Court: District Court, N.D. California; August 24, 2017; Federal District Court
On August 2, 2017, the court held a hearing regarding defendant Purvis Lamar Ellis's motions to suppress evidence obtained from cell site simulators (Stingrays), evidence seized from Apartment 212, and a motion to sever. The court denied the motion to sever and the motions to suppress, as detailed in the record.
Ellis argued that the use of Stingrays constituted a warrantless search, violating Fourth Amendment rights and potentially breaching Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The court noted that the Fourth Amendment protects against unreasonable searches and seizures, placing the burden on the proponent of a motion to prove their rights were violated. It referenced two tests for determining if a search occurred: the classic common-law trespass test and the reasonable expectation of privacy standard.
The court acknowledged that both the Oakland Police Department and the FBI used Stingrays to locate Ellis's cell phone following an incident involving an OPD officer. The details of the Stingray's operation were described, highlighting that it mimics a cell tower to gather information from nearby cellular devices. The court's ruling and rationale are documented in the hearing transcript and related filings.
The Court in Jones determined that attaching a GPS tracking device to a vehicle and monitoring its movements constituted a search under the Fourth Amendment, as it involved a physical intrusion on private property to gather information. The ruling emphasized that such physical invasions would have been recognized as searches at the time the Fourth Amendment was adopted. The reasonable expectation of privacy test, derived from Katz v. United States, holds that a search occurs when an individual has a subjective expectation of privacy that society deems reasonable, independent of property rights.
Ellis argues that the use of a Stingray device to track his cell phone in real time also qualifies as a Fourth Amendment search that necessitates a warrant, as it intruded upon his privacy interests in both the location and use of his phone and his movements in public. He contends that the government is bound by prior concessions in other cases that recognized Stingray use as a search. However, the Court finds these concessions case-specific and not binding, as acknowledged in Patrick.
Regarding standing, the government asserts that only Ellis has the standing to challenge the Stingray's use, as he alone is affected by the tracking of his phone. His claims regarding the rights of others whose phones may have been tracked are not supported, as Fourth Amendment rights are personal and cannot be asserted vicariously. Furthermore, Ellis argues that the Stingrays' signals penetrated the walls of private residences, making the monitoring a search under the Fourth Amendment, referencing cases such as United States v. Karo and Kyllo v. United States to support his position.
The Court in Karo ruled that warrantless beeper monitoring in a private residence violates Fourth Amendment rights, emphasizing the expectation of privacy in such settings. In Kyllo, it was determined that using thermal imaging to detect heat levels within a home from a public street constitutes a 'search' under the Fourth Amendment, as it reveals information unobtainable without physical intrusion, particularly when the technology is not commonly used by the public. Ellis contends that the Stingray device's signals, which penetrate walls of protected spaces, constitute a search and trespass, citing precedents such as Silverman and Jones, which highlight that actual intrusion into a constitutionally protected area is sufficient for a Fourth Amendment violation. The government argues that Ellis lacks standing to claim a privacy interest because he was in another person's home when the Stingray located his phone, thus he cannot assert a property or privacy-related interest in that residence. However, the lack of clear evidence regarding Ellis's precise location at the time his phone was detected leaves the issue of his standing unresolved. Despite this, it is noted that Ellis possesses standing to challenge the Stingray's use for locating his phone based on a reasonable expectation of privacy in real-time cell phone location. The Ninth Circuit has yet to address whether the application of cell site simulators to track phones in real-time constitutes a search or if there is a reasonable expectation of privacy regarding cell phone locations.
The Seventh Circuit's opinion in *Patrick* addresses the legal status of cell site simulators, or Stingrays, in relation to Fourth Amendment protections. The court acknowledged the unresolved question of whether their use constitutes a search, drawing parallels to GPS locators, which are considered searches when installed on private property, as established in *Jones*. It contrasted this with the perspective that Stingrays function similarly to pen registers or beepers, which do not constitute searches since they do not capture content, only the making of calls or the suspect's location, as seen in *Smith v. Maryland* and *United States v. Knotts*.
Although the court did not reach a definitive conclusion—given the government's concession that utilizing a cell-site simulator is a search—it highlighted the implications of *Riley v. California*, suggesting its extension could recognize privacy interests concerning cell phone use and location. While *Riley* mandated a warrant for searching cell phone data due to the substantial privacy interests involved, it stopped short of asserting that the Fourth Amendment protects real-time tracking of cell phone usage.
The opinion elaborated on the privacy implications of cell phones, noting their capacity to store diverse types of information that, when combined, reveal more about an individual than isolated records. The pervasive nature of cell phone usage—where users often have their devices within close proximity—contributes to this concern. The data stored can chronicle an individual’s life over time, making the information qualitatively different from traditional physical records. However, the court concluded that *Riley* did not establish a specific protected privacy interest in cell phone use or location.
Several judges in the district have acknowledged a right to privacy regarding historical cell site location information (CSLI) collected by cellular providers. CSLI is derived from the signals emitted by a cell phone to the nearest cell tower, capturing the user's precise location during calls, texts, or data exchanges, sometimes without user interaction. Judge Illston, in United States v. Cooper, recognized that users have a reasonable expectation of privacy in historical CSLI, which is protected under the Fourth Amendment, although he did not address prospective CSLI privacy. He determined that the Communications Assistance for Law Enforcement Act (CALEA) does not permit access to information revealing a subscriber's physical location without probable cause. Although the government lacked a warrant, motions to suppress were denied due to agents' good faith reliance on a magistrate's order. Judge Koh similarly asserted that a warrant is necessary for obtaining historical CSLI, following the precedent in In re Application for Telephone Information. Magistrate Judge Lloyd denied the government's request for both historical and prospective CSLI, mandating a search warrant instead. This decision was upheld on appeal, with Judge Koh highlighting key Fourth Amendment principles: heightened privacy expectations in one's home, implications of long-term electronic surveillance, and the extensive private information derivable from ubiquitous location data generated by cell phones.
Judge Koh ruled that the government's request for historical cell site location information (CSLI) posed a greater invasion of privacy than GPS tracking, as CSLI can reveal an individual's movements into constitutionally protected spaces like private residences. She applied the Katz test, finding that individuals have a subjective expectation of privacy in their historical CSLI, which society recognizes as reasonable. Koh concluded that the third-party doctrine did not negate this expectation, mandating that the government obtain a warrant under the Fourth Amendment for historical CSLI.
In United States v. Williams, Judge Orrick aligned with Koh's finding, requiring probable cause for obtaining CSLI from defendants' phones. Although the government used a lower standard under the Stored Communications Act, Orrick denied suppression motions due to the good faith reliance exception.
In a separate case, United States v. Lambis, the Southern District of New York ruled that the DEA's use of a cell-site simulator (CSS) to locate a suspect's apartment constituted an unreasonable search. The court rejected the government’s argument that the third-party doctrine applied, noting that the information obtained was not voluntarily shared by the user. Similar rulings were made in State v. Andrews and State v. Tate, which affirmed a reasonable expectation of privacy in real-time cell phone location data and required a warrant for CSS use.
The government cited circuit court decisions arguing that tracking CSLI from phone companies does not constitute a search under the third-party doctrine. Relevant cases include United States v. Graham and United States v. Carpenter, both involving challenges to the reasonable expectation of privacy in CSLI.
The court in Lambis differentiated cell-site location information (CSLI) obtained from wireless carriers and cell-site simulator (CSS) technology, asserting that CSS involves an "additional layer of involuntariness," which exempts it from the third-party doctrine. Unlike CSLI, which is passively transmitted, CSS actively forces phones to transmit their unique identifiers for location tracking. The court noted that CSS does not involve a third party since the government directly obtains the information, contrasting it with pen registers or CSLI. The court adopted the reasoning from In re Application for Telephone Information, affirming that cell phone users have a reasonable expectation of privacy in their real-time location data, especially since cell phones are typically kept close by. The court concluded that Ellis had a reasonable expectation of privacy concerning his real-time location and that the use of Stingray devices constituted a search requiring a warrant.
Additionally, Ellis contended that the precise tracking capabilities of Stingray devices infringed upon his reasonable expectation of privacy regarding his public movements. Citing Justice Sotomayor's concurrence in Jones, the court recognized that GPS monitoring can reveal extensive details about an individual's associations. However, it noted that the court in Jones did not definitively address whether a reasonable expectation of privacy in public movements is protected under the Fourth Amendment. Consequently, Ellis did not demonstrate that such an expectation has been recognized by any court.
The government contends that even if the use of Stingray devices is considered a search, it is justified as reasonable under the emergency provisions of the pen register statute and the Stored Communications Act (SCA). It asserts that a warrant was unnecessary due to exigent circumstances and that exceptions to the exclusionary rule, such as good faith reliance and inevitable discovery, apply. The pen register statute requires only a government attorney to certify the relevance of information for authorization, without a factual basis. In contrast, the SCA demands a higher standard of "specific and articulable facts" to obtain a court order for disclosing subscriber records, but does not necessitate probable cause. Under the pen register statute's emergency provisions, law enforcement may install a device without prior court approval if an order is obtained within 48 hours after installation, limited to emergencies defined as immediate danger to life or serious injury, or organized crime activities. The officers’ affidavits indicate that the OPD believed an emergency existed due to the immediate risk to safety and the involvement of organized crime, specifically citing a known gang member, Ellis, linked to attempted murder and gun possession in recent incidents.
The OPD and FBI did not secure a search warrant for the use of Stingray devices but obtained a pen register order under the Stored Communications Act (SCA) and relevant statutes. This order authorized service providers to supply the FBI and OPD with pen registers to monitor dialed numbers, call durations, and location data for a target phone associated with Ellis. The order was based on "specific and articulable facts" rather than a probable cause finding. Ellis argues that the pen register order was inadequate for using Stingrays, which can intercept communication content, unlike standard pen registers that only collect dialing information.
Ellis disputes the government's claim that the Stingrays were configured as pen registers or trap and trace devices, citing their capability to capture content. However, the FBI and OPD agents' sworn affidavits claim the devices were set to function only as pen registers and did not capture any communication content. Ellis requests further evidence regarding the Stingray configurations, but the court finds that the affidavits suffice, and no evidentiary hearing is necessary.
Ellis also argues that any warrant obtained would lack particularity since Stingrays can collect data from multiple phones. This assertion is deemed speculative, as the operators confirmed the devices were aimed specifically at locating Ellis’s phone, not indiscriminately gathering information from others. The government asserts that the Stingrays were compliant with the pen register statute, including its emergency provisions.
The government fails to address whether the pen register statute and the Stored Communications Act (SCA) set the appropriate standard for using a Cell Site Simulator (CSS) to track a cell phone in real-time. The court aligns with Judge Illston’s ruling in *Cooper*, which established that these statutes do not permit real-time location monitoring of a cell phone without a probable cause showing. In *Cooper*, the government procured historical and prospective cell site location information (CSLI) from Metro PCS under pen register and trap and trace orders, but the defendant contested the absence of probable cause for this data. The government claimed it only needed to satisfy the pen register statute and SCA, not meet a probable cause standard. Judge Illston determined that under the Communications Assistance for Law Enforcement Act (CALEA), real-time location data could not be obtained solely through the pen register statute. CALEA prohibits using pen registers and trap and trace devices to obtain subscriber location information. Although CALEA does not specify a standard for obtaining cell site data, Judge Illston applied the probable cause requirement of Rule 41 of the Federal Rules of Criminal Procedure. He rejected the government’s argument that combining the SCA and pen register statutes sufficed for obtaining prospective CSLI, asserting that the SCA was intended for acquiring stored data rather than real-time information. The court noted that the government’s Stingray devices were configured specifically to locate the target cell phone rather than broadly tracking signals, likening this use to the beeper tracking in *Karo*. Ultimately, the court concludes that utilizing the pen register statute and SCA does not authorize obtaining cell phone location data through these means; a warrant supported by probable cause is necessary for using a Stingray, and the SCA's standard does not apply since it pertains to third-party records and not direct surveillance.
The government asserts that the search of Ellis’s cell phone location information qualifies as a valid probation search under the conditions of his probation, although it fails to provide legal authority for this claim. The government argues that the privacy interest in cell phone location information is similar to that associated with GPS tracking, which was not a condition of Ellis's probation. Therefore, warrantless searches are deemed unreasonable unless exigent circumstances justify them.
To support the argument for exigent circumstances, the government cites several factors known to law enforcement at the time the Stingrays were employed to locate Ellis's phone: Ellis was identified as the getaway driver in a January 20, 2013, attempted murder; an eyewitness provided the license plate of the vehicle he was driving, which was found at his residence; an Oakland police officer was attacked the following day while Ellis was present; firearms stolen from the officer were located in Ellis's room; he had previously possessed numerous firearms; and he was a known gang member. These circumstances were known to officers by January 22, 2013, when the first Stingray was deployed.
Ellis disputes some of the government's assertions regarding his involvement in the officer's assault. Under the exigent circumstances exception, warrantless searches can occur if officers possess probable cause to believe the search will yield evidence of a crime and if immediate police action is required.
Exigent circumstances are situations that lead a reasonable person to believe that immediate entry or search is necessary to prevent harm to officers or others, destruction of evidence, suspect escape, or interference with law enforcement efforts. A search under this exception must be narrowly defined by the exigent circumstances justifying it. Ellis challenges the justification for using Stingray devices without a warrant after 2:11 a.m., noting that earlier that evening, he and other suspects had been contained in an apartment building by a SWAT team. He highlights that officers had ample opportunity to secure three separate search warrants, including one issued at 1:05 a.m., suggesting that the situation did not necessitate emergency action.
The government contends that they complied with statutory procedures by obtaining an order for Stingray use within 48 hours of deployment, citing the emergency provisions of the pen register statute. Although the order was issued on the same day as the Stingray's use, the exact timing is unclear. While the government argues exigent circumstances justified bypassing the warrant requirement to locate Ellis’s cell phone, Ellis counters that he had not assaulted or threatened violence against the victim in the relevant shootings. However, he was a known suspect linked to a getaway in one shooting and was near another incident, indicating potential possession of firearms and a risk of escape.
The timeline and evidence suggest that law enforcement believed prompt action was essential to ensure safety and prevent Ellis's escape. The case law supports that exigent circumstances can justify immediate police action without a warrant, as exemplified by a precedent where officers apprehended a suspect seen preparing to resist entry. The government's documents outline the critical events from January 21 to January 22, 2013, further detailing the context of the situation.
At approximately 9:00 pm, the Stingray operator for the OPD arrived at the scene and assisted in deploying SWAT robots. By 10:41 pm, police established a perimeter around the apartment building located at 1759 Seminary and conducted searches of nearby areas. At 11:15 pm, OPD submitted an Exigent Circumstance Request to MetroPCS for call detail records and related information for Ellis's cell phone. The search of surrounding yards concluded by 11:55 pm, with the focus shifting entirely to 1759 Seminary.
At 1:05 am, Judge Horner signed a warrant for the search of specific apartments within the building. At 1:47 am, OPD began making announcements for occupants to stay away from windows and prepared to deploy bean bags into Apartment 212. By 2:11 am, Officer Saunders faxed a Pen Worksheet to MetroPCS, requesting a pen register activation for Ellis's phone, indicating it had not yet been provided.
Following this, the OPD obtained the pen register information and deployed the Stingray after midnight. At 3:41 am, the search of Apartment 212 yielded multiple firearms and keys linked to an earlier crime. Around 7:00 am, the FBI Stingray operator was notified for assistance with the cell site simulator. The FBI sent an Exigent Circumstances Request for pen register information at 7:30 am, and the FBI Stingray operator arrived by 9:00 am.
OPD powered down its Stingray by 10:00 am, transferring operation to the FBI, which located Ellis's phone within an hour. By 10:52 am, Apartment 112 was cleared, and Ellis and others were escorted out. Ellis contended that OPD had ample time to secure a warrant for the Stingray deployment, referencing the search warrant issued for the apartments. The government argued that OPD acted under emergency procedures, which precluded waiting for standard business hours to submit a pen register order. Notably, the basis for probable cause to issue the search warrant likely would have justified the use of the Stingray if a separate warrant had been sought. Ellis challenged the necessity of a warrantless search, asserting that OPD was aware he was inside the building, negating claims of exigency.
OPD secured a warrant to search Ellis’s residence but did not find him, resulting in a prolonged standoff while searching for him. The use of a Stingray device to locate Ellis's cell phone was deemed justified under exigent circumstances due to concerns over his potential flight and possession of firearms. The FBI's subsequent use of a second Stingray was considered a continuation of OPD's search. Officers were not obligated to reassess the exigency during the standoff, as it represented a continuation of the initial seizure, supported by precedents such as Michigan v. Tyler and United States v. Echegoyen. The court ruled that no warrant was necessary for deploying the Stingrays under the circumstances present on January 22, 2013, and denied Ellis’s motion to suppress the evidence obtained.
Furthermore, the court examined the government's arguments regarding exceptions to the exclusionary rule, specifically the good faith reliance doctrine. Even if a warrant had been needed, the OPD officers and FBI agents acted reasonably under the belief that they were operating within the law based on a pen register order issued under emergency procedures. The "good faith" exception, as established in United States v. Leon, applies if officers rely on a defective warrant in an objectively reasonable manner. The government bears the burden of proving this good faith, considering all relevant circumstances, including any past rejections of warrant applications. The court acknowledged four scenarios that negate the good faith exception, including instances where false information misled the issuing judge.
Key points include standards under which a warrant may be deemed invalid, specifically: (1) when a judge entirely abandons their judicial role; (2) if an affidavit lacks probable cause to the extent that belief in its existence is unreasonable, termed a "bare bones" affidavit; and (3) if a warrant is facially deficient by failing to specify the place to be searched or the items to be seized, leaving officers unable to presume its validity. In the case at hand, Ellis contends that Officer Saunders's application was flawed as it did not inform the judge of the use of Stingray devices instead of traditional methods. However, Ninth Circuit precedent indicates that the specific means of executing a warrant need not be explicitly authorized, but can be reviewed for reasonableness if contested. The court, in Dalia, asserted that warrants must be issued by neutral magistrates and show probable cause but need not specify execution methods. Ellis's further challenges regarding the pen register order, including the legitimacy of its issuance and concerns about timing related to its activation, were addressed by the government, which cited statutory provisions allowing for retrospective authorizations. The absence of the original order does not necessitate suppression given other supporting evidence. Additionally, the Stingray operators affirmed their use of the devices as pen registers while adhering to legal standards, and the government noted that prior FBI policy did not require a warrant for cell site simulator use.
Cell site simulators (CSS) fall under the definition of a pen register according to 18 U.S.C. 3127(3) as amended by the USA Patriot Act of 2001. However, a Department of Justice policy, effective September 3, 2015, mandates a warrant for CSS operation. At the time of the case involving CSS technology in January 2013, there was no established authority regarding whether its use constituted a search warrant requirement. Judge Illston’s 2015 ruling in Cooper, which necessitated a probable cause showing for accessing cell site location information, was issued two years after the events in question.
Contrastingly, there was precedent in other jurisdictions indicating that prior to 2013, the government had successfully applied for tracking warrants based on probable cause for mobile tracking devices functioning similarly to CSS. In the case of United States v. Rigmaiden, a tracking warrant was secured in 2008 by then-Magistrate Judge Seeborg to utilize a mobile tracking device acting as a cell site simulator to locate a defendant’s aircard. The government acknowledged that this operation constituted a Fourth Amendment search and relied on the tracking warrant for authorization.
The Arizona district court denied the defendant’s requests for additional discovery related to the suppression motions, concluding that the defendant had sufficient information to argue his Fourth Amendment claims. Ultimately, the court denied Rigmaiden’s motion to suppress evidence related to the mobile tracking device, affirming that the tracking warrant was supported by probable cause. The court also found that the defendant lacked a reasonable expectation of privacy in the fraudulently obtained aircard but did not determine the warrant requirement for CSS use if a privacy interest were deemed protected, as the government conceded that using a CSS-type device constituted a Fourth Amendment search.
Prior to 2013, courts faced conflicting opinions regarding whether law enforcement needed a warrant or a pen register/trap and trace order to use cell site simulators. For instance, in *In re Application of the U.S. for an Order Authorizing Use of a Cellular Telephone Digital Analyzer*, the court ruled that no order was needed to use a digital analyzer for detecting a cellular phone's electronic serial number and phone number. Conversely, in *In re Application of the U.S. for an Order Authorizing the Installation and Use of a Pen Register*, the court denied a request to use a pen register for a "stingray" device, stating that the pen register statute did not apply.
The excerpt discusses the exclusionary rule in light of the Supreme Court's views on police conduct, particularly under the "good faith exception." The rule is less likely to apply when officers act with an objectively reasonable belief that their actions are lawful, as established in cases like *Davis v. United States* and *Herring v. United States*. When officers demonstrate gross negligence or reckless disregard for Fourth Amendment rights, the rationale for exclusion is stronger.
In this case, law enforcement took steps to obtain court approval under pen register procedures to track a suspect's cell phone. Officer Saunders's application accurately described its purpose, including ongoing location tracking and signal strength during calls. The judge was not merely rubber-stamping the application; he reviewed a detailed affidavit that established probable cause for an earlier search warrant. Therefore, the OPD and FBI reasonably relied on the emergency pen register procedures to deploy the Stingray devices, operating under the then-current DOJ policy, which interpreted the pen register statute to include cell site simulators. The *Illinois v. Krull* ruling supports that the Leon exception applies when officers act on a statute later declared unconstitutional.
The exclusionary rule does not apply to evidence obtained by law enforcement officers who act in objectively reasonable reliance on a statute, whether it is substantive or procedural. The court in Krull determined that suppressing evidence seized under a statute before its invalidation would not significantly deter future misconduct, and any potential deterrent effect must be balanced against the substantial social costs of the exclusionary rule. The FBI’s reliance on a statute regarding the use of Stingrays is not equivalent to a mistaken belief about a suspect’s actions. While probable cause is necessary for using cell site simulators (CSS), the OPD and FBI’s belief that the pen register statute authorized their use was not objectively unreasonable, particularly as they had obtained a search warrant and a pen register order that did not require probable cause. The officers acted as reasonable officers would under similar circumstances, justifying the good faith reliance exception to the exclusionary rule. Consequently, the motion to suppress the evidence is denied. Additionally, the government argues for the inevitable discovery doctrine, asserting that the OPD would have located Ellis in the apartment regardless of the Stingray use, which allows for the admission of evidence that would have been inevitably discovered without police misconduct.
The excerpt addresses the legal rationale for denying a motion to suppress evidence based on the inevitable discovery doctrine, referencing *Nix v. Williams*, where evidence obtained unlawfully may be admissible if it can be shown that it would have been discovered by lawful means anyway. The police had established a perimeter and engaged in tactical maneuvers around a location before deploying a Stingray device, indicating they would have eventually located the suspect, even without the device.
Furthermore, the excerpt discusses a request for a Franks hearing, which Ellis argues is warranted due to alleged misleading omissions in the pen register application regarding the use of Stingrays by law enforcement. Ellis claims the application failed to specify that the FBI and OPD would be using the Stingrays instead of MetroPCS and did not detail the information to be collected. However, it is noted that the officer’s omission did not constitute a knowingly false statement or reckless disregard for the truth, as such explicit details were not required under established legal precedents, including *Dalia v. United States*. The excerpt also references a related case, *Patrick*, where the court upheld that police could obtain a warrant for location tracking without disclosing the specific methods of obtaining that data. The overarching principle is that the judiciary's role is limited to evaluating the reasonableness of searches after they occur, rather than regulating the methods beforehand.
The court denied the motion for reconsideration regarding the suppression motion, dismissing claims that the tracking warrant lacked specificity and that the government failed in its duty of candor by not disclosing details about the mobile tracking device. Citing Dalia, the court found that the absence of Stingray device references did not indicate knowingly false statements or reckless omissions that would necessitate an evidentiary hearing, as established in United States v. Stanert. The pen register order permitted the OPD and FBI to gather real-time data on the location of Ellis’s cell phone, and there was no requirement under existing authority for the affiant to disclose the use of Stingray devices. Consequently, Ellis failed to prove that a Franks hearing was necessary.
Regarding potential violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Ellis argued that if Stingrays captured content or functioned as microphones, their use would breach Title III's requirements for obtaining interception orders. It is acknowledged that neither the OPD nor the FBI sought such an order, and the state court did not authorize communication interception from the target phone. Ellis claimed that Stingrays could intercept conversations, referencing police communications indicating monitoring of his phone activity. However, the court concluded that Ellis merely speculated about the Stingrays' capabilities and configurations, without concrete evidence to contradict the government's assertions that no content was captured.
The police officers' discussion regarding phone activity does not imply that conversations were intercepted, as law enforcement declarations confirm that the Stingray devices were not designed to collect content or communications from the targeted cell phone. An OPD operator stated that the cell site simulator was not set up to capture any communication content, including emails, texts, or contact lists, and did not provide subscriber account information. Similarly, an FBI agent declared that cell site simulators must be configured only as pen registers, which cannot collect communication contents under 18 U.S.C. § 3127(3). The FBI's device, used to locate Ellis's cell phone on January 22, 2013, only gathered signaling information, without accessing emails, texts, or any other data. The FBI agent reiterated that the simulator was not configured to collect content or subscriber account information. The evidence establishes that cell site simulators did not intercept communications in violation of Title III, leading to the denial of Ellis's motion to suppress on that basis.
Regarding Ellis's motion to suppress evidence seized from Apartment 212, he argues that the government did not provide the original search warrant and affidavit, questioning the validity of the search. Additionally, he cites an extraordinary delay between the search and the filing of the warrant with the state court, seeking suppression of the evidence on these grounds.
The court addressed the validity of a search warrant for Apartments 108, 110, and 212, previously denying motions to suppress based on the lack of an original warrant. Following a police response to a shooting incident on January 21, 2013, the Oakland Police Department (OPD) secured the complex and obtained a valid search warrant supported by probable cause. The court reviewed the unredacted search warrant affidavit, which included information from a confidential informant, and concluded that the absence of an original file-stamped warrant does not invalidate the search of Apartment 212.
Defense objections regarding reliance on redacted information were overruled, as the government assured that the informant would not testify and redacted information would not be introduced at trial. Despite allegations of inconsistencies in the search inventory and police reports, the government clarified that the inventory referenced "Box w/ 3 glock pistols," and Officer Milina explained the transfer of firearms to Technician Jaecksch, which accounted for their omission from his report.
Concerns about a blank search warrant left in Apartment 212 and its potential overbreadth were deemed speculative and unreasonable. Officer Milina stated that he left a redacted version of the warrant per OPD policy, and comparisons between the unredacted and redacted warrants showed no discrepancies in the judge's signature. Ultimately, the court ruled that suppression of evidence obtained under a valid warrant would not be warranted, as the Fourth Amendment does not require serving a copy of the warrant to the person whose premises are searched. The government successfully demonstrated that the OPD and FBI applied for and obtained the warrant for Apartment 212, supported by the events' timeline and contemporaneous warrants.
The delay in locating and filing the original search warrant issued by the state court does raise concerns about clerical operations but does not invalidate the police search of Apartment 212, which was conducted under a valid warrant. The absence of the original warrant may affect its admissibility at trial but does not necessitate suppression of the evidence obtained. Under Ninth Circuit precedent, California courts view the statutory requirements for filing and returning search warrants as ministerial; violations do not invalidate lawful searches unless there’s demonstrated prejudice to the defendant. The inability to locate the original warrant does not render it invalid or the search unreasonable.
Ellis claims he has been prejudiced by a nearly four-year delay in the filing of the search warrant return, arguing it has led to extensive litigation and prolonged pretrial detention, particularly for him. The government acknowledges its responsibility for this delay, which extended from 2013 to 2016. However, the court finds that Ellis has not proven actual prejudice from this delay, as he and co-defendants have had access to copies of the search warrant and redacted affidavits for over two years, which allowed them to challenge probable cause and prepare their defense. Citing precedent, the court concludes that suppression is not warranted due to the absence of the original warrant and the lack of demonstrated prejudice. Consequently, Ellis's motion to suppress evidence obtained from Apartment 212 is denied.
