United States v. Hardrick
| Decision Date | 15 October 2012 |
| Docket Number | CRIMINAL ACTION NO: 10-202 |
| Parties | UNITED STATES v. STEVEN EARL HARDRICK |
| Court | U.S. District Court — Eastern District of Louisiana |
Defendant Steven Hardrick moves the Court to suppress cell-site location records that he contends were obtained pursuant to an illegal search. Because the Court finds that law enforcement acted in good faith in obtaining the cell-site location records, it denies defendant's motion.
Steven Hardrick is under federal indictment charging him with, inter alia, multiple murders, a drug trafficking conspiracy, a conspiracy to posses firearms, carjacking resulting in death, and multiple counts of being a felon in possession of a firearm.1 Hardrick is now moving to suppress cell-site location information ("CSLI") that police officers obtained on two occasions during the course of their investigation.2 The Courtheld an evidentiary hearing on the motion on October 5, 2012.3 The following is an account of how the police officers obtained the CSLI.
In 2007, the Federal Bureau of Investigation assisted the New Orleans Police Department in the investigation of a series of killings. N.O.P.D. Detective John Duzac investigated Dwayne Landry's death, and Detective Harold Wischan investigated the deaths of Brett Jacobs, David Alford, and Howard Lee Pickens.4
In October 2007, the detectives researched the victims' phone records and identified a number that had communicated with a victim minutes before the victim's murder. The police applied for subpoenas duces tecum and exigent circumstance forms requesting subscriber information from Sprint/Nextel pertaining to the suspect's number. This information identified Robert Hart as the suspect. After identifying Hart as a suspect, Detective Wischan applied for an arrest warrant. On October 25, 2007, Detective Wischan presented a sworn affidavit showing probable cause, and a magistrate issued the arrest warrant for Hart.5
After obtaining the arrest warrant, the police continued to investigate the victims' and Hart's phone records. This research revealed two phone numbers that communicated with a victim attimes close to the victim's homicide. The first number, 504-906-5321, was subscribed to Erica Ortiz,6 the mother of Hart's child. The police believed that Hart used this phone. The second number, 504-201-9982, was subscribed to Randy Smith, Steven Hardrick's stepfather. The police believed that Steven Hardrick used this phone.7
On October 25, 2007, Detective Duzac applied for an Order to Issue Subpoena Duces Tecum from a magistrate directing Sprint/Nextel to provide the N.O.P.D. with the telephone records pertaining to Hardrick's number: 504-201-9982.8 Detective Duzac requested "an engineering map, showing all cellular-site tower locations, sectors, and orientations," among other information, for the period of September 20, 2007 through October 20, 2007 and extending ten days past the date of the Order.9 Detective Duzac certified that his investigation "revealed that the said cellular phone was used by the perpetrator to communicate with the victim and direct him to a location where he was fatally shot."10 The Order was signed by the magistrate and issued on October 25,2007.11 The magistrate found that the "[a]pplicant has offered specific and articulable facts showing that there are reasonable grounds to believe that the subscriber information . . . is relevant and material to an ongoing criminal investigation."12 In accordance with the subpoena, Sprint/Nextel disclosed the information to law enforcement. This is the first source of the information that Hardrick moves to suppress.
On December 18, 2007, Detective Wischan applied for subpoenas duces tecum to obtain subscriber information pertaining to Hart's and Hardrick's phone numbers. For Hart's number, he requested the information from September 1, 2007 to November 1, 2007 and extending 10 days past the issuance of the Order.13 For Hardrick's number, Detective Wischan requested the same information from Sprint/Nextel as Detective Duzac requested on October 25, 2007, only Detective Wischan requested the information from a different time period than Detective Duzac's previous request. Detective Wischan requested the information for the period of October 19, 2007 through December 1, 2007 and extending 10 days past the issuance of the Order.14 In his applications, Detective Wischan certified that the subscriber andcell-site location information was relevant and material to the criminal investigation.15 For Hart's number, Wischan certified that the investigation revealed that Hart had used the telephone to call the victim of the homicide "for the purpose of arranging a drug transaction" and that Hart had "murdered the victim and two other people at the site of the drug transaction."16 For Hardrick's number, Detective Wischan certified that the investigation revealed that Hardrick had used the phone in the commission of the murders under investigation.17
The magistrate signed Detective Wischan's request pertaining to Hart's number and also signed an Order issuing the subpoena duces tecum.18 For Hardrick's number, the magistrate signed Detective Wischan's request, but the Government was unable to produce the signed Order.19 Sprint/Nextel disclosed to law enforcement the requested information pertaining to Hardrick's number. This is the second source of the information that Hardrick moves to suppress.
At the evidentiary hearing the Court received evidence concerning the existence of the missing Order.20 Detective Wischan testified that the magistrate did sign and issue an Order on December 18, 2007 that in effect extended the time period for disclosure of information pertaining to Hardrick's number that had been granted on October 25, 2007. The Government further provided evidence that after the subpoenas duces tecum were issued, Detective Wischan sent them to Sprint/Nextel and received all of the information requested. Hillary Rapson, a subpoena specialist at Sprint/Nextel, submitted an affidavit attesting that Sprint/Nextel would not have provided the information pertaining to Hardrick's phone number "without an order signed by a judge."21 The defendant submitted evidence that while searching for the missing Order, Detective Winston Harbin located an Order pertaining to the 504-201-9982 number, "but it was not signed by the judge."22 The Government countered by raising the possibility that the unsigned Order was a draft.23
The Court finds by a preponderance of the evidence that an Order was signed for the information requested in the December 18, 2007 subpoena application. This is supported by (1) DetectiveWischan's own testimony that he obtained the signed Order, (2) the magistrate's signature on Detective Wischan's request for the Order, (3) Ms. Rapson's affidavit certifying that Sprint/Nextel would not have disclosed the information without an Order signed by a judge, (4) that two similar requests were granted by a magistrate, and by (5) the magistrate's signed Order granting Detective Duzac's request for the same information pertaining to the same 504-201-9982 phone number in October 2007.24 See United States v. Matlock, 415 U.S. 164, 177 n.14 (1974) ().25
Defendant now moves to suppress CSLI acquired during the investigation.26 Hardrick's motion to suppress challenges the information acquired by both Detective Duzac and Detective Wischan.27
Cell-phone providers operate a series of "cell-site towers" throughout their coverage area.29 To make calls, cell phones communicate with a particular cell-site tower that corresponds to the user's location at the time of the call.30 Records of these communications can indicate the physical location of the user.31 While the parties dispute the accuracy of the location information that cell-site towers provide, what is settled is that the more cell-site tower locations in a given area, the more precise the location information can be for a user's particular call.32 The number of cell-site towers in an area may depend on its population; densely populated regions are equipped with more cell-site towers.33 Cell-phone providers keep records detailing which cell-sites their users' cell phones have communicated with and the times of these communications.34 Because the information sought in this case relates only to a user's previous calls, theinformation is referred to as historical cellular site location information ("CSLI").
Defendant's motion to suppress asserts that the Government obtained CSLI in violation of the Fourth Amendment. The Fourth Amendment to the United States Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." U.S. Const. amend. IV. The Fourth Amendment "requires adherence to judicial processes," and searches conducted without warrants "are per se unreasonable under the Fourth Amendment." Katz v. United States, 389 U.S. 347, 357 (1967). If the Government conducts a search when it obtains historical CSLI, then it must obtain a search warrant on a showing of probable cause. In re Application of the U.S. for an Order Authorizing the Release of Historical Cell-Site Information, 809 F. Supp. 2d 113, 115 (E.D.N.Y. 2011).
A search is conducted when the Government "violates a person's reasonable expectation of privacy." United States v. Jones, 132 S. Ct. 945, 951 (2012) (quoting Katz, 389 U.S. at 360). Katz established two inquiries for determining whether a person has a reasonable expectation of privacy: (1) whether theindividual has "manifested a...
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