Case o' The Week: En Banc Petition, Grant? - Antonio Gilton, Leon "Good Faith," and Search Warrants

  The Ninth holds the D.J. was prescient: we do have a privacy interest in our cell site location data.

  The Ninth holds the D.J. was correct: there was insufficient probable cause to support a valid search warrant.

  (And the Ninth should take this opinion en banc . . . )

United States v. Antonio Gilton, 2019 WL 1008722 (9th Cir. Mar. 4, 2019), decision available here.

Players: Decision by Judge Bybee, joined by Judge Wallace. Forceful dissent by Judge McKeown.

  Hard-fought appeal by ND Cal CJA Stalwart Mark Goldrosen (and half of the NorCal CJA Bar as Elmore’s co-counsel).  

Facts: Pimp Sneed had a minor “girlfriend:” “L.G.” Id. at *1. L.G. had been staying with her cousin Antonio Gilton in L.A. Id. Her parents did not approve of Sneed.

  Early one morning, Sneed waited to pick up L.G. near her parents’ home in San Francisco. L.G. later told police that a SUV approached Sneed in his car, shots were fired, and Sneed was killed. Id. Antonio Gilton’s cell number was in L.G.’s phone. Id. at *2.  

  A snitch implicated L.G.’s father, Barry Gilton, and an unknown person. Id. Cell site location on Barry Gilton showed his cell moving through San Francisco and near the shooting, when he had claimed to be asleep at home. Id. SF Police Sgt. Gary Watts obtained a search warrant for the cell site location data for Antonio Gilton, relying on the above information. Id.

  When Antonio Gilton was later charged in federal court, he moved to suppress the cell site location data from this warrant. Id. District Judge William H. Orrick granted that motion, correctly finding no probable cause for the cell site location search. Judge Orrick rejected the government’s good faith pitch, holding “it was entirely unreasonable to believe that the affidavit’s passing, innocuous references to A. Gilton established probable cause to obtain his cell phone data.” Id. at *2.

  The government appealed.

Issue(s): “[T]he government . . . obtain[ed] a warrant authorizing the acquisition of Gilton’s CSLI data. Our analysis is thus confined to the questions of whether that warrant was supported by probable cause, and, if not, whether the search should nevertheless be upheld on the basis of the officers’ good faith reliance on the warrant.” Id. at *3.

Held: “Although we agree with the district court that the warrant authorizing the seizure of Gilton’s location data was not supported by probable cause, we conclude that the deficiencies were not so stark as to render the officers’ reliance on the warrant ‘entirely unreasonable.’ See United States v. Leon, . . . (1984). We reverse.”

Of Note: Judge McKeown’s dissent correctly challenges the “good faith” holding of Antonio Gilton. 

  

The Hon. Judge Margaret McKeown

Judge McKeown explains, “The warrant affidavit for Antonio Gilton’s cell-site location information (“CSLI”) so thoroughly lacked probable cause that it was objectively unreasonable for the officer to have relied on it. The affidavit’s only statement vaguely implicating Antonio was a suggestion that a Gilton family member may have been involved in the murder. As any reasonable officer should have known, ‘none of the facts in the affidavit, singly or en masse, provide a reasonable basis from which to infer that’ Gilton’s CSLI connected him to the murder. United States v. Grant, 682 F.3d 827, 841 (9th Cir. 2012). Weak inferences from vague facts do not amount to probable cause as to specific individuals. These are precisely the circumstances where the good faith exception cannot save a defective warrant.” Id. at *7 (emphasis added).

   This opinion cries out for en banc review, for its unprecedented extension of Leon “good faith” to inoculate a search from a patently deficient warrant.

How to Use: Though a bitter loss on Leon “good faith,” Antonio Gilton concedes the privacy protections set forth by SCOTUS in Carpenter. In NorCal, however, even that is weak tea: our prescient bench correctly anticipated Carpenter, and CLSI warrants have long been the norm. See Judge Koh’s decision here.                 
                           

For Further Reading: Judge McKeown is right: Antonio Gilton cannot fairly be reconciled with the Ninth’s great Leon case: United States v. Grant, 682 F.3d 827,841 (9th Cir. 2012).

  For a recap of Judge Berzon’s Grant decision (joined by CJ Thomas and Judge Wardlaw), see the summary here (just avoid the painfully incorrect “For Further Reading” speculation in this blog posting . . .)

Image of “Come back with a warrant” from https://i.etsystatic.com/9789359/r/il/c6bec6/794497835/il_1588xN.794497835_1nal.jpg

Image of the Honorable Judge Margaret McKeown from https://kevincooper.org/judge-mckeown-opinion/

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Ain't Buying Gov's Cell Sell -- Lara, Cell Phones, "Containers" and Probationary Searches

  Ask not for whom the cell tolls; it tolls for thee.

United States v. Lara, 2015 WL 828100 (9th Cir. Mar. 3, 2016), decision available here.

Players: Decision by Judge W. Fletcher, joined by Judges Paez and Berzon. Admirable win for Deputy FPD Alexandra Yates, CD Cal FPD.

Facts: Lara plead guilty to a California drug crime. 

  A condition of probation required him to submit to a search “without our without a warrant, probable cause, or reasonable suspicion.” Id. In his probation agreement, Lara also initialed a section where he agreed to “waive and give up” his Fourth Amendment right to be free from unreasonable searches and seizures. Id.

   Soon after Lara’s probationary term began Probation Officers showed up unannounced at his home, seized and searched his cell phone, and discovered pics of a gun and texts relating to its sale. Id. at *2. GPS coordinates in the gun-photo led to Lara’s mother’s house and discovery of the gun. Id. 

 Lara was charged federally with being a felon in possession. His motion to suppress was denied (before the Supreme Court had decided, in Riley, 134 S. Ct. 2473 (2014), that the police may not, without a warrant, examine the digital information stored on a cell phone seized incident to arrest). Id. at *3. 

  Lara pled guilty, “but preserved his right to challenge the denial of his motion.” Id. at *3.

Issue(s): “Lara contends that his Fourth Amendment right to be free from unreasonable searches and seizures was violated when probation officers conducted two warrantless, suspicionless searches of his cell phone. He contends that the exclusionary rule requires the suppression of images, text messages, and GPS data found on his cell phone, as well as a gun and ammunition, as fruits of the illegal searches.” Id. at *1.

Held: “We agree.” Id. 

 “The government contends that there are three independent reasons to affirm the district court’s denial of Lara’s motion to suppress. First, the government contends that Lara consented to the initial cell phone data search by accepting the terms of his probation agreement, thereby waiving his Fourth Amendment protection against unreasonable searches and seizures. Second, the government contends that, even if Lara did not waive his Fourth Amendment rights, the warrantless search was lawful because it was reasonable. Third, the government contends that even if the cell phone search was unlawful, the evidence it yielded should not be suppressed because a good faith exception to the exclusionary rule applies. We are not persuaded by any of these contentions.” Id. at *3.

Of Note: Does it gall you, to be handed a plea agreement where your client is asked to consent to unreasonable searches? (Or, put differently, where the agreement purports to waive the Fourth Amendment’s requirement that a search be reasonable?) It galls the Ninth, too. See id. at *3. It matters not what waivers the USAO and Probation concoct, “any search made pursuant to the condition included in the terms of probation must necessarily meet the Fourth Amendment’s standard of reasonableness.” Id. 

  The rub, then, is what is “reasonable?” One answer could be that a suspicionless search of non-violent probationers is never reasonable – a potential bright-line hinted at in King, 736 F.3d 806 (9th Cir. 2013). Id. at *4. Judge Fletcher declines to go that far here, and instead conducts an individualized reasonableness assessment (that breaks Lara’s way).

How to Use: The search condition in Lara’s plea agreement covered “person and property, residence, premises, container and vehicle.” Id. at *5. It did not say “cell phone and information therein.” Id. Relying on Riley, the Ninth holds that a cell phone is not a container subject to this search clause. The information within the phone was therefore not fair game for a suspicionless search. Id. 

  Use Lara’s careful reading of the search clause when faced with probationary searches: the precise language of search clauses may be less broad than Probation assumes.

                                               

For Further Reading: Does Judge Fletcher's welcome and thoroughly modern understanding of cell phone privacy, id. at *5, foreshadow the outcome of the iPhone encryption battle when it finally hits the Ninth? Not exactly – though fair to speculate that Lara was well received at 1 Infinite Loop. 

  For one of the best descriptions of the actual technology at issue in the encryption battle, hit the EFF’s great post: A Technical Perspective on the Apple iPhone Case, available here.

Image of iPhone and gun from http://regmedia.co.uk/2013/06/28/side.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Our Privacy Protections are Koh-Dependent -- In re: Application for Telephone Information - Fourth Amendment and Historical Cell Site Location Information

“Considering the ubiquity of cell phones, and the important role they play in today’s world, it is untenable to force individuals to disconnect from society just so they can avoid having their movements subsequently tracked by the government.”

 In re: Application for Telephone Information Needed for a Criminal Investigation, 15-XR-90304-HRL-1, at 35 (LHK) (N.D. Cal. July 29, 2015), decision available here.

Players: Decision by District Judge Lucy H. Koh, N.D. Cal. Historic win for ND Cal AFPD Ellen Leonida, R&W Attorney Robin Packel, and Investigator Madeline Larsen, with welcome amicus help from E.F.F. counsel Hanni Fakhoury and ACLU Senior Staff Attorney Linda Lye.

Facts: The USAO sought what is dubbed a “d” order for historical and prospective cell site location information (“CLSI”) relating to specific (under seal) phone target number(s). Id. at 9 (referring to 18 U.S.C. § 2703(d)).  These (d) orders are not supported by probable cause: the statute only requires "specific and articulable facts." Id. at 6.

San Jose Magistrate Judge Lloyd denied the application, and the government appealed as to historical cell site information only. Id. at 9. The Court invited the N.D. Cal. FPD to file a response. Id. at 10. On June 24, the Court held a (long) hearing with specific questions relating to technical aspects of cell site technology and the impact on privacy interests.

Issue(s): “Neither the U.S. Supreme Court nor the Ninth Circuit has squarely addressed whether cell phone users possess a reasonable expectation of privacy in the CSLI . . . associated with their cell phones . . . . In the absence of any binding authority, the Court ventures into this ‘troublesome’ area of Fourth Amendment law as a matter of first impression.” Id. at 12.

Held: “Based on the preceding U.S. Supreme Court cases, the following principles are manifest: (1) an individual’s expectation of privacy is at its pinnacle when government surveillance intrudes on the home; (2) long-term electronic surveillance by the government implicates an individual’s expectation of privacy; and (3) location data generated by cell phones, which are ubiquitous in this day and age, can reveal a wealth of private information about an individual. Applying those principles to the information sought here by the government, the Court finds that individuals have an expectation of privacy in the historical CSLI associated with their cell phones, and that such an expectation is one that society is willing to recognize as reasonable.” Id. at 16. 

“[W]here the information sought is historical CSLI, a warrant supported by probable cause is required . . . .” Id. at 45.

Of Note: The Hon. Lucy Koh is a Silicon Valley judge, who is used to dealing with massive antitrust litigation involving Adobe, Google, Intel, Intuit, etc.. She presided over Apple Inc. v. Samsung, and has had more cutting-edge technology and patents come across her desk than most federal districts (and some federal circuits) combined. Combine this tech savvy with cutting-edge privacy and constitutional issues, and the result is a seminal, forty-six page order that holds that an application for historical CLSI requires a showing of probable cause. Id. at 45. 

Notably the government’s declarations bragged of “ever-increasing precision” of cell site location, id. at 16, and Judge Koh relies on the government’s own factual record to find this investigative technique treads on reasonable expectations of privacy, id. at 17:1-5; 30-32 (distinguishing Davis). It is a remarkably thoughtful opinion that grapples the realities of modern technologies: a must-read.

How to Use: The AUSA in your case relied on a (d) order and did not make a probable cause showing to obtain historical cell site location data. 

Your AUSA has not disclosed to you that agents obtained that data – Feds don’t consider this Rule 16 discovery.

Because your AUSA obtained historical CSLI without a probable cause showing, the investigation that flowed from that cell-site data – surveillance, pen registers, wiretaps – is the Fourth Amendment fruit of a poisonous tree. Seek disclosure of “all historical cell site location information” and the (d) orders that produced it, and move to suppress evidence arising from it. 

(And no “good faith exception” (see Cooper below, that put the Feds on notice)).

                                               

For Further Reading:
Judge Koh stands upon the shoulders of another NorCal privacy champion.

Hon. Judge Susan Illston

In United States v. Cooper, Judge Susan Illston first held that the government should have obtained a search warrant for historical CLSI. (Litigated by ND Cal CJA Attorney Ethan Balogh). For the back story to Judge Koh’s order (with a link to the Cooper decision) see article here.

Image of the Hon. Judge Lucy H. Koh from http://sourcedigit.com/694-judge-lucy-h-koh-apple-inc-v-samsung-case-no-c-11-1846-c-12-0630/

Image of the Hon. Judge Susan Illston from http://www.wired.com/2014/01/judge-nsl/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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