FBI alleges, however, that Petitioner and her husband are both undercover agents working for the FSB, the Russian equivalent of the CIA. (R. at 1131). Specifically, the FBI alleges that Petitioner and her husband illegally entered the United States some time during the 1980 s, assumed false identities, and have lived as American citizens since that time. (R. at 1131). Additionally, the FBI further alleges that Petitioner and her husband have worked to recruit agents within the United States to provide themselves with intelligence on U.S. defense systems in exchange for money. (R. at 1131). Petitioner contests these accusations. (R. at 1131). On an undisclosed date, Petitioner was at a bar and struck up a conversation with a patron next to her, Dr. Sam Owens (hereinafter Owens ). (R. at 1132). Owens was a nuclear physicist employed by the private corporation Network Simulations Company (hereinafter Netsimco ). (R. at 1131). Owens suffers from a gambling addiction and was several hundreds of thousands of dollars in debt when he met Petitioner. (R. at 1132). Netsimco was on contract with the U.S. Department of Energy and has been working on a space laser, which would destroy incoming nuclear weapons. (R. at 1131-32). At the bar, Owens, in an inebriated state, revealed to Petitioner that he worked on a space laser at Netsimco and was deeply in debt. (R. at 1132). At the time of the suppression hearing, Owens was cooperating with the FBI and testified that Petitioner suggested that in exchange for money, Owens would take pictures of the space laser schematics with a cell phone provided by 3

Petitioner. (R. at 1132). Owens agreed. (R. at 1132). Petitioner handed Owens a pay-as-you-go cellphone and told him to memorize three steps: (1) take pictures of the space laser and its schematics with the phone; (2) tape the phone to the bottom of a certain park bench in Arcadia Central Park; and (3) call a specified phone number, allow it to ring four times, and then hang up. (R. at 1132). The final step would indicate to Petitioner to come and collect the phone from the bench. (R. at 1132). Petitioner instructed Owens to remove the battery until he was ready to use it since, Petitioner explained, these burners are untraceable, but still, they can track everyone now. (R. at 1132). Owens agreed to follow instructions. (R. at 1132). Uncertain he would remember the number, Owens took a picture of the napkin with the phone number Petitioner had given him. (R. at 1132). Owens had no other information on the phone at this point. (R. at 1132). The next day, Owens snuck into his supervisor s office and took pictures of the schematics, took pictures of the laser itself, and walked to the agreed park bench in Arcadia Central Park. (R. at 1132). He called the number Petitioner gave him, allowed it to ring four times, hung up, and fastened the phone to the bottom of the bench. (R. at 1132). As Owens left the park, Larry Nightingale (hereinafter Nightingale ) had watched Owens tape the phone to the bench. (R. at 1132). Nightingale removed the phone from the bench, activated it, unlocked it using the passcode 1-2-3-4, and opened the Photos application. (R. at 1132). Nightingale opened several photos and saw one containing a document with the heading TOP SECRET UNAUTHORIZED DISTRIBUTION FORBIDDEN UNDER PENALTY OF LAW. (R. at 1132-33). Alarmed by the suspicious circumstances, Nightingale called the police and described the images he saw. (R. at 1133). He did not scroll through the entire album. (R. at 1133). 4

Officer Kramer (hereinafter Kramer ), an Arcadia police officer, arrived on the scene. (R. at 1133). Nightingale showed Kramer the image of the schematic he observed. (R. at 1133). Kramer took the phone and then zoomed out to a screen full of smaller thumbnail images. (R. at 1133). Kramer scrolled through the album of around 100 photos and focused his attention on the photographs that depicted schematics. (R. at 1133). There were approximately 24 other photographs unseen by Nightingale that all depicted schematics and bore the Top Secret heading. (R. at 1133). He saw another photo that looked like a satellite. (R. at 1133). The final photograph in the album was of the phone number Petitioner provided written on a napkin. (R. at 1133). Kramer tapped on the image with the napkin because this was the only photo he was not able to clearly see. (R. at 1133). After viewing the image, he recorded the phone number. (R. at 1133). Arcadia police then transferred the investigation to the FBI. (R. at 1133). The FBI was able to quickly identify Owens through security footage of the park. (R. at 1133). The FBI found and interrogated Owens. (R. at 1133). Owens told them that he had no idea who the woman was and that he didn t know how to contact her except by using the number found on the napkin. (R. at 1133). To begin their investigation, the FBI contacted the cell provider for the number, and the company voluntarily informed the FBI that the phone had most recently connected with a cell phone tower somewhere within a 10-mile radius around the Arcadia National Forest. (R. at 1133). The FBI set out to find the user of the cell-phone in the forest using a cell-phone simulator (hereinafter stingray ). (R. at 1133). FBI agents drove around the Arcadia National Forest area until their stingray informed them that they were 25 feet away from the cell phone, which was inside a cabin. (R. at 1134). The agents were parked on a rural street. (R. at 1134). There were no other structures in the area. 5

(R. at 1134). As they were parked, they heard the sound of a door close, and went around the back of the cabin where they discovered Petitioner running away. (R. at 1134). On her person at the time of the arrest, FBI agents discovered the cell phone with the number Owens had written on the napkin and called. (R. at 1134). This phone was also a pay-as-you-go smartphone with no other contents than a record of a call from the phone Owens had used. (R. at 1134). The government charged Petitioner with conspiracy to obtain information relating to national defense that she was not entitled to receive in violation of 18 U.S.C. 793. (R. at 1134). The government and defense have stipulated that (1) Petitioner had standing to challenge the search of her phone; and (2) the phone was not abandoned. (R. at 1134). 6

ARGUMENT I. THE FOURTEENTH CIRCUIT PROPERLY REVERSED THE DISTRICT COURT S SUPPRESSION OF THE PHOTOS BECAUSE THE PRIVATE SEARCH DOCTRINE PERMITTED OFFICER KRAMER TO SEARCH THE PHONE S PHOTO ALBUM IN GREATER DETAIL. Justice Sotomayor asserted that technology may alter the relationship between citizen and government in a way that is inimical to democratic society. United States v. Jones, 132 U.S. 945 (2012). The emergence of the Internet, the smartphone, and other complex digital devices has changed the way Americans do business, communicate, and store and transmit information. Riley v. California, 134 S. Ct. 2473, 2484 (2014). (highlighting the pervasiveness of cell phones in American society). In the modern digital era, courts have had to re-define constitutional rights within the scope of many new technologies. Id. at 2485. The Fourth Amendment establishes the right of people to be secure against unreasonable searches and seizures. U.S. Const. amend. IV. This protection proscribes only governmental action; it is wholly inapplicable to a search and seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of a government official. Burdeau v. McDowell, 256 U.S. 465 (1921). When a private party provides police with evidence obtained in the course of a private search, the police need not stop the private party or avert their eyes. Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971). Rather, the question becomes whether the police exceed the scope of the private search. United States v. Jacobson, 466 U.S. 109 (1984). Any additional invasions of privacy by the government must be tested by the degree which they exceeded the scope of the private search. Id. at 115. Recently, courts have struggled to define how the Fourth Amendment applies to police searches of digital items that have already been inspected by private parties. See United States v. 7

Sparks, 806 F.3d 1323, 1336 (11th Cir. 2015) (ruling that an officer s warrantless search of a video exceeded--not replicated the breadth of the private search ); United States v. Lichtenberger, 786 F.3d 478, 488 (6th Cir. 2015) (concluding that the officer s search of a personal laptop must stay within the scope of the initial search ); Rann v. Atchison, 689 F.3d 832, 836 (7th Cir. 2012) (finding no Fourth Amendment violation because police were substantially certain their search of defendant s digital media devices would reveal child pornography); United States v. Runyan, 275 F.3d 449, 465 (5th Cir. 2001) ( police do not exceed the scope of a prior private search when they examine particular items within a container that were not examined by the private searchers ). Defining the scope of the private search doctrine and its application to digital devices has been the subject of a current circuit split. The two varying approaches taken by the circuits are most commonly referred to as the broad approach and the narrow approach. See Sparks, 806 F.3d 1323; Runyan, 275 F.3d 449. The broad approach, which has been adopted by the Fifth and Seventh circuits, states that when a private party searches any part of a single unit, the privacy interests in the entire unit are frustrated and the unit may be searched in its entirety without implicating the Fourth Amendment. See Runyan, 275 F.3d at 463; Rann, 689 F.3d at 837. The narrow approach, which has been adopted by the Sixth and Eleventh Circuits, states that when a private party searches only a part of a single unit, only the privacy interest in those specific items is frustrated, rather than the entire unit, and any subsequent search requires a warrant. Sparks, 806 F.3d at 1336; Lichtenberger, 786 F.3d at 489. Some prevailing factors emerge from the totality of the cases that must be present for the broad approach to apply. First, the private search must reveal indicia of illegal conduct. See Jacobson, 466 U.S. at 117. Second, the responding government agent or law enforcement official must remain within the container that was 8

previously searched by the private party, although the officer may search that container in greater detail. See Runyan, 275 F. 3d at 464; Rann, 689 F.3d at 837. Third, the government must demonstrate a compelling interest that outweighs the individual s interest in privacy. Riley, 134 S.Ct. at 2484. If all of these factors are met, the broad approach affords officers the most reasonable procedure to safeguard the public, while not infringing on the Fourth Amendment. A. WHEN A PRIVATE SEARCH REVEALS ILLEGAL CONDUCT, THE BROAD INTERPRETATION OF THE PRIVATE SEARCH DOCTRINE BEST ENCOMPASSES THE REASONABLENESS STANDARD OF THE FOURTH AMENDMENT. When a private search reveals indicia of illegal conduct, principles of reasonableness permit government officials to search the opened container in its entirety. Jacobson, 466 U.S. 109. The key question in any Fourth Amendment case is the extent to which the government invaded a person s reasonable expectation of privacy. Burdeau, 256 U.S. at 465. Within the context of the private search doctrine, the reasonableness test must be applied to government action taken subsequent to a private search and must be appraised on the basis of the facts as they existed at the time the invasion occurred. Jacobson, 466 U.S. at 115. 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. In Jacobson, this Court found that when a private party s search discloses indicia of illegal conduct, the privacy interests in that container are frustrated and government agents are permitted to search the remainder of the container when they are virtually certain what the subsequent search will reveal. See Jacobson, 466 U.S. at 121-22 (holding that defendant had no reasonable privacy interests in concealing contraband). Each of the circuits that have applied the private search doctrine to digital items and devices have held that privacy interests in those items are, at least in part, frustrated when those items contain illegal information or data. See Sparks, 9

806 F.3d at 1336 (holding that discovery of child pornography by Walmart employee permitted subsequent search by authorities); Lichtenberger, 786 F.3d at 488 (officers subsequent search of defendant s laptop, which contained child pornography, was permissible as long as it remained within the scope of private search); Rann, 689 F.3d at 837 (police search of data files that contained child pornography did not exceed scope of private search); Runyan, 275 F.3d at 465 (when a private party has disclosed illicit content within a container, government agents are permitted to search the container in greater detail). The broad approach, advanced by the Fifth and Seventh circuits, best encompasses the reasonableness standard of the Fourth Amendment and should be adopted by this Court. The broad approach allows officers and other law enforcement personnel to use their professional training and experience to diagnose potential criminal conduct in the most efficient manner. The present action provides illustrative facts of the superiority of the broad approach, while also illustrating the narrow approach s shortcomings. The private citizen here, Larry Nightingale, saw suspicious activity occurring in a local public park when an anonymous man taped a cell phone to the bottom of the park bench. (R. at 1132). Out of curiosity, Nightingale removed the phone, opened it, and was able to discover several photos, one of which bore the heading: TOP SECRET UNAUTHORIZED DISTRIBUTION FORBIDDEN UNDER PENALTY OF LAW. (R. at 1133). Startled by what he had seen, Nightingale promptly notified the local police before viewing any more photos. (R. at 1133). Officer Kramer, a local policeman, arrived and was faced with the key question this Court is now considering: to what extent may he view the contents of the phone beyond what Nightingale had already seen? The narrow approach would strictly forbid Officer Kramer from further inspection of the phone, including the remainder of the photo album that Nightingale had already opened. The broad 10

approach would permit Officer Kramer to inspect the remainder of the photo album, but not view other contents of the phone. Under the principles of reasonableness that guide Fourth Amendment analysis, it becomes clear that the broad approach is most logical. When a law enforcement officer is virtually certain that a subsequent search will reveal details of a crime, he should be permitted to search the already compromised container in greater detail. See Jacobson, 466 U.S. at 117. Adopting the alternative would leave officers at the mercy of the private citizen s curiosity and would draw an arbitrary line based on the extent of the prior search. Law enforcement officials are trained to identify, investigate, and combat criminal conduct private citizens, generally speaking, are not. The broad approach best equips law enforcement to protect the public from criminal conduct without infringing on Fourth Amendment rights. B. OFFICER KRAMER REMAINED WITHIN ONE CONTAINER WHEN HE SEARCHED THE CELL PHONE AND, THEREFORE, REMAINED WITHIN THE SCOPE OF NIGHTINGALE S SEARCH. The fear that this court expressed in Riley concerning the unique storage capabilities of cell phones, and thus the heightened privacy interests at stake, is well-founded, and the broad approach would not threaten this privacy interest. 134 S.Ct. at 2478. Looking to the circuits is instructive on this manner. Even if this Court adopts the broadest of approaches, the Fifth Circuit, in Runyan, stated that an officer may search an already compromised container in greater detail, but he may not open new containers that were not already viewed by the private party. 275 F.3d at 464. Although Runyan dealt with substantial amounts of compact disks, floppy disks, and ZIP drives, and some of the most recent private search precedent deals with other physical containers, the reasoning can be applied to cell phones with fluidity. 11

Specifically, cell phones should be viewed as storing unlimited amounts of containers each application or folder functioning as its own miniature container. In reference to Justice Roberts concerns in Riley and for illustrative purposes, imagine the text message, electronic mail, bank account, and photograph applications all functioning as separate containers. Simply because a private party is able to compromise the privacy interests in one container does not expose the entire phone to warrantless inspection. Rather, law enforcement officials, even under the broad approach, would only be permitted to further search the single container that the private citizen had already viewed, albeit in greater detail. Id. In Jacobson, that meant viewing the remaining contents of the FedEx box and testing the suspicious white powder. 466 U.S. at 115. In Runyan and Rann, that meant viewing the remaining files contained within the compact disks and ZIP drives, which contained images of child pornography, and which the private party had already viewed in part. 275 F.3d at 464; 689 F.3d at 837-38. No approach, broad or narrow, would permit Officer Kramer to take Nightingale s private discovery as an invitation to view the entire phone. However, it would be a modest application of the traditional private search doctrine to permit law enforcement agents to search, in greater detail, the containers within a cell phone that have already been compromised by a private party. The essential purpose of law enforcement is to safeguard American lives, reduce the incidence of crime, and promote public safety. About DOJ, The United States Department of Justice, https://www.justice.gov/about (Feb. 9, 2018). The broad approach allows them to carry out this mission. Officer Kramer did not violate the Fourth Amendment when he searched, in greater detail, the one photo album that had already been seen by Nightingale because he remained within one container. 12

C. THE GOVERNMENT S INTEREST IN PROMOTING PUBLIC HEALTH AND NATIONAL SECURITY GREATLY OUTWEIGHS PETITIONER S INTEREST IN SOLICITING CONFIDENTIAL GOVERNMENT INFORMATION. Lastly, the government must prove a compelling interest that permits a warrantless search and that interest must outweigh the individual s interest in privacy. Riley, 134 S. Ct. at 2484. In Riley, this Court laid out this balancing test as a critical test in Fourth Amendment analysis. Id. In the present action, the government s interests are substantial: preserving public health and safety, safeguarding national security, and enforcing a federal statute designed to prevent breaches of our national defense. (R. at 1134). These interests greatly outweigh petitioner s interests in using a cell phone s photography features to solicit illegal information. (R. at 1133). Moreover, petitioner s solicitation of confidential government information is strictly prohibited by 18 U.S.C. 793. Once the government agent becomes aware of threats to the above interests, the agent should be afforded the broadest discretion to safeguard those interests. Again, the broad approach is the best method to accomplish this goal. In addition, the government s interests are heightened when law enforcement officials become aware of a crime in progress, yet lack necessary details about that crime, such as the identity of the offender. In all of the circuit cases previously mentioned, the identity of the defendant was never in question. See Runyan, 275 F.3d at 464; Rann, 689 F.3d at 837; Lichtenberger, 786 F.3d at 480. The information disclosed to law enforcement by the private parties already was linked to the criminal offender. However, in the present action, while Officer Kramer was certain Nightingale saw photos that were indicative of criminal conduct, he was not able to identify the potential offender without further searching the photo album. (R. at 1133). When private parties disclose potential criminal conduct to law enforcement, the broad approach affords officers the necessary procedure to respond promptly. This timely response time becomes 13

ever more important when dealing with cyber crimes, since the paper trail can be eliminated in mere seconds and the potential offenders may never be found. The petitioner will argue that her interests in cell phone privacy are substantial and those protections are further solidified by Riley. 134 S.Ct. at 2488. However, the defendant in Riley had his phone seized from his person, incident to an arrest, and the contents of defendant s phone had not been previously viewed by a private party. Id. at 2481. Allowing the government to search petitioner s phone in the present action does not disrupt the Riley holding. The phone in question here was found in a public park with no clear owner in sight, was viewed by a private party, and disclosed indicia of criminal conduct. (R. at 1132-33). The facts are entirely different from the situation in Riley. Ruling in petitioner s favor today would place American society in grave danger. If petitioner prevails, future criminals will be put on notice that perpetration of a crime can be protected through use of a cell phone. This Court should not let its fear of a cell phone s capacity limit its ability to redefine the private search doctrine within the scope of modern day digital devices. The broad approach, adopted by the Fifth and Seventh circuit, affords officers the most reasonable procedure when a private party searches a container that discloses indicia of criminal conduct. Officers should be granted the authority to further inspect containers and use their professional training and experience to identify and combat criminal conduct. The government has substantial interests in public safety and national security and, although cell phone privacy is a legitimate interest of nearly every American, the Court must be careful not to extend that interest too far. 14

For the foregoing reasons, we pray that this court affirm the Fourteenth Circuit s holding, overruling the district court s suppression of the photos because Officer Kramer was permitted to search the album in greater detail under the private search doctrine. II. THE FOURTEENTH CIRCUIT S DECISION SHOULD BE UPHELD BECAUSE THE USE OF A CELL-SITE SIMULATOR IS NOT A SEARCH UNDER THE FOURTH AMENDMENT WHEN PETITIONER DID NOT EXHIBIT AN ACTUAL EXPECTATION OF PRIVACY AND SOCIETY IS NOT PREPARED TO RECOGNIZE HER EXPECATION OF PRIVACY AS REASONABLE. The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const. amend. IV. A search under the Fourth Amendment is a two-pronged inquiry. The first prong that must be addressed is whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy whether the individual has shown that he seeks to preserve something as private. Katz v. United States, 389 U.S. 347, 351, 361 (1967). The second prong is whether the individual s subjective expectation of privacy is one that society is prepared to recognize as reasonable whether the individual s expectation, viewed objectively, is justifiable under the circumstances. Id. at 351, 353. Unreasonable searches can occur when the government violates an individual s reasonable expectation of privacy. Id. at 351. In applying this analysis, it is important to determine the nature of the specific activity at issue. Smith v. Maryland, 442 U.S. 735, 741 (1979). The activity here took the form of using a cell-site simulator to provide the location information of Petitioner s pay-as-you-go smartphone. (R. 1133-34). Petitioner challenges that the phone found on her at the time of the arrest should be suppressed because the use of a Stingray constituted an unlawful search under the Fourth Amendment. The Respondent respectfully asks this Honorable Court to affirm the Fourteenth Circuit s ruling and find Petitioner as not having an actual expectation of privacy, and even if this Court finds that 15

Petitioner did have an actual expectation of privacy, her expectation is one that society is not prepared to recognize as reasonable. A. PETITIONER DID NOT EXHIBIT AN ACTUAL EXPECTATION OF PRIVACY BECAUSE SHE KNEW INFORMATION WAS CONVEYED THROUGH THE VOLUNATRY USE OF A CELL PHONE. The Fourteenth Circuit correctly determined that the Petitioner did not harbor a subjective expectation of privacy in the information her phone broadcasted to the world. A constitutional violation under the Fourth Amendment cannot occur unless the individual had a subjective expectation of privacy. Katz, 398 U.S. at 361. In determining whether the individual had a subjective expectation of privacy, the Court will inquire whether the individual sought to preserve the information as private. Id. at 351; Smith, 442 U.S. at 740. When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to capture them. U.S. v. Skinner, 690 F.3d 772, 774 (2012). If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. Id. at 777. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Id. The Constitution does not protect criminals from their erroneous expectations regarding the undetectability of their modern tools. Id. If it did, then technology would help criminals at the expense of the police. Id. The crux of the issue is whether the Petitioner had harbored a subjective expectation of privacy in the information her phone broadcasted to the world. There is no inherent constitutional difference between trailing a defendant and tracking him via such technology. Id at 778. Law enforcement tactics must be allowed to advance with technological changes, in order to prevent criminals from circumventing the justice system. Id. Otherwise, dogs could not be used 16

to track a fugitive if the fugitive did not know that the dog hounds had his scent. Id at 777. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought that he had gotten away unseen. Skinner, at 777. Insofar as previous Petitioners complaints appear to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. Id at 778. The Courts have never equated police efficiency with unconstitutionality, and this Honorable Court should decline to do so now. There have been several landmark cases in which the government has stated that criminals have no expectation of privacy through the using technology as surveillance. In Smith, after a robbery, the police traced the license plate number of the suspect. Smith v. Maryland, 442 U.S. 735, 737 (1979). The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at the petitioner s home. Id. The police did not get a warrant or court order before having the pen register installed. Id. The register revealed that a call was soon placed from the petitioner s home to the victim s phone. Id. On the basis of this phone call and other evidence, the petitioner s home was searched and he was subsequently arrested. Id. This Court held that where a defendant was found to have no reasonable expectation of privacy in the numbers he dialed on his phone, even after that information was automated by the phone company. Skinner, at 778. The Court compared this technology to giving the numbers to a telephone operator, where they would not be confidential and said, We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate. United States v. Knotts, 460 U.S. 276, 283 (1983). Knotts was another case where the Court decided that a person does not exhibit a subjective expectation of privacy through the use of technology. In Knotts, the police, with the 17

consent of a chemical company, placed a beeper in a five-gallon drum of chloroform in order to track the movements of a defendant and discover the location of a clandestine drug laboratory. Knotts, at 279. Using visual surveillance, as well as the signal emitted from the beeper when police lost visual contact, law enforcement officials traced the car to a secluded cabin, where the defendant and others had been manufacturing illicit drugs. Knotts, at 278. The Supreme Court held that this monitoring did not violate the Constitution because the governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways... a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. Id. at 281. Additionally, the Supreme Court noted that there was no indication that the beeper was used in any way to reveal information that would not have been visible to the naked eye. Id. at 285. United States v. Forest reveals that the court had not deterred from precedent some twenty years later. In Forest, DEA agents had lost visual contact of the defendant as he traveled on public roads to meet two suspected drug couriers. United States v. Forest, 355 F.3d 942, 947 (6th Cir. 2004). To reestablish contact, agents called the defendant s cell phone, hanging up before it rang, in order to ping or gather data on the phone s physical location. Id. Using this information, agents were able to determine the defendant s movements along a public roadway, and ultimately to arrest the defendant. Id. at 948. The Supreme Court held a similar holding as they did in Knotts, stating that such monitoring did not violate the Fourth Amendment because the DEA agents could have obtained the same information by following the defendant s car. Id. at 951. Although the DEA agents were not able to maintain visual contact with the defendant s car at all times, visual observation was possible by any member of the public. Id. The DEA 18

agents simply used the cell-site data to augment the sensory facilities bestowed upon them at birth, which became permissible under Knotts. Id. (quoting Knotts, at 282). United States v. Skinner is a more recent example of when the Supreme Court holds that the use of technology to catch a criminal does not constitute a Fourth Amendment violation. In Skinner, the drug runners used pay-as-you-go phones to communicate during their cross-country shipment of drugs. United States v. Skinner, 690 F.3d 772, 774 (2012). The government used data emanating from the Petitioner s pay-as-you-go phone to determine its real time location. Id. This information was used to determine the Petitioner s location and as a result of tracking the cell phone, DEA agents located the Petitioner with over 1,100 pounds of marijuana. Id. The Supreme Court held that the Petitioner did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location. Id. at 775. The case at bar is analogous to Smith, Knotts, Forest, and Skinner. In all four of those cases, authorities used the technology they have been given to locate and arrest criminals. Even if the authorities did not have any physical surveillance on the Petitioners, the Court has constantly held that the use of technology to track a criminal does not constitute a Fourth Amendment search. The Supreme Court should not reverse its holding here. The petitioners in cases such as Skinner have also argued that they were unaware that the pay-as-you-go phones contained GPS tracking devices and therefore the technology was used to supplement, not augment, the sensory facilities. This argument is not persuasive enough to overturn the Courts twenty plus years of reasoning. Just because an individual is unaware that phones and other devices have GPS tracking, does not equate to an individual having a Fourth Amendment action. Just like Skinner, the Petitioner s movements could have been observed by any member of the public. Using a more efficient means of discovering this information does not 19

amount to a Fourth Amendment violation. Skinner, at 779. In any event, the Court determines whether a defendant s reasonable expectation of privacy has been violated by looking at what the defendant is disclosing to the public, and not what information is known to the police. Skinner, at 779. In this case, Petitioner had at least a minimum expectation that she could be tracked when she told Owens, these burners are untraceable, but still, they can track everyone now. (R. at 1132). If the defendant in Skinner does not find safe haven under their Fourth Amendment subjective expectation of privacy due to ignorance, then certainly Petitioner here cannot find a remedy under the Fourth Amendment when she has at least a minimum expectation that the FBI can trace her. There have been cases that have said that police intrusion using technology was a Fourth Amendment violation, but the facts in those cases are very distinguishable to the cases aforementioned and the case at bar. One of the major cases that is distinguishable from the line of reasoning aforementioned is United States v. Jones. In Jones, a tracking device was secretly placed on the defendant s car. United States v. Jones, 132 S. Ct. 945, 948 (2012). The Court explicitly relied on the trespassory nature of the police action rather than the surveillance nature of the police action. Id. at 949. The Supreme Court held that Fourth Amendment violations do occur when the government engages in the physical intrusion of a constitutionally protected area in order to obtain information. (Emphasis Added). Id. at 951. In our case, no physical intrusion occurred. The Petitioner herself obtained the cell phone for the purpose of communicating, and that phone included the GPS technology used to track the phone s whereabouts. Additionally, at the time of Petitioner s arrest, the FBI agents were twenty-five feet away from the cabin on a rural street, without any structures in the 20