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United States v. Banks

United States District Court, District of Kansas

September 15, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ALBERT DEWAYNE BANKS et al., Defendants.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE

The government has filed a motion (Doc. 417) requesting that the Court issue three orders under 18 U.S.C § 2703(d) (“2703(d) orders”) requiring Sprint, Verizon, and T-Mobile to disclose certain cell site location information (“CSLI”) for phones the government wiretapped during this investigation. Defendants Johnson, Madkins, Thompson and Ponds have filed motions opposing the government’s request. Docs. 418, 422, 425, 428. Other defendants have joined their opposition. Docs. 430, 436, 438. The government has filed a Reply. Doc. 429. In a nutshell, defendants argue that: (1) the “reasonable grounds” standard in 18 U.S.C. § 2703(d) is invalid under the Fourth Amendment; (2) the requested information is not “material to an ongoing criminal investigation” because, they assert, the government has closed the investigation; and (3) the government’s motion is untimely because the government did not disclose the CSLI until after the July 1, 2014 deadline for suppression motions. For the reasons set forth below, the Court grants the government’s motion for 2703(d) orders.

Background

Investigators obtained wiretap orders in the final months of a thirteen-month investigation into a suspected narcotics-trafficking conspiracy. The investigation was a joint effort by the Kansas Bureau of Investigation, the Junction City Police Department, the Geary County Sherriff’s office, and the Riley County Police Department. Beginning in March of 2013, investigators submitted applications for wiretap orders to Judge Platt, a District Court Judge for Kansas’ Eighth Judicial District. Judge Platt issued eight wiretap orders under the authority conferred by the Kansas wiretap statute, K.S.A. § 22-2514 et seq.

On August 22, 2014, this Court provisionally granted defendants’ motions to suppress wiretap evidence on the basis that Judge Platt lacked authority to order interception of communications outside Kansas’ Eighth Judicial District. The Court read K.S.A. § 22-2516(3) to require that either the tapped phones or the monitoring room be located in the district where the issuing judge presides. Because the monitoring room was located outside the Eighth Judicial District, the Court ruled that it must suppress the content of each intercepted phone call unless the government comes forward with evidence establishing that the tapped phones were physically located within Kansas’ Eighth Judicial District at the time investigators intercepted each conversation. For this purpose, the government now seeks 2703(d) orders requiring electronic service providers to disclose CSLI relating to the tapped phones.

Analysis

A. The Stored Communications Act

Under the Stored Communications Act, 18 U.S.C. § 2701 et seq., the government may require a cellular service provider to disclose subscriber records either by obtaining a warrant, see § 2703(c)(A), or by obtaining a court order. See § 2703(c)(B); § 2703(d). A court order compelling a cellular service provider to disclose subscriber records does not require probable cause; rather, a court may issue a 2703(d) order upon “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” § 2703(d).

The government seeks “[a]ll data about which ‘cell towers’ (i.e., antenna towers covering specific geographic areas) and ‘sectors’ (i.e., faces of the towers) received a radio signal from each [target phone during the period of interception].” See, e.g., Doc. 422-1. In other words, the government seeks historical CSLI for each target phone during the time investigators intercepted communications transmitted over them. CSLI includes “records of calls made by the providers’ customer . . . and reveals which cell tower carried the call to or from the customer.” United States v. Davis, 754 F.3d 1205, 1211 (11th Cir. 2014). “The cell tower in use will normally be the cell tower closest to the customer. The cell site location information will also reflect the direction of the user from the tower. It is therefore possible to extrapolate the location of the cell phone user at the time and date reflected in the call record.” Id. This information is distinct from GPS data, which the government has not requested.

The Court acknowledges that CSLI is less than a perfect method to establish the location of a target phone. See, e.g., In re Application of the United States for an Order Authorizing Disclosure of Historical Cell Site Info. for Tel. Number, __ F.Supp.2d __, 2014 WL 1395082 (D.D.C. Apr. 17, 2014) (noting disagreement about how precisely CSLI can locate an individual). The legal standard adopted in this case, however, does not require the government to prove a target phone’s location with pin-point accuracy—the government must only establish that the target phone was present anywhere within Kansas’ Eighth Judicial District. CSLI is probative for this purpose.

B. Constitutionality of The “Reasonable Grounds” Standard

Defendants argue that 18 U.S.C. § 2703(d) violates the Fourth Amendment because the statute authorizes a court to compel disclosure of CSLI upon “specific and articulable facts showing that there are reasonable grounds to believe” that the requested information is “relevant and material to an ongoing criminal investigation.” See Docs. 418, 422, 425, 428. Because individuals have a legitimate expectation of privacy in CSLI, defendants argue, the Fourth Amendment prohibits the government from acquiring such information without a warrant supported by a showing of probable cause. Defendants rely upon the Eleventh Circuit’s decision in United States v. Davis, 754 F.3d 1205, 1210-17 (11th Cir. 2014), vacated and reh’g granted en banc, No. 12-12928, 2014 WL 4358411 (11th Cir. Sept. 4, 2014). In that case, the Eleventh Circuit read the Supreme Court’s opinions in United States v. Jones, __ U.S. __, 132 S.Ct. 945 (2012) to adopt a general “privacy theory” of the Fourth Amendment, which applies to prolonged collection of electronic location information. Davis, 754 F.3d at 1212.

In Jones, the Supreme Court found that that the government had conducted a search within the meaning of the Fourth Amendment when its investigators installed a GPS device on a suspect’s car and tracked his location monitoring for a twenty-eight day period. 132 S.Ct. at 949. The majority opinion did not find a general expectation of privacy in location data, but instead relied on the fact that government agents had committed a trespass against the suspect’s effects when they placed a GPS device on his car (the “trespass theory”). Id. at 952. Justice Alito, joined by four other justices, wrote a concurrence that relied exclusively on a privacy theory. Id. at 958 (Alito, J., concurring) (analyzing the issue “by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove”). Justice Sotomayor, who concurred separately, discussed the possibility of applying a more generalized “privacy theory” to electronic location data but ultimately relied on the trespass theory “because the government’s physical intrusion on [the defendant’s] jeep supplies a narrower basis for decision.” Id. at 957 (Sotomayor, J., concurring).

In Davis, the Eleventh Circuit considered all three opinions, noting that “[e]ven the opinion of the Court authored by Justice Scalia expressly did not reject the applicability of the privacy test.” Davis, 754 F.3d at 1215. Reading the three Jones opinions together, the Eleventh Circuit determined that “the privacy theory is not only alive and well, but available to govern electronic information of search and seizure in the absence of trespass.” Id. Applying the privacy theory to the facts in Davis, the Eleventh Circuit concluded that the use of CSLI to establish a suspect’s location constitutes a search under the Fourth Amendment because (1) subscribers have an expectation of privacy in CSLI, and (2) subscribers do not “voluntarily” share CSLI ...


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