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United States v. Pembrook

United States District Court, E.D. Michigan, Southern Division

July 31, 2015

UNITED STATES OF AMERICA,
v.
NATHANIEL PEMBROOK, DAVID BRILEY, SHAEED CALHOUN, ORLANDO JOHNSON, Defendants

For Nathaniel Pembrook, Defendant: Federal Defender, LEAD ATTORNEY, Rafael C. Villarruel, Federal Defender Office, Detroit, MI.

For United States of America, Plaintiff: Christopher Graveline, LEAD ATTORNEY, Daniel L. Lemisch, United States Attorney's Office, Detroit, MI.

Page 578

OPINION AND ORDER DENYING MOTION TO SUPPRESS CELL SITE LOCATION INFORMATION [56] AND GRANTING IN PART MOTION TO EXCLUDE OR LIMIT EXPERT TESTIMONY [53]

Honorable LAURIE J. MICHELSON, UNITED STATES DISTRICT JUDGE.

On April 22, 2014, four men attempted to rob a jewelry store in Grand Rapids, Michigan, but, after one was shot by a store owner, they fled without merchandise.

Page 579

Later that same day, three men stole $1,500,000 in Rolex watches from a jewelry store in West Bloomfield, Michigan. Defendants Nathaniel Pembrook, David Briley, Shaeed Calhoun, and Orlando Johnson are charged with multiple criminal offenses arising out of these robberies (the first might have only been an attempt, but, for convenience, the Court will, as the parties do, refer to the Grand Rapids and West Bloomfield incidents as robberies). The Government believes Defendants are responsible for the robberies in part because of what it learned from data it obtained--without a warrant--from cellular-phone service providers. In particular, logs from the cell towers close by the two jewelry stores allegedly indicate that a phone used by Johnson was in the area of both stores at the time of the two robberies. Other cell-site data purportedly shows that Calhoun, Briley, and Pembrook traveled together (at least roughly) from Philadelphia, Pennsylvania, to Wisconsin, to the location of the two robberies, and then back to Philadelphia.

Calhoun says that by obtaining the cell-site data without a warrant, the Government conducted a search prohibited by the Fourth Amendment. So he moves to suppress the cell-site data. (Dkt. 56, Mot. to Suppress Cell Site Location Information.) (His motion is joined by Pembrook (Dkt. 57), Briley (Dkt. 58), and Johnson (Dkt. 59), but they provide no additional argument so the Court will refer to the motion to suppress as Calhoun's.) Calhoun also seeks to exclude from trial the testimony of the Government's cell-site data expert. (Dkt. 53, Mot. to Exclude Expert.) (The motion is again joined by Pembrook (Dkt. 55), Briley (Dkt. 58), and Johnson (Dkt. 59) without additional argument; so the Court also refers to the motion to exclude as Calhoun's.) The Court has carefully considered these two motions and listened to oral argument. For the reasons set forth below, Calhoun's motion to suppress will be DENIED and Calhoun's motion to exclude will be DENIED IN PART AND GRANTED IN PART.

I.

A.

Some background on how cellular towers communicate with cellular phones helps to understand how the Government used cell-site data to investigate the two jewelry-store robberies and the associated expert testimony the Government plans to elicit at trial.

For a cellular phone to receive a call, send a text message, or download a webpage, it must communicate with a cellular tower. ( See Mot. to Suppress Ex. A, Gov't Apr. 28, 2014 App. for Order ¶ 5.) A cellular phone automatically searches for a signal from nearby towers and " [o]nce the phone locates a tower, it submits a unique identifier--its 'registration' information--to the tower so that any outgoing and incoming calls can be routed through the correct tower." United States v. Powell, 943 F.Supp.2d 759, 767 (E.D. Mich. 2013) (citing Timothy Stapleton, Note, The Electronic Communications Privacy Act and Cell Location Data, 73 Brook. L.Rev. 383, 387 (2007)). " Nearby" is a relative term: it can range from a block (maybe less) to a couple miles (maybe more) depending on the tower density in the area. See United States v. Davis, 785 F.3d 498, 503 & n.7 (11th Cir. 2015) (en banc); In re Application of U.S., 405 F.Supp.2d 435, 437 (S.D.N.Y. 2005). Further, although a cell phone often registers with its closest tower, " a variety of factors including physical obstructions and topography can determine which tower services a particular phone." United States v. Evans, 892 F.Supp.2d 949, 952 (N.D.Ill. 2012).

Page 580

( See also Gov't Apr. 28, 2014 App. for Order ¶ 5.)

Cellular service providers (e.g., Verizon Wireless) keep track of cell-phone communications with their towers (Gov't Apr. 28, 2014 App. for Order ¶ 7); courts refer to these logs as " cell-site data" or " cell-site location information" (" CSLI" for short), see e.g., In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013); In the Matter of the Application of the U.S.A. for an Order Authorizing Disclosure of Historical Cell Site Information, 40 F.Supp.3d 89 (D.D.C. 2014). Although, a cell phone " regularly communicates with cell towers in its network" even in " idle" mode, Evans, 892 F.Supp.2d at 952, the Government avers that the cell-site data at issue in this case only corresponds to active cellphone use, for example, receiving a call or sending a text, (Dkt. 72, Gov't Resp. to Request for Supp. Br. at 1). Cell-site data might also include the " sector" of a tower to which the phone connected. For example, a tower's 360 degree coverage area might be partitioned into three 120 degree sectors. ( See Gov't Apr. 28, 2014 App. for Order ¶ 7.) See also United States v. Jones, 908 F.Supp.2d 203, 207 (D.D.C. 2012).

This cell-site data permits investigators to determine the location of a cell phone at a particular time. Assume cell-cite data show that, on June 1, 2015, a cell phone using the phone number (734) xxx-1234 initiated a call via a tower located at Liberty Street and 1st Street, in Ann Arbor, Michigan at 12:00 p.m. and terminated that call while connected with a tower located at Liberty and 5th Avenue at 12:04 p.m. With a map showing that Liberty runs east-west (with 1st Street intersecting Liberty west of 5th Avenue) and with information from the cellular-service provider that the (734) xxx-1234 account is John Smith's, this cell-site data indicates (but does not conclusively prove) that Smith's phone traveled east on Liberty (or a parallel street) in Ann Arbor just after noon on June 1, 2015. An examination of the sector information might allow further refinement of the phone's geographic location.

B.

Some legal background is also helpful to understand Calhoun's motions. The Stored Communications Act provides in relevant part, " A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) . . . when the governmental entity . . . obtains a court order for such disclosure under subsection (d) of this section." 18 U.S.C. § 2703(c)(1)(B). In turn, subsection (d) states in relevant part, " A court order for disclosure under subsection . . . (c) . . . shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703 (emphasis added). Calhoun and the Government agree that a lesser showing than probable cause satisfies " reasonable grounds to believe." ( See Mot. to Suppress at 21; Gov't Resp. at 19.) See also Davis, 785 F.3d at 505 (providing that § 2703(d)'s " standard is less than the probable cause standard for a search warrant" ).

C.

In this case, the Government obtained cell-site data without obtaining a warrant upon a showing of probable cause. Instead, it filed Stored Communications Act

Page 581

applications on April 28, May 22, August 5, and September 17, 2014. The Court details the four § 2703(d) applications and corresponding court orders in turn.

1.

Six days after the robberies, the Government sought an order directing a number of cellular-service providers to produce the phone numbers of the cellular devices that, around the time of the two robberies, had connected to cell towers servicing the two jewelry stores. ( See Mot. to Suppress Ex. A, Apr. 28, 2014 Order, Attachment A at 1.)

In support of its request, the Government provided some details of the crime. It informed the reviewing magistrate judge that on April 22, 2014, around 12:30 p.m., " a jewelry store located at 4518 Plainfield Ave NW, Grand Rapids, Michigan, was robbed by four males." (Mot. to Suppress Ex. A, Gov't Apr. 28, 2014 App. at 2.) " An employee of the business shot at, and possibly hit, one of the suspects," the Government averred. ( Id. ) " After the gunfire[,] all four suspects fled without any merchandise." ( Id. ) Further, said the application, " at approximately, 5:00pm, a jewelry store located at 6637 Orchard Lake Road, West Bloomfield Township, Michigan, was robbed by three men. . . . A review of video confirms that the three suspects were also involved in the robbery earlier that day in Grand Rapids, Michigan." ( Id. at 2-3.) The Government further informed that it " believe[d] that cell tower information in the two locations may reveal a common number that was active at each location around the time of the crime. ( Id. at 3.) The identification of this number will aid in identifying potential suspects involved in the robberies." ( Id. ) The Government's application also explained (somewhat briefly) how cell towers communicate with cellular devices. ( Id. at 3-4.)

On April 28, 2014, a federal magistrate judge granted the Government's application. She found that, consistent with 18 U.S.C. § 2703(d), " the United States has offered specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing criminal investigation." (Mot. to Suppress Ex. A, Apr. 28, 2014 Order at 1.) She thus ordered Metro PCS, AT& T, Verizon, Sprint, and T-Mobile to disclose " all records and other information (not including the contents of communications ) about all communications made using" the cell towers providing service to the Grand Rapids store between 10:00 a.m. and 1:00 p.m. on April 22, 2014 and the towers providing service to the West Bloomfield store between 4:00 and 5:15 p.m. on April 22, 2014. (Apr. 28, 2014 Order, Attachment A at 1.) Although the magistrate judge's order included the phone numbers of each wireless device that " registered" with the towers during the two time periods (Apr. 28, 2014 Order, Attachment A at 2), the Government advises that " [t]he data at issue in this case only includes location information for the cellular device when that device is in active use, that is, when someone is sending or receiving a call or text," (Gov't Resp. to Request for Supp. Br. at 1).

2.

Almost four weeks later, on May 22, 2014, the Government filed a second § 2703(d) application. In addition to the details of the robberies set out in its first application, the Government added that on April 28, 2014, " a Court Order was obtained . . . authorizing the FBI to obtain data from cell phone towers near the two robberies at the times the robberies occurred. From that data it was determined that one telephone number was active at both locations during [the] time frame of

Page 582

each robbery, (424)302-1434." (Mot. to Suppress Ex. B, Gov't May 21, 2014 App. at 4.) Thus, the Government sought " records and information" associated with the 1434 number. ( See Mot. to Suppress Ex. B, May 21, 2014 Order, Attachment A at 1-2.)

On May 22, 2014, a federal magistrate judge found " that the United States has offered specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought, which include the contents of communications and other stored files, are relevant and material to an ongoing criminal investigation." (May 21, 2014 Order at 1.) (The Government informs that despite the order's reference to " contents of communications and other stored files," it obtained no content in this case. (Gov't Resp. to Request for Supp. Br. at 1.)) He thus issued an order under § 2703 directing Verizon Wireless to provide the Government with the information it sought, including " for the time period of sixty (60) days," the names and addresses of the customers or subscribers of the " Account" associated with the 1434 number, " user activity for each connection made to or from the Account," " [i]nformation about each communication sent or received by the Account," and " all data about which 'cell towers' . . . and 'sectors' . . . received a radio signal from each cellular telephone or device assigned to the Account." (May 21, 2014 Order, Attachment A at 1-2.)

3.

About a month and a half later, on or around August 5, 2014, the Government filed a third application under 18 U.S.C. § 2703. In addition to the factual proffer set out in the first two applications, the Government explained what it had learned from the account associated with 1434 number: " [Historical records for the 1434 number] show that between 4/21/2014 and 4/23/2014 [the 1434 number] had approximately 36 contacts with telephone number (872)999-0033. These records also show that both phones were calling the same two Philadelphia (PA) telephone numbers on the day of the robberies." (Mot. to Suppress Ex. C, Gov't Aug. 5, 2014 App. ¶ 4.) The application further explained, " Investigation to date has identified two men from Philadelphia that were involved in the robberies. The FBI believes that telephone number (872)999-0033 was involved in the above described robberies and the cell site locations this phone used will help identify the suspects involved in the crimes." ( Id. )

On August 5, 2014, a federal magistrate judge entered an order granting the Government the right to obtain cell-site data associated with the 0033 number. (Mot. to Suppress Ex. C, Aug. 5, 2014 Order.) Consistent with § 2703(d), the judge found that the Government had " offered specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought, which include the contents of communications and other stored files, are relevant and material to an ongoing criminal investigation." (Aug. 5, 2014 Order at 1.) She thus ordered that, " for the time period April 21, 2014 through May 21, 2014," T-Mobile was to disclose to the Government, among other information, the names and addresses of the customers or subscribers of the " Account" associated with the 0033 number, " user activity for each connection made to or from the Account," " [i]nformation about each communication sent or received by the Account," and " all data about which 'cell towers' . . . and 'sectors' . . . received a radio signal from each cellular telephone or device assigned to the Account." (Aug. 5, 2014 Order, Attachment A at 1-2.)

4.

About six weeks later, on September 17, 2014, the Government filed the fourth

Page 583

§ 2703 application at issue in this case. This application provided an investigation background similar to that set forth in the Government's prior application, but further explained: " Surveillance video from the two robberies and from a gas station in Michigan were reviewed by law enforcement. Two men, Shaheed Calhoun and David Briley, were identified from these videos as being two of the members of the group that conducted the robberies." (Mot. to Suppress Ex. D, Gov't Sept. 17, 2014 App. ¶ 5.) The application continued, " Through recorded prison calls it was discovered that Calhoun was using telephone number 610-427-1641 during the time frame of the robberies. The FBI believes that telephone number 610-427-1641 was involved in the . . . robberies and the cell site locations this phone used will help identify the suspects involved in the crimes." ( Id. )

On September 17, 2014, a federal magistrate judge entered an order similar to those entered on May 22 and August 5, 2014. Again applying the § 2703(d) standard, the judge found that the United States had " offered specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought, which include the contents of communications and other stored files, are relevant and material to an ongoing criminal investigation." (Mot. to Suppress Ex. D, Sept. 17, 2014 Order at 1.) She thus ordered T-Mobile to disclose, " for the time period April 15, 2014 through May 30, 2014," the names and addresses of the customers or subscribers of the " Account" associated with the 1641 number, " user activity for each connection made to or from the Account," " each communication sent or received by the Account," and " all data about which 'cell towers' . . . and 'sectors' . . . received a radio signal from each cellular telephone or device assigned to the Account." (Sept. 17, 2014 Order, Attachment A at 1-2.)

* * *

To summarize the Government's use of cell-site data in this case, it first obtained data associated with the towers around the site of the two robberies and determined that the cell phone with the number (424) 302-1434 connected to towers in the vicinity of the Medawar's jewelry store in Grand Rapids, Michigan around 12:30 p.m. and the Tapper's jewelry store in West Bloomfield, Michigan around 5:00 p.m. The Government then sought records associated with the 1434 number, which the Government now says was Defendant Johnson's (Gov't Resp. to Mot. to Suppress at 1 n.1), and determined that the 1434 number had frequently called (872) 999-0033 around the time of the two robberies and that both those numbers had called two Philadelphia numbers. So the Government sought cell-site data from April 21 to May 21, 2014 for the 0033 number, which the Government now believes was used by Calhoun. Then, based on surveillance video, the Government concluded that Calhoun and Briley were involved in the robberies and, based on recorded prison conversations, that Calhoun had used the number (610) 427-1641 during the time of the robberies. So the Government sought cell-site data from April 15 to May 30, 2014 for the 1641 number.

From this data, it appears that the Government could determine Calhoun's approximate location between April 15 and May 30, 2014, a six-week period, and Johnson's approximate location for an eight-week period.

D.

At trial, the Government intends to call Christopher Hess, a special agent with the FBI, to ...


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