The prospective CSLI warrant failed to show probable cause on the facts of informant hearsay or overcome staleness, and the motion to suppress is granted. (Also, the owner of a cell phone has standing to challenge GPS tracking of his own phone.) United States v. Sykes, 2016 U.S. Dist. LEXIS 162718 (E.D.N.C. Aug. 22, 2016):
Turning to the Fourth Amendment’s particularity requirement, the first pen order provides as follows:
the “records and other information” sought pursuant to 18 U.S.C. § 2703(d) for 919 809-3016 and other telephones, of whatever type, with which 919 809-3016 communicates includes records such as all published and non published subscriber records for incoming calls received or outgoing numbers dialed, telephone toll and direct connect records, cellular tower and originating cell site information to include towers, switches, historical and prospective Global Positioning Location (GPS) for the duration of the order, real time call detail records with coordinating real time cell site location information, historical call detail records to include cell site location information … and any other relevant information pertaining to telephone numbers associated with the telephones, digital display devices, and mobile telephones utilized[.]
“THEREFORE, IT HAS BEEN DETERMINED THAT PROBABLE CAUSE EXISTS AND IT IS HEREBY ORDERED …. [that providers of electronic communications services] shall disclose to the Raleigh Police Department, SBI or any other applying officer all published and non-published subscriber records and account billing information to include account notes for incoming calls received or outgoing numbers dialed, telephone toll and direct connect records, cellular tower and originating cell site information to include towers, switches, Global Positioning Location (GPS), real time call detail records with coordinating real time cell site location information, and other information relevant to 919 809-3016 and other telephones of whatever type with which 919 809-3016 communicates ….
[DE-128-3] at 5-6. This provision authorizes the collection of a range of information, up to and including GPS location information about telephones which simply contact the target phone number. There is nothing here to show the “relation to designated crimes” of every single telephone which may contact the target phone number during the time period at issue. Williams, 592 F.3d at 519. The overbreadth of this provision certainly fails the Fourth Amendment requirement “that a warrant be ‘no broader than the probable cause on which it is based.” Hurwitz, 459 F.3d at 473 (quoting Zimmerman, 277 F.3d at 432). Thus, the first pen order also fails for lack of particularity.
Accordingly, where there is no basis on which to determine the anonymous tipster’s reliability or basis of knowledge, minimal corroboration was performed, and no time frame is provided for the alleged criminal activity, there is no substantial basis to determine that probable cause exists to support the first pen order, and it is also invalid for lack of particularity where the order authorizes the collection of information about telephones which contact the target phone without an individualized showing of probable cause as to those telephones.
. . .
Moreover, the Fourth Circuit has also held that “where the totality of the information provided to the magistrate included no indication as to when the events supposedly creating probable cause to search took place, we cannot conclude that the officers reasonably relied on the resulting search warrant.” Doyle, 650 F.3d at 475 (internal footnote and citations omitted); accord Carroll, 2012 WL 3780449, at *5 (holding that the officers’ reliance was not objectively reasonable and refusing to apply the good faith exception, noting that “[t]he Fourth Circuit has made clear that a reasonable police officer will not rely on warrants containing no information as to when the criminal activity actually occurred ….”). In addition, in Carroll, where no information as to time frame was provided in the affidavit in support of probable cause, the court held “that the officer’s conduct arguably did rise to the level of gross negligence, and that the deterrent effect the court’s ruling will have on police misconduct weighs in favor of exclusion[.]” 2012 WL 5350364, at *7. The Carroll court held that the deterrent effect on the affiant officer was sufficient to weigh in favor of suppression: because the conduct at issue was committed by the officer who “wrote the affidavit submitted to the reviewing judicial officer, that officer and presumably the entire city police department will know, from this point forward, that search warrants and accompanying affidavits must include the dates informants actually observed the criminal activity.” Id. at *6. Similarly here, where no information about the time frame at issue was provided in the affidavit and Detective Heckman, who played a major role in the investigation, authored the affidavit, the officers’ reliance on the resulting order was not objectively reasonable and there is a sufficient deterrent effect weighing in favor of suppression. See Id. at *7.
Finally, as discussed above, the provision allowing the collection of information about the contacting telephones is grossly overbroad and not particularized. Detective Heckman repeatedly testified at the hearing that he and other officers never tried to obtain GPS location information for contacting telephones pursuant to these provisions, because they knew the service providers would not provide that information without an order supported by probable cause as to those specific telephone numbers. See, e.g., Hr’g Tr. Vol. I [DE-194] at 81. While the good faith exception is an objective inquiry, Detective Heckman’s testimony as to the provision about the contacting telephones certainly undercuts any argument that an objectively reasonable officer could rely on the first pen order. Thus, where the first pen order contains such a grossly overbroad provision, the third exception applies and the officers’ reliance was objectively unreasonable. Additionally, the fourth exception could apply here as well: because the order is so facially deficient based on the provision as to contacting telephones, officers could not reasonably presume it to be valid. Bynum, 293 F.3d at 195. For these reasons, the good faith exception cannot apply to the first pen order.
