United States v. Anderson
| Decision Date | 27 April 2016 |
| Docket Number | Case No. 2:15-cr-00200-KJD-PAL |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. RAY ANDERSON, Defendant. |
| Court | U.S. District Court — District of Nevada |
(Mot Suppress - Dkt. #25/26)
Before the court is Defendant's Ray Anderson's ("Anderson") Motion to Suppress Evidence Due to Fourth and Fifth Amendment Violations (Dkt. #25/26) which was referred to me for a Report of Findings of Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB1-4. The court has considered the Motion (Dkt. #25/26), the government's Response (Dkt. #32), Anderson's Reply (Dkt. #42), and the arguments of counsel at a hearing held on March 21, 2016. Phillip Smith appeared on behalf of the government, and Rachel Korenblat appeared on behalf of Anderson. After the hearing, Anderson filed a Supplement (Dkt. #44) on April 5, 2016, bringing the court's attention to a Maryland Appellate Court decision issued March 30, 2016.
Anderson is charged in an Indictment (Dkt. #1) returned July 8, 2015, with felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a) and 924(a)(2). The indictment arises out of an arrest by officers of the Las Vegas Metropolitan Police Department ("LVMPD") Criminal Apprehension Team ("CAT"). During a search incident to arrest, LVMPD Detective Kegley located a Ruger .44 magnum revolver in Anderson's waistband. Anderson was transported to the police station where LVMPD Detective McCarthy read Anderson Miranda rights. During subsequent questioning, Anderson admitted that he possessed the firearm.
In the current motion, Anderson seeks to suppress physical and testimonial evidence seized by LVMPD as a result of locating him using historical cell site location information. On June 22, 2015, state court Judge Nancy Allf signed an order, a copy of which is attached as Exhibit D to the motion, authorizing a pen register/trap and trace and subscriber and cell site location information. As a result of this order, law enforcement received information regarding Anderson's precise location from May 22, 2015, through June 22, 2015.
Anderson asks that the court suppress evidence derived as a result of the order because the order violated his Fourth Amendment rights in that it was premised on "specific and articulable facts" rather than probable cause as required by the Fourth Amendment. Anderson also requests a Franks hearing asserting the application for the order contained false or misleading facts, and omitted material facts regarding law enforcement's ability to locate him without the information authorized by the order.
Anderson argues the order violated his Fourth Amendment rights because probable cause should be the standard for obtaining historical cell site records. Anderson acknowledges that pursuant to 18 U.S.C. § 2703, historical cell site location information may be obtained by an order directed to cell phone providers to disclose stored records or other information pertaining to a subscriber based on specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or records of the information sought, are relevant and material to an ongoing criminal investigation. However, citing two recent decisions in the Northern District of California, Anderson argues that to obtain historical cell site location information, the government should be required to show probable cause because historical cell site location information associated with cell phones is private information.
Anderson disputes that the third party doctrine applies to today's cell phone technology. Acknowledging that cell phone records are the records of the cell phone provider, Anderson argues that a phone user's reasonable expectation of privacy in historical cell site locationinformation associated with cell phones is entitled to heightened protection under the Fourth Amendment. Therefore, the court should follow the decisions in the Northern District of California and find that the third-party doctrine is inapplicable to Anderson's expectation of privacy in his historical cell phone location information data.
Anderson also relies on the Fourth Circuit's decision in United States v. Graham, 796 F.3d 332 (4th Cir. 2015), which held that the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user's historical cell site location information over an extended period of time.
Anderson contends that evidence derived from his unlawful seizure must be suppressed under the fruit of the poisonous tree doctrine. Specifically, LVMPD only located Anderson on June 24, 2015, at the Pecos apartment because it obtained historical cell site location information from Anderson's cell phone. Therefore, statements taken after he was located and arrested should be suppressed. Assuming arguendo that 18 U.S.C. § 2703(d) only requires a showing of specific and articulable facts, rather than probable cause, Anderson argues the order did not meet the specific and articulable facts standard.
Anderson also maintains that the declaration supporting the application for the historical cell site location information contains material omissions and/or misrepresentations in violation of the principles articulated in Franks v. Delaware, 438 U.S. 154 (1978). He requests an evidentiary hearing asserting Detective Klegley intentionally or recklessly made materially false misrepresentations and omissions: (1) regarding the correct standard for the court order—specific and articulable facts showing reasonable grounds to believe the requested information is relevant and material to an ongoing criminal investigation instead of probable cause; and (2) regarding law enforcement's ability to locate Anderson without the order. Detective Klegley omitted telling Judge Allf that LVMPD was in contact with Anderson after at least one arrest warrant was issued before the detective's declaration was submitted to Judge Allf. An evidentiary hearing will demonstrate that law enforcement was in contact with Mr. Anderson after one of the warrants was issued, and therefore, police could have arrested him during that contact, obviating the need for the order disclosing historical cell site location information.
Finally, the motion argues that LVMPD violated Anderson's Fifth Amendment rights by failing to provide adequate Miranda warnings. Detective McCarthy failed to inform Anderson that he had the right to consult with an attorney before questioning. At most, the Miranda rights Detective McCarthy provided informed Anderson that an attorney would be appointed before questioning if he could not afford one, which does not equate with informing a defendant that he had the right to consult with an attorney prior to questioning.
The government opposes the motion arguing that the order was properly obtained pursuant to 18 U.S.C. § 2703(d) which allows the government to obtain historical cell site location information if the government offers specific and articulable facts showing that there are reasonable grounds to believe the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. None of the cases cited by Anderson are binding or controlling precedent in this district. Two of the cases Anderson relies upon were decided after the detective obtained the order at issue in this case. The Fourth Circuit's decision in United States v. Graham was decided after the detective obtained the order at issue in this case, and is presently scheduled for hearing en banc. Numerous district court cases have held that cell site location data from historical phone records may be obtained by an order under 18 U.S.C. § 2703(d) on a showing of specific and articulable circumstances rather than probable cause. Additionally, the Fourth Circuit decision in Graham created a circuit split with United States v. Davis, 785 F.3d 498 (11th Cir. 2015), and In Re: Application, 724 F.3d 600 (5th Cir. 2013). The Eleventh and Fifth Circuits have held that obtaining a court order under 18 U.S.C. § 2703 for production of a cell phone carrier's business records containing historical cell site location information was not a search under the Fourth Amendment.
In this case, there were specific and articulable facts supporting the issuance of the order and the exclusionary rule is therefore inapplicable. Even if the court finds the order is invalid on its face, the good faith exception recognized by United States v. Leon, 486 U.S. 897 (1984) precludes the application of the exclusionary rule. The law of the land in this district, and instate courts in Nevada at the time the order was issued, was that a person did not have a reasonable expectation of privacy in historical cell site location information. Thus, even if the court concludes a higher probable cause standard should apply for an application requesting historical cell site location information, this motion to suppress should be denied as it would announce a new constitutional rule which should not be applied retroactively.
The purpose of the exclusionary rule is to deter further Fourth Amendment violations. This purpose would not be accomplished where, as here, there was and still is no binding judicial precedent requiring a probable cause standard to obtain historical cell site location information. The detective applying for the order relied in good faith on the plain language of 18 U.S.C. § 2703(d), and in the absence of any controlling authority to the contrary, none of the cases cited in the motion to suppress support a retroactive mandate to exclude evidence obtained pursuant to a § 2703(d) order.
The government argues in the alternative that even if this court determines that the good faith doctrine does not apply, the historical cell site location...
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