In re Application

• Decision Date: 01 May 2013
• Docket Number: No. 13–MJ–242 GRB.,13–MJ–242 GRB.
• Citation: 977 F.Supp.2d 129
• Parties: In re SMARTPHONE GEOLOCATION DATA APPLICATION.
• Court: U.S. District Court — Eastern District of New York

977 F.Supp.2d 129

In re SMARTPHONE GEOLOCATION DATA APPLICATION.

No. 13–MJ–242 GRB.

United States District Court, E.D. New York.

May 1, 2013.

Loretta E. Lynch, United States Attorney by Allen Bode, AUSA, Central Islip, NY.

MEMORANDUM AND ORDER

GARY R. BROWN, United States Magistrate Judge:

The Government obtained an arrest warrant for a physician based on a showing that he had issued thousands of prescriptions for highly addictive controlled substances to addicts and drug dealers in exchange for cash, continuing these illegal and dangerous practices even after learningof a DEA investigation into his activities and surrender of his controlled substances registration. After the physician expressly refused to surrender or provide information about his whereabouts, the Government filed the instant application for prospective geolocation data relating to the cell phone believed to be used by the physician. After the Court granted this authorization, the Government used the cell site data to apprehend the defendant and, upon his capture, uncovered evidence reflecting defendant's effort to flee the country to avoid prosecution.

This Memorandum and Order memorializes the rationale for authorizing access to prospective geolocation data for the defendant's cellular phone in these circumstances. This determination rests on two grounds. First, the Court is authorized to issue a search warrant where, as here, the Government demonstrates probable cause to believe that the information sought will aid in the apprehension of an individual subject to an arrest warrant. Second, given the ubiquity and celebrity of geolocation technologies, an individual has no legitimate expectation of privacy in the prospective location of a cellular telephone where that individual has failed to protect his privacy by taking the simple expedient of powering it off. Thus, in these circumstances, the Government may seek a search warrant for prospective geolocation data or, in the alternative, may obtain an authorization order under the Electronic Communications Privacy Act.

BACKGROUND

The Arrest Warrant

On March 18, 2013, the United States Attorney presented an affidavit seeking the issuance of an arrest warrant for Gracia L. Mayard (“Dr. Mayard” or “defendant”), a medical doctor, for violation of 18 U.S.C. § 846. See Affidavit in Support of an Arrest Warrant, Docket Entry (“DE”) [1], United States v. Mayard, 13–MJ–238 (E.D.N.Y. Mar. 18, 2013) (“Arrest Affidavit”). That affidavit sets forth, in relevant part, the following facts:

Oxycodone is a highly-addictive medical painkiller, which can be misused to produce a heroin-like high. Id. ¶ 9. Dr. Mayard became the subject of a Drug Enforcement Administration (“DEA”) investigation triggered by his prescription of an unusually large number of oxycodone pills. Id. ¶ 10. On February 7, 2013, as part of this investigation, DEA agents attempted to contact Dr. Mayard at his home and office located in Cambria Heights, New York. Id. ¶ 11. After unsuccessfully attempting to conceal himself from the agents, Dr. Mayard led the agents into his “exam room,” a space that appeared both unused and ill-equipped to conduct medical examinations. Id. ¶¶ 12–13. Dr. Mayard reported to the agents that “I see 20 to 50 patients a day” in the office. Id. ¶ 14. When asked about his seemingly excessive prescription of oxycodone, Dr. Mayard advised that he “thought the limit was 10 prescriptions a day” but that ultimately “what happens to the oxycodone after I write the prescription is not my concern.” Id. He compared himself to “a person that sells guns [who] cannot control what happens after he sells a gun.” Id. Agents requested that Dr. Mayard voluntarily surrender his DEA registration to prescribe controlled substances, to which he agreed, though Dr. Mayard requested to post-date the form because he had already written 20 to 30 post-dated prescriptions through the month of February. Id. ¶ 15. The DEA denied the request, and Mayard surrendered his registration effective that day. Id.

Dr. Mayard maintained patient files consisting mainly of copies of driver's licenses and oxycodone prescriptions (including post-dated prescriptions), with little or no additional information about the purported patients, many of which were stored in the back seat of his car. Id. ¶ 19–20. In interviews, several of Dr. Mayard's patients indicated that they had never met him. Id. ¶¶ 21–23. One recipient obtained a prescription from an acquaintance to whom she paid $300 to fill the prescription at a pharmacy in Queens, New York. Id. ¶ 22. Another patient visited Dr. Mayard who, without performing an examination, wrote a prescription for 120 oxycodone pills in exchange for $150 in cash. Id. ¶ 25. After the initial meeting, at Dr. Mayard's instruction, that same patient provided the doctor with lists of names of his “family or friends,” and Dr. Mayard sold him prescriptions written in those names for $200–$300 each. Id.

A review of records revealed that from approximately 2009 through 2012, Dr. Mayard issued approximately 6,500 oxycodone prescriptions authorizing the dispensing of more than 700,000 pills. Id. ¶ 24. On March 13, 2013, more than a month after Dr. Mayard surrendered his DEA registration, a pharmacy in Suffolk County, New York alerted the DEA that a customer had presented a prescription for oxycodone signed by Dr. Mayard. Id. ¶¶ 26–29. Dr. Mayard confirmed by telephone that he had written the prescription. Id. ¶ 29. When confronted with the fact that he could not legally issue the prescription without a current DEA registration, Dr. Mayard advised the pharmacist to “give it back to the patient and I'll work it out with her.” Id.

Based on this information, the undersigned issued the warrant for Dr. Mayard's arrest.

The Application for Geolocation Data

On March 19, 2013, as part of its efforts to execute the arrest warrant, the Government made two contemporaneous applications regarding a cell phone used by Mayard. First, an Assistant U.S. Attorney, certifying that the information requested likely would be relevant to “an ongoing criminal investigation to apprehend [Dr.] Mayard,” sought an order authorizing the use of a pen register and trap and trace device under 18 U.S.C. §§ 3122 and 3123 in connection with the subject telephone. Second, the Government moved under Federal Rule of Criminal Procedure 41(c) and 18 U.S.C. § 2703(c)(1)(A) for authorization to obtain location data—specifically prospective cell-site data—concerning the same mobile telephone.

In support of the application for geolocation data, a DEA Task Force officer averred that efforts had been made to arrest Dr. Mayard at several locations, including his known residences and offices. Affidavit in Support of Application for a Search Warrant ¶ 5, DE [1] (“Search Affidavit”). Having failed to apprehend Dr. Mayard, officers called him at the subject telephone. Id. Dr. Mayard spoke with the officers who attempted to convince him to surrender. Dr. Mayard both refused to surrender or provide any information about his location. Id. Based on these facts, the Government contended that there was probable cause to believe that Dr. Mayard was using the subject telephone as part of an effort to flee from justice.¹Id. ¶ 3. As part of this application, the Government sought not only prospective geolocation data for a period of up to 30 days, but additionally requested an order directing the relevant telecommunications carrier to “initiate a signal to determine the location of the subject telephone” and that such signal be sent “unobtrusively.” Id. ¶ 8.

Because of the exigency of the situation, the undersigned granted both applications, issuing a short form order indicating a full opinion would follow. Order That There is Probable Cause, Mar. 19, 2013, DE [6].

The Arrest

The following day, using geolocation data garnered as a result of the authorization order, agents located Dr. Mayard in a car on a street in Queens. Application for Search Warrant ¶ 5, United States v. Items Contained Within One Black Nylon Swiss Gear Bag, No. 13–MJ–262 (E.D.N.Y. Mar. 22, 2013) (“Hill Affidavit”). That car was owned by an individual for whom the defendant had prescribed controlled substances in the past, and who was present at the time of his arrest. Id. ¶ 5; Arraignment Hr'g Tr. 12:16–23, DE [8] United States v. Mayard, No. 13–MJ238 (E.D.N.Y. Mar. 20, 2013) (“Bail Hearing”). Mayard was found in possession of the subject cellular phone—a Blackberry Curve Model number 9360—as well as two additional smartphones and an iPad mini. Tellingly, Dr. Mayard's car contained a number of items suggestive of flight—luggage, clothing, grocery bags containing food and a cooler. Hill Aff. ¶ 5. Dr. Mayard had in excess of $7,000 in cash and an expired passport on his person. Id. Tucked inside the passport, agents found a pair of passport-sized photographs depicting Dr. Mayard in the same clothing he wore at the time of his arrest. Id. That passport also contained a scrap of paper bearing the instruction to email an itinerary to a particular email address at the U.S. Department of State, which, according to Government counsel, constitutes part of the procedure for obtaining an expedited passport. Bail Hr'g Tr. 14:22–15:5. Inside his vehicle, agents also discovered shredded prescription forms. Hill Aff. ¶ 7.

Following a hearing, Dr. Mayard was held without bail pursuant to a permanent order of detention, predicated primarily on risk of flight and the danger to the community. Order of Detention, DE [6], United States v. Mayard, No. 13–MJ–238 (E.D.N.Y. Mar. 20, 2013).

DISCUSSION

Search Warrants to Aid in Apprehension of a Defendant

In its application, the Government demonstrated that agents were attempting to apprehend Dr. Mayard based upon the March 18 arrest warrant, that he was aware of the charges and had declined repeated invitations to surrender.² Furthermore, the Government demonstrated that the data...