Cell Tower Surveillance
The Justice Department is currently debating whether to appeal a denial of search warrants that would permit investigators to collect cell site location data.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
In the District of Nebraska, a Venezuelan national and alleged member of Tren de Argua, who was also in the United States illegally, was charged with attempted murder and assault against federal agents who attempted to detain the man for being in the United States illegally.
In the Southern District of Texas, a man was charged with unlawfully operating several trucking businesses having falsely represented the safety of his trucks.
In the Eastern District of Virginia, multiple members of the Eastern Rollin’ 20s Crip gang were indicted under RICO for the commission of various criminal acts, including murder, robbery, car theft, drug dealing, and identity theft.
Updates…
As the Justice Department continued to re-orient its priorities to conform with new Administration’s goals, a letter was sent to all US Attorney’s Offices telling them to prioritize and respond quickly to unrest related to protests over the Administration’s immigration enforcement.
The trial date for Hannah Dugan, the Wisconsin judge arrested for obstructing ICE agents, was postponed last week as the presiding judge needed more time to consider the defendant’s motion to dismiss.
The trial of Sean “Diddy” Combs continued as the prosecution is nearing completion of its case-in-chief. The defense has indicated it will present little, if any, evidence. This means the jury could begin deliberating sometime this week.
Tower Dumps and the Fourth Amendment
One often overlooked aspect of federal prosecutors is their work on criminal investigations. In many cases, federal law enforcement agents take requests for search warrants to assistant United States Attorneys to prepare and present for federal magistrate judges. They do this to ensure there is probable cause for the search and seizure of evidence necessary to prosecute cases. Failing to provide probable cause means that either (1) the judge will not grant the search warrant or (2) the court, once the case is prosecuted, could suppress the evidence, preventing its use against the defendant. Rarely, however, even when prosecutors draft the search warrant, a magistrate judges may reject it. This occurred this past February on four search warrant applications made in the Northern District of Mississippi. The warrants requested information about every cell phone number that connected to certain cell phone towers at particular times. The judge said that the search warrant application lacked probable cause for all of the information sought and was not sufficiently specific about the information sought. The Justice Department must now decide whether to appeal the decision. It has already been granted one extension by the court and, last week, requested another. The case highlights the interaction between Fourth Amendment search and seizure law and technological advancement.
The Mississippi case arose when federal law enforcement agents submitted four search warrant applications to a magistrate judge. Agents wanted to obtain phone numbers and other technical data about every cell phone that connected to nine different cell towers for time periods ranging from ten minutes to one hour. The agents were investigating numerous violent offenses committed by a gang. By obtaining this information, the agents hoped to identify who committed the crimes. Using the numbers obtained from the search warrant, the agents hoped to identify those involved in the offenses. Phones often connect to multiple towers. By comparing the numbers to the connected towers, agents can more precisely identify a potential offender's location at a given time. The information the agents would receive would include people in the area at that time but completely innocent of the charges.
After reviewing the warrant applications and denying them, the judge wrote an opinion explaining the decision. Most of the opinion focused on whether collecting the information constituted a search. In a shorter, second section, the judge explained why the warrant application failed to provide sufficient probable cause or specificity.
When any law enforcement officers want to conduct a search, they must comply with the US Constitution’s Fourth Amendment. It states that unreasonable searches and seizures are prohibited and that search warrants must be supported by probable cause and be specific about the place to be searched and the things to be seized. Over the last 100 years, courts have added detail to these basic principles. Most of these principles were developed prior to today’s information age. They do not fit neatly with the amount of information available about everyone. This was at the heart of the Magistrate judge’s opinion.
To determine what constitutes a search when the government collects information, a court can apply one of two tests. Most commonly, the court asks whether the person against whom the information will be used had reasonable expectation of privacy in the place searched. When information is exposed to a third party there is no reasonable expectation of privacy. In today’s digital world, nearly all of a person’s information is exposed to a third party. The second test is whether law enforcement physically intrudes onto private property. This test provides little protection for digital information as investigators do not physically search for electronic information. Several years ago, the US Supreme Court also said that when the government collects substantial information about a person, that also constitutes a search. When the government wants to collect such information, it must have a search warrant. That is why the government sought search warrants for the cell tower records.
The real questions for the court in the search warrant applications were whether the warrant application contained sufficient probable cause and was sufficiently specific. The questions are interrelated. A more typical situation illustrates how. Suppose law enforcement knew a drug dealer was working out of a particular apartment building but did not know the precise apartment. Consequently, the agents went to the judge asking to search the entire building to determine which apartment the drug dealer utilized. Law enforcement has probable cause for the drug dealers apartment but lacks probable cause for the remaining apartments. At the same time, they have probable cause to believe he is in an apartment but cannot be specific about which apartment. This leads to the specificity question. The same reasoning applies to the cell towers and their relationship to the phones. Law enforcement has probable cause for the drug dealers information but not for anyone else’s information. At the same time the government does not know which of the cell phone numbers are germain to the investigation. As the court succinctly stated, granting the search warrant application would allow the government to search an entire haystack for a possible needle.
The government can respond in two ways. First, it can argue that it is not conducting a search because cell phone users lack an expectation of privacy in their location, especially in public. The parallel would be a street camera t hat was recording when the incident took place. Many unrelated people would be in the video but their image would be “seized” regardless. Second, the government can argue that the warrant application was sufficiently narrow such that the collection of irrelevant data is minimized as much as possible. This is akin to wiretapping where the Government will collect irrelevant communications but will follow procedures to ensure those conversations are not utilized in the investigation.
What all this means for law enforcement is uncertain. From an investigatory standpoint, there are likely other options but the cell tower information is easiest to obtain. The legal implications are more murky. The government can choose to let the ruling stand. It only applies to the Northern District of Mississippi. If they appeal and lose, it would mean the entire 5th Circuit would be deprived on the investigatory tool. The Justice Department must also consider a similar case in Nevada where a judge denied a search warrant application. They can appeal one, both, or neither. Many factors influence that decision. The decision is further complicated by the Department’s ongoing transition. It is short staffed and focused on other issues. It might decide that litigating the issue would take more time and energy that it has to spare or might unduly detract from more important matters.
Regardless of what the Justice Department eventually decides, the case highlights an increasingly important legal issue that the Supreme Court will have to address eventually. Thus far, the Court has taken small steps to recalibrate the Fourth Amendment to work with our current information age. Yet much more work still remains. No matter what the Court decides, it will have a drastic effect on how federal prosecutors and their agents to their work.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!