United States v. Graham

• Decision Date: 01 March 2012
• Docket Number: Criminal No. RDB–11–0094.
• Citation: 846 F.Supp.2d 384
• Parties: UNITED STATES of America, v. Aaron GRAHAM, and Eric Jordan, Defendants.
• Court: U.S. District Court — District of Maryland

846 F.Supp.2d 384

UNITED STATES of America,

v.Aaron GRAHAM, and Eric Jordan, Defendants.

Criminal No. RDB–11–0094.

United States District Court, D. Maryland.

March 1, 2012.

Benjamin M. Block, Rod J. Rosenstein, Office of the United States Attorney, Baltimore, MD, for United States of America.

Memorandum Opinion

RICHARD D. BENNETT, District Judge.

Defendants Aaron Graham and Eric Jordan (collectively “Defendants”) are charged in a seventeen-count Second Superseding Indictment relating to a series of armed Hobbs Act ¹ robberies committed in Baltimore City and Baltimore County, Maryland in January and February 2011. The Defendants filed numerous pre-trial motions, including a variety of motions to suppress. Over the course of five separate days, this Court heard argument and ruled on all but one of the motions to suppress. The only remaining pending motion is Defendant Graham's Motion to Suppress Cellular Phone Data and Historical Cell Site Location Data, which Defendant Jordan has joined. On December 8, 2011, this Court held a hearing devoted entirely to this issue. During the pendency of this motion, this Court allowed supplemental briefing, and after the December 8 hearing, ordered further briefing.² For the reasons that follow, the Defendants' Motion to Suppress Historical Cell Site Location Data (ECF No. 38) is DENIED.

Background

The Second Superseding Indictment in this case (ECF No. 16) charges the Defendants with conspiring to rob and robbing a variety of commercial entities, including a Burger King restaurant and a McDonald's restaurant, both located in Baltimore City, Maryland.³ Both robberies took place in the afternoon hours of February 5, 2011. Witnesses at both robberies provided descriptions of the robber and the get-away vehicle to the responding officers. The witnesses indicated that the robber wore a red, gray, and black North Face jacket, and upon exiting the restaurants, was driven away in a dark gray Ford F–150 pickup truck that was being operated by a second person. Approximately ten minutes after the McDonald's robbery, the Defendants were apprehended in a vehicle that matched the description given by the witnesses, and Defendant Graham was wearing a matching jacket. A handgun and United States currency was recovered from the Defendants and from the vehicle. Both Graham and Jordan provided their cellular telephone numbers to the arresting officers.

Two cellular telephones were recovered from the Ford pickup truck—a blue Samsung and a silver Sanyo. Prior to searching the contents of the phones, Baltimore City Police Detective Christopher Woerner sought and obtained search warrants for the two phones in the Circuit Court for Baltimore City. See Gov. Opp'n at 7, ECF No. 49; Warrants, ECF Nos. 49–4 & 49–5. The telephone number associated with the Samsung phone matched the number that Defendant Graham provided to investigators, and the number associated with the Sanyo phone matched the number provided by Defendant Jordan.

Federal authorities initially charged the Defendants with only firearm violations. However, an investigation into the Baltimore City robberies and other Baltimore County robberies was ongoing, and on March 25, 2011, the government applied for an order from Magistrate Judge Susan K. Gauvey of this Court, pursuant to the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701, et seq., which ordered Sprint/Nextel, Inc. to disclose to the government “the identification and address of cellular towers (cell site locations) related to the use of [the Defendants' cellular telephones].” SCA App. 1, ECF No. 49–9. The government sought cell site location data for the periods of August 10–15, 2010; September 18–20, 2010; January 21–23, 2011; and February 4–5, 2011. Id. In its application, the government alleged that the information sought was relevant to an ongoing criminal investigation regarding the Burger King and McDonald's robberies, as well as several other prior robberies that the Defendants were suspected of committing. By identifying the location of cellular towers accessed by the Defendants' phones during the relevant time periods, the government sought to more conclusively link the Defendants with the prior robberies.

On March 25, 2011, Magistrate Judge Gauvey granted the government's application. Specifically, Magistrate Judge Gauvey applied the well-defined standard prescribed by the Stored Communications Act and made a factual finding that the government “offered specific and articulable facts showing that there are reasonable grounds to believe that the records and other information sought are relevant and material to an ongoing criminal investigation.” Id. at 8. The original indictment against the Defendants was subsequently superseded to include the Baltimore City robberies.

While the investigation into the Baltimore City robberies was ongoing, the government was presented with evidence regarding additional related robberies in Baltimore County. In connection with this investigation, the Grand Jury returned a Second Superseding Indictment on May 18, 2011 to include the Baltimore County robberies. The government had not included the time periods for these robberies in its initial application for cell site location data, and so, on July 8, 2011, submitted a second application for cell site data, this time with Magistrate Judge Paul W. Grimm of this Court for the time period of July 1, 2010 through February 6, 2011. SCA App. 2, ECF No. 49–10. This application sought all the data acquired as part of the first Stored Communications Act order, as well as for additional time periods not previously covered. Finding that the government had offered specific and articulable facts in support of the application as required by the Stored Communications Act, Magistrate Judge Grimm approved the application on July 15, 2011. See id. at 8–9. Sprint/Nextel, Inc. complied with the orders, and provided the requested data to the government.⁴

Analysis

The Defendants argue that the government's acquisition of historical cell site location data, without a warrant but pursuant to the Stored Communications Act, was in violation of their Fourth Amendment rights and must be suppressed. The Defendants do not argue that the Stored Communications Act is unconstitutional on its face, but instead make an as-applied challenge and contend that the length of time and extent of the cellular phone monitoring conducted in this case intruded on the Defendants' expectation of privacy and was therefore unconstitutional. Essentially, the Defendants present the question of whether twenty-four hour “dragnet” surveillance by emerging technological means infringes on the Fourth Amendment's guarantee against unreasonable searches and seizures. See Defs. Reply at 1, 4, ECF No. 51 (quoting United States v. Knotts, 460 U.S. 276, 283–84, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983)).

More specifically, the Defendants argue that Magistrate Judge Gauvey's March 25, 2011 Order, which authorized the release of fourteen days and 1,628 individual cell site location data points, and Magistrate Judge Grimm's July 15, 2011 Order, which authorized two hundred and twenty-one days and 20,235 individual cell site location data points, infringed on the Defendants' expectations of privacy insofar as that data allows the government to paint an intimate picture of the Defendants' whereabouts over an extensive period of time. While the Defendants do not take issue with any specific data points, they essentially argue that the privacy intrusions available through this type of technology are far reaching and unconstitutional—allowing the government to retroactively track or surveil a suspect through his cellular telephone, a device he likely carries with him at all hours of the day and to constitutionally protected places such as his home or church.

The government makes four arguments in response. First, the government contends that the Defendants lack standing to challenge the seizure of the historical cell site location records from Sprint/Nextel, Inc. In this regard, the government argues that Defendant Jordan's use of a fictitious name and address in subscribing to the cellular phone service evidences a lack of privacy or possessory interest in the phone and the underlying location records.⁵ Moreover, the government argues that neither Defendant has standing insofar as the actual records are the proprietary business records of Sprint/Nextel, Inc. and were voluntarily conveyed by the Defendants to the cellular service company.

Second, and relatedly, the government expands on its business records argument, and contends that the Defendants have no Fourth Amendment expectation of privacy in business records voluntarily conveyed to a third party. Analogizing from Supreme Court precedent, the government argues that the voluntary disclosure of cell site location data is akin to dialed telephone numbers captured by pen registers and bank records disclosed to banks—which the Court has found do not implicate the Fourth Amendment. Under this so-called “third-party doctrine,” the government maintains that by using their cellular phones, and thereby voluntarily conveying their approximate location to their service provider, the Defendants can claim no legitimate expectation of privacy in that data—in other words, the Fourth Amendment simply does not apply.

Third, the government argues that an application for historical cell site location data does not require probable cause—rather, the Stored Communications Act's lower “specific and articulable facts” standard provides adequate privacy protections, and the disclosure of such information does not run afoul of the Fourth Amendment. Notwithstanding some recent cases to the contrary, the government maintains that the majority of courts to consider the issue have concluded that the government's acquisition of cell site location data without a warrant does not violate the Fourth Amendment.

...