United States v. Carpenter
| Decision Date | 12 April 2023 |
| Docket Number | 8:21-cr-309-VMC-MRM |
| Parties | UNITED STATES OF AMERICA v. SCOTT CARPENTER, JR. |
| Court | U.S. District Court — Middle District of Florida |
REPORT AND RECOMMENDATION
Pending before the Court is Defendant's Motion to Suppress Evidence From a Geofence Warrant and Request for Evidentiary Hearing, filed on August 1, 2022. (Doc. 93). Defendant, Scott Carpenter, Jr., is charged with one count of Conspiracy to Interfere with Commerce by Robbery (18 U.S.C. § 1951(a)) (Count One); four counts of Interference with Commerce by Robbery (18 U.S.C. § 1951(a)) (Counts Two, Four, Six Eight); and four counts of Brandishing a Firearm During or in Relation to a Crime of Violence (18 U.S.C. § 924(c)) (Counts Three, Five, Seven, Nine). (Doc. 30 at 1-7).[1]Defendant seeks “to suppress the geofence warrant, its returns, and their fruits, to include any additional warrants for Mr. Carpenter's Google account, cell site warrants, warrants to search his home and car, and a DNA warrant.” (Doc. 93 at 24).
The Government filed a response in opposition on September 6 2022. (Doc. 106). Defendant filed a reply on October 7, 2022. (Doc. 112). The Undersigned conducted an evidentiary hearing that was initially set for December 14, 2022 (Doc. 135) but was ultimately continued to January 3, 2023 due to technology failures in the courtroom (Doc. 140).[2] Following the evidentiary hearing, both parties submitted supplemental briefing. (Docs. 143, 148). This matter is ripe for review.
For the reasons explained below, the Undersigned recommends that Defendant's Motion to Suppress Evidence From a Geofence Warrant and Request for Evidentiary Hearing (Doc. 93) be DENIED.
Defendant is charged with one count of conspiracy to interfere with commerce by robbery, four counts of interference with commerce by robbery, and four counts of brandishing a firearm during or in relation to a crime of violence. (See Doc. 30). In January 2021, Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) “agents were investigating a series of eleven armed robberies and attempted armed robberies that had occurred in the greater Tampa Bay area between August 12, 2018, and December 8, 2020.” (Doc. 106 at 2; see generally Doc. 1). These robberies all concerned employees of Dollar Tree stores. (Doc. 30). Defendant has been charged in connection with four of these robberies: (1) the October 28, 2020 robbery in Brandon, Florida (“Brandon Robbery”) (Counts Two and Three); (2) the November 15, 2020 attempted robbery in Lakeland, Florida (“Lakeland Attempted Robbery”) (Counts Four and Five); (3) the November 23, 2020 robbery in Zephyrhills, Florida (“Zephyrhills Robbery”) (Counts Six and Seven); and (4) the December 8, 2020 robbery in Riverview, Florida (“Riverview Robbery”) (Counts Eight and Nine). To provide context for the geofence warrant at issue, the Undersigned provides summaries of the events below, drawn from the Superseding Indictment (Doc. 30), the Complaint (Doc. 1), and the parties' briefing (Docs. 93, 106, 112).
On October 28, 2020, an armed robbery occurred around 9:28 p.m. in the parking lot of the Dollar Tree store located at 509 E. Brandon Boulevard, Brandon, Florida. (Doc. 1 at 10; see also Doc. 30 at 2). Two of the store's employees walked to their cars to travel to a bank to deposit $1,204.00 in store proceeds contained in a money bag. (Doc. 1 at 11). The robber approached them, pointing a black handgun, and told them to “give me the deposit money.” (Id.). The employee holding the money bag threw the bag to the ground, after which the robber picked up the bag and fled the scene on foot. (Id.). Both employees described the robber as a Black male, 5' 7” tall, between the ages of 20-30 years old, approximately 140 pounds, and wearing a black hoodie and green pants. (Id. at 11-12).[3]
On November 15, 2020, an employee of the Dollar Tree store located at 3629 S. Florida Avenue, Lakeland, Florida experienced an attempted armed robbery. (Doc. 1 at 12; see also Doc. 30 at 3-4). Around 10:36 p.m., the employee closed the store and went to go deposit store funds in the night deposit box at Fifth-Third Bank located at 4421 S. Florida Avenue. (Doc. 1 at 12). When the employee arrived at the bank and pulled into the deposit drive-thru lane, a male approached her vehicle and banged on the rear passenger window. (Id.). The male brandished a black handgun and pointed it at the employee. (Id. at 12-13). Subsequently, he tapped the gun on the driver's side window while trying to open the door. (Id. at 13). The employee drove away and called the police. (Id.).[4]
On November 23, 2020, an employee and a co-worker of the Dollar Tree Store located at 7749 Gall Boulevard, Zephyrhills, Florida closed the store and traveled to the Wells Fargo Bank located at 7780 Gall Boulevard in Zephyrhills around 10:40 p.m. (Doc. 1 at 13; see also Doc. 30 at 4-5). The pair intended to deposit $2,920.05 in store funds in the night deposit box at the bank. (Doc. 1 at 13).
As the employee walked from her vehicle, “a heavy-set Black male, approximately 5' 4” tall, who was brandishing a pistol and wearing a ski mask, black jacket and pants” approached her. (Id.). The robber demanded the money, wrapped his arms around the employee, and threw her to the ground. (Id.). The co-worker then alerted the employee to the robber's gun. (Id.). The employee surrendered the money bag, and the robber took it and fled the area. (Id.). Both the employee and the co-worker then heard the screeching of car tires. (Id.).[5]
On December 8, 2020, an employee of the Dollar Tree store located at 10680 E. Bay Road, Gibsonton, Florida and a co-worker traveled to the Fifth-Third Bank located at 10417 Gibsonton Drive in Riverview around 10:56 p.m. to deposit $1,475.81 of store funds in the night deposit box. (Doc. 1 at 13-14; see also Doc. 30 at 6). Around twenty-two seconds after arriving at the night deposit box, “a Black male, approximately 5'6” tall, brandishing a black handgun and wearing all-black clothing” approached the employee's car and reached into it. (Doc. 1 at 14). The employee moved to the front passenger seat of the vehicle while the robber searched for the money. (Id.). The robber eventually found the money, grabbed it, and ran from the vehicle. (Id.).[6]
On January 22, 2021, the ATF applied for and received a geofence warrant. (See Doc. 106-1). This type of warrant “is what has been termed a ‘reverse-location' warrant: the perpetrator of the crime being unknown to law enforcement, the warrant identifies the geographic location where criminal activity happened and seeks to identify cell phone users at that location when the crime occurred.” Matter of Search of Info. That is Stored at Premises Controlled by Google LLC, 579 F.Supp.3d 62, 69 (D.D.C. 2021) (hereafter, “D.C.”). In summary, the geofence warrant directed to
Google works as follows:
Phones with Google OS and Google applications communicate location information to Google through use of common phone applications (e.g., YouTube and Google Maps) and other functions, including use of wi-fi, Bluetooth, and GPS. That location information is then associated with the device, and the device can be traced back to a particular account and accountholder who has “signed in” on the device. The search warrant at issue ultimately seeks, through a multiple-step process, information that can be used to identify the accountholder associated with devices that Google has located within a certain geographic area, and during a specific time window, set by the government.
In this case, Special Agent Jeffrey Burt's (“SA Burt”) affidavit in support of the warrant detailed each of the eleven armed robberies being investigated, including a description of the location and time of the robberies. (Doc. 106-1 at 10-20). The affidavit noted apparent similarities between the robberies, such as the robber wearing black clothing, being commonly described as between 5'7” and 5'9” tall with a stocky build, and approaching employees of Dollar Tree stores at night as they attempt to deposit store funds. (Id. at 20-21). The affidavit also asserted that “[t]hree different possible suspect vehicles have been identified, indicating the suspect may be working with co-conspirator(s) during the robberies.” (Id. at 21). In connection with the Brandon Robbery, the affidavit mentioned a video showing “a bright light in the robber's hands” that SA Burt believed “likely came from the screen of a cellular telephone being used by the robber at the time.” (Id. at 18). Finally, the affidavit “explained how Google services work, how Google's services are linked to users' email accounts (which are usually Google ‘Gmail' accounts) and cell phones; how Google's services obtain location data from cell phones on which those services are enabled; and how ubiquitous such cell phones are.” (Doc. 106 at 3 (citing Doc. 1061 at 3-9)).
Based on these representations, SA Burt requested that the Court authorize a search of Google's information “to determine what Google-connected devices, if any, were in the target areas.” (Doc. 106-1 at 21). The requested search parameters included a thirty-minute window (fifteen minutes before and fifteen minutes after the alleged robberies) and a geographic circle with a radius of 800 meters centered around particular coordinates (capturing the location of the robberies and a roughly half-mile radius around each one). (Id. at 21-22, 25-27). Although there were eleven events at issue, the warrant only sought information as to ten because the Lakeland...
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