State v. Mosley
| Decision Date | 30 August 2019 |
| Docket Number | P1/16-2491 AG |
| Parties | STATE OF RHODE ISLAND v. THOMAS MOSLEY |
| Court | Rhode Island Superior Court |
DECISION
Defendant Thomas Mosley has moved to suppress evidence of mobile device location systems which detectives utilized to track his cell phone to an alleged murder scene. He has also moved to disallow testimony of the State's digital forensic expert and to exclude Google's cell phone data, contending that it does not conform to the business records hearsay exception.
This Court considered those motions in the context of a so-called Daubert hearing during the week of July 22, 2019. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). At the conclusion of those proceedings, the Court deferred its rulings pending preparation of a transcript of the hearing and receipt of supplemental briefs from the parties, which were delivered to the Court on August 9, 2019. After a careful review of them, together with other relevant material and authorities, the Court determined that the defendant's motions should be denied. On August 22, 2019, the Court issued a preliminary Order alerting the parties of its conclusions so that they would have sufficient time to secure their witnesses for the September 25, 2019 trial.
In that August 22, 2019 Order, the Court also assured the parties that this Court's written expatiation would follow. The within Decision fulfills that commitment.
For the reasons set forth herein, the defendant's motions are denied.
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Yusef A'Vant was shot to death in an East Providence barber shop on August 13, 2014. In the course of the investigation, the police identified Mosley's cell phone, and after studying location data released by Google in response to search warrants, detectives traced Mosley's cell phone to the barbershop at the time of the shooting. Mosley was subsequently indicted on August 26, 2016. The indictment charges him, along with codefendant Evan Watson, with murdering A'Vant, conspiring with Watson to commit that murder and committing two ancillary firearm felonies. It also charges him with three counts of obstruction of justice, which he allegedly committed during the following summer.1 Watson has pled guilty to some of those charges and is expected to testify for the prosecution at the September 25, 2019 trial.2
Key to the State's proximity proof in this case is the testimony of Det. Theodore Michael, a digital forensic expert, who is expected to explain the three principal methods of tracking and locating cell phones and mobile devices: (1) the global positioning system (GPS), which generally relies upon satellite signals, (2) cell-site location analysis, using results from cell tower triangulation, and (3) the newer Wi-Fi technique, which can determine the location of a cell phone by using signals from known access points, such as residential and commercial routers.
The defendant questions the reliability of those modalities and contends that Det. Michael's testimony, particularly with respect to the Wi-Fi system and the underlying Google data, should be disallowed. The Court disagrees.
The United States Supreme Court recently studied a cell phone user's Fourth Amendment privacy interests in his location history which had been automatically collected and preserved by his wireless carrier (Sprint), most likely without his knowledge, as it traced his every step and his whereabouts as he carried his cell phone in his pocket. Carpenter v. United States, 585 U.S. ___, 138 S. Ct. 2206 (2018). Suspecting that Mr. Carpenter had committed some criminal offenses, the Government obtained court orders, not fully supported by probable cause, and retrieved from Sprint its aggregation of Carpenter's cell-site location information spanning several previous months.
Leading up to the majority's opinion (5-4) that a court-authorized search warrant based upon probable cause should have been obtained to acquire that information, the Chief Justice offered an extended and rather disquieting assessment—essentially a reality check—of what he termed the "seismic shifts in digital technology" Id., passim, at 2211-20. It is the view, here, that some of his perusals are worth a bit of reflection.
He noted that in a nation embracing 326 million people, there are 396 million cell phone accounts, whose users generate "vast amounts of increasingly precise" histories of their locations. That data, which is collected by the carriers for their own commercial purposes, is "detailed, encyclopedic, and effortlessly compiled." And, the cell phone tracking technique "achieves nearperfect surveillance, as if it had attached an ankle monitor to the phone's user" and assembled "a chronicle of a person's physical presence compiled every day, every moment, over several years."
"Unlike the nosy neighbor who keeps an eye on comings and goings, [the wireless carriers] are ever alert, and their memory is nearly infallible [as they amass] an exhaustive chronicle of location information . . . Only the few without cell phones could escape this tireless and absolute surveillance . . . Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data."
GPS is a proven Government methodology which relies on satellites for positioning, navigation and timing. GPS receiver equipment is present in a motor vehicle's navigation systems and typically included in modern mobile devices ("smart phones"). A cell phone exchanges signals with satellites, and the transmitted information is used to identify the user's location. It is generally a reliable location method so long as the user's locale is not occluded by mountains, buildings and other solid structures, or by dense forestry and various atmospheric conditions. GPS efficiency is also vulnerable to intentional tampering (e.g., signal jamming) by third parties. See generally Kolesk, Note, At the Intersection of Fourth and Sixth: GPS Evidence and the Constitutional Rights of Criminal Defendants, 90 S. Cal. L. Rev. 1299 (2017); Buchok, Note, Plotting a Course for GPS Evidence, 28 Quinnipiac L. Rev. 1019 (2010).
The cell-site location process is also well recognized. Smart phones connect to "cell sites," which essentially are radio antennas, typically mounted on towers, as well as on light posts, flag poles, and sides of buildings. Most modern phones tap into the wireless network several times a minute whenever their signal is on, whether or not the user knows it and regardless of whether heor she is even using one of the phone's features. Each time the phone connects to a cell site, it generates time-stamped location information. See Carpenter at 2211-12. Fishman & McKenna, Wiretapping and Eavesdropping: Surveillance in the Internet Age (3d ed. 2009), further explain:
Id. § 28:2 p. 28-6 to 28-7 (footnotes omitted).
The cell phone's location can usually be located within a defined area, but not necessarily pegged with precision. See Adams, 161 A.3d at 1194-96 (). Location accuracy generally depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites (as in urban areas), the more compact (and better) is the coverage area.
From both the Android and, in some respects, the Apple systems, Google collects Wi-Fi positioning data. This methodology relies on Wi-Fi signals to determine the distance between the cell phone and a signal "access point," which is a device such as a router in an office or in a home, which creates a wireless local area network by projecting a Wi-Fi signal within a designated area. Collected in Google's storehouse are Wi-Fi "scans," which identify the Wi-Fi access points (the routers) which the cell phone "sees" at a certain time and location. In order for a cell phone to associate with or "see" that router, the phone needs to be fairly close to it, generally no more than 150 feet (50 yards) away.
Google stockpiles an endless list of the locations and the strength of untold numbers of routers and other access points. Because a cell phone's proximity to a router is much closer than itis to distant tower cell sites, the Wi-Fi system generates keener location accuracy than either the cell-site or GPS location methods. And, the more access points that Google can identify, the greater the accuracy becomes in pinpointing a cell phone's location because of the cell phone's close proximity to those access points. See Skyhook Wireless, Inc. v. Google, Inc., 159 F. Supp. 3d 144, 163-64 (D. Mass. 2015).
Because of its accuracy, the Wi-Fi mode has become the favored cell phone tracking method of law enforcement. By specifying an area and a time period, Google can, from its enormous data cache, gather information about the cell phones which were in the area of interest to the police. It labels them with anonymous identification numbers, and detectives then review the locations and movement patterns to see if any appear relevant to their investigation. After they narrow the field to a few cell phones which they suspect belong to suspects or witnesses, Google, in response to additional search warrant(s), divulges the subscribers' names and other relevant information.
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The defendant's initial Daubert motion was not limited to the Wi-Fi method....
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