State v. Sylvestre

• Decision Date: 05 September 2018
• Docket Number: No. 4D17-2116,4D17-2116
• Citation: 254 So.3d 986
• Parties: STATE of Florida, Appellant, v. Quinton Redell SYLVESTRE, Appellee.
• Court: Florida District Court of Appeals

254 So.3d 986

STATE of Florida, Appellant,

v.Quinton Redell SYLVESTRE, Appellee.

No. 4D17-2116

District Court of Appeal of Florida, Fourth District.

[September 5, 2018]

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellant.

Peter Grable, Palm Beach Gardens, for appellee.

Kuntz, J.

The State applied for a search warrant based on information obtained from historical cell-site location information ("CSLI") and a cell-site simulator. After the Defendant moved to suppress evidence found during the search, the circuit court found probable cause existed to support the CSLI order. But the court suppressed evidence discovered through the State's warrantless use of the cell-site simulator.

The State appeals the court's order suppressing the search, and the Defendant cross-appeals the court's finding that the CSLI order was supported by probable cause. We affirm.

Background

The State charged the Defendant and two co-defendants with first-degree murder with a firearm while wearing a mask and six counts of robbery with a firearm while wearing a mask, arising from the robbery of a Boca Raton restaurant.

As part of its investigation, the State sought an order requiring the Defendant's cell phone service provider to disclose real-time CSLI for what it believed was the Defendant's cell phone number. A judge signed the "CSLI Order," which required the service provider to disclose "all cell-site activations and sectors for all incoming and outgoing calls/communications ... call detail location records, ‘angle from the tower’ data, including contemporaneous (real-time) with these communications, and historical calls/communications detail records."

The judge also signed an order requiring the service provider to install a pen register and trap and trace device on the Defendant's phone and transmit the information collected to the Broward Sheriff's Office (the "Trap and Trace Order").

Later, the State applied for a search warrant of a Fort Lauderdale residence. The affidavit filed in support of the warrant stated that "[m]obile tracking was activated on [the Defendant's] cell phone pursuant to a lawful court order" and that the Defendant's phone was "placed specifically" at the residence and had been "stationary overnight within this residence for several concurrent nights." The search warrant was granted.

Detectives searched the residence and found a black backpack containing three firearms, a mask, ammunition, and a stun gun. The State tracked the location of the Defendant's cell phone and arrested him while he was driving into Palm Beach County.

After the Defendant's arrest, he moved to suppress all evidence recovered from the search of the residence. He argued that the CSLI Order was unsupported by probable cause, as required by Tracey v. State , 152 So.3d 504 (Fla. 2014). He also argued that the State exceeded the scope of the CSLI Order by using a "cell-site simulator" to pinpoint his cell phone inside the residence.

At an evidentiary hearing, the court admitted transcripts of depositions, including that of a Broward Sheriff's Office sergeant. A defense witness described by the circuit court as a telecommunications expert also testified.

The sergeant testified that "at the time" the service provider "didn't provide GPS location information. It only provided tower information." With that information, the State located the cell phone to within only a general area, which the sergeant agreed could encompass several square blocks. So he pinpointed the Defendant's phone at the residence "with the use of a cell-site simulator."

Similarly, the Defendant's expert testified that "there is not a technical capability in a pen register to give you a specific location, only the connection, which cell tower to which you were connected." In the words of the circuit court, the expert explained "that, at best, the CSLI Order could provide general location information, which would only be accurate for several square blocks of a particular area." Only a cell-site simulator could provide the State the exact location of the Defendant's cell phone.¹

The court found that the CSLI Order was supported by probable cause. But it suppressed evidence obtained as a result of the warrantless use of the cell-site simulator. The State appealed the court's order suppressing the search of the residence. In a cross-appeal, the Defendant challenges the court's conclusion that the CSLI Order was supported by probable cause.

The Defendant's Cross-Appeal

We first address the Defendant's cross-appeal. Generally, in a criminal case, we lack jurisdiction to consider a defendant's appeal of a non-final order. But we do have jurisdiction to consider a defendant's cross-appeal when the issue relates to the issue raised in the state's appeal. See Fla. R. App. P. 9.140(b)(4) (2017). Thus, here, we have jurisdiction.

The Defendant argues that the CSLI Order was unsupported by probable cause because the affidavit did not establish that the cell phone's location would lead to evidence related to the restaurant robbery. He also argues that the statutes the State relied on when applying for the order do not require probable cause. See §§ 934.23, .42, Fla. Stat. (2012).

We affirm the circuit court's ruling that the CSLI Order was supported by probable cause. In the application for the order, the detective alleged that the Defendant was one of three men in surveillance video footage from the robbery. The application also alleged that a watch dealer identified the Defendant as the seller of a ladies' watch taken during the robbery. These facts, and others, were enough to establish probable cause.

We also address the Defendant's argument that the CSLI Order is insufficient because it was not a warrant. Relying on section 934.42, Florida Statutes (2012), the Defendant argues that "not only does subsection (4) not require a probable cause determination by the Magistrate, but specifically states that it may not require ‘greater specificity or additional information beyond which is required by this section.’ " So, according to the Defendant, the circuit court could not find probable cause in support of the CSLI Order because the statute authorizing the CSLI Order does not require probable cause. "By strict statutory construction," he argues, "everything contained in the fact section [of the affidavit] was superfluous."

We agree that the statute prevents a court from imposing a stricter standard when reviewing an application for a CSLI Order. But the statute does not prevent a court from making additional findings to support a showing of probable cause. Had the court not made those findings, the CSLI Order would have violated the Fourth Amendment. See Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 2221, 201 L.Ed.2d 507 (2018) ; Tracey , 152 So.3d at 525. Thus, the court's additional findings were not "superfluous," but necessary.

The content of a court's order—not the label affixed to it—determines whether a warrant satisfies the Fourth Amendment. Here, in issuing the CSLI Order, the court found probable cause existed. We affirm.

The State's Appeal

The State argues the court erred in suppressing the search of the residence because (1) the CSLI Order permitted the use of a cell-site simulator, and (2) the State did not have to disclose its intention to use a cell-site simulator.

i. Cell-Site Simulators

"A cell-site simulator—sometimes referred to as a ‘StingRay,’ ‘Hailstorm,’ or ‘TriggerFish’—is a device that locates cell phones by mimicking the service provider's cell tower (or ‘cell-site’) and forcing cell phones to transmit ‘pings’ to the simulator." United States v. Lambis , 197 F.Supp.3d 606, 609 (S.D.N.Y. 2016).

At the evidentiary hearing, the Defendant's expert read from a House Committee Report and a Department of Justice Policy Guidance document to explain cell-site simulators. Those documents explain that "[l]aw enforcement agents can use cell-site simulators to help locate cellular devices whose unique identifiers are already known to law enforcement, or to determine the unique identifiers of an unknown device by collecting limited signaling information from devices in the simulator user's vicinity." U.S. DEP'T OF JUSTICE, DEPARTMENT OF JUSTICE POLICY GUIDANCE: USE OF CELL-SITE SIMULATOR TECHNOLOGY 1 (Sept. 3, 2015), https://www.justice.gov/opa/file/767321/download.

Generally, a cell-site simulator "transform[s] a cell phone into a real time tracking device." Staff of Comm. on the Oversight and Government Reform, 114th Cong., Law Enforcement Use of Cell-Site Simulation Technologies: Privacy Concerns and Recommendations (Dec. 19, 2016), https://oversight.house.gov/wp-content/uploads/2016/12/THE-FINAL-bipartisan-cell-site-simulator-report.pdf. It " ‘tricks’ nearby cell phones into thinking that it's a cell tower, thereby causing nearby cell phones to send signals to the device, which allows the operator of the device to locate the phone being sought." United States v. Artis , 315 F.Supp.3d 1142, 1144 (N.D. Cal. 2018) (citations omitted); see also Lambis , 197 F.Supp.3d at 609.

Thus, cell-site simulators present significant privacy concerns. At the same time, they "are invaluable law enforcement tools that locate or identify mobile devices during active criminal investigations." U.S. DEP'T OF HOMELAND SECURITY, DEPARTMENT POLICY REGARDING THE USE OF CELL-SITE SIMULATOR TECHNOLOGY 1 (Oct. 19, 2015), https://www.dhs.gov/sites/default/files/publications/Department% 20Policy% 20Regarding% 20the% 20Use% 20of% 20Cell-Site% 20Simulator% 20Technology.pdf.

These competing interests are not novel. Technological advancement often collides with the Fourth Amendment. When balancing these interests, we must "ensure that the ‘progress of science’ does not erode Fourth Amendment protections." Carpenter , 138 S.Ct. at 2223 (quoting Olmstead v. United States , 277 U.S. 438, 473–74, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis,...