Jones v. United States, 15-CF-322.

• Decision Date: 21 September 2017
• Docket Number: No. 15-CF-322.,15-CF-322.
• Citation: 168 A.3d 703
• Parties: Prince JONES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

168 A.3d 703

Prince JONES, Appellant,
v.
UNITED STATES, Appellee.

No. 15-CF-322.

District of Columbia Court of Appeals.

Argued April 18, 2017
Decided September 21, 2017

Stefanie Schneider, Public Defender Service, with whom Samia Fam and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

Lauren R. Bates, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Jodi S. Lazarus, Assistant United States Attorneys, were on the brief, for appellee.

Nathan Freed Wessler, American Civil Liberties Union, with whom Arthur B. Spitzer and Scott Michelman, American Civil Liberties Union, and Jennifer Lynch, Electronic Frontier Foundation, were on the brief, for American Civil Liberties Union of the Nation's Capital and Electronic Frontier Foundation, amicus curiae, in support of appellant.

Before Thompson and Beckwith, Associate Judges, and Farrell, Senior Judge.

168 A.3d 707

Opinion by Associate Judge Beckwith for the court, except as to Part II.E.3.

Opinion by Senior Judge Farrell, concurring in part and concurring in the judgment, at page 725–26.

Dissenting opinion by Associate Judge Thompson, at page 728–29.

Beckwith, Associate Judge:

A jury found appellant Prince Jones guilty of various offenses arising out of two alleged incidents of sexual assault and robbery at knifepoint.¹ Mr. Jones appeals his convictions on the ground that much of the evidence offered against him at trial was the direct or indirect product of a warrantless—and thus, Mr. Jones argues, unlawful—search involving a cell-site simulator or "stingray."² Mr. Jones presented this Fourth Amendment claim to the trial court in a pretrial motion to suppress, but the trial court denied it under the inevitable-discovery doctrine³ and did not reach the question whether the government violated Mr. Jones's rights. We agree with Mr. Jones that the government violated the Fourth Amendment when it deployed the cell-site simulator against him without first obtaining a warrant based on probable cause. Further, we reverse the trial court's inevitable-discovery ruling and reject the government's argument (not resolved by the trial court) that the good-faith doctrine⁴ precludes applying the exclusionary rule in this case. Because the admission at trial of the evidence obtained as a result of the unlawful search was not harmless beyond a reasonable doubt, we reverse Mr. Jones's convictions.

I. Background

A. Investigation and Arrest of Mr. Jones

At the suppression hearing in this case, Detective Rachel Pulliam, a member of the Sexual Assault Unit of the Metropolitan Police Department (MPD), testified that she investigated a sexual assault that occurred around 12:30 a.m. on October 9, 2013, and another that occurred around 1:30 a.m. on October 11. The two sexual-assault complainants were women who had advertised escort services on the classified-advertising website Backpage. Detective Pulliam testified that on each occasion, the perpetrator⁵ contacted the complainant by telephone in response to an advertisement

168 A.3d 708

and arranged to pay the complainant for sexual services. According to Detective Pulliam, when each complainant arrived at the arranged meeting place, the perpetrator "forced [her] to perform oral sex on [him] at knifepoint" and robbed her of her cellphone and other property. Detective Pulliam testified that on one of the two occasions, the perpetrator also robbed the complainant's cousin, who had been waiting in a car outside the meeting location.

Detective Pulliam testified that in the morning following the second incident, she and her colleagues obtained telephone records for the sexual-assault complainants. The telephone records revealed a possible suspect: Both complainants had received calls from the same number during the relevant time periods. Detective Pulliam sought the assistance of the MPD's Technical Services Unit (TSU) to track the suspect's and the complainants' phones.

Sergeant Todd Perkins, a supervisor in the TSU, testified about his office's efforts to track the phones that morning. He testified that he and his team sought "subscriber information" for the suspect's number from the provider associated with that number but were unsuccessful—the cellphone "was just a generic prepaid" with "no subscriber information whatsoever." The TSU also sought and obtained information about the locations of the suspect's and complainants' cellphones from the relevant telecommunication providers.⁶ According to Sergeant Perkins, the TSU received updated location information from the providers every fifteen minutes. The information came in the form of geographic coordinates—latitude and longitude—with a "degree of uncertainty" specified in meters.

Sergeant Perkins testified that the real-time location information they received that morning had a high degree of uncertainty—"several hundred meter [s]"—indicating that the phones' GPS capabilities were inactive. He explained that "if it [had been] true GPS," his team would have been "getting two meter, three meter, five meter hits." Despite the lack of precision in the location information, Sergeant Perkins and his team were able to "tell that ... one of the [complainants'] phones and the [suspect's] phone were traveling in the same general direction ... as if they were together." The location information suggested that the two phones stopped in the general vicinity of the Minnesota Avenue Metro Station.

Based on this information, Sergeant Perkins and other TSU officers took a truck equipped with a cell-site simulator to the area of the Minnesota Avenue Metro station and used the device to track the suspect. Sergeant Perkins could not remember whether he and his team used the cell-site simulator to track the suspect's phone or the complainant's phone that they believed was traveling with it,⁷ but

168 A.3d 709

whichever signal they were tracking led them, at around 11:30 a.m., to a parked Saturn. Inside the Saturn were Mr. Jones and Mr. Jones's girlfriend, Nora Williams. The police arrested Mr. Jones and recovered evidence from Mr. Jones's person and his car and from Ms. Williams, including a folding knife and the complainants' and the suspect's cellphones. Mr. Jones also made an incriminating statement to the police. Ms. Williams later testified against Mr. Jones at trial.

B. Cell–Site Simulator

Sergeant Perkins testified at the suppression hearing about "how [the cell-site simulator they used] works," "based on the information that's publicly available." He explained that his team engages the cell-site simulator by programming into it a unique identifier—an MIN or IMSI number⁸ —associated with the target phone.⁹ The simulator then begins "listening for [the target] phone," which, as part of its normal operation, is "constantly transmitting to and receiving from a tower." The officers operating the cell-site simulator drive around and "as soon as [the simulator] comes across [the target phone's signal], it grabs it and it holds on to it." Once the cell-site simulator "grabs" the target phone, the simulator begins reporting "general location information and signal strength" that can be used to locate the target phone's exact location.¹⁰ Sergeant Perkins testified that once the cell-site simulator "grabs" the target phone, the target phone is prevented from communicating "with an actual ... tower."

Further information about the cell-site simulator was provided by Ben Levitan, an expert on "cellular telephone networks and systems" called by the defense.¹¹ According to Mr. Levitan, cell phones are "dumb devices" that "generally connect themselves to the strongest cell tower signal that they detect." Mr. Levitan explained that a cell-site simulator "act[s] as a portable cell tower," which, "when turned on or brought into an area, may appear to be a stronger signal and cause [a] phone[ ] to break its connection with the cell phone network and reattach itself to the newly found ... simulator."¹² Mr. Levitan testified

168 A.3d 710

that when the cellphone "attach[es]" itself to the cell-site simulator, it "identifies itself by phone number and various codes," including its IMSI number.¹³ Although Mr. Levitan had never used the type of cell-site simulator utilized by law enforcement, he testified that he had used similar devices working within the telecommunications industry and that the devices allow the user to determine the target phone's direction and distance relative to the simulator device.¹⁴ Moreover, because the cell-site simulator is not a true cell tower connected with the cellular network, any cellphone connected to the cell-site simulator will not be able to communicate with the network: "[Y]our call doesn't go through[,] period. Nothing happens."¹⁵

C. Trial Court's Ruling on the Motion To Suppress

In ruling on Mr. Jones's motion to suppress, the trial court did not decide whether the use of a cell-site simulator was a search within the meaning of the Fourth Amendment or...