According to the Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology (Sept. 3, 2015), a cell-site simulator “function[s] by transmitting as a cell-site tower” as a means of remotely acquiring the “identifying information from cellular devices,” though not, according to the Guidelines, “emails, texts, contact lists, images or any other data from the phone.” The government appears to closely guard any information it derives from the use of this device. In fact, it issued a memorandum agreement in 2013 stipulated to dismiss cases rather than disclose use of a cell-site simulator. As discussed below, the accuracy of the Guidelines with respect to the scope and type of data a cell-site simulator can cull were also called into question in a dissenting opinion by the chief judge of federal appeals court. To that end, in 2016, a Freedom of Information Act (FOIA) request showed that the Virginia State Police used a cell-site simulator to capture not only GPS location and metadata, but also voice communication.
Proponents of cell-site simulators argue that the devices can, among other uses, investigate crimes, apprehend suspects, rescue crime victims, and assist citizens in distress. Many are unconvinced that these uses outweigh alleged privacy concerns. The optimism about cell-site simulators is not universally shared. For instance, the American Civil Liberties Union and its at state affiliates have sued state and federal governmental entities for information on how each are deploying cell-site simulators. Likely in partial response to these questions and the budding controversy, the U.S. Department of Justice (DOJ) announced in September 2015 that it would ordinarily seek a warrant, plus an order under the federal pen-register statute, 18 U.S.C §3123, prior to employing a cell-site simulator. At the same time, the DOJ has not conceded this is a constitutionally required protocol and the Guidelines are not binding upon state law enforcement officials.
This article discusses two recent cases that reach differing opinions on whether a cell-site simulator was used in a way consonant with the Fourth Amendment protection against unreasonable search and seizures. The opinions do not agree, although this may be due to specific factual circumstances. As such, the legal landscape regarding cell-site simulators remains largely unexplored.
District Court Invalidates Search
United States v. Lambis, — F. Supp. 3d —-, 2016 WL 3870940 (S.D.N.Y. July 12, 2016), involves a relatively simple set of facts. In 2015, the Drug Enforcement Administration (DEA) began investigating an international drug-trafficking organization. As part of the investigation, the DEA sought a warrant for cell-site location information (CSLI) for a targeted cell phone. The CSLI helped DEA agents determine that the target cell phone was located in the “general vicinity of the Washington Heights area by 177th and Broadway,” but the CSLI did not identify the building, much less specific apartment where the targeted cell phone was located. To obtain a more precise location and without obtaining a warrant, the DEA used a cell-site simulator to ascertain the defendant’s (Lambis) apartment as the most likely source of the targeted cell phone. Later in the same night, DEA agents obtained consent from Lambis’s father to enter the apartment. The agent uncovered narcotics and related paraphernalia. Lambis moved to suppress on Fourth Amendment grounds.
The Southern District of New York agreed and granted Lambis’s motion. It relied primarily on the Supreme Court decision in Kyllo v. United States, 533 U.S. 27 (2001), which held that an unreasonable Fourth Amendment search occurred when the government employed a thermal-imaging device, a device not in general public use to detect infrared radiation being emitted from a home and therefore “explore details that would previously have been unknowable without physical intrusion[.]” According to the Lambis court, since the signals emitted from the defendant’s cell phone were not accessible to “anyone who wanted to look” without the use of a cell-site simulator, using the signals to find Lambis’s apartment was an unreasonable search. In fact, the DEA agent who testified at the suppression hearing stated that he had never previously used a cell-site simulator. The court also later observed that the original warrant for CSLI did not contemplate the use of a cell-site simulator.
The Lambis court also echoed the recent U.S. Supreme Court decision in Riley v. California, 573 U.S. ____, 134 S. Ct. 2473 (2014), in which Chief Justice John G. Roberts Jr. discussed the uniquely invasive nature of searching a cell phone insofar as such devices are “not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” Likewise, the opinion in Lambis by District Judge William H. Pauley III noted that cell phones are ubiquitous and used lawfully by the “vast majority” of the population on a daily basis, and therefore it is “far more intrusive” than other search tools utilized by law enforcement. The Second Circuit has yet to weigh in on this issue.
Seventh Circuit Permits Use
However, last November, the Seventh Circuit issued an opinion discussing the intersection of cell-site simulators and the Fourth Amendment. As discussed further below, it reached a decidedly different conclusion than the Lambis court, albeit in materially different circumstances.
In United States v. Patrick, — F.3d —, 2016 WL 6892507 (7th Cir. Nov. 23, 2016), police used a cell-site simulator to pinpoint the defendant (Patrick) while he was in a car on a public street. Patrick was armed. This led to a federal prosecution under 18 U.S.C. §922(g)(1) because his criminal record prevented him from lawfully owning a firearm. Unlike the defendant in Lambis, the police had already obtained two arrest warrants, although neither specifically granted the officers the rights to use a cell-site simulator.
Patrick received a 57 month sentence and later moved to suppress. A magistrate judge denied the motion, which was upheld by the district judge. An unexpected disclosure followed when, after Patrick filed his opening brief, the prosecutor acknowledged that a cell-site simulator had been used to pin down the situs of Patrick’s cell phone.
Since the government had conceded that using the cell-site simulator constituted a “search” for Fourth Amendment purposes, the sole contested issue was whether the second warrant was invalid because in securing it, the officers did not specifically inform the judge they planned on using a cell-site simulator. Rather, the warrant application “implied they had planned to track [Patrick] down by using his phone’s company data.” To Patrick, this act of “leaving the judge in the dark” rendered the warrant infirm.
The majority opinion disagreed. It held that the officers were not required to disclose the precise manner in which the warrant would be executed. In fact, the officers could have “kept silent about how they would do it,” or if any justification was used, it could have been as generic as a need for “electronic means that reveal locations of cell phones.” Id. at 3 (citing, e.g., Dalia v. United States, 441 U.S. 238 (1979)). Second, the majority rejected Patrick’s argument that a certain type of candor before the judge was required. It concluded that, in addition to the refusal of the judiciary to intensely scrutinize a warrant application ex ante, probable cause supported the arrest, two search warrants were outstanding, and Patrick was arrested in a public place.
Chief Judge Diane Wood wrote a lengthy dissent. She faulted the majority for, inter alia: 1) failing to remand to learn more information about the use and technological capabilities of a cell-site simulator given that it was not referenced in the warrant and the overarching government secrecy surrounding it; 2) incorrectly applying precedent holding that the existence of a warrant precludes application of the exclusionary rule in certain circumstances; and 3) ignoring the implications of the officers’ arguably bad faith conduct given their allegedly deficient candor in the warrant application.
Richard Raysman is a Partner at Holland & Knight. Peter Brown is the principal at Peter Brown & Associates and a member of this newsletter’s Board of Editors. They are co-authors of Computer Law: Drafting and Negotiating Forms and Agreements (Law Journal Press).
The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.