United States v. Ellis

• Citation: 270 F.Supp.3d 1134
• Decision Date: 24 August 2017
• Docket Number: Case No. 13–CR–00818 PJH
• Parties: UNITED STATES of America, v. Purvis Lamar ELLIS, et al., Defendants.
• Court: U.S. District Court — Northern District of California

270 F.Supp.3d 1134

UNITED STATES of America,

v.Purvis Lamar ELLIS, et al., Defendants.

Case No. 13–CR–00818 PJH

United States District Court, N.D. California.

Signed August 24, 2017

Joseph Michelangelo Alioto, Jr., U.S. Department of Justice U.S. Attorney's Office, Oakland, CA, Scott D. Joiner, William Frentzen, U.S. Attorney's Office, San Francisco, CA, for United States of America.

Martha A. Boersch, Boersch Shapiro LLP, James Phillip Vaughns, Attorney at Law, Oakland, CA, Christopher J. Cannon, Sugarman & Cannon, Edwin Ken Prather, Prather Law Offices, San Francisco, CA, for Defendants.

PRETRIAL ORDER NO. 3 DENYING MOTIONS TO SUPPRESS

PHYLLIS J. HAMILTON, United States District Judge

On August 2, 2017, the court held a hearing on the motions of defendant Purvis Lamar Ellis to suppress evidence obtained from use of Stingrays on behalf of all defendants; to suppress evidence seized from Apartment 212 on behalf of all defendants; and to sever. The court DENIED Ellis's motion to sever for the reasons stated on the record. Doc. no. 306. Having considered the relevant legal authority, the papers, argument of counsel, and the evidence in the record, the court DENIES the motions to suppress, doc. nos. 304, 307, for the reasons stated at the hearing and set forth below.

I. Motion to Suppress Evidence Obtained from Use of Cell Site Simulators

Ellis moves on behalf of all defendants to suppress any and all evidence obtained or derived from the use of cell site simulators ("CSS"), generally referred to as Stingrays. Doc. no. 304. As described in the Department of Justice Policy Guidance ("DOJ Policy") cited by Ellis, a CSS functions by transmitting as a cell tower, such that cell phones in its proximity transmit signals to the CSS, which the cell phones identify as the most attractive cell tower in the area. Doc. no. 304 at 3–5 (citing United States v. Patrick , 842 F.3d 540, 542–43 (7th Cir. 2016) (quoting DOJ Policy, Sept. 3, 2015), reh'g and reh'g en banc denied (May 9, 2017)). "When used to locate a known cellular device, a cell-site simulator initially receives the unique identifying number from multiple devices in the vicinity of the simulator. Once the cell-site simulator identifies the specific cellular device for which it is looking, it will obtain the signaling information relating only to that particular phone." Id. (internal marks omitted). See also doc. no. 321, Ex. G ¶ 6 and Ex. I ¶ 6.

As supported by the record, Ellis has shown that the Oakland Police Department ("OPD") and the Federal Bureau of Investigation ("FBI") each used a Stingray to locate Ellis's cell phone starting in the early morning hours of January 22, 2013, following the shooting of an OPD officer the evening of January 21, 2013. Ellis contends that the use of these Stingrays amounted to a warrantless search requiring suppression of any evidence obtained or derived from the Stingrays, and/or an evidentiary hearing. Ellis further contends that the use of the Stingrays likely intercepted communications in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

A. Fourth Amendment Search

1. Legal Standard

The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." United States v. Jones , 565 U.S. 400, 404, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. Simmons v. United States , 390 U.S. 377, 389–390, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

The Supreme Court recognizes two tests to determine whether a "search" within the meaning of the Fourth Amendment occurred. Jones , 565 U.S. at 411, 132 S.Ct. 945. The first is the "classic" common-law trespass test, as applied by the Court in Jones, 565 U.S. at 404–05, 132 S.Ct. 945. Under that property-based approach, government actions amount to a search when "[they] physically occupy private property for the purpose of obtaining information" without consent. Id. The Court explained that before Justice Harlan's concurrence in Katz articulated the "reasonable expectation of privacy" standard, "for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas ("persons, houses, papers, and effects") it enumerates." Jones , 565 U.S. at 406, 132 S.Ct. 945. The Court in Jones held that attachment of a Global Positioning System (GPS) tracking device to a vehicle, and the subsequent use of that device to monitor the vehicle's movements on public streets, was a search within the meaning of the Fourth Amendment, reasoning that "[t]he Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted." Id. at 404–05, 132 S.Ct. 945 (citation omitted).

Second, under the reasonable expectation of privacy test, the Fourth Amendment protects against an unreasonable search of an area in which (1) a person exhibits actual, subjective expectation of privacy, and (2) the expectation is one that society is prepared to recognize as reasonable. Katz v. United States , 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Under Katz , the capacity to claim Fourth Amendment protection does not strictly depend on a property right in the invaded place, but whether the person asserting the claim has a legitimate expectation of privacy. Rakas v. Illinois , 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citing Katz , 389 U.S. at 353, 88 S.Ct. 507 ).

2. Use of Stingray Constitutes a Search

Ellis asserts several grounds for determining that the use of the Stingray to locate his cell phone in real time amounted to a Fourth Amendment search requiring issuance of a warrant: that the Stingray intruded into the constitutionally protected area of a private residence and that the Stingray violated Ellis's privacy interests both in the use and location of his cell phone and in his public movements.

In his reply, Ellis raises the argument that the government is bound by its concession in other cases that the use of a Stingray amounts to a search. Doc. no. 324 at 2–3. However, the court finds that these concessions were limited for the purposes of each particular case, and do not amount to a binding admission by the government. See Patrick, 842 F.3d at 544, 545 (where the government conceded that use of a cell site simulator is a search for purposes of that litigation, the court noted that questions about whether use of a simulator amounts to a search "have yet to be addressed by any United States court of appeals," reserving the issue).

a. Standing

As a threshold matter, the government contends that only Ellis has standing to challenge the use of a Stingray to locate his cell phone, and that no other defendant has standing to bring a motion to suppress. To the extent that Ellis challenges the potential collection of signals from phones used by non-parties, the government correctly points out that Ellis lacks standing to invoke the privacy rights of anyone else whose cell phone may have been located by the Stingrays. In light of the record showing that two Stingrays were used to locate Ellis's cell phone, and no other defendant's cell phone, Ellis alone has standing to bring the instant motion to suppress evidence obtained through use of Stingrays. See Rakas , 439 U.S. at 133–34, 99 S.Ct. 421 ("Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.") (citation and marks omitted).

b. Intrusion on Private Residence

Starting with the Jones trespassory approach, Ellis argues that the government's use of the Stingrays to monitor and track his phone was a search under the Fourth Amendment because the Stingrays emitted signals that penetrated the walls of private dwellings that were not open to visual surveillance. Doc. no. 304 at 15 (citing United States v. Karo , 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) and Kyllo v. United States , 533 U.S. 27, 29, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) ). In Karo , the Court held that the warrantless "monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence." In Kyllo , the Court held that use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a "search" within the meaning of the Fourth Amendment, reasoning that "obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ [ ] constitutes a search—at least where (as here) the technology in question is not in general public use." 533 U.S. at 34, 121 S.Ct. 2038 (quoting Silverman v. United States , 365 U.S. 505, 512, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ). Ellis argues that because a Stingray emits signals that penetrate the walls of constitutionally protected spaces, it amounts to trespass and constitutes a search under Silverman , 365 U.S. at 511–12, 81 S.Ct. 679 (holding that attaching a spike mike to a heating duct of a home was a search, reasoning that technical trespass is not necessary for Fourth Amendment violation but "actual intrusion into a constitutionally protected area" is sufficient) and Jones , 565 U.S. at 410, 132 S.Ct. 945 (holding that warrantless installation of GPS device to vehicle encroached on a protected area in violation of Fourth Amendment).

The government responds that Ellis lacks standing to assert any protected interest in...