842 F.3d 540 (7th Cir. 2016), 15-2443, United States v. Patrick

Docket Nº:15-2443
Citation:842 F.3d 540
Opinion Judge:Easterbrook, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAMIAN PATRICK, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: ridget J. Domaszek, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI; Nathan Paul Judish, Attorney, DEPARTMENT OF JUSTICE, Criminal Division, Washington, DC. For DAMIAN L. PATRICK, Defendant - Appellant: Christopher D. Donovan, Atto...
Judge Panel:Before WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges. WOOD, Chief Judge, dissenting. Wood, Chief Judge, dissenting.
Case Date:November 23, 2016
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
SUMMARY

Patrick, on parole, did not comply with the conditions of his release from state prison. A warrant issued for his arrest. Milwaukee police obtained a second warrant, which authorized them to locate Patrick using cell‐phone data. Police arrested him in a car, on a public street, in possession of a firearm. The Seventh Circuit affirmed denial of a motion to suppress evidence of the gun, rejecting... (see full summary)

 
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Page 540

842 F.3d 540 (7th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DAMIAN PATRICK, Defendant-Appellant

No. 15-2443

United States Court of Appeals, Seventh Circuit

November 23, 2016

Argued May 24, 2016

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13-CR-234 -- Rudolph T. Randa, Judge.

AFFIRMED.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: ridget J. Domaszek, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI; Nathan Paul Judish, Attorney, DEPARTMENT OF JUSTICE, Criminal Division, Washington, DC.

For DAMIAN L. PATRICK, Defendant - Appellant: Christopher D. Donovan, Attorney, PRUHS & DONOVAN, S.C. Milwaukee, WI.

For ELECTRONIC FRONTIER FOUNDATION, Amicus Curiae: Adam D. Schwartz, Attorney, ELECTRONIC FRONTIER FOUNDATION, San Francisco, CA.

For AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Amicus Curiae: Nathan Freed Wessler, Attorney, AMERICAN CIVIL LIBERTIES UNION, New York, NY.

For ACLU OF WISCONSIN FOUNDATION, INCORPORATED, Amicus Curiae: Laurence Jacques Dupuis, Attorney, AMERICAN CIVIL LIBERTY UNION OF WISCONSIN, Milwaukee, WI.

Before WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges. WOOD, Chief Judge, dissenting.

OPINION

Easterbrook, Circuit Judge.

Police in Wisconsin arrested Damian Patrick while he was in a car on a public street and found him armed. That led to this federal prosecution, because Patrick's criminal record made it unlawful for him to possess firearms. 18 U.S.C. § 922(g)(1). The district court denied his motion to keep the gun out of evidence. (E.D. Wis. Jan. 7, 2015), approving a magistrate judge's recommendation, (E.D. Wis. Sept. 30, 2014). Patrick pleaded guilty but reserved the opportunity to contest the validity of his arrest, and thus the validity of the gun's seizure. He now appeals from the 57-month sentence he received.

Patrick was serving a term of parole that followed his release from state prison. He did not comply with the conditions of his release, and a warrant was issued for his arrest. (He does not contest that warrant's validity.) In an effort to find Patrick, Milwaukee's police obtained a second warrant, which authorized them to locate Patrick using cell-phone data. Patrick's cell phone revealed his location, which enabled the police to find him.

Patrick attempts to undermine the validity of the location-tracking warrant by contending that his person was not contraband or the proceeds of a crime, and that it therefore was off limits to investigation. That sounds like an attempt to resurrect the " mere evidence" doctrine that the Supreme Court disapproved in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Hayden authorized the use of warrants to get evidence to locate a wanted person. See also Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (search warrant to enter house to look for person to arrest). Police were entitled to use a warrant to obtain data that would help them track down Patrick's location.

Indeed, they were entitled to arrest him without a warrant of any kind, let alone the two warrants they had. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), holds that probable cause alone is enough for an arrest in a public place. A warrant is necessary only when the police need to enter a private area to capture the wanted person. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Because Patrick was visible to the general public, he did not have any privacy interest in his location at the time.

More: the Supreme Court recently held that a valid arrest warrant precludes the suppression of evidence seized in an arrest, even if the arrest was set in motion by officers who had neither probable cause nor knowledge of the warrant. Utah v. Strieff, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016). Strieff tells us that, if the police had stopped Patrick's car for no reason at all and learned only later that he was a wanted man, the gun would have been admissible in evidence. The officers who nabbed Patrick, by contrast, had both probable cause to believe that he was a fugitive from justice and knowledge of the arrest warrant. The gun cannot be less admissible than in Strieff, even if we knock out the means used to track his location.

Because Patrick was arrested in a public place, and the arrest was supported by both probable cause and a valid arrest warrant that had been issued before any effort to learn his location (an effort that therefore could not " taint" the arrest in the parlance of the exclusionary rule), we need not resolve some difficult issues posed by a fact that came to light while the case was in this court. After Patrick filed his opening brief, the prosecutor revealed that Patrick's location had been pinned down using data from a cell-site simulator. That device (often called a Stingray, the trademark of one brand) pretends to be a cell-phone access point and, by emitting an especially strong signal, induces nearby cell phones to connect and reveal their direction relative to the device. Here is a description from the Department of Justice: Cell-site simulators...function by transmitting as a cell tower. In response to the signals emitted by the simulator, cellular devices in the proximity of the device identify the simulator as the most attractive cell tower in the area and thus transmit signals to the simulator that identify the device in the same way that they would with a networked tower.

A cell-site simulator receives and uses an industry standard unique identifying number assigned by a device manufacturer or cellular network provider. When used to locate a known cellular device, a cell-site simulator initially receives the unique identifying number from multiple devices in the vicinity of the simulator. Once the cell-site simulator identifies the specific cellular device for which it is looking, it will obtain the signaling information relating only to that particular phone. When used to identify an unknown device, the cell-site simulator obtains signaling information from non-target devices in the target's vicinity for the limited purpose of distinguishing the target device.

By transmitting as a cell tower, cell-site simulators acquire the identifying information from cellular devices. This identifying information is limited, however. Cell-site simulators provide only the relative signal strength and general direction of a subject cellular telephone; they do not function as a GPS locator, as they do not obtain or download any location information from the device or its applications. Moreover, cell-site simulators used by the Department must be configured as pen registers, and may not be used to collect the contents of any communication, in accordance with 18 U.S.C. § 3127(3). This includes any data contained on the phone itself: the simulator does not remotely capture emails, texts, contact lists, images or any other data from the phone. In addition, Department cell-site simulators do not provide subscriber account information (for example, an account holder's name, address, or telephone number).

Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology (Sept. 3, 2015) at 2. See also the Wikipedia entry at ‹ en.wikipedia.org/wiki/Stingray_phone_tracker› .

If the Department's description is accurate (a question not explored in this litigation) law-enforcement officials get the same sort of information that a phone company could provide using its own facilities, and they get it in real time rather than waiting for the phone company to turn over data. But instead of collecting information on just one person, as the warrant in this proceeding entitled the police to learn Patrick's location, a cell-site simulator collects the relative location of everyone whose phone is induced to connect to the simulator--though it may discard that information before alerting officials to the presence of the sought-after person (just as the phone company, which has location data about all of its customers, would disclose only one person's location).

One potential question posed by use of a cell-site simulator would be whether it is a " search" at all, or instead is covered by Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). The former holds that a pen register is not a search because it reveals the making of a call, and the number called, but not the call's communicative content. The latter holds that the use of a beeper is not a search, because it reveals a suspect's location but nothing else. Recent decisions such as United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc), and United...

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