No Supreme Court of the United States. UNITED STATES, Petitioner and Cross-Respondent, DAVID ELLIS, Respondent and Cross-Petitioner.

No. 42-9001 Supreme Court of the United States UNITED STATES, Petitioner and Cross-Respondent, v. DAVID ELLIS, Respondent and Cross-Petitioner. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for Respondent and Cross-Petitioner Team R3 Attorneys for Respondent and Cross-Petitioner

TABLE OF CONTENTS Table of Authorities... iii Questions Presented... v Opinions Below... vi Constitutional Provisions and Rules... vii Introduction... 1 Statement of the Case... 2 Argument... 5 I. This Court should suppress the Silk Road chat logs because Tyrell obtained them solely as the result of flagrant military intrusion into civilian law enforcement activities in violation of federal law and military regulations.... 5 A. Tyrell s participation in the Silk Road sting was in violation of the PCA because it was direct participation by military personnel in civilian law enforcement activities without an independent military purpose.... 6 B. Tyrell s participation in this illegal military operation was misconduct of a government agent engaged in direct civilian law enforcement activities, and this Court has consistently applied the exclusionary rule to deter such misconduct.... 9 C. Tyrell s misconduct demonstrates deliberate, reckless, or grossly negligent disregard for the PCA, so the deterrence value of the exclusionary rule is high in this case and outweighs any countervailing costs.... 10 D. The reasoning of the circuit courts of appeals that have declined to apply the exclusionary rule to evidence obtained in violation of the PCA does not apply in this case.... 12 E. If this Court declines to apply the exclusionary rule in this case, it will incentivize naval personnel to violate the PCA in the future.... 14 II. This court should suppress the cell site location information because it was obtained by invading Mr. Ellis s reasonable expectation of privacy without a warrant based upon probable cause as required by the Fourth Amendment... 15 i

A. The Stored Communications Act s exemption of a warrant requirement based on probable cause violated Mr. Ellis s Fourth Amendment protections as he had a reasonable expectation of privacy.... 16 B. Cell Site Location Information is not subject to the third-party disclosure doctrine as Mr. Ellis did not voluntarily or knowingly transmit this information to his cell service provider.... 23 Conclusion... 28 ii

TABLE OF AUTHORITIES CONSTITUTIONAL PROVISIONS U.S. Const. amend. IV... 15 STATUTES 10 U.S.C. 375 (2013)... 5, 7, 12 Posse Comitatus Act, 18 U.S.C. 1385 (2013)... 5, 6, 10, 15 Stored Communications Act, 18 U.S.C. 2703 (2013)... 16 CASES Davis v. United States, 131 S. Ct. 2419 (2011)... 9, 10, 11 Groh v. Ramirez, 540 U.S. 551 (2004)... 18 Herring v. United States, 555 U.S. 135 (2009)... 11 Hudson v. Michigan, 547 U.S. 586 (2006)... 14, 15 In re Application of the U.S. for an Order Directing Provider of Elec. Commc n Service to Disclose Records to the Gov t, 620 F.3d 304 (3d Cir. 2010)... 21, 22, 25, 26 In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013)... 21, 22, 26 Katz v. United States, 389 U.S. 347 (1967)... passim Kyllo v. United States, 533 U.S. 27 (2001)... 19 Smith v. Maryland, 442 U.S. 735 (1979)... 19, 24 United States v. Chon, 210 F.3d 990 (9th Cir. 2000)... 7, 8, 11 United States v. Hitchcock, 286 F.3d 1064 (9th Cir. 2001), amended by 298 F.3d 1021 (9th Cir. 2002)... passim iii

United States v. Jones, 132 S. Ct. 945 (2012)... passim United States v. Khan, 35 F.3d 426 (9th Cir. 1994)... 11 United States v. Leon, 468 U.S. 897 (1984)... 9, 10, 11 United States v. Miller, 425 U.S. 435 (1976)... 23, 24 United States v. Peltier, 422 U.S. 531 (1975)... 10 United States v. Roberts, 779 F.2d 565 (9th Cir. 1986)... 11, 12, 13, 14 United States v. Walden, 490 F.2d 372 (4th Cir. 1974)... 11, 12, 13 United States v. Wolffs, 594 F.2d 77 (5th Cir. 1979)... 12, 13, 14 Wong Sun v. United States, 371 U.S. 471 (1963)... 18 OTHER AUTHORITIES Elizabeth Elliott, Comment, United States v. Jones: The (Hopefully Temporary) Derailment of Cell-Site Location Information Protection, 15 Loy. J. Pub. Int. L. 1 (2013)... 16, 22, 25, 27 U.S. Dep t of Def., Directive 5525.5, DoD Cooperation with Civilian Law Enforcement Officials (1986)... 6, 7, 8, 12 iv

QUESTIONS PRESENTED 1. Whether courts should suppress evidence when the government obtains it solely because of an illegal and flagrant military invasion of civilian law enforcement activities. 2. Whether the government invaded Ellis reasonable expectation of privacy by obtaining his cell site location information without a warrant based upon probable cause as required by the Fourth Amendment. v

OPINIONS BELOW The opinion of the Court of Appeals for the Ninth Circuit is reported at 902 F.3d 221 and reprinted at pages 2 13 of the Record. (R. at 2 13.) The opinion of the district court denying Respondent s motion to suppress evidence obtained in violation of the Posse Comitatus Act, 18 U.S.C. 1385, is unreported. The opinion of the district court denying Respondent s motion to suppress evidence obtained without a warrant based upon probable cause, in violation of his Fourth Amendment rights, is unreported. vi

CONSTITUTIONAL PROVISIONS AND RULES The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. vii

INTRODUCTION David Ellis, Respondent and Cross-Petitioner, was convicted of several felonies after police arrested him on suspicion of his involvement in a string of convenience store robberies. (R. at 3 4.) The government built its case against Ellis on illegally obtained evidence. Tyrell, a naval officer, worked through a website called Silk Road in an attempt to ensnare Ellis in an illegal firearms deal. (R. at 2 3.) Ellis never consummated the deal, but Tyrell turned over the logs of his online conversations with Ellis to the San Diego Police Department (SDPD). (R. at 2 3.) Tyrell s Silk Road chat logs provided the basis for federal jurisdiction in this case. SDPD detective Crane bolstered the case against Ellis by obtaining cell site location data from AT&T, Ellis cell phone provider, to tie Ellis to the robberies based on the location of his phone when the robberies occurred. (R. at 3.) Tyrell and Crane collected the Silk Road chat logs and cell site location data illegally. This case is about the government invading the private affairs of American citizens. First, Tyrell obtained evidence against Ellis as part of a coordinated effort involving multiple military officers. (R. at 2 3.) Their conduct was in flagrant violation of federal law and military regulations that restrict the direct participation of military personnel in civilian law enforcement activities. Private citizens should not have to fear that the military will turn its force against them in open defiance of federal law and military regulations and that their courts will support such a misapplication of military might. Ellis, as Respondent, respectfully 1

requests that this Court affirm the decision of the Ninth Circuit to suppress this evidence. Second, Detective Crane invaded Ellis privacy when he obtained evidence without a warrant based upon probable cause, in violation of his Fourth Amendment rights. The provision of the Stored Communications Act allowing the government to obtained cell site location data without a proper warrant is unconstitutional. Private citizens should not have to fear that their government will violate their constitutional rights in order to prosecute and incarcerate them. Ellis, as Cross-Petitioner, respectfully requests that this Court reverse the Ninth Circuit s holding that the Fourth Amendment does not protect against the government s invasion of his constitutionally protected privacy rights. STATEMENT OF THE CASE On February 13, 2012, three men robbed a 7-Eleven in San Diego, California. (R. at 3.) A clerk described the men to police. (R. at 3.) An hour later, police pulled over a car containing three men who matched the clerk s description, arrested the men, and impounded the car. (R. at 3.) The Respondent and Cross-Petitioner, David Ellis, was among them. (R. at 3.) They were arrested in connection with the robbery that day, as well as two other robberies of local convenience stores committed on February 1 and 7. (R. at 3.) The string of robberies made the news, which attracted the attention of Tyrell, a Chief Navy Warrant Officer stationed in San Diego, California. (R. at 2 3.) For months, Tyrell had been working undercover on Silk Road, an online market 2

accessible only via Tor, a program that allows users to browse the Internet anonymously and without revealing their location. (R. at 2.) He had recently set up an illegal firearms deal to ensnare a user named 0nion_Kn1ght, who had responded to Tyrell s offer on Silk Road to sell five semi-automatic pistols. (R. at 2 3). 0nion_Kn1ght asked that Tyrell scratch off the serial nos. because he did not want these to be trackable. (R. at 2.) After setting a time and place for the sting, Tyrell contacted the Bureau of Alcohol, Tobacco, and Firearms, which stationed four agents in the area to arrested 0nion_Kn1ght. (R. at 2 3) 0nion_Kn1ght never arrived. (R. at 2 3). Two days later, on January 19, 0nion_Kn1ght contacted Tyrell and said that he no longer needed the weapons because he had gotten some from some buds who wanna rob a few 7-11s in a couple weeks. (R. at 3.) Tyrell forwarded the message to the San Diego Police Department (SDPD) then. (R. at 3.) When he heard about the string of robberies on the news a couple of weeks later, he checked to see if Ellis had any connection to the military. (R. at 3.) When he found out that Ellis did not, he submitted his Silk Road chat logs with 0nion_Kn1ght to the SDPD again. (R. at 3.) SDPD Detective Crane used Tyrell s logs as the basis for a warrant authorizing the search and seizure of any computers found in Ellis residence. (R. at 3.) On Ellis computer, officers found evidence of Tor usage under the username 0nion_Kn1ght. (R. at 3.) Detective Crane also requested a court order under the Stored Communications Act for service logs of the suspects cell phones from AT&T. (R. at 3

3.) He sought the phone numbers, duration, and cell site location data of all incoming and outgoing calls within the previous 60 days. (R. at 3.) Federal authorities charged Ellis with multiple counts of Hobbs Act robbery, conspiracy, knowing possession of a firearm in furtherance of a crime of violence, and attempted receipt of a firearm which has had the manufacturer s serial number removed. (R. at 3.) He moved to suppress the Silk Road chat logs, arguing that Tyrell had obtained them in violation of the Posse Comitatus Act, which prohibits Army and Air Force personnel from participating in civilian law enforcement activities. (R. at 3.) He also moved to suppress the cell site location data, arguing that the court order under which Detective Crane had obtained them was not based on probable cause and, therefore, the collection of evidence violated his Fourth Amendment rights. (R. at 3.) The district court denied both motions. (R. at 3.) The court ruled that the Silk Road chat logs should not be suppressed because, even if they were obtained in violation of the Posse Comitatus Act, the exclusionary rule should not apply on the basis of the good-faith exception. (R. at 3.) A jury convicted Ellis on all counts except for receiving a firearm with the serial number removed. (R. at 4.) Circuit: Ellis appealed two issues to the United States Court of Appeals for the Ninth (1) whether the exclusionary rule should apply to the Silk Road messages logs because they were obtained in violation of the PCA, and (2) whether the provision of the Stored Communications Act allowing the government to obtain cell site location data without a warrant based upon probable cause violated Ellis Fourth Amendment rights. 4

(R. at 4.) The court reviewed these issues de novo. (R. at 4.) First, the court held that Tyrell and his fellow officers had committed widespread and repeated violations of the Posse Comitatus Act by their direct involvement in civilian law enforcement. As their actions failed to meet the independent military purpose exception, the court suppressed the Silk Road chat logs. (R. at 5 6). Second, the court held that Ellis had no legitimate expectation of privacy in the cell site location data because he voluntarily transmitted it to a third party, his cell phone service provider, and the Fourth Amendment does not protect against the government s obtaining of such records without a warrant based upon a showing of probable cause. (R. at 8 9). Judge Schock dissented on both issues. (R. at 10 13.) The United States petitioned this Court for review. (R. at 1.) Ellis responded and cross-petitioned. (R. at 1.) The United States cross-responded. (R. at 1.) ARGUMENT I. This Court should suppress the Silk Road chat logs because Tyrell obtained them solely as the result of flagrant military intrusion into civilian law enforcement activities in violation of federal law and military regulations. Throughout this brief, PCA refers to the collective body of law that restricts the participation of military personnel in civilian law enforcement activities, starting with the Posse Comitatus Act, 18 U.S.C. 1385, and including 10 U.S.C. 375 and related federal law and military regulations, as described below. The PCA bars military personnel from direct participation in civilian law enforcement activities without explicit statutory authority or an independent military purpose. 18 U.S.C. 1385 (2013); 10 U.S.C. 375 (2013); United States v. Hitchcock, 286 F.3d 1064, 1069 (9th Cir. 2001) (citing U.S. Dep t of Def., Directive 5

5525.5, DoD Cooperation with Civilian Law Enforcement Officials (1986) [hereinafter DoDD 5525.5]), amended by 298 F.3d 1021 (9th Cir. 2002). As Tyrell had neither, the sting operation that he conducted was illegal. This Court should affirm the decision of the Ninth Circuit to suppress the Silk Road chat logs that Tyrell obtained solely by his illegal conduct. First, this Court has consistently applied the exclusionary rule in cases involving misconduct by government agents engaged in direct civilian law enforcement activities, so it should apply in this case. Second, Tyrell s misconduct in participating in this illegal military operation demonstrates deliberate, reckless, or grossly negligent disregard for the PCA, so the deterrence value of the exclusionary rule is high in this case and should outweigh any countervailing social costs. Third, the reasoning of the circuit courts of appeals that have declined to apply the exclusionary rule to evidence obtained in violation of the PCA does not apply in this case. Finally, if this Court declines to apply the exclusionary rule in this case, it will incentivize naval personnel to violate the PCA in the future. A. Tyrell s participation in the Silk Road sting was in violation of the PCA because it was direct participation by military personnel in civilian law enforcement activities without an independent military purpose. Though the Posse Comitatus Act, 18 U.S.C. 1385, only explicitly bars the Army and Air Force from participating in civilian law enforcement activities, federal law and military regulations have applied its restrictions to all branches of the military. Hitchcock, 286 F.3d at 1069. Congress enacted legislation requiring the Secretary of Defense to prescribe such regulations as may be necessary to ensure that any activity... does not include or permit direct participation by a 6

member of the Army, Navy, Air Force, or Marine Corps in civilian law enforcement unless participation in such activity by such member is otherwise authorized by law. 10 U.S.C. 375. In response to Congress mandate, the Secretary of Defense issued a Department of Defense (DoD) Directive regulating the cooperation of military personnel with civilian law enforcement officials. Hitchcock, 286 F.3d at 1069 (citing DoDD 5525.5). The resulting body of law the PCA applies uniformly to all branches of the military. Id. The PCA prohibits direct participation in civilian law enforcement activities by military personnel, subject only to explicit exceptions. Hitchcock, 286 F.3d at 1069. For instance, unless an explicit exception applies, military personnel cannot be used for surveillance or pursuit of individuals, or as undercover agents, informants, investigators, or interrogators. DoDD 5525.5 E4.1.3.4. One exception to this general prohibition is for [a]ctions that are taken for the primary purpose of furthering a military... function. DoDD 5525.5 E4.1.2.1. But the directive warns, This provision must be used with caution, and does not include actions taken for the primary purpose of aiding civilian law enforcement officials or otherwise serving as a subterfuge to avoid the restrictions of [the PCA]. DoDD 5525.5 E4.1.2.1. In these provisions, the United States Court of Appeals for the Ninth Circuit found an independent military purpose exception to the PCA. See United States v. Chon, 210 F.3d 990, 994 (9th Cir. 2000) (holding that the Navy has an independent military purpose in investigating the theft and sale of property from a naval base); Hitchcock, 286 F.3d at 1070 (holding that the military has an 7

independent military purpose in investigating the sale of LSD to and by military personnel on a military base). Tyrell acted as an undercover agent and investigator, (R. at 2,) which the PCA explicitly regards as impermissible direct assistance to civilian law enforcement, DoDD 5525.5 E4.1.3.4. Tyrell sought out Silk Road. (R. at 2.) He advertised firearms for sale on Silk Road. (R. at 2.) He offered to sell illegal firearms to a user named 0nion_Kn1ght. (R. at 2.) Only after setting a place and time for the sting did Tyrell contact civilian law enforcement, the Bureau of Alcohol, Tobacco, and Firearms. (R. at 2.) This was direct civilian law enforcement by military personnel without the involvement of civilian law enforcement officers. As the Ninth Circuit noted, in holding that Tyrell s involvement was direct, [H]e... initiated and carried out this activity. (R. at 5.) Tyrell s direct participation in civilian law enforcement did not serve an independent military purpose. The Ninth Circuit found, CWO Tyrell did not limit his investigation to areas where there was military interest; he surveyed all activity on the Silk Road. (R. at 5.) Unlike the military personnel in Chon who investigated theft of military equipment from a military installation, 210 F.3d at 992, 994 or Hitchcock who investigated the sale of illegal drugs to and by military personnel, 286 F.3d at 1070 Tyrell did not limit his investigation to United States Military or government personnel or property, and he had no idea whether he was receiving messages from someone with any affiliation with the military at all. (R. at 5.) Further, CWO Tyrell even continued his participation in 8

Ellis s investigation after he learned that Ellis had no military affiliation. (R. at 5.) The Ninth Circuit found a lack of any discernable connection between the military and the crimes that CWO Tyrell was investigating. (R. at 5.) Therefore, Tyrell s direct participation in civilian law enforcement violated the PCA and was illegal. B. Tyrell s participation in this illegal military operation was misconduct of a government agent engaged in direct civilian law enforcement activities, and this Court has consistently applied the exclusionary rule to deter such misconduct. The exclusionary rule is a sanction that bars the prosecution from introducing evidence gained by police misconduct. Davis v. United States, 131 S. Ct. 2419, 2423 (2011). The purpose of the rule is to deter future... violations. Id. at 2426. This Court has declined to apply the rule in cases in which non-police commit the misconduct at issue because doing so would not deter future police misconduct. See United States v. Leon, 468 U.S. 897, 922 (1984) (declining to apply the exclusionary rule where police acted in objectively reasonable reliance on a subsequently invalidated search warrant because a magistrate s error produced the faulty search warrant and suppressing the resultant evidence would do nothing to deter future police misconduct). However, treating the exclusionary rule as if it applies only to the misconduct of those labeled as police misconstrues the larger policy behind it: The exclusionary rule is aimed at deterring misconduct by government agents engaged in direct civilian law enforcement activities. This Court applies the exclusionary rule to do exactly that and only declines to apply it when doing so would not accomplish that. For example, in Leon, this Court held that the exclusionary rule 9

does not apply when a magistrate issues a faulty search warrant that police rely upon to collect evidence. Id. at 922. It did so because to punish police for the mistake of a magistrate would not alter the behavior of individual law enforcement officers and thus would have no deterrent effect on future violations. Id. at 918. When members of the military, who are agents of the government, act as individual law enforcement officers, Leon, 468 U.S. at 918, courts should treat them as such and suppress evidence obtained solely as the result of their misconduct in doing so. Tyrell and his fellow naval officers all government agents engaged in direct civilian law enforcement activities. They did so illegally. The exclusionary rule should be applied to the Silk Road chat logs that Tyrell collected in violation of the PCA to deter future... violations, Davis, 131 S. Ct. at 2426, by military members acting as individual law enforcement officers, Leon, 468 U.S. at 918. C. Tyrell s misconduct demonstrates deliberate, reckless, or grossly negligent disregard for the PCA, so the deterrence value of the exclusionary rule is high in this case and outweighs any countervailing costs. This Court analyzes the flagrancy of the misconduct at issue when determining whether to apply the exclusionary rule and suppress evidence gained solely by misconduct of a government agent engaged in direct civilian law enforcement activities. Leon, 468 U.S. at 911. Application of the rule can only deter future misconduct if the law enforcement officer knew or should have known that his conduct was illegal. Id. at 919 (quoting United States v. Peltier, 422 U.S. 531, 542 (1975)). When police act with objectively reasonable good-faith belief that their conduct is lawful, Davis, 131 S. Ct. at 2427 (quoting Leon, 468 U.S. at 909), or 10

when their conduct is negligent, but only simple, isolated negligence, Id. at 2427 28 (quoting Herring v. United States, 555 U.S. 135, 137 (2009)), there is little or no deterrence value to suppressing the evidence obtained as a result. When the misconduct of law enforcement officers demonstrates deliberate, reckless, or grossly negligent disregard for the law, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. Id. at 2427 (quoting Herring, 555 U.S. at 144). In Leon, this Court held that the exclusionary rule does not apply when a magistrate issues a faulty search warrant that police rely upon to collect evidence. Leon, 468 U.S. at 922. But the Court emphasized that suppression is appropriate if a magistrate issues a faulty search warrant based on information from a law enforcement officer that the officer knows is false or would have known was false except for his reckless disregard of the truth and the law. Id. at 923. If the misconduct at issue demonstrates deliberate, reckless, or grossly negligent disregard for the law by a government agent engaged directly in civilian law enforcement activities, evidence obtained as a result should be suppressed. The Fourth Circuit discussed the application of the PCA to navy personnel more than forty years ago. United States v. Walden, 490 F.2d 372 (4th Cir. 1974). The Ninth Circuit, where Tyrell is stationed, has issued at least four opinions since then that explore the boundaries of the PCA. United States v. Hitchcock, 286 F.3d 1064 (9th Cir. 2002); United States v. Chon, 210 F.3d 990 (9th Cir. 2000); United States v. Khan, 35 F.3d 426 (9th Cir. 1994); United States v. Roberts, 779 F.2d 565 (9th Cir. 1986). 11

Tyrell knew or should have known that he was acting in violation of the PCA. The general restrictions of the PCA, and to whom those restrictions apply, are clear and have been for decades. Only a military officer acting with deliberate, reckless, or grossly negligent disregard for the PCA could have so flagrantly violated it. This Court devised the exclusionary rule to deter exactly this sort of flagrant misconduct. D. The reasoning of the circuit courts of appeals that have declined to apply the exclusionary rule to evidence obtained in violation of the PCA does not apply in this case. The United States Courts of Appeals for the Fourth, Fifth, and Ninth Circuits have declined to apply the exclusionary rule to evidence obtained in violation of the PCA. United States v. Roberts, 779 F.2d 565 (9th Cir. 1986); United States v. Wolffs, 594 F.2d 77 (5th Cir. 1979); United States v. Walden, 490 F.2d 372 (4th Cir. 1974). More than forty years ago, in United States v. Walden, the Fourth Circuit held that the application of the exclusionary rule was not appropriate because, at the time, military personnel did not clearly understand the application of the PCA beyond the Army and Air Force. Walden, 490 F.2d at 377. In Wolffs and Roberts, the Fifth and Ninth Circuits held that they would not apply the exclusionary rule to violations of the PCA without evidence of widespread and repeated violations. Wolffs, 594 F.2d at 85; Roberts, 779 F.2d at 568. The Fourth Circuit decided Walden before Congress passed 10 U.S.C. 375 and the Department of Defense issued Directive 5525.5, both of which generally prohibit direct intrusion by all military personnel into civilian law enforcement activities. Hitchcock, 286 F.3d at 1069. In Walden, a member of the Marine Corps committed the misconduct at issue. Walden, 490 F.2d at 373. The court found that 12

there was no violation of the letter of the Posse Comitatus Act because, at the time, its restrictions did not apply to the Marine Corps by law. Id. The court declined to apply the exclusionary rule because military personnel did not clearly understand the application of the PCA beyond the Army and Air Force, so suppressing evidence gathered by a member of the Marine Corps would have had little or no deterrence value. Id. at 377. But the court warned, Should there be evidence of widespread or repeated violations in any future case... we will consider ourselves free to consider whether adoption of an exclusionary rule is required as a future deterrent. Id. In United States v. Wolffs and United States v. Roberts, the Fifth and Ninth Circuits, using the Fourth Circuit s language in Walden, held that they would not apply the exclusionary rule to violations of the PCA without evidence of widespread and repeated violations. Wolffs, 594 F.2d at 85; Roberts, 779 F.2d at 568. In Wolffs, a member of the United States Army Criminal Investigation Division directly investigated suspected illegal drug sales by a civilian that a military member had reported to him. Wolffs, 594 F.2d at 79. Without deciding whether the investigator s conduct violated the PCA, the court declined to apply the exclusionary rule because, even if there were violations, there was no evidence that they were widespread and repeated. Id. at 85. In Roberts, a naval ship carrying Coast Guard personnel intercepted a sailboat off the coast of Mexico, found that it was illegally carrying drugs, seized it, and arrested its crew. Roberts, 779 F.2d at 566. The court found that the navy s conduct violated the PCA, but that the 13

violations were not widespread or repeated because the seizure was an isolated incident. Id. at 568. Tyrell s violations of the PCA were widespread and repeated. Unlike in Wolffs, the illegal sting in this case is not an isolated violation of the PCA by a single officer. Tyrell joined other Naval Officers in conducting his sting operation. (R. at 2.) Unlike in Roberts, the illegal sting is not an isolated case of a naval crew finding itself in a position to react to illegal conduct in progress. Tyrell and his fellow officers sought out crime online with no regard for whether or not their investigation was in violation of the PCA. (R. at 2, 5.) Numerous military personnel repeatedly committed coordinated violations of the PCA. The Fourth, Fifth, and Ninth Circuits, which all declined to apply the exclusionary rule to isolated violations of the PCA, reserved the right to apply the exclusionary rule to widespread and repeated violations like these. E. If this Court declines to apply the exclusionary rule in this case, it will incentivize naval personnel to violate the PCA in the future. This Court considers suppression of evidence to be a last resort. Hudson v. Michigan, 547 U.S. 586, 591 (2006). In Hudson v. Michigan, this Court considered the availability of alternative means to deter police misconduct, including increased training in how to respect constitutional guarantees in various situations. Id. at 596 99. Where there are viable alternative means to deter law enforcement misconduct, this Court has been reluctant to impose the exclusionary rule. Id. However, there are no available alternative means to deter the type of misconduct at issue in this case. First, although the Posse Comitatus Act imposes 14

criminal penalties on those who willfully use[] any part of the Army or the Air Force in civilian law enforcement activities, 18 U.S.C. 1385, those penalties have not been applied to the Navy. Second, military personnel are not trained in how to respect constitutional guarantees in various situations, Hudson, 547 U.S. at 599, so it would be dangerous for this Court to allow military personnel to directly participate in civilian law enforcement activities in violation of the PCA. If this Court rules that the only consequence of violating the PCA is the procurement of useful evidence against criminal suspects, the Navy will have no incentive to avoid direct participation in civilian law enforcement. If this Court does not affirm the Ninth Circuit and suppress the Silk Road chat logs, it will be incentivizing naval officers to continue to violate the PCA. This Court should not incentive the military to invade civilian law enforcement activities and turn its overwhelming force and unmatched resources against private citizens. II. This court should suppress the cell site location information because it was obtained by invading Mr. Ellis s reasonable expectation of privacy without a warrant based upon probable cause as required by the Fourth Amendment. This court should overturn the Ninth Circuit Court Of Appeals decision and find that the Stored Communications Act (SCA) is subject to the Fourth Amendment s warrant requirement based on probable cause. The Fourth Amendment protects against unreasonable searches and seizures by stating that no warrants shall issue, but upon probable cause, supported by oath or affirmation.... U.S. Const. amend. IV. This protection extends to persons, houses, papers, and effects such as Ellis s cell phone and associated location information. Id. This protection against unreasonable searches and seizures is specifically what the SCA 15

circumvents, and the Government is advocating for this Constitutional circumvention by arguing that the Fourth Amendment does not cover cell site location information. (R. at 7.) In order to preserve the constitutional protections promised in the Constitution and Bill of Rights to every person, this court should reverse the lower courts ruling and require a warrant for any cell site location information and suppress any evidence gained without the use of a warrant. A. The Stored Communications Act s exemption of a warrant requirement based on probable cause violated Mr. Ellis s Fourth Amendment protections as he had a reasonable expectation of privacy. Today s technological advances allow investigators to track a suspect s specific location very easily and accurately using the Stored Communications Act (SCA). The SCA was enacted to assist law enforcement in obtaining evidence recorded and retained by certain telecommunications companies, as well as track a suspects actions in real time. Elizabeth Elliott, Comment, United States v. Jones: The (Hopefully Temporary) Derailment of Cell-Site Location Information Protection, 15 Loy. J. Pub. Int. L. 1, 2 (2013). The SCA allows a government entity to compel disclosure of a record or other information pertaining to a subscriber to or customer of such services... to assist them with any ongoing investigation. Stored Communications Act, 18 U.S.C. 2703(c)(1) (2013). A cell user s cell site location information (CSLI) is included in these record[s] or other information. Id. It is this CSLI that is very beneficial to law enforcement, but is also private information that tells many things about an individual and should be afforded the utmost Fourth Amendment protections. 16

Because the use of CSLI can potentially divulge the same information about a suspect as a search, it should require the same warrant requirement based on probable cause that is required for a search under the Fourth Amendment. However, the Stored Communications Act does not require a warrant for all CSLI information requests by law enforcement. (R. at 7). A law enforcement agency can request CSLI from a service provider by obtaining a warrant or by obtaining a court order. 18 U.S.C. 2703(c)(1)(a)-(b). While the warrant option is straight forward, it is the court order option that has troubled courts over the past several years. The CSLI obtained by a court order violated Ellis s Fourth Amendment protections and should be suppressed as they were unconstitutionally obtained. Under subsection (d), a government agency does not need to meet the probable cause standard usually required for procuring a warrant and only needs to provide the court specific and articulable facts showing that there are reasonable grounds to believe the contents... are relevant and material to an ongoing investigation which is a much lower threshold than the probable cause requirement needed to obtain a warrant. 18 U.S.C. 2703(d). Ellis s CSLI was obtained by the SDPD using the unconstitutional court order option of the SCA, and any data obtained in this manner must be suppressed as it was not based on probable cause. (R. at 7.) As the search of Ellis s CSLI was conducted without a warrant, it must be held unlawful notwithstanding facts unquestionably showing probable cause. Katz v. United States, 389 U.S. 347, 357 (1967). Searches and seizures without a warrant are presumptively unreasonable. (R. at 7) (quoting Groh v. Ramirez, 540 U.S. 551, 17

559 (2004)). In order for a search to be valid, there must be a showing of probable cause. Katz, 389 U.S. at 357. The warrant requirement is needed so that the impartial judgment of a judicial officer... be interposed between the citizen and the police.... Id. (quoting Wong Sun v. United States, 371 U.S. 471, 481 82 (1963)). This impartial judgment is vitally important when a government agency is requesting information that will show detailed private information about an individual from their cell phone records. The Supreme Court has repeatedly held that new technologies should be given the same protections against invasions of privacy as normal warrants. Katz, 389 U.S. at 355. Although cognizant of the fact that advanced surveillance tools required different procedures from traditional warrants, the court in Katz realized that privacy was the fundamental right the Fourth Amendment protects. Id. Even with new technologies, the court wanted to make sure they were not allowing greater invasions of privacy greater than that under normal circumstances. Id. The fact that the Fourth Amendment protects people, not places is key to understanding the privacy implications of CSLI, as people generally carry their phone on their person whether they are in their own home or out in public. Id. at 351. In Katz, the court held that what a person works to keep private may be constitutionally protected. Id. The public takes many steps to protect the information on their cell phone, from password-protecting their phones to purchasing phones that require a fingerprint scan to unlock the phone. People take 18

these actions because they do not want the vast amounts of data stored on a phone to be made public. Mr. Ellis has a constitutionally protected expectation of privacy in the data generated by his phone, as he actually believed that his location would be kept private and this is a reasonable expectation held by society. To determine when the Fourth Amendment protects against invasions of privacy, the court has repeatedly used the two-part test developed in Katz. Id. at 361 (Harlan, J., concurring). Under this subjective/objective test, the court must first look at whether a person has an actual expectation of privacy. Id. If the court finds this is the case, they then have to determine whether this expectation in reasonable to society. Id. This test has repeatedly been used to determine if searches using new technology invade a person s privacy. See, e.g., Smith v. Maryland, 442 U.S. 735, 740 (1979) (applying test to use of a pen register); Kyllo v. United States, 533 U.S. 27, 33 (2001) (applying test to use of a thermal-imaging device). The most instructive case on the reasonable expectation of privacy in location information comes from United States v. Jones. 132 S. Ct. 945 (2012). This Court in Jones was presented with the issue of how to handle GPS tracking of a suspect s car. Id. at 948. Although the GPS tracking device used in Jones was not identical to the CSLI data retrieved from a cell company, it was actually less invasive into the suspect s reasonable expectation of privacy than the CSLI used in the present case, as CSLI tells exactly where the person is at all times, not just where the person s 19

car is. (R. at 8). For this reason, CSLI should be given an even higher level of protection than that afforded GPS tracking of a car. A majority of the Justices in Jones, as well as both the majority and dissent of the court below in the present case, held that the Katz reasonable expectation of privacy test should apply to location tracking technology such as GPS or CSLI. Jones, 132 U.S. at 954 55 (Sotomayor, J., concurring); Id. at 958 (Alito, J., concurring); (R. at 8, 11 12.) Although the Jones case was decided under the traditional trespass theory of a Fourth Amendment violation, 132 S. Ct. at 949, both Justices Sotomayor and Alito specifically discuss cell-phone tracking technology in their concurrences for why they prefer the Katz reasonable expectation of privacy test. Id. at 955, 963. Even the majority acknowledges that the Katz test was added to the trespass test, indicating that had there been no technical trespass in Jones, they likely would have also used the reasonable expectation of privacy test. Id. at 952. For these reasons, this court should use the reasonable expectation of privacy test to see whether there was an invasion of Ellis s Fourth Amendment right to be free from unreasonable searches of his effects. Mr. Ellis clearly had a subjective expectation of privacy as he firmly believed that his movements were not and could not be tracked by use or simply carrying his cell phone. In agreeing with the majority below, the dissent stated that Ellis clearly held the belief that his location remained private when using his cell phone. (R. at 11 12.) 20

Furthermore, this belief is reasonable, as society believes that the government will not invade a person s privacy by tracking their every move through the use of CSLI. In her concurrence, Justice Sotomayor stated that [she] would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. Jones, 132 S. Ct. at 956. Furthermore, Justice Alito, joined by three other Justices, wrote in his concurrence that society s expectation has been that law enforcement agents and others would not and indeed, in the main, simply could not secretly monitor and catalogue every single movement of an individual[] for a very long period. Id. at 964. These comments show just how reasonable Ellis s expectation of privacy was that the government would not get his CSLI without a warrant to retrace and track his every movement. Lower courts have been split as to whether the Fourth Amendment protects CSLI, coming to different conclusions based on the factual nature of each case. Both the Third and Fifth Circuits have ruled that a warrant is not required to obtain CSLI, though their analysis can be distinguished given recent Supreme Court precedent. In re Application of the U.S. for an Order Directing Provider of Elec. Commc n Serv. to Disclose Records to the Gov t, 620 F.3d 304, 313 (3d Cir. 2010) [hereinafter Third Circuit CSLI Decision]; In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013) [hereinafter Fifth Circuit CSLI Decision]. 21

The Third Circuit based their conclusion that CSLI does not require a warrant on the false notion that CSLI cannot track a person in a constitutionally protected area such as the interior of a home. Third Circuit CSLI Decision, 620 F.3d at 313. However, this disregards the fact that the Fourth Amendment protects people, not places and that simply because they are outside of their home they are not afforded protection from invasion of their privacy. Katz, 389 U.S. at 351. Furthermore, this conclusion ignores the fact that technological advances allow CSLI to enter the home, as individual cell sites may now serve locations as small as the floor of a building or an individual home. Elliott, supra, at 7. Furthermore, most smart phones now have an imbedded GPS device that can pinpoint their location very accurately. Jones, 132 S. Ct. at 963 (Alito, J., concurring). The Fifth Circuit departed from the Third Circuit s analysis drawing the line at the interior of a home, and instead relied on the third party disclosure doctrine, finding that location information was needed for the service provider to route calls. Fifth Circuit CSLI Decision, 724 F.3d at 610 11. While the third party disclosure doctrine will be discussed in more detail below, both of these courts based their conclusions on assumptions that are not supported by the facts. As Ellis had a reasonable expectation of privacy, he should have been afforded the protections of the Fourth Amendment. The SDPD could have gotten a warrant if they could have met the probable cause standard, and thus would not have invaded into Ellis s reasonable expectation of privacy that the government would not track his every movement through his cell phone. 22

B. Cell Site Location Information is not subject to the third-party disclosure doctrine as Mr. Ellis did not voluntarily or knowingly transmit this information to his cell service provider. This court should also overturn the lower court s ruling that Ellis voluntarily disclosed his location via CSLI to the cell company, as his actions do not meet the test of knowingly or voluntarily disclosing this information. In order for this to be voluntary, Ellis had to know or at least should have known based on common knowledge that his every location was being transmitted back to the service provider, and this clearly is not the case. Due to the vastly different nature of CSLI compared with bank account information or a call log from a pen register, this court should take every effort to make sure a person is knowingly transmitting this data before determining it falls under the third party disclosure doctrine. The third-party disclosure doctrine exempts from the Fourth Amendment only information a person knowingly and willingly transmits to a third party. Katz, 389 U.S. at 351. This is based on the presumption that a person does not have a reasonable expectation of privacy in things they expose to the public and do not attempt to keep private. Id.; United States v. Miller, 425 U.S. 435, 442 (1976). Once information has been willingly revealed to a third party, the Government has full authority to obtain that information from the third party. Miller, 425 U.S. at 443. This exemption applies even if the person had assumed it would be kept in confidence. Id. The Supreme Court has held that the third party disclosure doctrine includes business records that are kept as a normal part of conducting an ongoing business with members of the public. Id. at 440. Two notable illustrations of the business 23

records exemption are records kept by a bank as well as phone numbers dialed from a particular phone. Id.; Smith, 442 U.S. at 742. However, as will be shown below, these illustrations can be distinguished from CSLI, which is vastly more intrusive and telling of a person s habits than either of the above. In Miller, the court held that bank account information is a business record, as any client of the bank will know that they must turn over private financial information to the bank in order for the bank to continue operating and to accurately keep track of an individual s account. 425 U.S. at 442. The court found that because Miller had consciously chosen to reveal his private financial information to the bank, he had waived his Fourth Amendment protections to that information. Id. Similarly, in Smith, the court found that by placing calls, any phone number a person dials becomes a business record outside of the Fourth Amendment s protections as the phone company cannot place a call without knowing what number an individual wants to dial. 447 U.S. at 742. Because the court considered this information public, they had no issues with the government installing a pen register to track the numbers being dialed, as they could it was public information and they could have gotten those numbers directly from the phone company. Id. at 744. In both of these situations, the business would be of no use to the individual without having the deposit amounts or phone numbers dialed, and therefore those clearly fall within the business records exception to the Fourth Amendment. However, this is not the case with CSLI, as the CSLI does not need to be recorded for the business to properly function. 24

The CSLI collected by a service provider is clearly not voluntarily given to the cell service company. Third Circuit CSLI Decision, 620 F.3d at 317. While most people know that they can use their phone to find their location, (R. at 9) most do not understand that this information is being conveyed when they are making a phone call. Elliott, supra, at 7. CSLI is created and recorded without the explicit knowledge or active cooperation of the phone user. Id. at 7 8. What is more worrying is that an investigator can create CSLI simply by calling a phone number that they are tracking and getting the CSLI later, or by working with the cell service provider to create carrier-initiated location information by pinging the phone. Id. at 31. This shows that because of the vast amounts of data captured, CSLI is anything but voluntary and therefore does not fall within the business records exemption to the Fourth Amendment. While the lower court has framed cell phone use as voluntary, the fact that cell phones are largely replacing landlines shows they are not voluntary to most people. Id. at 8. The lower court also tries to distinguish the GPS unit used in Jones from the CSLI in the present case by saying that Ellis could have chosen not to use his cell phone. (R. at 9). However, under that logic, the suspect in Jones also could have chosen not to drive his car, as both the suspect in Jones and Ellis likely had the same awareness that their location and movements were being tracked. While the lower court distinguishes that the suspect in Jones had no choice that his movements were being tracked, Ellis lacked free choice in having his movements tracked just the same. Id. 25

The Ninth Circuit below incorrectly assumes that CSLI is equivalent to dialing a phone number or placing deposits at a bank and is therefore a business record (R. at 9). The lower court assumes that Ellis either knew or should have known that the cell phone company was not just recording the numbers he called as in Smith, but also the location when using his phone. (R. at 9). It is this faulty assumption that led the Ninth Circuit to determine that CSLI was a part of business records and therefore exempt from the Fourth Amendment s protections. Furthermore, other courts have come to the opposite conclusion of the Ninth Circuit as to the voluntariness of CSLI disclosure. The Third Circuit explicitly stated that [a] cell phone customer has not voluntarily shared his location information with a cellular provider in any meaningful way. Third Circuit CSLI Decision, 620 F.3d at 317. The dissent in the Fifth Circuit case also believed that CSLI is not voluntarily given to a cell service provider. Fifth Circuit CSLI Decision, 724 F.3d at 623. The vast leap the Ninth Circuit takes from assuming people know their phone numbers are being recorded to comprehending that technology is in place to record a person s every movement shows that CSLI should be given much greater scrutiny than a other types of business records. The differences between the phone numbers of a pen registry or bank transactions and being able to reliably track a person s location both outside of their house as well as in their house is immensely significant. The Government argues that because people use cell phones that transmit their location to the third-party cell phone company, they can effectively have a GPS tracking device on every individual with a cell phone without a 26