United States v. Riley

• Decision Date: 05 June 2017
• Docket Number: No. 16-6149,16-6149
• Citation: 858 F.3d 1012
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Montai RILEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

858 F.3d 1012

UNITED STATES of America, Plaintiff-Appellee,

v.Montai RILEY, Defendant-Appellant.

No. 16-6149

United States Court of Appeals, Sixth Circuit.

Argued: March 16, 2017

Decided and Filed: June 5, 2017

ARGUED: Claiborne H. Ferguson, THE CLAIBORNE FERGUSON LAW FIRM, P.A., Memphis, Tennessee, for Appellant. Ashley C. Brown, UNITED STATES ATTORNEY' S OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: Claiborne H. Ferguson, THE CLAIBORNE FERGUSON LAW FIRM, P.A., Memphis, Tennessee, for Appellant. Marques T. Young, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

Before: BOGGS, ROGERS, and COOK, Circuit Judges.

The court delivered a PER CURIAM opinion. BOGGS, J. (pp. 1018–24), delivered a separate concurring opinion.

OPINION

PER CURIAM.

This case calls upon us to clarify the rules by which police may seek to find miscreants: When a fugitive subject to an arrest warrant for armed robbery hides in a motel, may the government track his cell phone's GPS coordinates to locate and arrest him?

Yes, the district court held—and we affirm, holding that the government's detection of Montai Riley's whereabouts in this case, which included tracking Riley's real-time GPS location data for approximately seven hours preceding his arrest, did not amount to a Fourth Amendment search under our precedent in United States v. Skinner , 690 F.3d 772, 781 (6th Cir. 2012). The government used Riley's GPS location data to learn that Riley was hiding out at the Airport Inn in Memphis, Tennessee—but only after inquiring of the front-desk clerk did the government ascertain Riley's specific room number in order to arrest him. The GPS tracking thus provided no greater insight into Riley's whereabouts than what Riley exposed to public view as he traveled "along public thoroughfares," id. at 774, to the hotel lobby. Therefore, under Skinner , Riley has no reasonable expectation of privacy against such tracking, and the district court properly denied Riley's motion to suppress evidence found upon Riley's arrest.

I

On June 23, 2015, a state court in Kent County, Michigan, issued an arrest warrant for Riley, having found probable cause to believe that he had committed armed robbery of a local Check 'n Go store on June 22. Riley had allegedly entered the store, pointed a gun at the clerk, instructed her to open the safe, and fled on foot with a "money box and money bags." On June 25, Riley purchased a cell phone serviced by AT&T. A member of Riley's family gave this phone's telephone number to Riley's girlfriend "so she could contact him while he was 'on the run.' " Riley's girlfriend in turn disclosed the number to Special Deputy Joel Bowman, a member of the United States Marshal Service Grand Rapids Apprehension Team. On June 26, Bowman applied for and received an order from the 17th Circuit Court of Kent County, Michigan, compelling AT&T to produce telecommunications records of Riley's cell phone under federal electronic-surveillance laws. See 18 U.S.C. §§ 2703, 3123, 3124.

The court order compelled disclosure of call metadata such as inbound and outbound phone numbers and cell-site location (CSL) data, as well as real-time tracking¹ or "pinging" of the latitude and longitude coordinates of Riley's phone. Specifically, the order required AT&T to disclose the following, potentially for two months, until August 26, 2015:

16. Precision location of mobile device (GPS Location) such that service provider shall initiate a signal to determine the location of the subject's mobile device on the service provider's network or with such other reference points as may be reasonable [sic] available and a [sic] such intervals and times as directed by State Task Force Investigators and Deputy Marshals of the United States Marshal Service.

Within hours of the issuance of the surveillance order, U.S. Marshals received real-time GPS data revealing that Riley's phone was located at the Airport Inn in Memphis.² Task-force deputies in the Marshals' Memphis office went to the motel, showed the front-desk clerk a picture of Riley, and determined that Riley had checked in under the name "Rico Shawn Lavender" and was in Room 314. The deputies went to Riley's room and knocked. Riley opened the door and immediately attempted to shut it, but the deputies entered the room and arrested Riley at some time between 8:50 and 9:00 p.m. A Smith & Wesson .22-caliber pistol was in plain view on the bed, and Riley was subsequently indicted on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

II

Following his arrest in Memphis, Riley was extradited to Wyoming, Michigan, where, on October 6, 2015, he was sentenced in state court to 7.5 to 25 years of imprisonment for armed robbery, with an earliest release date of January 13, 2023, and a latest discharge date of July 13, 2040. He then returned to the United States District Court for the Western District of Tennessee to answer his federal firearm-possession charge. Riley twice moved to compel the government to disclose information on how the government located Riley so quickly, asserting that "[t]here was no known legal way that Mr. Riley's location could have been located absent the use of illegal cell tracking technology," and that disclosure was required to allow Riley to bring a constitutional challenge to whatever technology was used. The district court granted Riley's second motion to compel.

Attaching copies of the state court's surveillance order, Riley moved to suppress the pistol found in his motel room as the fruit of an unconstitutional search, arguing that whatever method the government had used to find him—whether by GPS pinging, a "cell-site simulator" such as a "DirtBox, Stingray, etc.," or otherwise, Mot. to Suppress, R. 35 at 3—intruded upon Riley's reasonable expectation of privacy and thus required a search warrant.³ The government opposed the motion, including with its response a fourteen-page exhibit listing the GPS coordinates of Riley's cell phone on 454 occasions starting June 26, 2015, and ending June 30, 2015. The first twenty-two entries are listed above. Ante , at n.2. On average, AT&T logged approximately one "ping" every thirteen minutes, although, of course, Riley was arrested on the first day of the tracking.

The district court denied the motion on two alternative bases: first, on the ground that our decision in Skinner justified short-term GPS tracking without a warrant; second, on the ground that the warrant that had been issued for Riley's arrest justified obtaining real-time GPS information about Riley's location in order to effectuate his arrest. Riley pleaded guilty to being a felon in possession of a firearm, reserving his right to appeal the denial of his motion to suppress, and was sentenced to forty-one months of imprisonment to run concurrently with his state sentence but with a delayed start date of February 13, 2022.

The sole question before us is whether the district court erred in holding that the government did not violate Riley's Fourth Amendment rights by compelling AT&T to disclose, and then by subsequently using, the real-time GPS location of Riley's cell phone over the course of approximately seven hours.⁴ Because the sort of short-term tracking conducted here falls squarely within the logic of our precedent in Skinner , we affirm.

III

The Fourth Amendment protects individuals against unreasonable searches and seizures of their "persons, houses, papers, and effects." Law-enforcement officers conduct a "search" when they seek to obtain information in either of two ways: (1) by physically trespassing upon an individual's person, house, papers, or effects, see United States v. Jones , 565 U.S. 400, 406–07, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (holding GPS tracking of a vehicle for twenty-eight days was a search when agents physically trespassed upon the vehicle to install the tracking device), or (2) by intruding upon an individual's reasonable expectation of privacy, see Katz v. United States , 389 U.S. 347, 360–62, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring) (holding eavesdropping on a payphone conversation by means of an electronic listening and recording device, when the payphone door was closed, was a search; noting "reasonable expectations of privacy may be defeated by electronic as well as physical invasion"). Riley does not argue that the government committed a physical trespass of any sort, and we decline to consider whether pinging a cell phone may constitute an electronic trespass,⁵ so only the 'reasonable expectation of privacy' test is applicable here.

Both the Supreme Court and our court have declined to recognize as reasonable a criminal suspect's expectation of privacy in his location while moving along public thoroughfares. See United States v. Knotts , 460 U.S. 276, 279–80, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (holding the placement of a radio transmitter by narcotics officers in a container of chemicals to be purchased by a suspected methamphetamine manufacturer was not a search when officers used the transmitter to track a vehicle while it carried the transmitter along public roads to a cabin, but when the transmitter did not enter the cabin itself); United States v. Skinner , 690 F.3d 772, 774–75, 776 (6th Cir. 2012) (holding government use of real-time cell-phone GPS data to track a suspected drug trafficker as he traveled for three days in a "motorhome that was driven on public roads" was not a search).

In Skinner , we held that location data emitted by a "voluntarily procured" cell phone could not be subject to a reasonable expectation of privacy, even if the cell-phone user had no reason to expect that the government would compel the service provider to disclose those data. Id. at 779. There, because "the defendant's movements could have been observed by any member of the public," ibid. , we held that it could not possibly be a Fourth Amendment violation for law-enforcement officers to monitor...