E.D.Mo.: Using cell site simulator with SW was reasonable and particular

A warrant supported by ample probable cause was used for a cell site simulator to find defendant’s cell phones. No conversations were captured. The USMJ compared it to a tracking warrant, which wasn’t unreasonable. The warrant was also constitutionally particular. United States v. Johnson, 2020 U.S. Dist. LEXIS 124574 (E.D. Mo. July 15, 2020):

Although a cell site simulator warrant cannot be executed in exactly the same manner as a regular search warrant, it is not invalid for lack of particularity in describing the place to be searched and the things to be seized, as the Fourth Amendment requires and as discussed in Dalia v. United States, 441 U.S. 238, 255 (1979). In United States v. Tutis, supra, which is the only case I am aware of that is on point with this case involving a warrant authorizing use of the device in “canvass” mode, the Court determined that specifying that the device would only be used in the issuing district and only in locations near where authorities knew the defendant to be present was sufficiently particular. 216 F. Supp. 3d at 480. The warrant was also sufficiently specific as to the things to be seized, because it indicated that what would be seized would only be the data necessary to identify cellular devices used by defendant. I agree with the Titus court’s analysis and conclude that this warrant meets the particularity requirements and does not give law enforcement a roving commission to search beyond what was intended to be authorized.

Although Judge Bodenhausen concluded that this was most akin to a warrant for a tracking device, and I agree that is a reasonable conclusion, no analogies appear to be precisely on point. But obtaining a warrant based on probable cause—as the investigating agents did here—is the solution to many of the Fourth Amendment issues implicated by emerging technologies. See, e.g., United States v. Carpenter, 138 S.Ct 2206 (2018) (historical cell site location information); Riley v. California, 573 U.S. 373 (2014) (contents of cell phone); United States v. Jones, 565 U.S. 400 (2012) (GPS location data). That is what the agents did here. Because the emerging technologies present new issues, exact correlation with the format of previous search warrants cannot always be required. Under the totality of the circumstances presented here, the warrant was sufficiently particular.

Defendant’s challenge to the form of the warrant return is likewise unpersuasive. The warrant return in this case was a specific form required by the warrant itself that specified the date and time the warrant was obtained (February 7, 2018 at 16:30), the date and time agents first began collecting information (February 8, 2018 at 06:30), and the date and time they terminated gathering information (February 8, 2018 at 12:00 p.m.). As Judge Bodenhausen concluded, this return complied with the requirements for returns on tracking device orders contained in Rule 41(f)(2), although it does not fit into the requirements of Rule 41(f)(1) for returns of warrants authorizing search and seizure for people or property or for electronically stored information. The information provided by this return is sufficient to explain when the device was used and what was obtained. The warrant itself explicitly stated that this was the information that should be included in the return. Like the judge in Tutis, there is no danger here that the issuing judge would be misled about what she was authorizing and what was done pursuant to the warrant. That today’s emerging technologies may call for modifications to forms or formats does not detract from the validity of the search, and the form here fully meets the purpose of a return.

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