CA6: CSLI by court order was valid; lengthy pole camera observation of publicly seen areas reasonable

Lengthy CSLI was obtained by a cell site simulator but with a court order. Pleading the pen register statute is no help to the defense because there is no exclusionary remedy. Pre-Jones GPS tracking was valid under Davis. Finally, lengthy pole cameras observing public sides of the property invaded no privacy interests. United States v. Powell, 2017 U.S. App. LEXIS 2093 (6th Cir. Feb. 6, 2017):

C. Cell-Phone Identification Information

DEA agents obtained a series of pen-register/trap-and-trace orders between March 11 and November 4, 2010, which purported to authorize the use of a cell-site simulator device to detect and record cell-phone identification information (such as the phone number, serial number, or mobile equipment identifiers) for unknown cell phones that were being used by Carlos Powell, Eric Powell, and Juan Valle, respectively. Each of the applications requested authorization to use a cell-site simulator in the vicinity of the target individual in order to detect the radio signals autonomously transmitted by the target cell phone (and other cell phones in the area) to identify the phone to the network for authentication. That process would be repeated at different locations until the target cell-phone number was identified—here, that included the identification of several prepaid cell phones subscribed to in fictitious names using a post office box address in California.

Defendants assert that the identification information was obtained “illegally”—and therefore evidence derived from that information should be suppressed—because the use of a cell-site simulator to capture “autonomously” transmitted information could not be authorized under the pen-register/trap-and-trace statute. The statute, as amended, defines a “pen register” as “a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication.” 18 U.S.C. § 3127(3); see also § 3127(1) (incorporating definitions from 18 U.S.C. § 2510). Defendants contend that this definition should be interpreted restrictively to include the recording or decoding of information only if it is transmitted with a wire or electronic communication (i.e., only when sending a text or making a call). Whether the statute should be construed as defendants urge, however, is an issue of first impression that is immaterial to the suppression issue before us.

As the district court recognized, the exclusionary rule is not an available remedy for a statutory violation unless the Constitution requires it or the statute expressly provides for it. See Carpenter, 819 F.3d at 890 (citing United States v. Abdi, 463 F.3d 547, 556 (6th Cir. 2006)); United States v. Page, 232 F.3d 536, 541 (6th Cir. 2000). Defendants clarified in reply that they do not claim that the cell-phone identification information was obtained in violation of the Fourth Amendment. See also Smith v. Maryland, 442 U.S. 735, 745-46 (1979) (holding use of pen register to record dialed calls was not a search); Carpenter, 819 F.3d at 886-90 (holding collection of CSLI was not a search); United States v. Bah, 794 F.3d 617, 630-31 (6th Cir.), cert. denied, 136 S. Ct. 561 (2015) (holding officer’s scan of magnetic strip on credit card for identifiers was not a search). Nor does the pen-register/trap-and-trace statute itself provide for the suppression of evidence as a remedy for its violation. See United States v. Thompson, 936 F.2d 1249, 1250-51 (11th Cir. 1991) (holding suppression not available remedy for violation of 18 U.S.C. § 1321 et seq.). We agree with the district court that use of a cell-site simulator to identify the six unknown cell phones did not undermine the probable cause supporting the second and subsequent warrants for the cell-phone location information.

. . .

E. Utility-Pole Camera Surveillance

Finally, defendants challenged evidence obtained as a result of the warrantless video surveillance conducted through the installation of video cameras on three public utility poles for periods of up to 90 days each. One camera was installed near the Conley Street location in April 2010, and the other two cameras were installed near the Stricker Avenue location and the warehouse on Sherwood Avenue in August 2010. There is no dispute that all three of those locations were used in connection with the defendants’ drug operation and were not places where the defendants resided. The district court denied defendants’ motions to suppress the video recordings (and evidence derived from them) because there was neither physical intrusion nor violation of any reasonable expectation of privacy. Guided by this court’s recent decision in Houston, we affirm the district court’s denial of the defendants’ motion to suppress this evidence. United States v. Houston, 813 F.3d 282 (6th Cir.), cert. denied, 137 S. Ct. 567 (2016).

The court in Houston held that remote surveillance of a rural farm with a utility-pole camera for a period of ten weeks without a warrant “did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.” Id. at 285. This court emphasized that “the Fourth Amendment does not ‘preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible.’” Id. at 288 (quoting California v. Ciraolo, 476 U.S. 207, 213 (1986)). Further, the court rejected the claim that the length of the period of monitoring made the surveillance constitutionally unreasonable, explaining that law enforcement may use technology to augment their activities and that it is the possibility—not the practicability—of in-person surveillance from a public vantage point that is critical. Id. at 288-90; but see id. at 296-97 (Rose, J., concurring) (finding harmless error).

The district court reviewed the evidence—including photographs of the properties and video footage taken by the pole cameras—and found that each of the cameras viewed areas that were clearly visible from a public vantage point. Defendants argue that the camera at the Conley Street location looked into an area between the house and an unattached garage. However, the district court specifically found that this camera was positioned looking over a half-solid, halflattice array, “to a location where the public could easily see from another vantage point.” With respect to the Stricker Avenue location, the district court found the pole camera observed a driveway that was open and accessible to public view. Finally, the district court found that the pole camera outside the Sherwood Avenue warehouse viewed a common yard between buildings that was “open to many directions and surrounded by roads and alleyways” and had no obstructions that would prevent someone from observing the defendants “comings and goings.” See, e.g., United States v. Wymer, 654 F. App’x 735, 743-44 (6th Cir. 2016) (holding warrantless surveillance of commercial property from utility-pole cameras that recorded for five months was not a search), cert. denied, ___ S. Ct. ___, 2017 WL 276211, 2017 WL 276212 (Jan. 23, 2017). Defendants have not demonstrated that those findings were clearly erroneous.

We affirm the district court’s denial of the defendants’ motions to suppress evidence.

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