E.D.Va.: There is no higher nexus requirement involving cell phone data and tracking

There is no higher nexus requirement involving cell phones. A ping order of a cell phone may be used to collect “mere evidence,” rejecting United States v. Powell, 943 F. Supp. 2d 759 (E.D. Mich. 2013). United States v. Christian, 2017 U.S. Dist. LEXIS 80251 (E.D.Va. May 24, 2017):

Because there is no basis in any Fourth Circuit or controlling Fourth Amendment jurisprudence for the Powell court’s requirement that such affidavits must establish that the cell phone itself is used in connection with criminal activity, the Court declines defendant’s invitation to follow it here. It is fundamental that “to establish probable cause, the facts presented to the magistrate need only ‘warrant a man of reasonable caution’ to believe that evidence of a crime will be found.” United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992) (per curiam) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (plurality opinion)). The factual showing that is required to justify the search of a specific item stems from the Fourth Amendment’s nexus requirement, not particularity, as the Powell court suggests. Although a connection “between the item to be seized and criminal behavior,” exists automatically when the items to be seized are fruits, instrumentalities, or contraband, Warden v. Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), police may also seize “mere evidence,” in which case “probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.” Andresen v. Maryland, 427 U.S. 463, 483, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). It bears emphasizing that the nexus test established by Andresen is not a stringent one, nor is it calibrated based on the intrusiveness of the search. Id. “A sufficient nexus can exist between a defendant’s criminal conduct and [the place to be searched] even when the affidavit supporting the warrant contains no factual assertions directly linking the items sought to [that place].” United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005) (internal quotation marks omitted). Instead, “the nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence.” United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988). In the context of a ping warrant, the place to be searched is the subject phone, and the item to be seized is location data. Therefore, the nexus requirement is satisfied by an inference that the subject phone will be a source of location information regarding criminal activity.

Powell’s requirement that the affidavit demonstrate that the target cell phone itself is used in connection with criminal activity effectively requires that the phone must be an instrumentality of criminal activity. This position is directly contradicted by the Supreme Court’s decision in Warden, which states that “[n]othing in the language of the Fourth Amendment supports the distinction between ‘mere evidence’ and instrumentalities.” 387 U.S. at 301. Against this background, the Powell court points to no legal authority that requires a higher nexus showing for cell phone location information searches and this Court is aware of none.

The conclusion that the affidavit does not have to demonstrate that the subject phone is used to conduct criminal activity is consistent with the Fourth Circuit’s decision in United States v. Gibbs, which considered three factors in concluding that the GPS monitoring of a cell phone was supported by probable cause: the existence of criminal activity, a link between the person whose phone was to be tracked and that criminal activity, and whether location information would likely reveal evidence of the crime. 547 F. App’x 174, 179 (4th Cir. 2013). All three of these factors are established in Christian’s case: the affidavit in support of the warrant provides ample evidence of a criminal conspiracy to distribute cocaine, it indicates that the defendant was actively involved in procuring and distributing that cocaine, and it established that law enforcement officers needed information about defendant’s location to identify the locations where the drug trafficking activity was taking place. As to the nexus between the Samsung Galaxy and the defendant, the affidavit’s representations that the defendant provided the Samsung Galaxy number to his probation officer and answered the phone in response to a ruse call are sufficient to establish that it was likely that he would be carrying the phone, and the ample evidence from wiretap calls established that the defendant was engaged in drug dealing, used multiple cell phones to communicate with his co-conspirators regarding drug transactions, and that tracking his location would “aid in a particular apprehension or conviction.” Andresen, 427 U.S. at 483.