United States v. White, Case No. 13–20423.

• Citation: 62 F.Supp.3d 614
• Decision Date: 24 November 2014
• Docket Number: Case No. 13–20423.
• Parties: UNITED STATES of America, Plaintiff, v. Jimmie Eugene WHITE II, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

62 F.Supp.3d 614

UNITED STATES of America, Plaintiff

v.Jimmie Eugene WHITE II, Defendant.

Case No. 13–20423.

United States District Court, E.D. Michigan, Southern Division.

Signed Nov. 24, 2014.

Gabriel S. Mendlow, Douglas C. Salzenstein, Kevin Mulcahy, U.S. Attorney's Office, Detroit, MI, for Plaintiff.

OPINION AND ORDER DENYING MOTION TO SUPPRESS EVIDENCE

DAVID M. LAWSON, District Judge.

Defendant Eugene Jimmie White II, charged with drug distribution crimes, has filed a motion to suppress evidence obtained through the execution of search warrants for active real time cell site and GPS location data monitoring, including a search warrant for his residence based on information he believes was derived from the monitoring data. The government argues that White does not have “standing” to challenge the tracking data for certain cell phones that did not belong to him. Although the standing argument is imprecise, the Court finds that White did not have a reasonable expectation of privacy in those phones. The government also argues that the search warrants issued to track White's cell phone were supported by probable cause sufficient to authorize tracking for an open-ended time period and into private spaces. The Court cannot agree with that argument. However, the good faith exception to the exclusionary rule saves the evidence. And the search warrant for White's house was based on information independent of the tracking data to establish probable cause. Therefore, the motion to suppress will be denied.

I.

On May 14, 2010, Drug Enforcement Agency (“DEA”) agents executed a federal search warrant at Jimmie White's home in Detroit. They recovered cash, 898 pills of N–Benzylpiperazine Dihydrochloride (BZP), a Cobray 9 mm pistol with an obliterated serial number, and magazines loaded with various types of ammunition. The execution of the search warrant was the culmination of a months-long investigation into ecstasy trafficking in Detroit. The investigation into White's drug trafficking activity included a variety of investigative techniques, including a Title III wiretap interception of his cellular phone conversations, state search warrants for cell site and GPS location monitoring of his cellular phone, controlled purchases of ecstasy and BZP by a confidential informant, and surveillance of White's home. The government obtained long-term state search warrants, which are the subject of White's motion, to track the location of White's cellular phone on May 28, 2009, February 5, 2010, and April 29, 2010. The government also obtained state search warrants to track the location of the phones of other people.

White was arrested on May 14, 2010 during the execution of the search warrant at his home, but the arrest was based on an outstanding warrant from Ohio for fraudulent activity. White was not charged with the current offenses until he completed his sentence for the Ohio crimes; the government filed a criminal complaint against White based on its drug conspiracy investigation on April 29, 2013. On June 4, 2013, White was indicated for conspiracy to distribute ecstasy and BZP, possession with intent to distribute BZP, possession of a firearm in furtherance of a drug trafficking offense, and possession of a firearm by a convicted felon.

White filed a motion to suppress evidence on September 4, 2014. The government responded, and the Court heard argument from the parties, including White and his standby counsel, on September 30, 2014. Because the parties did not address all of the relevant issues, the Court permitted them to file supplemental briefs, which have now been received. The suppression motion is ready for decision.

II.

White asks the Court to suppress evidence obtained from tracking his cell phone, plus tracking data and derivative evidence obtained from cell phones of which he was neither a subscriber nor user. The latter evidence came from search warrants dated February 23, 2010 and February 19, 2010. The government argues that White lacks “standing” to challenge those search warrants.

The “rights assured by the Fourth Amendment are personal rights, and ... may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure.” Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (quoted in Rakas v. Illinois, 439 U.S. 128, 138, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ). Consequently, White must carry the burden of establishing that his own Fourth Amendment rights were violated. Rakas, 439 U.S. at 132 n. 1, 99 S.Ct. 421. To do so, he must show (1) that he had a subjective expectation of privacy in the thing that was searched or the items that were seized, and (2) that society is prepared to recognize that expectation as legitimate. California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) ; United States v. King, 227 F.3d 732, 743–44 (6th Cir.2000) ; see also United States v. Delgado, 121 F.Supp.2d 631, 636 (E.D.Mich.2000). “Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421.

Characterizing this question as one of “standing,” however, miscasts the issue. The Supreme Court rejected the concept of “standing” in Rakas, 439 U.S. at 139–40, 99 S.Ct. 421. It is commonly acknowledged that “in determining whether a defendant is able to show the violation of his ... Fourth Amendment rights, the ‘definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.’ ” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (quoting Rakas, 439 U.S. at 140, 99 S.Ct. 421 ). More than thirteen years ago, the Sixth Circuit recognized that “the concept of ‘standing’ has not had a place in Fourth Amendment jurisprudence for more than a decade” and that “the matter of standing in the context of searches and seizures actually involve[s] substantive Fourth Amendment law [in which] ... a defendant [must] prove a legitimate expectation of privacy as a prerequisite to challenging assertedly unlawful police conduct.”

United States v. Smith, 263 F.3d 571, 581–82 (6th Cir.2001) (quoting United States v. Sanchez, 943 F.2d 110, 113 n. 1 (1st Cir.1991) ).

White has not demonstrated a reasonable expectation of privacy in the phones that did not belong to him. “In order to qualify as a person aggrieved by an unlawful search and seizure one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.” Rakas, 439 U.S. at 134–35, 99 S.Ct. 421 (internal quotation marks omitted). White may not challenge the seizure of data from someone else's cell phone. See United States v. Forest, 355 F.3d 942, 948 (6th Cir.2004) (holding that the defendant did not have an expectation of privacy that would allow a challenge to the search of his co-defendant's phone), vacated on other grounds, 543 U.S. 1100, 125 S.Ct. 1050, 160 L.Ed.2d 1001 (2005). The motion to suppress evidence derived from the February 23, 2010 and February 19, 2010 search warrants, therefore, will be denied.

III.

The investigators obtained warrants on May 28, 2009 and February 5, 2010 from a state magistrate to

search the following described place: Any and all records relating to the location of cellular phone tower(s) including specific active GPS precision tracking of cellular phone number (313) 674–6225. Said records shall include the time period [covering a thirty-day span] on a continuous basis.

(A search warrant also was obtained on April 10, 2010 for cell site and GPS data, but White did not address that warrant in his motion. However, the discussion would be the same if he did.) The affidavit presented in support of the May 28, 2009 warrant request was signed by a DEA agent. He alleged that the DEA had been investigating a drug trafficking organization operating in Detroit that distributed MDMA and marijuana; a confidential source (who was credible) identified defendant Jimmy White II as the leader; White told the source that White obtained MDMA from Canada and marijuana from Arizona and Alabama; and White used the target cell phone to discuss drug distribution. The affidavit also stated that the source contacted White on the target phone to set up controlled purchases, the most recent of which occurred within the previous week. The agent also averred that the target phone was registered to White at an address on Baldwin Street in Detroit, but White's vehicle registration and driver's license listed his address in Romulus, Michigan, causing the agent to conclude that White was “utilizing multiple addresses to disguise his true whereabouts.” The agent also averred that White solicited the confidential source's cooperation to locate suppliers outside Michigan, and he told the source that he sold drugs outside Michigan. Finally, to justify the request for continuous, real-time tracking, the DEA agent stated:

[I]n order to determine where the cellular phone is being used, it is necessary that the above stated records be furnished to your Affiant on a continuous basis until the account is closed, or until known are WHITE II's drug trafficking activities, his residence, his vehicles and his narcotics distribution associates.

The affidavit supporting the February 5, 2010 search warrant was submitted by a Dearborn Heights, Michigan police officer. It was largely the same as the earlier affidavit, except that it noted that the Romulus address was White's mother's house; and it stated that when it tracked White under the previous search warrant, the police officer learned that White made a trip to West Virginia and...