CA8: Cell tower warrant to ID robbers was reasonable and with PC

Cell phone tower warrant in an effort to solve multiple robberies by identifying repeated phone use was reasonable when the question is a “substantial basis,” which there was. United States v. James, 2021 U.S. App. LEXIS 20336 (8th Cir. July 8, 2021):

Considered in their totality, these facts “provided a substantial basis” to conclude that probable cause existed. United States v. Johnson, 848 F.3d 872, 876 (8th Cir. 2017) (quotation marks omitted). The judges knew from the affidavits that the robberies were connected by a common modus operandi; that the robber likely carried a cell phone, even if he did not use it during the robberies; and that comparing the numbers from cellular-tower records could reveal his true identity.

In James’s view, none of this is enough because no one could connect the robber to a cell phone. See United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000) (explaining probable cause’s “nexus” requirement). James claims that, without this connection, the judges who approved the warrants did no more than guess that investigators would find “useful evidence” in the cellular-tower records. Johnson, 848 F.3d at 878 (quotation marks omitted); see United States v. Griffith, 867 F.3d 1265, 1275, 432 U.S. App. D.C. 234 (D.C. Cir. 2017) (accepting a similar argument).

The problem with this argument is that probable cause is about “fair probabilit[ies],” not near certainties. Wallace, 550 F.3d at 732 (quotation marks omitted). Even if nobody knew for sure whether the robber actually possessed a cell phone, the judges were not required to check their common sense at the door and ignore the fact that most people “compulsively carry cell phones with them all the time.” Carpenter v. United States, 138 S. Ct. 2206, 2218, 201 L. Ed. 2d 507 (2018); see United States v. Eggerson, 999 F.3d 1121, 2021 WL 2303072, at *2 (8th Cir. June 7, 2021) (calling cell phones “ubiquitous”). And besides, they also knew that criminals often use cell phones to “call and/or text message” others after the crime is over. As “a practical and common-sens[e] standard,” probable cause leaves plenty of room to draw reasonable “inferences” from less-than-perfect evidence. Cronin v. Peterson, 982 F.3d 1187, 1197 (8th Cir. 2020) (quotation marks omitted).

Nor will allowing these warrants to stand mean that it is now fair game to search the records from “cell phone towers near the location of every crime.” (Emphasis added). James forgets that there were specific facts here that connected the unidentified robber to a series of crimes, making this case different from those involving only a single crime. All we are saying is that in this particular situation, when evidence connected multiple crimes, there was “a fair probability” that records from nearby towers would reveal incriminating evidence, or at the very least, the judges who approved the search warrants had “a substantial basis” to think so. Johnson, 848 F.3d at 878 (quotation marks omitted).

Defendant’s particularity challenge is also rejected, n.4:

Although James argues that the search warrants allowed the investigators to see more than they ultimately needed, such as “[c]all detail record information … consist[ing] of date, time, duration, originating number, [and] termination number,” see Garrison, 480 U.S. at 84 (defining “the scope of a lawful search” by considering “the object of the search and the places in which there is probable cause to believe that it may be found” (quotation marks omitted)), they were still “sufficiently definite” to pass constitutional muster, Horn, 187 F.3d at 788. But even if they were not, the investigators still acted reasonably and in good faith on them. See United States v. Leon, 468 U.S. 897, 922-23, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).