DECISION
CLARK B. WEAVER Sr., Judge.
{¶ 1} This case was tried to the court on the issue of damages on March 17 and May 20, 2010. {¶ 2} On September 16, 1983, plaintiff was indicted in the Franklin County Court of Common Pleas on three counts of rape and one count of aggravated robbery (Case No. 83CR-2674.) Although there was one indictment, the charges stemmed from two separate incidents. After a jury trial, plaintiff was found guilty of, but did not plead guilty to, Count III (rape) and Count IV (aggravated robbery). Following a separate jury trial, plaintiff was found guilty of, but did not plead guilty to, Count II (rape). Plaintiff was found not guilty of Count I (rape).
On June 4, 2010, plaintiff filed Exhibit 15, which is a record of the attorney fees incurred at the May 20, 2010 portion of the damages trial. Without objection, Plaintiff's Exhibit 15 is ADMITTED.
{¶ 3} On February 10, 1984, plaintiff was sentenced to 10-25 years of imprisonment on each of the three counts for which he was found guilty, to be served consecutively, or a 30-75 year combined sentence.
{¶ 4} On March 10, 2009, pursuant to R.C. 2305.02, a judge of the Franklin County Court of Common Pleas issued an entry vacating the convictions as to Counts III and IV of the indictment and declaring plaintiff to be a "wrongfully imprisoned individual" as that term is defined in R.C. 2743.48. The court found that the prosecuting attorney could not seek any further appeal of right or upon leave of court; that no criminal proceeding was pending, could be brought, or would be brought by any prosecuting attorney, city director of law, village solicitor, or other chief legal officer of the municipal corporation against plaintiff for any act associated with the convictions on Counts III and IV; and that subsequent to plaintiff's sentencing and during his imprisonment, the court determined that the offenses in Counts III and IV of which he was found guilty were not committed by him. That court noted that plaintiff's conviction and sentence of 10-25 years as to Count II of the indictment remained undisturbed and in effect.
{¶ 5} The court of common pleas' entry states: "Fears is hereby informed that he is entitled to commence a civil action for damages against the State of Ohio in the Court of Claims as set forth in ORC Section 2743.48 for that part of his imprisonment that relates to counts three and four, reduced and mitigated by whatever imprisonment during the same period that he lawfully served and would have otherwise served in connection with his imprisonment on count two that was not vacated."
{¶ 6} Pursuant to R.C. 2743.48(E)(1), plaintiff has submitted a certified copy of the judgment entry of the court of common pleas associated with his conviction and sentencing, and a certified copy of the entry of the determination of the court of common pleas that he was a wrongfully imprisoned individual. Accordingly, the court finds that plaintiff is a wrongfully imprisoned individual.
{¶ 7} Plaintiff testified that in his underlying criminal case, he was represented by attorney Joquetta Wells, and that he paid her approximately $5,000 in attorney fees. Plaintiff further testified that he paid ten percent of a $50,000 surety bond to Sam English, a bail bondsman. Plaintiff could not produce any receipts for those expenses.
{¶ 8} The evidence shows that plaintiff's first day in the custody of the Department of Rehabilitation and Correction was February 17, 1984. Plaintiff was released on March 10, 2009. Plaintiff served 9,154 days (25.079 years) of incarceration. The court must determine when plaintiff would have been released if he had been sentenced to a 10-25 year term on one count of rape.
{¶ 9} According to plaintiff, his first parole hearing was held in 1994, but he was given a "10-year flop," meaning that he would not be entitled to another parole hearing until 2004. Plaintiff testified that he had written to many women outside the institution whose names and photographs he had seen in newspapers or magazines. Plaintiff stated that he was trying to establish relationships with women outside of the institution with whom he was not acquainted. Many of the women whom he contacted wrote the institution and requested that plaintiff not correspond with them.
{¶ 10} Cynthia Mausser testified that she currently serves as chair of the parole board and that she has been involved in thousands of parole hearings. Mausser explained that Senate Bill 2, (SB 2) effective July 1, 1996, changed Ohio's sentencing structure from indeterminate to determinate, but that it was not retroactive and would not have applied to plaintiff's sentence. Mausser stated that the criteria that she uses to determine whether parole should be denied include the inmate's institutional conduct, the nature of the offense, and a history that demonstrates that the inmate cannot comply with conditions of release. Mausser stated that although an inmate may be eligible for release, he may not be suitable for release. Mausser described the parole process as a weighing of the "human factors" of the individual. Mausser also stated that the parole board does not look favorably upon inmates who are housed in segregation during the time that the board is considering any request for parole. Moreover, Mausser stated that the parole board is very cautious about paroling inmates from maximum security institutions.
{¶ 11} On cross-examination, Mausser stated that if plaintiff were sentenced under the new law for one count of rape of an adult, he would serve ten years plus an additional five years if he had had poor institutional conduct. She reiterated that 15 years would have been the maximum that plaintiff would have served under the new law, were it to be applied to him. She also explained that under the old law, with only one 10-25 year sentence for rape, plaintiff would have been eligible for parole after having served seven years of incarceration. However, Mausser cautioned that if plaintiff's misconduct during incarceration were taken into consideration, he would not have been granted parole upon first becoming eligible.
{¶ 12} Mausser acknowledged that on November 29, 2004, a panel on the parole board commented that plaintiff had served enough time for all three crimes, that his conduct had greatly improved once he was diagnosed with bipolar disorder, and that serving additional time would serve no purpose. (Defendant's Exhibit 22, Page 178.) However, Mausser directed the court's attention to plaintiff's record of poor institutional conduct, which resulted in his security classification increasing throughout his incarceration. Mausser also conceded that it is not common for an inmate to serve a maximum sentence.
{¶ 13} Paul Pusateri, a criminal defense attorney, testified as an expert for plaintiff. Pusateri stated that he has appeared on behalf of clients before the parole board. After reviewing plaintiff's institutional records as provided by defendant, including his security classifications, his parole history, his discipline history, and his mail censorship history, Pusateri opined that if plaintiff had been incarcerated solely for one count of rape of an adult, he would have been placed on parole in 1990. According to Pusateri the fact that plaintiff was convicted of two counts of rape adversely affected his chances for parole. Pusateri based his opinion on the law as it existed prior to SB 2, when inmates were granted "good time," meaning that 30 percent of the minimum sentence was automatically deducted from the sentence. Pusateri opined that had plaintiff been convicted of one count of rape and sentenced to a term of 10-25 years, he would have been eligible for parole after having served seven years of incarceration.
{¶ 14} According to Pusateri, the majority of inmates were paroled on their first appearance before the parole board prior to the change in the law under SB 2. He further stated that he had never represented anyone with one rape conviction and a sentence of 10-25 years who had served the maximum sentence. Pusateri added that plaintiff's institutional record from 1983 to 1997 was "pretty good" but that from 1997 to 2008 plaintiff had a very poor record. Pusateri noted that plaintiff was diagnosed with bipolar disorder in the early 2000s. On cross-examination, Pusateri stated that the granting of any parole involves a great deal of discretion, and that if plaintiff had continued to be incarcerated past 1997, based upon his disciplinary record, the board may have elected to delay his hearings. Pusateri agreed that when an inmate's security classification increases, his chance of being paroled decreases. Pusateri noted that from 2004 to 2008, plaintiff was eligible for parole six times, but was not granted parole because of his institutional behavior. In addition, Pusateri acknowledged that plaintiff had a criminal record which included prison time prior to his incarceration in 1984, and that in 1994, plaintiff was in maximum security classification, which would have hindered his chances for parole. At the close of his testimony, Pusateri reiterated that despite plaintiff's institutional record, his opinion was that plaintiff would have been paroled after having served ten years had he been sentenced to a single count of rape.
{¶ 15} After a review of the evidence, the court finds the following. Although plaintiff's institutional record was poor, the court is convinced that plaintiff's wrongful conviction of two felonies affected his chances for parole. Accordingly, the court finds that the notation from the parole board panel on November 29, 2004, stating that plaintiff had served enough time, persuades the court that if plaintiff had not been wrongfully convicted of Counts III and IV, he would have been released shortly thereafter. Therefore, the court finds that plaintiff was wrongfully imprisoned for 1,563 days, which equals 4.282 years.
{¶ 16} Pursuant to R.C. 2743.48(E)(2), the court finds that plaintiff has proven, by a preponderance of the evidence, that he is entitled to receive a sum of money that equals the total of each of the following amounts:
R.C. 2743.48(E)(2) states the following:
"(2) In a civil action as described in division (D) of this section, upon presentation of requisite proof to the court, a wrongfully imprisoned individual is entitled to receive a sum of money that equals the total of each of the following amounts:
"(a) The amount of any fine or court costs imposed and paid, and the reasonable attorney's fees and other expenses incurred by the wrongfully imprisoned individual in connection with all associated criminal proceedings and appeals, and, if applicable, in connection with obtaining the wrongfully imprisoned individual's discharge from confinement in the state correctional institution;
"(b) For each full year of imprisonment in the state correctional institution for the offense of which the wrongfully imprisoned individual was found guilty, forty thousand three hundred thirty dollars or the adjusted amount determined by the auditor of state pursuant to section 2743.49 of the Revised Code, and for each part of a year of being so imprisoned, a pro-rated share of forty thousand three hundred thirty dollars or the adjusted amount determined by the auditor of state pursuant to section 2743.49 of the Revised Code; "(c) Any loss of wages, salary, or other earned income that directly resulted from the wrongfully imprisoned individual's arrest, prosecution, conviction, and wrongful imprisonment; "(d) The amount of the following cost debts the department of rehabilitation and correction recovered from the wrongfully imprisoned individual who was in custody of the department or under the department's supervision: "(i) Any user fee or copayment for services at a detention facility, including, but not limited to, a fee or copayment for sick call visits; "(ii) The cost of housing and feeding the wrongfully imprisoned individual in a detention facility; "(iii) The cost of supervision of the wrongfully imprisoned individual; "(iv) The cost of any ancillary services provided to the wrongfully imprisoned individual."
{¶ 17} "1) $350 in costs attributed to plaintiff's criminal proceedings;
{¶ 18} "2) $5,000 in attorney fees for representation by Joquetta Wells in plaintiff's underlying criminal case;
{¶ 19} "3) $5,000 or ten percent of the surety bond allowing plaintiff's release from jail;
{¶ 20} "4) $202,159.70, which represents 4.282 years of imprisonment at $47,209.40 per year;
{¶ 21} "5) $0 for lost wages;
{¶ 22} "6) $0 in cost debts;
{¶ 23} "7) $25,350 in attorney fees for plaintiff's representation in the instant case by attorney Isabella D. Thomas.
{¶ 24} Therefore, pursuant to R.C. 2743.48(F)(1), judgment shall be rendered in favor of plaintiff in the amount of $237,884.70, which includes the $25 filing fee.
JUDGMENT ENTRY
This case was tried to the court on the issue of damages. The court has considered the evidence and, for the reasons set forth in the decision filed concurrently herewith, judgment is rendered in favor of plaintiff in the amount of $237,884.70, which includes the $25 filing fee paid by plaintiff. The warrant of payment of judgment in the amount of $212,534.70 shall be sent to Joseph Fears, Jr., in care of his attorney, Isabella D. Thomas, 1058 Mt. Vernon Avenue, Columbus, Ohio 43203-1518. The warrant of payment of judgment in the amount of $25,350, which represents reasonable attorney fees, shall be sent to Isabella D. Thomas, 1058 Mt. Vernon Avenue, Columbus, Ohio 43203-1518.
R.C. 2743.48(G) provides: "The clerk of the court of claims shall forward a certified copy of a judgment under division (F) of this section to the president of the controlling board. The board shall take all actions necessary to cause the payment of the judgment out of the emergency purposes special purpose account of the board." Therefore, subject to the provisions of R.C. 2743.19(D), the clerk shall forward a certified copy of this judgment to the president of the controlling board. Interest on the judgment shall be allowed per R.C. 2743.19.
Court costs are absorbed by the court. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
Amy S. Brown Peter E. DeMarco Assistant Attorneys General 150 East Gay Street, 18th Floor Columbus, Ohio 43215-3130
Isabella D. Thomas 1058 Mt. Vernon Avenue Columbus, Ohio 43203-1518
en agents used beeper to locate object within a home). In
Karo the Court declined to decide whether a search warrant to use a beeper required demonstration of probable cause, or the lesser standard of "reasonable suspicion."
Id. at 718 n. 5. The Courts of Appeals that have addressed this issue have held, however, that probable cause is the appropriate standard when such devices track people or objects into non-public locations.
See e.g., United States v. Mixon, 977 F.2d 921, 923 (5
th Cir. 1992) (upholding use of transponder in plane on demonstration of drug courier activity sufficient to constitute probable cause).
In adopting Rule 41(f)(2) in 2006, the Supreme Court (with Congress' tacit approval
) brought tracking devices into Rule 41. The new rule explicitly adopted the definition of "tracking device" contained within § 3117. FED. R. CRIM. P. 41(a)(2)(E). The amendments did not, however, resolve the question of the appropriate standard of review for judicial officers presented with tracking device warrants. As the Advisory Committee noted in its comment,
See also United States v. Cooper, 682 F.2d 114, 115-16 (6th Cir. 1982); United States v. Ellery, 678 F.2d 674, 677-78 (7th Cir. 1982); United States v. Little, 735 F.2d 1049, 1054-56 (8th Cir. 1984).
Any rule of procedure is prepared by advisory committees and submitted to the Judicial Conference, which then transmits the rule, as approved or revised, to the Supreme Court for review. If approved by the Supreme Court, the rule is then transmitted to Congress, and becomes effective unless specifically rejected by the Congress. See 28 U.S.C. §§ 2071-74.
The tracking device statute,
18 U.S.C. § 3117, does not specify the standard an applicant must meet to install a tracking device. The Supreme Court has acknowledged that the standard for installation of a tracking device is unresolved, and has reserved ruling on the issue until it is squarely presented by the facts of a case.
See United States v. Karo, 468 U.S. 705, 718 n. 5 (1984). The amendment to Rule 41 does not resolve this issue or hold that such warrants may issue only on a showing of probable cause. Instead, it simply provides that if probable cause is shown, the magistrate judge must issue the warrant. And the warrant is only needed
if the device is installed . . . or monitored . . . in an area in which the person being
monitored has a reasonable expectation of privacy.
FED. R. CRIM. P. 41, comment to 2006 amendments, at subdivision (d).
Many of the cases to review applications for CSLI have held, or at least strongly suggested, that a request to use a cell phone to track the movements of a person fits squarely within the definition of a "tracking device." See, e.g., Houston Order 2005, 396 F. Supp.2d at 753-757; Baltimore Order 2005, 402 F. Supp.2d 597, 603-605 (D. Md. 2005); Milwaukee Order 2006, 2006 WL 2871743 (E.D. Wis. 2006); New York Order 2009, 2009 WL 159187 (S.D.N.Y. 2009). Frankly, it is difficult — if not impossible — to reach any other conclusion. As Judge Smith noted when he first looked at this issue in 2005,
the definition [of tracking device] is striking for its breadth. Note that a device is covered even though it may not have been intended or designed to track movement; it is enough if the device merely "permits" tracking. Nor does the definition suggest that a covered device can have no function other than tracking movement. Finally, there is no specification of how precise the tracking must be.
Houston Order 2006, 396 F. Supp.2d at 753. The definition contained in § 3117, and incorporated into FED. R. CRIM. P. 41, compels the conclusion that a cell phone is a tracking device when it is used to locate a person and track their movements.
As noted, in its application, the Government suggests that an application that requests only single tower information may be granted under the pen/trap statute and/or the SCA on a showing of less than probable cause, on the theory that such data does not amount to tracking information, because it cannot precisely locate the phone user, but rather only provides information regarding the location of the phone provider's cell tower. The Government states:
That the disclosure of a cell site number and that cell-site's physical tower location constitutes disclosure of a subscriber's "physical location" is doubtful. Rather, cellsite
data discloses only the
physical location of a
fixed antenna tower that belongs not to the
subscriber, but to a third party telecommunications provider. And to allay any concern about the "private" nature of that tower's location[,] cell site towers are always visually observable from the "public highway."
See Application at 8-9 n. 10 (emphasis in original). But this argument is a bit disingenuous, at least insofar as it suggests that the Government is only interested in knowing where cell towers are. If this were true, the Government would not be applying for the orders it is requesting. Clearly, the Government's interest in the cell towers is based upon its desire to know where the subject of its investigation is
in relation to particular cell towers.
That information is not something in the public domain. More to the point, the Government's argument — because information from a single tower does not provide precise location data, collecting this type of information is not tracking data — contravenes the statutory definition of a tracking device, and the case law that has developed around use of such devices.
As Judge Smith noted, nothing in the statutory definition requires that a "tracking device" provide exact or precise location information. Indeed, the case law that developed around the use of such devices suggests just the opposite. When tacking devices were first being discussed in case law, law enforcement was using "transponders" and "beepers" which were tracked with receivers that permitted agents to have only general information regarding the location of the tracked object or person. The level of information obtained from tracking devices was thus akin to (and indeed, less precise than) what law enforcement agents today can know about a modern cell phone user's location from information from a single cell tower. See, e.g. United States v. Levine, 80 F.3d 129, 132-133 (5th Cir. 1996) (discussing a transponder used to track currency stolen in a bank robbery, describing the tracking unit as containing lights and audio signals to indicate proximity and direction
of transmitter). Despite the lack of precision provided by "traditional" tracking devices, courts have uniformly applied a probable cause standard for the Government to obtain permission to use such devices when those devices might track an object beyond public places. See Mixon, 977 F.2d at 923, and cases cited supra at p. 10. There is no reason to believe, therefore, that the Government should have a lesser burden to obtain "single tower" information than it had (and still has) to obtain the functionally identical information from a transponder or beeper. Again, the very reason the Government wishes to obtain CSLI — whether it is single tower, multiple tower, or GPS data — is to receive information about the location of the cell phone user, whether that be to place the suspect in a city, on a particular block within a city, or at a particular table inside a house. Although each of these represents a different level of precision, they all represent information provided from a "device which permits the tracking of the movement of a person or object." By law, that makes the device a "tracking device." 18 U.S.C. § 3117(b).
See also United States v. Berry, 300 F. Supp. 2d 366, 368 (D. Md. 2004) ("Measured against today's technology, a beeper is unsophisticated, and merely emits an electronic signal that the police can monitor with a receiver. The police can determine whether they are gaining on a suspect because the strength of the signal increases as the distance between the beeper and the receiver closes.")
It is for this reason that I find the cases adopting a lesser standard for "single tower" CSLI unpersuasive. Similar problems befall orders that distinguish — and grant on less than probable cause — applications that only ask for CSLI at limited times, for example when calls are initiated and terminated. See e.g., Houston 2007 Order, 622 F. Supp.2d 411 (S.D. Tex. 2007) (Rosenthal). If an intrusion into a legitimate expectation of privacy takes place only once, or in limited bursts, it is still an intrusion, and it still requires probable cause under the Fourth Amendment. Put another way, if the information is used to track a person's movements, even on a limited basis, it is still a tracking device. And there is nothing in any of the relevant statutes that makes a distinction between "limited" location information and fully robust, minute-by-minute location information. If the hybrid argument works for the former, it must work for the latter as well. Thus, the distinctions found by these courts seem more about trying pragmatically to find a middle route than being totally faithful to the statutory language.
Moreover, the Government's argument ignores other realities. First, notwithstanding what has become a "boilerplate" footnote in all of the Government's applications suggesting that it is only seeking to know the location cell towers, the application here requests far more than single tower data. Specifically, it asks for:
location-based data that will assist law enforcement in determining
the exact location of the Target Devices (differentiated from the first or last cell-site used to make or receive a call, which simply identifies the location of the third party Provider's infrastructure). This request for location-based data includes the request for an order directing Providers to employ and to disclose the results (through any means reasonably available) of any all available location-based services, including but not limited to real time cell-site data and those "Enhanced-911"
services developed by the Providers to comply with the provisions of
47 C.F.R. § 20.18.
Application at 8-9 (emphasis added). Thus, whatever arguments might exist regarding distinctions between the varying levels of CSLI leading to differing standards — arguments that I find unpersuasive as already noted — those arguments have nothing to do with the present application.
Finally, cell phone technology is moving quickly to the point where debates about single tower vs. multiple tower triangulation are academic. Estimates from three years ago were that over 90% of cell phones then in use had GPS capabilities, through which the target phone could be located to within as little as 50 feet. The Federal Communications Commission and its Enhanced 911 initiative requires cell phone carriers to be able to pinpoint the location of their customers in case of an emergency call. And although the main motivation behind the 911 initiative has been public safety, it is not surprising that companies are now trying to turn those required investments into commercial opportunities by offering non-emergency tracking for a monthly fee. For example, by paying a monthly fee and subscribing to MobileMe, an iPhone user can determine exactly where his or her phone is (a very handy "app" when a user misplaces their phone). The bottom line is that cell phones undoubtedly have become "electronic . . . device[s] which permit [] the tracking of the movement of a person or object." 18 U.S.C. § 3117. They are tracking devices.
See Kevin McLaughlin, The Fourth Amendment and Cell Phone Location Tracking: Where Are We?, 29 Hastings Comm. Ent L.J. 421, 427 (2007).
These rules apply to all wireless licensees, broadband Personal Communications Service licensees, and certain Specialized Mobile Radio licensees. The E-911 program had two parts. Under Phase I, the FCC required carriers, within six months of a valid request by a local Public Safety Answering Point (PSAP), to provide the PSAP with the telephone number of the originator of a wireless 911 call and the location of the cell site or base station transmitting the call. In Phase II, the FCC requires wireless carriers, within six months of a valid request by a PSAP, to begin providing information that is more precise to PSAPs, specifically, the latitude and longitude of the caller. This information must meet FCC accuracy standards, generally to within 50 to 300 meters, and requires the development of new technologies and upgrades to local 911 PSAPs.
That a cell phone is a tracking device for these purposes does not mean that it is only a tracking device. As any user of a "smart phone" knows, the devices have many uses. From the standpoint of law enforcement, this means that the phone may be a tracking device for some purposes, act as a pen register for others, and be identical to a "land-line" phone — and thus subject to a Title III wiretap — for yet other purposes. Accordingly, concerns expressed by some that finding a cell phone to be a tracking device creates a "slippery slope" that will lead to unintended consequences are misguided. Judge Smith addressed this very issue in his Houston 2005 Order in some detail, and demonstrates clearly that the concerns are without basis. 396 F. Supp.2d at 755-56.
V. TRACKING DEVICE PROCEDURE AND DEMONSTRATING PROBABLE CAUSE
What is the significance of the conclusion that a cell phone acts as a tracking device when it transmits information about its location? The significance is that if cell phones squarely meet the definition of "tracking devices" it is time to stop treating them as something else, at least when the Government seeks to use them to track a person's movements. Rule 41 contains express procedures governing tracking device warrants, and those procedures need to be followed with regard to future requests for CSLI. This means several things. First, in past applications, the Government has taken the position that it has no obligation to provide notice of the tracking to the cell phone user, as its
notice obligation was met by service of the order on the telecommunications provider from whom it received the CSLI. This does not meet the requirements of Rule 41, which provides that when a tracking device warrant is authorized, "the officer must serve a copy of the warrant on the person who was tracked or whose property was tracked." FED. R. CRIM. P. 41(f)(2)(C). Thus, warrants seeking CSLI must meet this obligation of Rule 41. Similarly, a return must be filed, as with all other warrants. FED. R. CRIM. P. 41(f)(2)(B).
The Rule expressly permits delayed notice with the court's approval.
Applying Rule 41 to CSLI requests also raises the issue of what precisely is meant by the requirement of probable cause in this context. Surprisingly, this is an issue that has been little discussed in the many recent opinions regarding CSLI. Perhaps this is so because it is a complex question, with many subtleties, and perhaps also because the labyrinth created by a patchwork of electronic surveillance statutes and the government's hybrid argument have dominated the discussion to date. Regardless, the probable cause issue is deserving of analysis.
In many applications, including the present one, the evidence submitted in the probable cause affidavit follows a similar pattern: (1) there is evidence that the user of the target phone is dealing in narcotics; (2) there is evidence that the target phone is used in the narcotics dealing; and (3) being able to track the user's movements would assist in the investigation (for example, by helping to identify associates, stash houses, or sources of supply). On its face, this may seem adequate to support the issuance of a warrant for CSLI. On closer inspection, however, this conclusion is not so clear. Indeed, some judges presented with this very sort of information have declined to issue warrants for CSLI on the ground that it fails to demonstrate probable cause to believe that the CSLI would result in evidence of a crime — the Rule 41 requirement — but rather demonstrates something less than that, roughly akin to probable cause to believe that it would result in evidence that would be relevant to the case. See, e.g. Washington Order 2006, 407 F. Supp.2d 134 (D.D.C 2006).
This conclusion by Judge Facciola is based on his view that Rule 41 only permits tracking warrants to be issued for the categories laid out in Rule 41(c), which are: "(1) evidence of a crime; (2) contraband, fruits of crime, or other items illegally possessed; (3) property designed for use, intended for use, or used in committing a crime; or (4) a person to be arrested or a person who is unlawfully restrained." FED. R. CRIM. P. 41(c). While I agree with much of Judge Facciola's wellreasoned opinion, I believe his view of the "probable cause" question may read more into Rule 41 than was intended. First, it is important to remember that tracking devices were only added into Rule 41 in 2006, and the list contained in Rule 41(c) pre-dates that amendment. When Rule 41 was amended in 2006, distinctions were carefully drawn between a warrant to search for or seize a person or property, and a warrant for a tracking device. For example, in Rule 41(b), which sets out a list of the warrants a judge has authority to issue, tracking devices are separately listed, distinct from, and in addition to, person and property warrants. Rule 41(d) identifies two types of warrants that may be issued: a warrant "to search for or seize a person or property," and a warrant "to install a tracking device." The pattern is repeated in Rule 41(e), which addresses issuing a warrant, and Rule 41(f), governing the execution and return of warrants, where in each there are entirely different subsections for person or property warrants than for tracking warrants. The manner in which the 2006 amendments to Rule 41 were drafted strongly suggests a warrant for a person or property was viewed as a different animal from a warrant for a tracking device. Given this, and given that the list of things for which a warrant could be issued pre-dated the 2006 amendments, a fair conclusion could be that the list contained within Rule 41(c) is a list of the things for which a search or seizure
warrant for a person or property may issue, and is not intended to similarly constrict tracking device warrants.
Even if the narrower reading Judge Facciola gives Rule 41(c) is accepted, there is an interpretation of the rule which is nonetheless more generous than the conclusion he reaches. For example, in the very case before him, he describes the evidence as being that the target "used the cell phones at issue to conduct his drug business." 470 F. Supp.2d at 135. Thus, even assuming that the government was required to fit its tracking device into the list contained in Rule 41(c), issuing a tracking device for the phone would seem to fit within Rule 41(c)(3), which permits a warrant for "property designed for use, intended for use, or used in committing a crime." The phone was being "used in committing a crime," and a tracking device for that phone is a tracking device for an item listed in Rule 41(c). Similarly, a request for a CSLI warrant for a fugitive's cell phone would seem to fit within 41(c)(4), which authorizes a warrant for "a person to be arrested." In that case, the warrant would be for a tracking device for "a person to be arrested." As noted in the preceding paragraph, I have doubts that Rule 41(c) was intended to be read in this manner, but even if read this way, the Rule can nonetheless support the issuance of tracking devices.
This is not to say that Judge Facciola's concerns are totally unwarranted, as there is a legitimate scope problem with using a cell phone as a tracking device. The probable cause affidavit for CSLI rarely suggests that every activity in the target's life is illegal activity, yet receipt of CSLI will permit the government to "follow" the phone user's movements 24 hours a day, 7 days a week, wherever they go, whatever they are doing. When presented with the similar scope issue created by a wiretap (where agents have the functional ability to listen in on all phone calls from the tapped phone, regardless of their subject matter), Congress imposed statutory limits, requiring agents to terminate their eavesdropping when the calls do not concern the subject matter of the investigation. 18 U.S.C. § 2518(5). Because there are no statutes dealing with CSLI, this creates a problem of scope for an authorizing judge. Does authorizing the Government to surreptitiously "follow" a person's every movement by use of their cell phone for 45 days, with no order or rules limiting where they "follow" the person, comport with the Fourth Amendment? The Supreme Court noted in Coolidge v. New Hampshire that the particularity requirement of the Fourth Amendment is intended to protect against "general exploratory rummaging in a person's belongings." 403 U.S. 443, 467 (1971) (plurality opinion). Would the unlimited ability to track a person's movements amount to allowing a "general exploratory rummaging" in their lives? On the flip side of these concerns, it is clear that tracking warrants may issue, and the highest standard that any court has suggested is appropriately applied to tracking devices is "probable cause." So where is the appropriate place to draw this line?
The relevant language states that "[e]very order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days."
One place to look for guidance is within the cases that have reviewed the issuance of tracking devices. In United States v. Mixon, the Fifth Circuit rejected the defendant's argument on appeal that the evidence gathered through use of a tracking device on a private plane to "trace its travel" should have been excluded. 977 F.2d at 922. The court summarized the evidence to support the issuance of the warrant for use of the device as follows:
The government was first alerted to the modification of the plane [to increase its fuel capacity, and therefore its range] by a confidential source. Agent Luzak duly corroborated the information. Government agents personally observed the rear seat
being removed and the extra tanks added to the wings. A check on the individuals involved uncovered a convicted drug felon, Magee. A check on Matrone revealed that he was also a criminal with a history of forgery arrests and a conviction on aiding and abetting wire fraud. A check on the registered owner of the pickup truck, Alex Vega, revealed that he had violated firearm regulations. The modified plane fit the profile of a drug smuggling aircraft. All of the information together was more than enough to give the agents probable cause to suspect the individuals of planning to smuggle drugs and it was proper to request a warrant to place a transponder to trace the Cessna in question.
Mixon, 977 F.2d at 923 (citing
Illinois v. Gates, 462 U.S. 213 (1983)). Thus, the agents had reason to suspect the plane was being used to import drugs, they had no way to follow it, and the use of the transponder allowed them to identify when the plane arrived in the United States "from the direction of Jamaica." The courts in
United States v. Ellery and
United States v. Cooper reached similar conclusions, approving warrants that authorized the installation of tracking devices on a parcel carrying a chemical, and a UPS package, respectively, on evidence demonstrating that there was probable cause to believe that the chemical was headed to a drug lab, and that the package was likely to be stolen by a UPS employee.
Ellery, 678 F.2d 674;
Cooper, 682 F.2d 114. In
United States v. Harmon, the Eighth Circuit suppressed evidence obtained from a transponder on a plane, on the grounds that the warrant affidavit failed to include evidence of the reliability of the informants quoted in the affidavit, and failed to offer any corroboration of the informant's evidence. Some common threads among these four opinions are: (1) the review of the probable cause evidence was exacting in each, and (2) the approved devices provided far less intrusive information than CSLI will provide (indeed, in the
Ellery case the warrant permitted the monitoring of the beeper for "not more than 72 hours, after which a report was to be made to the issuing Magistrate," 678 F.2d at 115).
In sum, there are difficult questions presented by the probable cause determination on CSLI applications, and it is not obvious what the answers to those questions are (at least it is not obvious to me what the answers are). Accordingly, until there is more guidance from Congress and the courts on these issues, I will take a cautious approach toward CSLI requests. First, I will insist on strict adherence to the requirements of Rule 41 on all requests for CSLI, including requests for historical data. The warrants will be granted only on a showing of probable cause, may only last 45 days (in the case of prospective warrants), and notice on the person tracked is required (although it may be delayed). The warrants must be returned to the magistrate judge identified on the warrant. I will further require that warrants for CSLI be "stand alone" documents, and not be included as part of an application for a pen register, trap and trace, or subscriber records. With regard to probable cause, I will not take as narrow an approach as Judge Facciola's and insist that the CSLI must itself qualify as "evidence of a crime." But the warrant affidavit must demonstrate that there is probable cause to believe that tracking the phone will lead to evidence of a crime. One example of evidence that would meet this standard is evidence that the phone to be tracked is intimately involved in the crime being investigated; for example, where the sole or dominant purpose of the target phone is its use in a drug trafficking organization to make and receive calls related to the drug business. Evidence that a person has a cell phone and is engaged in criminal conduct is not enough to meet this standard. In investigations, being granted a warrant for CSLI should be the exception, not the rule, and if all the Government must prove to receive CSLI is that the target has a cell phone and probably engages in crime, then a CSLI warrant would be issued in every criminal investigation. As a result, I will
I recognize that many courts have distinguished between prospective and historical CSLI and have granted requests for historical CSLI under the SCA on a showing less than probable cause. In light of the Pittsburgh 2008 Order (which makes a persuasive case for a probable cause standard for this data), and its pendency on appeal to the Third Circuit, out of an abundance of caution I believe it is prudent to require probable cause for historical data until we receive an opinion from the Third Circuit on that issue. Once that order is handed down, I will revisit the issue of historical CSLI.
require that there be more than this contained within the Government's application. What this will be is necessarily a fact-intensive question, and all that can be provided at this point are the general guidelines just discussed. In other words, we will have to make law on this issue the old-fashioned way, case by case.
In a case in which the Government is seeking CSLI to track a person so that an arrest warrant may be executed, it will be sufficient if the warrant affidavit demonstrates the existence of the warrant, and probable cause to believe that the target phone is in the possession of the fugitive.
In the present case, the Government has submitted an affidavit from the case agent in this investigation indicating that the target phone user:
and his associates regularly travel to other locations in order to conduct their criminal activities. . . . Location-based services would assist law enforcement to know when [the target] is traveling in [a specific city] are to conduct narcotics trafficking activities. There is probable cause to believe that location-based services would help yield relevant evidence in this case regarding the identity of coconspirators and the timing and frequency of drug transactions. Even if law enforcement had the manpower to maintain 24-hour surveillance on [the target], such constant surveillance would alert [him or her] to the presence of law enforcement. Location-based services would allow law enforcement to maintain a lower profile in order to maximize the chances of obtaining evidence against [the target].
Affidavit in support of Application at ¶ 3(f). The affidavit also states that the target has at least two cell phones, and has used them related to his criminal endeavors. There is no evidence presented regarding the frequency with which each of the target phones is used as part of the criminal conduct. Reviewing this evidence under the principles just discussed, it does not "make the grade" in demonstrating probable cause to believe that tracking these phones would result in the discovery of evidence of a crime. Indeed, the agent states directly that it would do something less — "help yield relevant evidence in this case."
Accordingly, on the present affidavit, with the facts now presented, the request for an order or warrant for CSLI will be DENIED without prejudice to being resubmitted with additional evidence sufficient to meet the standard discussed herein.