United States District Court, District of Columbia
Peter S. Smith, Rachel Carlson Lieber, John V. Geise, Office of the U.S. Attorney, Washington, DC, for United States of America.
A. Eduardo Balarezo, Law Offices of A. Eduardo Balarezo, Brian Keith McDaniel, McDaniel & Associates, Diane S. Lepley, Washington, DC, for Defendants.
MEMORANDUM OPINION AND ORDER
ELLEN SEGAL HUVELLE, District Judge.
On January 23, 2012, the Supreme Court vacated Antoine Jones' conviction under 21 U.S.C. § 846 for Conspiracy to Distribute and Possess with Intent to Distribute Five Kilograms or more of Cocaine and Fifty Grams or more of Cocaine Base. United States v. Jones, --- U.S. ----, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). In that opinion,
the Supreme Court unanimously ruled that the government's installation of a GPS device on Jones' car and use of the device to track the car's movement for a period of twenty-eight days constituted a Fourth Amendment search. Relying on that decision, as well as the D.C. Circuit's opinion in this case in United States v. Maynard, 615 F.3d 544 (D.C.Cir.2010), aff'd on other grounds sub nom. United States v. Jones, --- U.S. ----, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), defendant now moves to suppress cell-site data covering a four-month period that was obtained pursuant to three orders issued by United States Magistrate Judges of this Court in June, August, and September of 2005. (Defendant's Motion to Suppress Cell Site Data, Mar. 29, 2012 [ECF No. 606] (" Mot." ).)
Defendant, with the support of an amici curiae brief filed by Electronic Frontier Foundation and Center for Democracy & Technology (Brief Amici Curiae in Support of Defendant Jones' Motion to Suppress, Aug. 13, 2012 [ECF No. 644] (" Amicus Br." )), argues that under the Fourth Amendment, the government was required to obtain a warrant based on probable cause prior to tracking Jones' location based on cell-site data provided by a third party provider for a four-month period of time. The Court, however, need not resolve this vexing question of Fourth Amendment jurisprudence, since it concludes that the good-faith exception to the exclusionary rule applies.
The facts underlying the indictment in this case have been set forth in detail by this Court, as well as the Circuit Court in Maynard, 615 F.3d at 549. Accordingly, the Court will provide a brief summary only of the facts pertinent to the issuance of the three orders granted by the two magistrate judges and a simplified overview of the cellular technology at issue here.
I. THE ORDERS
As part of their investigation, law enforcement agents sought to obtain cell-site information from Cingular Wireless for two cell phones they believed were being used by defendant. On June 20, 2005, the government filed an Application for Pen Register, Caller Identification Device, Subscriber and Cell Site Information pursuant to 18 U.S.C. §§ 2703(c)(1)(B) and 2703(d) for cellular telephone number (202) 538-3946. (Mot. ¶ 2.) In that application, the government included several facts in support of its claim that the cell-site information regarding that phone number would be " relevant and material to an ongoing criminal investigation." First, the government explained that it was believed that the user of cellular telephone number (202) 538-3946 used his phone in furtherance of Title 21, United States Code, Section 841, and was participating in a conspiracy to
distribute narcotic controlled substances. ( see Government's Opposition to Motion to Suppress Cell Site Data, Sept. 4, 2012 [ECF No. 648] (" Opp'n" ) Ex. A, June 20, 2005 Application ¶ 2.) Second, the government stated that:
[P]ersons engaged in illegal narcotics trafficking utilize their telephones to arrange meetings at which narcotics are supplied and payment for those narcotics are made. Knowing the location of the trafficker when such telephone calls are made will assist law enforcement in discovering the location of the premises in which the trafficker maintains his supply of narcotics, paraphernalia used in narcotics trafficking such as cutting and packaging materials, and other evidence of illegal narcotics trafficking, including records and financial information. Similarly, knowledge of the location of the trafficker when he places telephone calls to known suppliers and customers can assist law enforcement in this physical surveillance of the subject and in obtaining further relevant evidence of the target's illegal narcotics trafficking activity. The use of a cellular telephone requires that the caller's signal involve the use of cell site in the service provider's system. When the target telephone is a cellular telephone, the location of this cell site and the direction from which the caller's signal was sent provides relevant information to assist law enforcement in the above functions.
( Id. ¶ 10.) The government's application was granted by Magistrate Judge Facciola on that same day, and the order authorized the disclosure of the requested material for a period of 60 days. (Mot. ¶ 3.) On August 1, 2005, the government sought an extension of the original order, which was granted by Magistrate Judge Kay for another 60 days. (Mot. ¶ 3.) Finally, on September 19, 2005, the government sought a similar order for cellular telephone number (202) 746-0470, which was granted by Judge Facciola for another 60-day period. (Mot. ¶ 3.) Pursuant to these three orders, four months of data was received from Cingular Wireless for the period June 23, 2005 through October 31, 2005. (Opp'n at 4.)
II. CELL-SITE LOCATION RECORDS
Cellular telephone companies maintain a system of towers to receive and transmit signals from cell phones. When a cell phone user places or receives a call, the cell phone sends a signal that is picked up by the nearest tower. In the regular course of business, cellular telephone companies generate and retain records of which cell tower a user's phone was connected to at the beginning and end of each call. These records are only generated when the user places or receives a call; no such record is created when the phone is not in use. See In re Application of the United States of America for an Order for Disclosure of Telecommunications Records and Authorizing the Use of a Pen Register and Trap and Trace, 405 F.Supp.2d 435, 449 (S.D.N.Y.2005) ( " Gorenstein Opinion" ) (" [T]he data is provided only in the event the user happens to make or receive a telephone call." ).
Because cell-site data does not identify a user's precise location, but instead only identifies the cell phone tower nearest a user at the time of a call, the precision of cell-site data depends on the distance between cell towers in the user's area. As one court has noted, " towers can be up to 10 ...