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Jones v. United States

Court of Appeals of Columbia District

September 21, 2017

Prince Jones, Appellant,
v.
United States, Appellee.

          Argued April 18, 2017

         Appeal from the Superior Court of the District of Columbia (CF1-18140-13) (Hon. Jennifer M. Anderson, Trial Judge)

          Stefanie Schneider, Public Defender Service, with whom Samia Fam and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

          Lauren R. Bates, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Jodi S. Lazarus, Assistant United States Attorneys, were on the brief, for appellee.

          Nathan Freed Wessler, American Civil Liberties Union, with whom Arthur B. Spitzer and Scott Michelman, American Civil Liberties Union, and Jennifer Lynch, Electronic Frontier Foundation, were on the brief, for American Civil Liberties Union of the Nation's Capital and Electronic Frontier Foundation, amicus curiae, in support of appellant.

          Before Thompson and Beckwith, Associate Judges, and Farrell, Senior Judge.

          OPINION

          Beckwith, Associate Judge.

         A jury found appellant Prince Jones guilty of various offenses arising out of two alleged incidents of sexual assault and robbery at knifepoint.[1] Mr. Jones appeals his convictions on the ground that much of the evidence offered against him at trial was the direct or indirect product of a warrantless-and thus, Mr. Jones argues, unlawful-search involving a cell-site simulator or "stingray."[2] Mr. Jones presented this Fourth Amendment claim to the trial court in a pretrial motion to suppress, but the trial court denied it under the inevitable-discovery doctrine[3] and did not reach the question whether the government violated Mr. Jones's rights. We agree with Mr. Jones that the government violated the Fourth Amendment when it deployed the cell-site simulator against him without first obtaining a warrant based on probable cause. Further, we reverse the trial court's inevitable-discovery ruling and reject the government's argument (not resolved by the trial court) that the good-faith doctrine[4] precludes applying the exclusionary rule in this case. Because the admission at trial of the evidence obtained as a result of the unlawful search was not harmless beyond a reasonable doubt, we reverse Mr. Jones's convictions.

         I. Background

         A. Investigation and Arrest of Mr. Jones

         At the suppression hearing in this case, Detective Rachel Pulliam, a member of the Sexual Assault Unit of the Metropolitan Police Department (MPD), testified that she investigated a sexual assault that occurred around 12:30 a.m. on October 9, 2013, and another that occurred around 1:30 a.m. on October 11. The two sexual- assault complainants were women who had advertised escort services on the classified-advertising website Backpage. Detective Pulliam testified that on each occasion, the perpetrator[5] contacted the complainant by telephone in response to an advertisement and arranged to pay the complainant for sexual services. According to Detective Pulliam, when each complainant arrived at the arranged meeting place, the perpetrator "forced [her] to perform oral sex on [him] at knifepoint" and robbed her of her cellphone and other property. Detective Pulliam testified that on one of the two occasions, the perpetrator also robbed the complainant's cousin, who had been waiting in a car outside the meeting location.

         Detective Pulliam testified that in the morning following the second incident, she and her colleagues obtained telephone records for the sexual-assault complainants. The telephone records revealed a possible suspect: Both complainants had received calls from the same number during the relevant time periods. Detective Pulliam sought the assistance of the MPD's Technical Services Unit (TSU) to track the suspect's and the complainants' phones.

         Sergeant Todd Perkins, a supervisor in the TSU, testified about his office's efforts to track the phones that morning. He testified that he and his team sought "subscriber information" for the suspect's number from the provider associated with that number but were unsuccessful-the cellphone "was just a generic prepaid" with "no subscriber information whatsoever." The TSU also sought and obtained information about the locations of the suspect's and complainants' cellphones from the relevant telecommunication providers.[6] According to Sergeant Perkins, the TSU received updated location information from the providers every fifteen minutes. The information came in the form of geographic coordinates- latitude and longitude-with a "degree of uncertainty" specified in meters.

         Sergeant Perkins testified that the real-time location information they received that morning had a high degree of uncertainty-"several hundred meter[s]"-indicating that the phones' GPS capabilities were inactive. He explained that "if it [had been] true GPS, " his team would have been "getting two meter, three meter, five meter hits." Despite the lack of precision in the location information, Sergeant Perkins and his team were able to "tell that . . . one of the [complainants'] phones and the [suspect's] phone were traveling in the same general direction . . . as if they were together." The location information suggested that the two phones stopped in the general vicinity of the Minnesota Avenue Metro Station.

         Based on this information, Sergeant Perkins and other TSU officers took a truck equipped with a cell-site simulator to the area of the Minnesota Avenue Metro station and used the device to track the suspect. Sergeant Perkins could not remember whether he and his team used the cell-site simulator to track the suspect's phone or the complainant's phone that they believed was traveling with it, [7] but whichever signal they were tracking led them, at around 11:30 a.m., to a parked Saturn. Inside the Saturn were Mr. Jones and Mr. Jones's girlfriend, Nora Williams. The police arrested Mr. Jones and recovered evidence from Mr. Jones's person and his car and from Ms. Williams, including a folding knife and the complainants' and the suspect's cellphones. Mr. Jones also made an incriminating statement to the police. Ms. Williams later testified against Mr. Jones at trial.

         B. Cell-Site Simulator

         Sergeant Perkins testified at the suppression hearing about "how [the cell-site simulator they used] works, " "based on the information that's publicly available." He explained that his team engages the cell-site simulator by programming into it a unique identifier-an MIN or IMSI number[8]-associated with the target phone.[9] The simulator then begins "listening for [the target] phone, " which, as part of its normal operation, is "constantly transmitting to and receiving from a tower." The officers operating the cell-site simulator drive around and "as soon as [the simulator] comes across [the target phone's signal], it grabs it and it holds on to it." Once the cell-site simulator "grabs" the target phone, the simulator begins reporting "general location information and signal strength" that can be used to locate the target phone's exact location.[10] Sergeant Perkins testified that once the cell-site simulator "grabs" the target phone, the target phone is prevented from communicating "with an actual . . . tower."

         Further information about the cell-site simulator was provided by Ben Levitan, an expert on "cellular telephone networks and systems" called by the defense.[11] According to Mr. Levitan, cell phones are "dumb devices" that "generally connect themselves to the strongest cell tower signal that they detect." Mr. Levitan explained that a cell-site simulator "act[s] as a portable cell tower, " which, "when turned on or brought into an area, may appear to be a stronger signal and cause [a] phone[] to break its connection with the cell phone network and reattach itself to the newly found . . . simulator."[12] Mr. Levitan testified that when the cellphone "attach[es]" itself to the cell-site simulator, it "identifies itself by phone number and various codes, " including its IMSI number.[13] Although Mr. Levitan had never used the type of cell-site simulator utilized by law enforcement, he testified that he had used similar devices working within the telecommunications industry and that the devices allow the user to determine the target phone's direction and distance relative to the simulator device.[14] Moreover, because the cell-site simulator is not a true cell tower connected with the cellular network, any cellphone connected to the cell-site simulator will not be able to communicate with the network: "[Y]our call doesn't go through[, ] period. Nothing happens."[15]

         C. Trial Court's Ruling on the Motion To Suppress

         In ruling on Mr. Jones's motion to suppress, the trial court did not decide whether the use of a cell-site simulator was a search within the meaning of the Fourth Amendment or whether the government was required to obtain a warrant to use the cell-site simulator. Instead, the trial court focused on the issues of standing, exigent circumstances, and inevitable discovery.

         On the issue of standing, the trial court stated that the suppression-hearing record did not reveal "with any great degree of certainty" which phone-Mr. Jones's or the complainant's-the police had tracked using the cell-site simulator. The court believed that the burden was on the government to show that the police did not track Mr. Jones's phone and found that the government had failed to meet this burden. The government did not take issue with this allocation of the burden of proof and agreed with the court's determination.[16]

         The trial court rejected the government's argument that there were exigent circumstances justifying noncompliance with any otherwise applicable warrant requirement-though, again, the trial court did not determine whether there was a warrant requirement. The court noted that significant time (around ten hours) had passed between the sexual assault and the arrest of Mr. Jones on October 11, during which time "the detectives could have been getting a warrant."

         The trial court agreed with the government's argument that regardless of whether there had been a Fourth Amendment violation, the inevitable-discovery doctrine rendered the exclusionary rule inapplicable. The court found that "even if [the police] were using [Mr. Jones's] phone on the cell site simulator, . . . had they switched over . . . to use the [complainant's] number instead, . . . they would have eventually gotten to the exact same place because the phones were together[ a]nd it's the same technology." The court thus agreed with the government's assertion that "there[ was] a separate lawful means" by which the government "would have gotten to the exact same place."

         II. Discussion

         Mr. Jones claims that the government's use of a cell-site simulator violated his Fourth Amendment rights and that the trial court erred in failing to grant his motion to suppress. In deciding this Fourth Amendment claim, we defer to the trial court's factual findings and review them only for clear error, but we review the trial court's legal conclusions de novo. (Albert) Jones v. United States, 154 A.3d 591, 594 (D.C. 2017). The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, " and thus we turn first to the threshold question whether the government's use of the cell-site simulator to locate Mr. Jones's cellphone[17] constituted a search or seizure.

         A. Fourth Amendment Search

         Government conduct is a "search" within the meaning of the Fourth Amendment if it invades "an actual (subjective) expectation of privacy . . . that society is prepared to recognize as reasonable." Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (internal quotation marks omitted); see also Kyllo v. United States, 533 U.S. 27, 33 (2001); Napper v. United States, 22 A.3d 758, 767 (D.C. 2011). In deciding whether a particular expectation of privacy is "reasonable, " this court aims to "assure[] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." Kyllo, 533 U.S. at 34. "To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment." Id.

         Our analysis begins with the obvious fact that most people have a cellphone and carry it with them practically everywhere they go.[18] One consequence of this is that locating and tracking a cellphone using a cell-site simulator has the substantial potential to expose the owner's intimate personal information. First, "cell phone tracking can easily invade the right to privacy in one's home or other private areas." Tracey v. State, 152 So.3d 504, 524 (Fla. 2014); see also State v. Earls, 70 A.3d 630, 642 (N.J. 2013) ("[C]ell phones . . . blur the historical distinction between public and private areas because [they] emit signals from both places."). When this occurs, there is a "clear[] . . . Fourth Amendment violation." Tracey, 152 So.3d at 524; see also United States v. Karo, 468 U.S. 705, 714 (1984) ("[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable."). And second, even a person's public movements, as observed by a cell-site simulator or other means of cellphone tracking, can reveal sensitive information about the person's "familial, political, professional, religious, and sexual associations." United States v. (Antoine) Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring).

         Another consequence of cellphones' "pervasiveness"[19] is that a cell-site simulator can be used by the government not merely to track a person but to locate him or her. See State v. Andrews, 134 A.3d 324, 348 (Md. Ct. Spec. App. 2016). Police have always had the capacity to visually track a suspect from some starting location, and electronic tracking devices like those used in United States v. Knotts, 460 U.S. 276 (1983), and Karo, 468 U.S. 705, have augmented this preexisting capacity. But although the kind of device used in Knotts and Karo is probably more reliable than a human tracker-less prone to discovery than a human and harder to elude-at their core these devices merely enable police officers to accomplish the same task that they could have accomplished through "[v]isual surveillance from public places." Knotts, 460 U.S. at 282; see also Karo, 468 U.S. at 713. This is because the tracking device must be physically installed on some object that the target will later acquire or use. See, e.g., (Antoine) Jones, 565 U.S. at 402-03 (GPS tracker placed on the defendant's wife's car); Karo, 468 U.S. at 708 (tracker placed in container of chemicals the defendant had purchased); Knotts, 460 U.S. at 276 (same). These devices do not enable police to locate a person whose whereabouts were previously completely unknown.

         With a cell-site simulator, however, police no longer need to track a person visually from some starting location or physically install a tracking device on an object that is in, or will come into, his or her possession. Instead, they can remotely activate the latent tracking function of a device that the person is almost certainly carrying in his or her pocket or purse: a cellphone. As the present case demonstrates, police officers first obtain subscriber information and real-time location information from the target's telecommunications provider to narrow down the search area.[20] They then proceed to that area with a cell-site simulator, which they use to force the person's cellphone to identify itself and reveal its exact location. It is in this sense that a cell-site simulator is a locating, not merely a tracking, device: A cell-site simulator allows police officers who possess a person's telephone number to discover that person's precise location remotely and at will.

         A final consideration is that when the police use a cell-site simulator to locate a person's cellphone, the simulator does not merely passively listen for transmissions sent by the phone in the ordinary course of the phone's operation. Instead, the cell-site simulator exploits a security vulnerability in the phone-the fact that cellphones are, in the words of the defense expert, "dumb devices, " unable to differentiate between a legitimate cellular tower and a cell-site simulator masquerading as one[21]-and actively induces the phone to divulge its identifying information. Once the phone is identified, it can be located. So far as the present record reveals, the only countermeasure that a person can undertake is to turn off his or her cellphone or its radios (put it in "airplane mode"), thus forgoing its use as a communication device.

         The preceding considerations lead us to conclude that the use of a cell-site simulator to locate Mr. Jones's phone invaded a reasonable expectation of privacy and was thus a search. First, given the potential for location information gathered by a cell-site simulator or other device to reveal sensitive personal facts, people justifiably seek to keep such information private. This is insufficient, in itself, to support our conclusion that the government invaded a legitimate expectation of privacy: Supreme Court precedent makes clear that certain forms of tracking do not invade a reasonable expectation of privacy. See Knotts, 460 U.S. at 282 (holding that the use of an electronic device to track a suspect's movements in public spaces did not invade a reasonable expectation of privacy);[22] see also Karo, 468 U.S. at 719 (holding that the unlawful use of a device to track movements inside a residence did not necessarily taint the otherwise lawful use of the same device to track the suspects in public).

         But in addition to the fact that people reasonably value and hope to protect the privacy of their location information, what necessitates our conclusion is the method by which the government obtained the location information in this case. See Kyllo, 533 U.S. at 35 n.2 ("The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment."); United States v. Maynard, 615 F.3d 544, 566 (D.C. Cir. 2010) ("[W]hen it comes to the Fourth Amendment, means do matter."), aff'd on other grounds by (Antoine) Jones, 565 U.S. 400. Unlike in a situation in which the government determines a person's location through visual surveillance or by employing the older generation of tracking devices, see Karo, 468 U.S. at 719; Knotts, 460 U.S. at 282, it cannot be argued that "the information obtained by [the government] in this case was . . . readily available and in the public view, " Andrews, 134 A.3d at 348. The cell-site simulator employed in this case gave the government a powerful person-locating capability that private actors do not have and that, as explained above, the government itself had previously lacked-a capability only superficially analogous to the visual tracking of a suspect.[23] And the simulator's operation involved exploitation of a security flaw in a device that most people now feel obligated to carry with them at all times. Allowing the government to deploy such a powerful tool without judicial oversight would surely "shrink the realm of guaranteed privacy" far below that which "existed when the Fourth Amendment was adopted." Kyllo, 533 U.S. at 34. It would also place an individual in the difficult position either of accepting the risk that at any moment his or her cellphone could be converted into tracking device or of forgoing ―necessary use of the cellphone. Tracey, 152 So.3d at 523. We thus conclude that under ordinary circumstances, the use of a cell-site simulator to locate a person through his or her cellphone invades the person's actual, [24] legitimate, and reasonable expectation of privacy in his or her location information and is a search.

         The government's argument to the contrary is unpersuasive. The government contends that because a cellphone "must continuously broadcast a signal, " a person who carries or uses a cellphone is engaging in "conduct [that] is not calculated to keep [his] location private and . . . thus[] has no reasonable expectation of privacy in his location." The government cites for support United States v. Wheeler, 169 F.Supp.3d 896 (E.D. Wis. 2016), in which the court found that "today, when many Americans own some sort of cell phone and carry it frequently, an individual's expectation that the government could not track his whereabouts over time is [not] reasonable." Id. at 908; see also id. ("The media is rife with information-and sometimes warnings-about the fact that one's location can be tracked from one's cell phone.").[25] This line of reasoning rests on a misreading of the Katz expectation-of-privacy test that construes the test as involving a probabilistic inquiry (an inquiry into whether it is likely-or the public thinks it is likely-that the government can access the information in question) rather than a normative one (an inquiry into whether it is consistent with the nation's traditions and values that the government should have unfettered access to the information).[26] Contrary to the government's argument, Katz makes clear that a person does not lose a reasonable expectation of privacy merely because he or she is made aware of the government's capacity to invade his or her privacy. When Katz was issued, the public and the courts were well aware of the government's capacity to wiretap and eavesdrop through technological means, yet the Supreme Court did not find this fact determinative of the question whether individuals possess a reasonable expectation of privacy in their conversations. See Katz, 389 U.S. at 352 (citing Olmstead v. United States, 277 U.S. 438 (1928) (wiretapping), and Goldman v. United States, 316 U.S. 129 (1942) (bugging)); see also Susan Freiwald, First Principles of Communications Privacy, 2007 Stan. Tech. L. Rev. 3, 28 ("In the several years preceding Katz, the public had learned of rampant illegal wiretapping from numerous influential books, scholarly articles, and newspaper accounts."). A person's awareness that the government can locate and track him or her using his or her cellphone likewise should not be sufficient to negate the person's otherwise legitimate expectation of privacy. See also Smith v. Maryland, 442 U.S. 735, 741 n.5 (1979) ("[W]here an individual's subjective expectations ha[ve] been 'conditioned' by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection [is]."); 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.1 (d) (5th ed. 2016) ("[W]hat is involved here is 'our societal understanding' regarding what deserves 'protection from government invasion.'" (quoting Oliver v. United States, 466 U.S. 170, 178 (1984))).

         The government's use of the cell-site simulator to locate Mr. Jones was therefore a search.[27] The government did not obtain a warrant and has not argued that the search "f[ell] within a specific exception to the warrant requirement, " and therefore the search was unlawful under the Fourth Amendment. United States v. Riley, 134 S.Ct. 2473, 2482 (2014); see also United States v. Lewis, 147 A.3d 236, 239 (D.C. 2016) (en banc) ("A search conducted without a warrant is per se unreasonable under the Fourth Amendment unless it falls within a few specific and well-established exceptions." (quoting United States v. Taylor, 49 A.3d 818, 821 (D.C. 2012))).[28]

         Our conclusion that the government violated Mr. Jones's Fourth Amendment rights is not the end of our inquiry. We must decide whether Mr. Jones is entitled to a remedy, and if so what the scope of that remedy should be. As a general matter, the "[e]xclusionary rule . . . forbids the use of improperly obtained evidence at trial." Herring v. United States, 555 U.S. 135, 139 (2009). "[T]his judicially created rule is 'designed to safeguard Fourth Amendment rights generally through its deterrent effect.'" Id. at 139-40 (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). The government argues that the exclusionary rule does not apply in this case, invoking the inevitable-discovery doctrine, good-faith exception, and a change in its policies concerning the use of cell-site simulators. The government also argues that much of the evidence that Mr. Jones wants excluded does not fall within the scope of the exclusionary rule- that it is not "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488 (1963). We first address the inevitable-discovery doctrine.

         B. Inevitable-Discovery Doctrine

         The inevitable-discovery doctrine "shields illegally obtained evidence from the exclusionary rule if the government can show, by a preponderance of the evidence, that the evidence 'ultimately or inevitably would have been discovered by lawful means.'" Gore v. United States, 145 A.3d 540, 548 (D.C. 2016) (quoting Hicks v. United States, 730 A.2d 657, 659 (D.C. 1999)); see also Nix v. Williams, 467 U.S. 431 (1984). To avail itself of the inevitable-discovery doctrine, the government must prove two distinct elements: (1) that "the lawful process which would have ended in the inevitable discovery . . . ha[d] commenced before the constitutionally invalid seizure, " and (2) that there is a "'requisite actuality' that the discovery would have ultimately been made by lawful means." Hicks, 730 A.2d at 659 (quoting Douglas-Bey v. United States, 490 A.2d 1137, 1139 n.6 (D.C. 1985), and Hilliard v. United States, 638 A.2d 698, 707 (D.C. 1994)) (brackets and ellipsis removed).

         The trial court found that "had [the police] switched [the cell-site simulator] over to use the [complainant's phone] . . . they would have eventually gotten to the exact same place because the phones were together." Assuming for the sake of argument that the hearing evidence supports this finding, [29] we agree with the trial court that this finding justifies a conclusion that there was a separate lawful means by which the police could have captured Mr. Jones and recovered the evidence used against him at trial.[30] The finding is insufficient, however, to support a conclusion that the police would have captured Mr. Jones-which is what the inevitable-discovery doctrine requires.

         The undisputed evidence in the record shows that the MPD possessed only a single operating cell-site simulator, [31] and that it could only be used to locate a single phone at a time. The police used it to search for Mr. Jones's cellphone. Thus, the police's search for the complainant's cellphone-the lawful process- never occurred. If the lawful search never occurred, it did not "commence[] before the constitutionally invalid seizure" of Mr. Jones. Hicks, 730 A.2d at 659 (quoting Douglas-Bey, 490 A.2d at 1139 n.6).

         The government disagrees with this conclusion and argues that because the police had tracked the complainant's phone using real-time location information from the provider and had obtained her phone's identifying information, they "had begun the process necessary to locate her phone with the cell-[s]ite simulator." Even if we agreed that these steps constituted the commencement of a lawful process, we would nonetheless find the second element of the inevitable-discovery test-the "requisite actuality" that the process would have led to the discovery of Mr. Jones-lacking. This is because the police either suspended or abandoned the purported lawful process when they chose to deploy the only operational cell-site simulator in their possession on Mr. Jones's phone.

         This court has found the inevitable-discovery doctrine applicable in cases in which the police engaged in lawful and unlawful processes in parallel. See Pinkney v. United States, 851 A.2d 479, 495 (D.C. 2004); McFerguson v. United States, 770 A.2d 66, 74-75 (D.C. 2001); Hicks, 730 A.2d at 662. Had the unlawful process not occurred in these cases, the lawful one would inevitably have produced the same evidentiary result. But here the government is asking us to find inevitable discovery where the police had mutually exclusive options and, for whatever reason, chose the option that turned out to be unlawful. The inevitable-discovery doctrine does not apply in this type of situation. See Gore, 145 A.3d at 549 n.32 ("[T]he argument that 'if we hadn't done it wrong, we would have done it right' is far from compelling." (quoting 6 LaFave, supra, § 11.4 (a)) (internal quotation marks omitted)).[32]

         C. Good-Faith Exception

         We turn next to the government's argument that application of the exclusionary rule here "would not meaningfully deter police misconduct" because the use of the cell-site simulator to locate Mr. Jones was "not the type of 'flagrant' abuse for which the exclusionary rule was designed." In support of this argument, the government notes that Sergeant Perkins and his team believed "exigent circumstances existed" and asserts that "at the time of this incident, no court had held that using a simulator to locate a phone violates the Fourth Amendment." The government further points out that the police received judicial approval for various secondary searches of the evidence recovered from Mr. Jones and Ms. Williams at the time of Mr. Jones's arrest. Specifically, the police obtained warrants to search Mr. Jones's Saturn and the phones they recovered from Mr. Jones and Ms. Williams, and secured a court order to take a buccal swab from Mr. Jones.

         Although it does not explicitly say so, the government is invoking the "good-faith exception." Davis v. United States, 564 U.S. 229, 239 (2011). The Supreme Court first recognized this exception in United States v. Leon, 468 U.S. 897 (1984), holding that "evidence obtained [by the police] in objectively reasonable reliance on a subsequently invalidated search warrant" is not subject to the exclusionary rule. Id. at 922. This holding was based on the premise that "the deterrence rationale [for exclusion] loses much of its force" "when the police act with an objectively reasonable good-faith belief that their conduct is lawful." Davis, 564 U.S. at 252; id. at 238 (quoting Leon, 468 U.S. at 909, 919) (internal quotation marks omitted). The Court has since extended the good-faith exception to apply in various other situations involving nonculpable or merely negligent law-enforcement conduct. See, e.g., id. at 239-40 (holding that the good-faith exception applies "when the police conduct a search in objectively reasonable reliance on binding judicial precedent"); Herring, 555 U.S. at 136 (holding that the good-faith exception applied to evidence obtained in a search incident to arrest where the officer "reasonably believe[d] there [wa]s an outstanding arrest warrant" for the defendant, but where "that belief turn[ed] out to be wrong because of a negligent bookkeeping error by another police employee").

         The Supreme Court has not, however, recognized the applicability of the good-faith exception in a situation remotely like the present one-where the police, not acting pursuant to a seemingly valid warrant, statute, or court opinion, conducted an unlawful search using a secret technology that they had shielded from judicial oversight and public scrutiny. See supra note 26. Indeed, assuming the police believed the warrantless use of the cell-site simulator to be lawful, they could not have reasonably relied on that belief, given the secrecy surrounding the device and the lack of law on the issue.[33] And the government does not argue that the police officers' mistaken belief that exigent circumstances existed was reasonable or cite any case law that would support such an argument.

         The fact that some of the evidence was obtained in secondary searches pursuant to warrants and a court order does not change things. The police's reliance on the warrants and order was not objectively reasonable because the warrants and order were based on information obtained in violation of Mr. Jones's Fourth Amendment rights. See Evans v. United States, 122 A.3d 876, 886 (D.C. 2015) ("The subsequent issuance of [a] search warrant . . ., based on information [illegally] obtained . . ., d[oes] not operate to attenuate the [original] illegality.").[34] Thus, the evidence the police obtained through their warrantless use of the cell-site simulator is not subject to the good-faith exception.

         D. Change in Department of Justice Policy

         The government's final argument for not applying the exclusionary rule is that a change in Department of Justice (DOJ) policy has diminished the likelihood that excluding the evidence in this case will deter misconduct in the future. The government asserts that the MPD is bound by a new DOJ policy to "obtain a search warrant supported by probable cause" before deploying a cell-site simulator. Dep't of Justice Policy Guidance: Use of Cell-Site Simulator Technology at 3-4 (Sept. 3, 2015), https://www.justice. gov/opa/file/767321/download.

         The government did not develop this argument in the trial court-and could not have, as the DOJ policy had not yet been issued-and we do not find it persuasive. The government has not cited any case in which a court has declined to apply the exclusionary rule based on the government's representation that it will not engage in unlawful conduct in the future. The government cites Blair v. United States, 114 A.3d 960 (D.C. 2015), but in that case we relied on a change in a statute that eliminated the need to deter subsequent violations, not a mere change in policy. Id. at 973-74. And given that the DOJ policy memorandum does not describe any sort of enforcement mechanism that would ensure compliance with the policy, and given that the present administration or a subsequent one may well revise this policy, we are not convinced that the need to deter future constitutional violations is lacking.

         E. Fruit of the Poisonous Tree

         Having decided that the exclusionary rule applies in this case, we must now decide which evidence should be excluded as "fruit of the poisonous tree" of the illegal search.[35] Wong Sun, 371 U.S. at 488. In deciding whether evidence constitutes fruit of the poisonous tree, the critical inquiry is whether "the evidence . . . has been come at by exploitation of th[e] illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun, 371 U.S. at 488 (quoting John Maguire, Evidence of Guilt 221 (1959)); see also Wilson v. United States, 102 A.3d 751, 753 (D.C. 2014). The court considers "[t]he temporal proximity of the [illegality] and the [acquisition of the evidence], the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct." Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (citations and footnote omitted); see also Gordon v. United States, 120 A.3d 73, 85 (D.C. 2015).

         Mr. Jones argues that the following evidence and testimony should have been excluded as fruits of the poisonous tree: his knife, a statement he made to the police at the scene of his arrest, cellphones recovered from Ms. Williams's purse at the scene of the arrest, evidence (including cellphones) recovered from his car (the Saturn) pursuant to a warrant, data extracted from the various cellphones pursuant to warrants, the testimony of Ms. Williams, the later photo-array identification of Mr. Jones by one of the complainants, a DNA profile generated from a buccal swab of Mr. Jones (a month after his arrest), and a photograph of Mr. Jones's groin.[36] The government "agrees that some, but not all, of the . . . evidence [identified by Mr. Jones] is a fruit of the alleged poisonous tree." The government only specifically objects to classifying (1) Mr. Jones's statement to the police, (2) the cellphones recovered from Ms. Williams's purse, and (3) Ms. Williams's testimony as fruits of the poisonous tree.

         1. Prince Jones's Statement

         Mr. Jones made an incriminating statement to the police at the scene of the arrest: When asked what his address was, Mr. Jones gave the address of one of the sexual-assault complainants. The government argues that this statement should not be suppressed as a fruit of the unlawful cell-site-simulator search because "[i]t would make little sense to suppress evidence obtained merely as part of a routine booking procedure." See Thomas v. United States, 731 A.2d 415, 421 (D.C. 1999) (recognizing "a routine booking question exception" to the rule of Miranda v. Arizona, 384 U.S. 436 (1966)). We reject this argument. That the question about Mr. Jones's address was otherwise proper does not negate the fact that very little time and no substantial intervening circumstances separated the illegal search from Mr. Jones's incriminating response. See United States v. Olivares-Rangel, 458 F.3d 1104, 1112 (10th Cir. 2006). Mr. Jones's statement was a direct product of the unlawful search and is thus excludable as fruit of the poisonous tree.

         2. Cellphones from Nora Williams's Purse

         When the police located Mr. Jones and Ms. Williams, they searched Ms. Williams's purse and found several cellphones, including two of the complainants' phones and Mr. Jones's phone. The government argues that the contents of Ms. Williams's purse are not fruits of the poisonous tree because Mr. Jones did "not have a reasonable expectation of privacy in the contents of Ms. Williams's purse" and because "Ms. Williams gave the officers consent to search her purse."

         Preliminarily, Mr. Jones's expectation of privacy (or lack thereof) in Ms. Williams's purse is not a material consideration in the fruit-of-the-poisonous-tree analysis. As one court has explained, "[w]hile the fruit of the poisonous tree doctrine applies only when the defendant has standing regarding the Fourth Amendment violation which constitutes the poisonous tree, the law imposes no separate standing requirement regarding the evidence which constitutes the fruit of that poisonous tree."[37] Olivares-Rangel, 458 F.3d at 1117 (citation omitted); see also 6 LaFave, supra, § 11.4 ("If the defendant [has] standing with respect to the poisonous tree, that alone suffices . . . .").

         The factors in Brown, 422 U.S. at 604, moreover, compel a conclusion that the contents of Ms. Williams's purse are fruits of the poisonous tree. First, as the search of Ms. Williams's purse occurred at the scene of Mr. Jones's apprehension and arrest, very little time passed between the police's unlawful cell-site-simulator search and their recovery of the evidence from Ms. Williams's purse.

         Second, Ms. Williams's supposed consent was not a significant intervening circumstance. According to Detective Pulliam, Ms. Williams consented only after the police presented her with the following options: the police "would either have to take the purse and put it into police custody until [they] could get a search warrant and then search it or . . . she could give [the police] consent to search it." Given this threat and the fact that her boyfriend, Mr. Jones, had just been arrested in her presence, Ms. Williams's consent was not sufficiently "the product of free will [to] break . . . the causal connection between the illegality and the" search of the purse. Brown, 422 U.S. at 603; cf. Utah v. Strieff, 136 S.Ct. 2056, 2062 (2016) (holding that a valid arrest warrant "entirely unconnected with the [illegal] stop" was a sufficient intervening circumstance); 4 LaFave, supra, § 8.2 (c) (explaining that a person's consent to a search may be involuntary where the police, "'trading on' a prior Fourth Amendment violation, " have "threat[ened] to seek a warrant").[38]

         And third, although the police officers' warrantless use of the cell-site simulator here was not flagrant misconduct, [39] recovery of Mr. Jones's cellphone and the complainants' phones was undoubtedly one of the officers' purposes in deploying the cell-site simulator. The cell-site simulator is used to locate and track phones after all. The contents of Ms. Williams's purse thus "bear a . . . close relationship to the underlying illegality." Gordon, 120 A.3d at 85 (quoting New York v. Harris, 495 U.S. 14, 19 (1990)).[40]

         3. Nora Williams's Testimony[41]

         Mr. Jones argues that Ms. Williams should have been barred from testifying for the government at trial. The government disagrees, arguing that "[t]here was sufficient attenuation between the search and Ms. Williams's testimony to dissipate any taint" and that "the government would have inevitably discovered Ms. Williams through independent sources."

         In United States v. Ceccolini, 435 U.S. 268 (1978), the Supreme Court recognized factors pertinent to the determination of whether a witness's testimony should be barred as fruit of the poisonous tree: (1) whether "the testimony given by the witness was an act of her own free will in no way coerced, " (2) whether evidence gathered or information learned as a result of the illegal search was used to question the witness, (3) whether "[s]ubstantial periods of time elapsed between the time of the illegal search and the initial contact with the witness . . . and between the [initial contact] and the testimony at trial, " (4) whether the witness and "her relationship with the [defendant] were well known" to the police before the illegal search, and (5) whether the officers conducting the illegal search did so with the "intent of finding a willing and knowledgeable witness to testify against" the defendant. Id. at 279-80; see also 6 LaFave, supra, § 11.4 (i). These factors weigh in favor of excluding Ms. Williams's testimony.

         First, it is undisputed that Ms. Williams was not a willing witness for the government. As the government points out, Ms. Williams was initially "not forthcoming about her knowledge and use of the . . . items" stolen from the complainants, and only testified after "the government sought and received a court order granting her immunity." Ms. Williams testified at trial that after she was granted immunity, she testified for the grand jury "[b]ecause [she] had no choice." She expressed unhappiness about having to testify against Mr. Jones at trial, stating that she "didn't want to go against him."

         Second, the government admits that the police "confronted [Ms. Williams] with the fact that stolen phones and other items were recovered from her purse and from the car." This evidence, as explained above, was the product of the illegal search. The government's attempt to minimize the significance of this fact is unpersuasive. The government contends that the "illegally obtained evidence ultimately did not play a great role in obtaining Ms. Williams's testimony" and that it was the grant of immunity that was the decisive factor. But this argument fails to address the fact that the police questioned Ms. Williams before she was immunized, and is also speculative: It is plausible-indeed, ...


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