April 18, 2017
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.
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.
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.
Thompson and Beckwith, Associate Judges, and Farrell, Senior
Beckwith, Associate Judge.
found appellant Prince Jones guilty of various offenses
arising out of two alleged incidents of sexual assault and
robbery at knifepoint. 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." 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 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 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
Investigation and Arrest of Mr. Jones
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 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.
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.
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. 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.
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
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,  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.
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-associated with the target
phone. 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. Sergeant Perkins testified
that once the cell-site simulator "grabs" the
target phone, the target phone is prevented from
communicating "with an actual . . . tower."
information about the cell-site simulator was provided by Ben
Levitan, an expert on "cellular telephone networks and
systems" called by the defense. 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." 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. 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. 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."
Trial Court's Ruling on the Motion To Suppress
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
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
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."
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."
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 constituted a search or seizure.
Fourth Amendment Search
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.
analysis begins with the obvious fact that most people have a
cellphone and carry it with them practically everywhere they
go. 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).
consequence of cellphones'
"pervasiveness" 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.
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. 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.
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-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
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); 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).
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. 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,  legitimate, and reasonable expectation
of privacy in his or her location information and is a
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."). 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). 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))).
government's use of the cell-site simulator to locate Mr.
Jones was therefore a search. 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))).
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.
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).
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,  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. The finding is insufficient, however, to
support a conclusion that the police would have
captured Mr. Jones-which is what the inevitable-discovery
undisputed evidence in the record shows that the MPD
possessed only a single operating cell-site simulator,
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).
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.
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)).
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.
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").
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. 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.
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."). Thus, the
evidence the police obtained through their warrantless use of
the cell-site simulator is not subject to the good-faith
Change in Department of Justice Policy
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.
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.
Fruit of the Poisonous Tree
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. 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).
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. 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.
Prince Jones's Statement
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
Cellphones from Nora Williams's Purse
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."
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." 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 . . . .").
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.
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").
third, although the police officers' warrantless use of
the cell-site simulator here was not flagrant misconduct,
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
Nora Williams's Testimony
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."
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
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
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, ...