On Writ of Certiorari to the Supreme Court of the United States

NO. 42-9001 IN THE 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 Supreme Court of the United States BRIEF FOR PETITIONER P1 Attorneys for Petitioner

QUESTIONS PRESENTED 1. The Posse Comitatus Act (PCA), 18 U.S.C.A. 1385, proscribes the use of the Army and Air Force in the execution of domestic laws. Through 10 U.S.C.A. 375, the PCA s proscription is effective for all armed services and every military member. When violated, courts may apply an exclusionary rule for the sole purpose of deterring future violations of the PCA. The first issue to be decided by this Court is whether the exclusionary rule was misapplied where its application did not serve to deter the violator and no proof was given to indicate a widespread problem existed on which to work an appreciable deterrence. 2. The evidence at issue in this case is records obtained from Respondent Ellis cell phone service provider pursuant to the Stored Communications Act (SCA), 18 U.S.C. 2703(c) and (d). The SCA allows the government to require a provider of electronic communications service... to disclose a record or other information pertaining to a subscriber or customer of such service (not including the contents of communications by obtaining a court order based on specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. 18 U.S.C. 2703(c), (d). The second issue to be decided by this Court is whether the provision of the SCA allowing the government to obtain cell site location data by a court order following the guidelines set forth in the statute violates the Fourth Amendment. i

TABLE OF CONTENTS Page(s) QUESTIONS PRESENTED... i TABLE OF AUTHORITIES... iii OPINIONS BELOW... 1 STATUTORY PROVISIONS INVOLVED... 1 STATEMENT OF THE CASE... 5 SUMMARY OF THE ARGUMENT... 7 ARGUMENT AND AUTHORITIES... 8 I. ALTHOUGH THE EXCLUSIONARY RULE IS APPLICABLE TO THE POSSE COMITATUS ACT, ITS USE HERE WOULD UNDERMINE AND DEGRADE ITS EFFICACY... 7 A. Application of the exclusionary rule requires a cost-benefit analysis... 8 B. The exclusionary rule operates the same when applied to the Posse Comitatus Act as when applied to the Fourth Amendment... 10 C. A single violation of the Posse Comitatus Act is insufficient reason to set a criminal free... 12 II. THE PROVISION OF THE SCA ALLOWING THE GOVERNMENT TO OBTAIN CELL SITE LOCATION DATA WITHOUT A WARRANT BASED UPON PROBABLE CAUSE DOES NOT VIOLATE THE FOURTH AMENDMENT BECAUSE OBTAINING THE DATA DOES NOT CONSTITUTE A SEARCH... 16 A. Ellis did not have a subjective expectation of privacy in his cell site location data... 17 ii

B. An expectation of privacy in cell site location data is not one that society would find reasonable... 18 CONCLUSION... 20 iii

TABLE OF AUTHORITIES Page(s) UNITED STATES SUPREME COURT CASES: United States v. Jones, 132 S.Ct. 945 (2012)... 17 Davis v. United States, 131 S.Ct. 2419 (2011)... 9, 11-13 Hudson v. Michigan, 547 U.S. 586 (2006)... 8-11 United States v. Leon, 468 U.S. 897 (1984)... 8-11 Smith v. Maryland, 442 U.S. 735 (1979)... 17-18 United States v. Miller, 425 U.S. 435 (1976)... 17 Katz v. United States, 389 U.S. 347 (1967)... 7-8, 16-20 UNITED STATES COURTS OF APPEALS CASES: United States v. Hitchcock, 286 F.3d 1064 (9th Cir. 2002)... 12, 13 United States v. Chon, 210 F.3d 990 (9th Cir. 2000)... 12 United States v. Khan, 35 F.3d 426 (9th Cir. 1994)... 15 United States v. Roberts, 779 F.2d 565 (9th Cir. 1986)... 7, 12, 13 United States v. Wolffs, 594 F.2d 77 (5th Cir. 1979)... 13 United States v. Walden, iv

490 F.2d 372 (4th Cir. 1974)... 7, 12, 13 FEDERAL STATUTES: 10 U.S.C.A. 375 (1989)... 7, 12 18 U.S.C.A. 1385 (1994)... 6, 7, 11 18 U.S.C.A. 2703(c) (2009)... 1-4 18 U.S.C.A. 2703(d) (2009)... 1-4 OTHER SOURCES: Department of Defense Directive, 5525.5 (Jan. 15, 1986)... 12 v

OPINIONS BELOW David Ellis moved at an evidentiary hearing to suppress message logs and cell site location data obtained by the government. The district court denied both of Ellis motions for suppression. On appeal to the United States Court of Appeals for the Ninth Circuit the court found that the district court erred in denying Ellis motion to suppress the message logs but was correct in denying the motion to suppress the cell site location data. (R. at 6, 8.) This Court the petition for writ of certiorari. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED This case involves the Posse Comitatus Act (PCA), 18 U.S.C.A. 1385: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be find under this title or imprisoned not more than two years or both. This case also involves 10 U.S.C.A. 375: The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law. 1

This case also involves the Stored Communications Act (SCA), 18 U.S.C. 2703(c) and (d): (c) Records concerning electronic communication service or remote computing service. (1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communication) only when the governmental entity (A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction; (B) obtains a court order for such disclosure under subsection (d) of this section; (C) has the consent of the subscriber or customer to such disclosure; (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title; or (E) seeks information under paragraph (2). (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the (A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; 2

(D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number), of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1). (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer. (d) Requirements for court order. A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communications, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider. Additionally, this case involves the Fourth Amendment, U.S. CONST. AMEND. IV.: 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 3

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. 4

STATEMENT OF THE CASE On February 13 th Respondent, David Ellis, and two others were arrested for robbing a 7-Eleven convenience store. (R. at 3.) Ellis was pulled over in a car because he and the other two occupants matched the descriptions provided by the store clerk at the 7-Eleven. Ellis was subsequently charged with several counts of Hobbes Act robbery in violation of 18 U.S.C. 1951(b)(1), (3), conspiracy, 18 U.S.C. 1951(a), knowing possession of a firearm in furtherance of a crime of violence, 18 U.S.C. 924(c)(1)(A)(ii) and (2), and attempted receipt of a firearm which has had the manufacturer s serial number removed, 18 U.S.C. 922(k). (R. at 3.) Chief Warrant Officer Tyrell of the United States Navy provided the message logs to the San Diego Police Department (SDPD). (R. at 3.) These message logs, in which the Respondent indicated his desire to rob a 7-Eleven convenience store, were the product of CWO Tyrell s independent investigation into online weapons trafficking. (R. at 2.) The SDPD used the message logs to obtain a search warrant for any computers within Ellis s residence. (R. at 3.) During the execution of the warrant, the SDPD discovered information on a computer found at the Respondent s home that conclusively tied the Respondent to the robberies. (R. at 3, 11.) Additionally, Detective Crane of the San Diego Police Department submitted a request for the AT&T service logs of Ellis cell phones, including the cell site location data of any calls made or received in the past 60 days. This request was made under the Stored Communications Act. The evidence that the officers found on the computers in Ellis home and the information that they were able to put 5

together about his whereabouts from the cell site location data that they received led to the charges. Ellis moved to suppress the message logs and the cell site location data. (R. at 3.) Ellis argued that Chief Warrant Officer Tyrell had obtained the message logs in violation of the Posse Comitatus Act, 18 U.S.C. 1385, which prohibits Army and Air Force military personnel from participating in civilian law enforcement activities. (R. at 3.) Ellis further argued that obtaining the cell site location data without a warrant violated his Fourth Amendment rights. The district court denied both of Ellis motions. Ellis appealed on two issues: (1) whether the exclusionary rule should apply to the... message 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. (R. at 3.) The United States Court of Appeals for the Ninth Circuit found that the district court erred in denying Ellis motion to suppress the message logs but that the district court was correct in denying Ellis motion to suppress the cell site location data. Petition for writ of certiorari was filed and granted by this Court, the questions being limited to whether the exclusionary rule applies to evidence obtained in violation of the Posse Comiatatus Act; and whether the provision of the Store Communications Act allowing the government to obtain cell site location data without a warrant based upon probable cause violates the Fourth Amendment. (R. at 1.) 6

SUMMARY OF THE ARGUMENT The exclsionary rule is a judicial tool created by this Court with the express purpose of deterring violations of the Fourth Amendment by the police. See Davis v. United States, 131 S.Ct. 2419 (2011). The Posse Comitatus Act proscribes and penalizes the Army and Air Force s participation in civilan law enforcement aactivies. 18 U.S.C.A. 1385; 10 U.S.C.A. 375. Through 10 U.S.C. 375, the force and effect of the Posse Comitatus Act applies to the Navy and Marine Corps. 10 U.S.C.A. 375. Although a violator of the Posse Comtatus Act may be fined and imprisoned, the act does not provide guidance on how to treat evidence obtained in violation of its proscription. See 18 U.S.C.A. 1385; United States v.walden, 490 F.2d 372, 376 (4th Cir. 1974). The court below adopted and applied the Fourth Amendment s exclusionary rule to address this gap. (R. at 6.) In the context of the Posse Comitatus Act, the exclusionary rules goal remains the same: deterrence. United States v. Roberts, 779 F.2d 565, 585 (9th Cir. 1986). The Posse Comitatus exclusionary rule operates just as the one on which it is based, requiring the careful cost-benefit analysis. Id. In a decision that does not serve to deter violations of the Posse Comitatus Act, the court below incorrectly analyzed the benefits and costs of applying the exclusionary rule, letting loose a dangerous criminal. In Katz v. United States, 389 U.S. 347 (1967), this Court established a twopart test to apply to cases involving the searching of electronic data. In order for an individual to be afforded Fourth Amendment protection they must have a subjective 7

expectation of privacy in the information being searched and that expectation must also be one that is found reasonable by society. Id. at 361. In this case, David Ellis did not satisfy either of the two parts of the Katz test and therefore his argument that the evidence obtained by the government should be suppressed fails. ARGUMENT AND AUTHORITIES I. ALTHOUGH THE EXCLUSIONARY RULE IS APPLICABLE TO THE POSSE COMITATUS ACT, ITS USE HERE WOULD UNDERMINE AND DEGRADE ITS EFFICACY. As Justice Scalia said in Hudson v. Michigan, suppressing evidence of guilt is a massive remedy. 547 U.S. 586, 599 (2006). As a remedy, it is not intended to, nor does it actually, cure the [violation] of the defendant s rights which he has already suffered. United States v. Leon, 468 U.S. 897, 917 (1984) (citing Stone v. Powell, 428 U.S. 465, 540 (1976)) (WHITE, J., dissenting). Instead, its purpose is deterrence, seeking ultimately to alter the behavior of individual law enforcement officers or the policies of their departments. Id. at 917. This is not a kitchen sink approach, as even the emphasis on deterrence does not command the application of anything that could deter future violations. See Id. at 910 (citing Alderman v. United States, 394 U.S. 165, 174 (1969)). The benefits of deterrence must be weighed against the social costs, and the exclusion applied only where the deterrent effect outweigh[es the] substantial social costs of exclusion. Id. at 909. Put another 8

way, the exclusion is only warranted where it results in appreciable deterrence. Id. (quoting United States v. Janis, 428 U.S. 433, 454 (1976)). A. Application of the exclusionary rule requires a cost-benefit analysis. To exclude evidence, this Court requires a cost-benefit analysis that focuses on the flagrancy of the... misconduct. Id. at 911. Where the misconduct exhibits deliberate, reckless, or grossly negligent disregard of the Fourth Amendment, the benefits of deterrence overtake its costs. Id. at 909 (1984) (quoting Herring v. United States, 555 U.S. 135, 144 (2009)) (internal quotation marks omitted). But, the deterrence rationale is overcome where the conduct is merely simple, nonrecurring, isolated negligence. Id. There are no universal benefits of exclusion. See Davis v. United States, 131 S.Ct. 2419, 2427 (2011). In Davis, this Court explained that the deterrence benefits of exclusion vary with the culpability of the.... conduct at issue. Leon, 468 U.S. at 909 (quoting Herring v. United States, 555 U.S. 135, 143 (2009)) (internal quotations omitted). Further, [t]he value of deterrence depends upon the strength of the incentive to commit the forbidden act. Hudson, 547 U.S. at 596. In Hudson, this Court weighed the benefit of excluding evidence found subsequent to the sudden entrance into a person s home. Id. at 595. The problem, from Hudson s point of view, was the short amount of time between the police announcing their presence and their entrance. Id. at 588. Although the police s entrance was based on a valid warrant, it violated the knock-and-announce rule, a rule which allows residents an opportunity to open the door. Id. at 589. Given the police had a valid warrant, 9

police culpability was low; and as the incentive to perpetrate hasty knock-andannounces entrances is also low (given the many other ways in which police could gain unannounced entrance to a home), Hudson determined there would be no appreciable deterrence were the Court to exclude the evidence, and declined to apply the exclusionary rule. Deterrence is not a benefit where the violative actions were made in good faith. Even where the violation appears flagrant, the evidence will not be excluded where obtained in good faith. See Id. at 612 (BREYER, J., dissenting). For example, in Leon, with a facially valid search warrant in hand, police searched the homes and vehicles of several people suspected of drug trafficking. Leon, 468 U.S. at 902. It so happened the warrant was invalid because the affidavit from which the warrant drew contained stale information the source of which was unreliable. Id. at 904. Reasoning that the police could not be asked to locate an error where a magistrate could not, this Court held that the police s actions were shielded by their good faith reliance on the magistrate s warrant. Id. at 926. Because the mistake was the magistrate s, and the officers acted in good faith, excluding the evidence was inappropriate as it would only frustrate and confuse police, not deter the execution of defective warrants. The costs, however, may be of even greater importance. In Leon, this Court noted that excluding evidence obtained in violation of the Fourth Amendment impedes the truth-finding functions of the judge and jury, potentially setting free or greatly reducing the sentences of guilty defendants. Id. at 917 (citing United 10

States v. Payner, 447 U.S. 727, 734 (1980)). Meaning, excluding evidence could come at a high cost to both truth and public safety. Davis, 131 S.Ct. at 2423. Additionally, Leon warned that constant use of the exclusionary rule could generat[e] disrespect for the law and administration of justice. Leon, 468 U.S. at 904 (quoting Stone v. Powell, 428 U.S. 465, 490 (1976)). Leon understood that the large quantities of drugs, and the people who would spread them across the United States, at issue in that case were an element the public at large would not want free to roam about. See Id. at 907. The decision in Leon was as much about not penalizing police for the mistakes in the execution of their duties as it was about ensuring the punishment for those whose work threatens society. See Id. at 907. Recognition of these substantial costs precipitated the maxim, [s]uppression of evidence... has always been our last resort, not our first impulse. Hudson, 547 U.S. at 591 n.4. B. The exclusionary rule operates the same when applied to the Posse Comitatus Act as when applied to the Fourth Amendment. The Posse Comitatus Act (PCA), 18 U.S.C.A. 1385, is not the Fourth Amendment. However, like the Fourth Amendment, the PCA, and PCA-like regulations, seek to protect Americans from the state. See 18 U.S.C.A. 1385 (West); 10 U.S.C.A. 375 (West); DoDD 5525.5; and United States v. Walden, 490 F.2d 372, 375 (4th Cir. 1974) (quoting 7 Cong.Rec. 3849) (statement of Congressman Knott) ( But this amendment is designed to put a stop to the practice, which has become fearfully common of military officers of every grade answering the call of 11

every marshal and deputy marshal to aid in the enforcement of the laws. ). And just as unaddressed violations of the Fourth Amendment leave the citizenry exposed to unwarranted searches and seizures of their homes and possessions, Davis, 131 S.Ct. at 2426, violations of the PCA and its attendant regulations subject civilians to [the] use [of] military power that is regulatory, prescriptive, or compulsory. U.S. v. Hitchcock, 286 F.3d 1064, 1069 (9th Cir. 2002) (quoting DoDD 5525.5). Similarly related are the consequences of the application of their respective exclusionary rules. Where the exclusion of evidence obtained in violation of the Fourth Amendment would set the criminal loose in the community without punishment, Davis, 131 S.Ct. at 2427, so too would the exclusion of evidence gained by violations of the PCA and PCA-like regulations. United States v. Roberts, 779 F.2d 565, 568 (1986). It is doubly insulting that to see the exemplary work of our men and women in uniform disregarded, and thieves, thugs, drug traffickers, and arms dealers go free because evidence was excluded without proof that doing so would appreciably deter the conduct. See United States v. Chon, 210 F.3d 990 (2000) (vehicle thieves); Roberts, 779 F.2d at 565 (drug traffickers); and Walden, 490 F.2d at 372 (arms dealer). Like the Fourth Amendment, the PCA is silent on how to treat evidence obtained in violation of its proscription. Davis, 131 S.Ct. at 2426; Walden, 490 F.2d at 376. So, following this Court s path, several circuit courts have adopted an exclusionary rule. Walden, 490 F.2d at 377; United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979); and Roberts, 779 F.2d at 568. The application of the PCA 12

exclusionary rule tracks that of the Fourth Amendment exclusionary rule. For example, the PCA exclusionary rule requires a demonstrated need to deter future violations of the PCA. Wolffs, 594 F.2d at 85. Also, the need must be proven; for example, the Fourth, Fifth, and Ninth Circuits look for a record of widespread and repeated violations. See Walden, 490 F.2d at 377 (4th Cir. 1974); Wolffs, 594 F.2d at 85; and Roberts, 779 F.2d at 568. Additionally, the PCA exclusionary rule requires a cost-benefit analysis whereby the benefits of deterrence are weighed against the costs to society. Roberts, 779 F.2d at 568. And, just like the Fourth Amendment exclusionary rule, there is a good faith exception that prevents a criminal from walking free due to the honest blunders of service members. Id. Lastly, the PCA exclusionary rule also asks courts to consider more appropriate remedies, those better aimed at deterring the conduct proscribed by the PCA. See Hitchcock, 286 F.3d at 1070 (the Uniform Code of Military Justice (UCMJ) allows a commander to take such actions as to maintain law and order on a military installation or facility, presumably including punishing disruptive members of the military). C. A single violation of the Posse Comitatus Act is insufficient reason to set a criminal free. By all accounts, Navy Chief Warrant Officer Tyrell was a maverick. Although his mission was to monitor the Silk Road, a seedy online commerce site known for its anonymity and its access to all manner of illegal items, he was acting independently when he involved himself in the investigation of several armed robberies. (R. at 2, 3.) It is clear that he abused his access to military resources 13

pursuing what was most likely a personal interest. (R. at 3.) Nothing in the record reflects that his actions were directed or approved by his superiors. The record, however, paints the picture of a man willing to bend and break rules to pursue the object of his interest, despite the knowledge that such pursuit is in contrary to his employment. (R. at 2, 3.) There is no doubt that CWO Tyrell s actions flagrantly violated the PCA and its attendant regulations, however, excluding evidence will not deter similar actions. Why? Because there is no proof that these actions are pervasive, and if they are not, exclusion in this case serves less to deter than to prospectively punish unknowing actors. Justice Shock suggests in his dissent below, that there must be more to demonstrate widespread and repeated violations of the PCA something much more indicative of a systemic problem than a few Naval Officers conducting investigations to warrant the application of the exclusionary rule. (R. at 11.) CWO Tyrell did not act in good faith during his investigation in the robberies. CWO Tyrell s mission was to investigat[e] online weapon trafficking. (R. at 2.) Perhaps at the beginning of his investigation, when he first came across user 0nion_Kn1ght, CWO Tyrell suspected he was a tracking a service member or that the weapons being trafficked were service issued. This would comport with the limited number of reasons for which a service member may participate in civilian law enforcement activities. 10 U.S.C.A. 375 (service members may directly assist civilian authorities if authorized); United States v. Khan, 35 F.3d 426, 431 (9th Cir. 1994) (service members may indirectly assist civlian authorities if their actions pass 14

three discrete tests). But the moment CWO Tyrell discovered the user was not affiliated with the military, he should have known to stop. (R. at 3.) Instead, he continued his pursuit of user 0nion_Kn1ght, who he then knew to be the Respondent. (R. at 3.) His knowledge, and his actions thereupon, strip him of the shield of good faith and jeopardizing the use of the valuable information he provided to the police. The costs of excluding the evidence CWO Tyrell provided to the San Diego Police Department far outweigh the benefits. Despite CWO Tyrell s flagrant actions, made without good faith, the toll of excluding evidence place society at risk. The Respondent, David Ellis, and two other individuals, robbed three convenience stores at gunpoint. (R. at 3.) The Respondent was convicted of several counts of Hobbes Act robbery, conspiracy, and knowing possession of a firearm in furtherance of a crime of violence. (R. at 11.) Judge Shock suggests that the evidence CWO Tyrell provided was so critical to the prosecution of the Respondent that without it, the Respondent would not have been convicted. (R. at 11.) Excluding the evidence may result in the release of the Respondent, undermining the public s confidence in the judiciary and placing his community at risk. Excluding evidence is not the most appropriate punishment. We can be sure that CWO Tyrell will be punished for abusing his access to secure databases, misuse of Naval resources, and perhaps even insubordination. The UCMJ is a powerful tool for establishing and maintaining order and discipline on military facilities. By acting outside the scope of his mission, CWO Tyrell s threatened that 15

order; assuredly, he will be punished in a manner tailored to his actions and specific to his status as a military member. In this situation, excluding the evidence he obtained would be less effective in deterring other service members from repeating his mistakes than would the punishment exacted by the military. Accordingly, excluding the evidence obtained and disseminated by a lone actor who violated the PCA and PCA-like regulations will not deter others from doing the same, it is an ill-fitted punishment for the CWO Tyrell, an unwarranted sanction upon the Navy, and it would work a miracle for David Ellis, the man who strolled into three convenience stores and at gunpoint took them for every penny they had. II. THE PROVISION OF THE SCA ALLOWING THE GOVERNMENT TO OBTAIN CELL SITE LOCATION DATA WITHOUT A WARRANT BASED UPON PROBABLE CAUSE DOES NOT VIOLATE THE FOURTH AMENDMENT BECAUSE OBTAINING THE DATA DOES NOT CONSTITUTE A SEARCH. The Fourth Amendment provides that [t]he right of the people to be secure... 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 person or things to be seized. U.S. Const. amend. IV. This Court should uphold the Ninth Circuit s decision because in order for there to be Fourth Amendment protection the obtaining of the data must constitute a search, and in this case it does not. This Court set forth a very clear test in Katz v. United States, 389 U.S. 347 (1967), which 16

was clarified in United States v. Jones, 132 S.Ct. 945 (2012) for being applied to situations involving merely the transmission of electronic signals without trespass... Id. at 953. In Katz, Justice Harlan set forth in his concurrence a two-step test to determine whether a government action constituted a search. First, the individual must have a subjective expectation of privacy; and second, that expectation of privacy must be one that society finds reasonable. Katz at 361. Not only did Ellis not have a subjective expectation of privacy in his cell site location data, any expectation that he may have had is not one that society would find reasonable. Because Ellis does not satisfy either prong of the test that this Court has provided in Katz, and recently upheld in Jones for cases involving electronic data, his argument fails and this Court should uphold the decision of the Ninth Circuit. A. Ellis did not have a subjective expectation of privacy in his cell site location data. An individual cannot have a subjective expectation of privacy in information that he has revealed to a third-party. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party... even if the information is revealed on the assumption that it will be used only for a limited purpose... U.S. v. Miller, 425 U.S. 435 at 443 (1976). When an individual provides information to the public or to a third party, he can no longer have an expectation that the information is private. In Smith v. Maryland, 442 U.S. 735 (1979), this Court applied the Katz twopart test to a case in which the government had obtained the phone numbers dialed 17

by the petitioner by using a pen register. In applying the test, this Court found that although the petitioner may have meant to keep what was actually said in his conversation private, he had not meant to keep the numbers he had dialed private. Smith is almost identical to this case in that even if Ellis meant to keep his conversations private, he did not mean to keep his location private. He chose to use his mobile phone to make phone calls, and in order for those phone calls to be connected they must be routed through cell towers. It is unreasonable to think that Ellis did not know that the information from his phone was being transmitted to a cell phone tower in order to connect his phone calls. In this case Ellis voluntarily provided his cell site information to his cell phone provider when he used his phone. Once he did so, he no longer had an expectation of privacy in the information, and cannot argue that he subjectively believed that the information being transmitted by his phone was not being shared with his mobile phone company. There is no logical or subjective way for Ellis to have meant to keep his location private when he used a mobile phone to make his calls. Because it is necessary for an individual to actually have a subjective expectation of privacy in the information gathered by the government, Ellis argument fails the first prong of this Court s Katz test. However, even if this Court finds that Ellis did have a subjective expectation of privacy, his argument fails the second prong of the test because it is an expectation that society would not find reasonable. B. An expectation of privacy in cell site location data is not one that society would find reasonable. 18

In order for an expectation of privacy to pass the second prong of the Katz it must be an expectation that society would find reasonable. An expectation that society would find reasonable is one that most of society would also have. As the court below explained, Ellis did not have a reasonable expectation of privacy in the information he voluntarily turned over to a third party. (R. at 9.) Ellis argues that he did not know that cell site location data was being recorded, however this is not a distinction that matters in this case when considering whether his argument passes the second prong of the Katz test. (R. at 9.) The Ninth Circuit explains, and this Court will surely agree, that it is general public knowledge that that our cell phones are transmitting our location to the world. Everyone with a smart phone knows that many of the applications that they download ask them if they would like the application to use their location data. Additionally, the general public knows that in order for their phone to make a call it must connect to a cell phone tower that is close to them. The general public knows this because they have likely experienced the inability to make a call because they are out of range of a tower or are too far inside a building to connect with a tower. It is ludicrous to assert, as Ellis does, that people do not know that there phone is connecting with these cell phone towers to make calls and use data. The general public has knowledge that their mobile phones are transmitting their location information to their carriers and it is therefore not private information. Even if Ellis himself does not have the basic understanding of the way cell phones work, society does and would not find the belief justified a reasonable 19

expectation of privacy. This Court has held that an individual cannot have a reasonable expectation of privacy if it is an expectation that society would not find reasonable, and therefore this Court should uphold the decision of the Ninth Circuit that Ellis argument fails the second prong of the Katz test and the cell site location data in question is not entitled to Fourth Amendment protection. CONCLUSION The exclusionary rule is a massive and extraordinary remedy. Much like one s Sunday best, it cannot be used too often otherwise it loses its luster. Using it here will not deter violations of the Posse Comitatus Act so much as it will endanger society. In the interest of justice, the Petitioner respectfully requests this Court reverse the United States Court of Appeals for the Ninth Circuit on the issue of the exclusionary rule. The Fourth Amendment protects individuals from unlawful searches and this Court has provided a test for determining whether the Fourth Amendment should apply to electronic information that is obtained by the government. Applying this Court s Katz test to this case makes it clear that that the Respondent s argument did not pass either prong. Because of this, the Petitioner respectfully requests this Court uphold the United States Court of Appeals for the Ninth Circuit on the issue of the Fourth Amendment applying to the SCA. Respectfully submitted, /s/ P1 20

21 P1 Attorneys for Petitioner