Tracey v. State

• Decision Date: 14 October 2011
• Docket Number: No. 4D09–3565.,4D09–3565.
• Citation: 69 So.3d 992
• Parties: Shawn Alvin TRACEY, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

69 So.3d 992

Shawn Alvin TRACEY, Appellant,

v.STATE of Florida, Appellee.

No. 4D09–3565.

District Court of Appeal of Florida, Fourth District.

Sept. 7, 2011.Rehearing Denied Oct. 14, 2011.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Sue–Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.GROSS, J.

After a jury trial, Shawn Tracey was convicted of possession of more than 400 grams of cocaine, fleeing and eluding, driving while license revoked as an habitual offender, and resisting arrest without violence. We write to address his contention that the circuit court erred in denying his motion to suppress evidence derived from “real time” or prospective cell site location information (“CSLI”). We hold that there was no Fourth Amendment violation, because law enforcement used real time CSLI to track Tracey's location only on public roads. Although there was a violation of a provision of Chapter 934, the exclusionary rule is not an authorized remedy to address the violation.

In October, 2007, Detective Jason Hendrick of the Broward County Sheriff's Office filed an application for an order authorizing the installation and use of a pen register ¹ and a trap and trace device ² regarding Tracey's cell phone.³ “Basically, a pen register is a device or process which records the telephone numbers of outgoing calls; the trap and trace device captures the telephone numbers of incoming calls.” In re Application for Pen Register and Trap/Trace Device with Cell Site Location Auth. ( Smith ), 396 F.Supp.2d 747, 749 (S.D.Tex.2005) (citation omitted). The application stated that Tracey was “the subject of a criminal [narcotics] investigation” and that a pen register and trap and trace device “would be an important investigative tool to record the inbound and outbound dialed digits” from Tracey's phone number, in order to “identify possible co-conspirators.” This was the application's only factual allegation:

A DEA Confidential Source (CS) indicated that Shawn Alwin Tracey obtains multiple kilograms of cocaine from Broward County, for distribution on the West Coast of Florida. Furthermore, the CS contacts Shawn Tracey on the listed Metro PCS telephone number.

The application was prompted by a Drug Enforcement Administration agent who approached Hendrick with information and asked whether the two departments wished to work together in the investigation of Tracey and a cohort, Guipson Vilbon. Based on information he had received from a New York agent, the DEA agent contacted the informant, who told him that he had made trips to pick up drugs for Tracey in the past and that Tracey was currently incarcerated. The agent had no prior experience with the informant. The application for the pen register and trap device did not mention the collection of real time cell site location information.

The circuit court granted the application for a pen register and trap and trace device. In addition, although there was no request for it in the application, the order directed the cell phone company to provide the sheriff's office, “[i]n accordance” with 18 U.S.C § 2703(d), “historical Cell Site Information indicating the physical location of cell sites, along with cell site sectors, utilized for the calls....” The order did not address prospective or real time CSLI. This language in the order called for the collection of a different type of information than incoming and outgoing telephone numbers. To appreciate this difference, it is necessary to have some familiarity with cell phone technology.

Various federal magistrates have described the technology, but we find this explanation by Judge Lenihan to be the most compact:

Cellular telephone networks divide geographic areas into many coverage areas containing towers through which the cell phones transmit and receive calls. Cell phones, whenever on, now automatically communicate with cell towers, constantly relaying their location information to the towers that serve their network and scanning for the one that provides the strongest signal/best reception. This process, called “registration”, occurs approximately every seven seconds.

As we change locations, our cell phones automatically switch cell towers. Cellular telephone companies “track the identity of the cell towers serving a phone”. When a call is received, a mobile telephone switching office (“MTSO”) gets the call and locates the user based on the nearest tower; the call is then sent to the phone via that tower. This process works in reverse when the user places a call. In urban areas, where towers have become increasingly concentrated, tracking the location of just the nearest tower itself can place the phone within approximately 200 feet. This location range can be narrowed by “tracking which 120 degree ‘face’ of the tower is receiving a cell phone's signal.” The individual's location is, however, most precisely determinable by triangulating the “TDOA” or “AOA” information of the three nearest cellular towers. Alternatively, the phone can be tracked extremely accurately—within as little as 50 feet-via the built-in global positioning system (“GPS”) capabilities of over 90% of cell phones currently in use. [Cellular service providers] store cell tower registration histories and other information ... [and] now compile and retain extensive personal location information on their subscribers and the cell phones in use.

In re the Matter of the Application of the United States ( Lenihan ), 534 F.Supp.2d 585, 589–90 (W.D.Pa.2008) (internal citations omitted), vacated, In the Matter of the Application of the United States, 620 F.3d 304 (3d Cir.2010); see also Smith, 396 F.Supp.2d at 750–51.

In December, 2007, phone calls between Tracey and an informant indicated that Tracey would be coming to Broward County to pick up drugs for transport back to the Cape Coral area, where Tracey then resided. Monitoring the location of the cell phones of Tracey and Vilbon using real time CSLI, officers tracked Tracey's eastward trip across Florida. Tracey and Vilbon called each other ten times before Tracey arrived in Broward County. Officers set up surveillance at Vilbon's known stash houses, where the officers believed drugs were being stored. Vilbon's cell phone moved to a location near one of them. Tracey's cell phone was in almost continuous use and was tracked to the same general area. Officers determined that a GMC Envoy was from Florida's west coast; Tracey was identified as its driver. The officers were aware that Tracey's license was suspended. He was stopped and arrested for that offense. A search uncovered a kilogram brick of cocaine in the Envoy; officers stopped Vilbon and found $23,000 in cash in his car.

Before trial in this case, Tracey moved to suppress evidence derived from real time, prospective CSLI obtained from his cell phone. He distinguished historical cell site information and explained that real time cell site information is a subset of prospective cell site information, which, he contended, requires a warrant. Tracey raised three arguments. First, officers had acquired an order to record incoming and outgoing phone numbers under “pen register and trap and trace” statutes; law enforcement exceeded the authority of the pen register order, because the detective had sought only to “record inbound and outbound dialed digits” and did not seek to track the phone's location, in either historical or real time. Second, the pen register statutes do not authorize acquisition of real time cell site information. Third, a showing of probable cause is required to acquire CSLI, and the affidavit filed in support of the pen register application did not establish probable cause.

The trial court found that (1) Tracey had standing to challenge the order and surveillance of his cell phone, but did not have standing to challenge the order and surveillance of Vilbon's cell phone; (2) the application for the order relating to his phone set forth a sufficient legal basis for the installation and use of a pen register, but did not set forth a sufficient factual basis to issue a warrant; and (3) officers had used the cell phone as a tracking device to locate Tracey behind the wheel of the vehicle:

While there was evidence that the investigators had knowledge of at least one “stash house” used by the Defendant and located within a few blocks of where he was arrested, the State was unable to establish that investigators stationed in the area stumbled upon the Defendant; rather, the evidence demonstrated that it was by using the cell phone as a tracking device that they were able to locate him behind the wheel of a GMC Envoy at the intersection of U.S. 441 and Miramar Parkway.

The state argued that Tracey had been seen committing a crime on a public street, which gave them an independent reason to stop him. The trial court ruled that the pen register application had not established probable cause, but that, because Tracey had been seen committing an independent crime on a public street where he had no reasonable expectation of privacy, the Fourth Amendment did not require suppression of the evidence acquired after the arrest for that independent crime. The court denied Tracey's motion to suppress.

Since it concerns the government's tracking of an individual's location on public roads, this case does not involve a Fourth Amendment violation. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), the Supreme Court confronted the government's warrantless installation of a beeper in a can of chloroform that allowed government agents to follow “an automobile on public streets and highways.” Id. at 281, 103 S.Ct. 1081. The Court held that the monitoring of beeper signals “did not invade any legitimate expectation of privacy,” so that “there was neither a ‘search’ nor a ‘seizure’ within...