Case o' The Week: Miller Sure of Ped-i-Cure - Ped, Conditions of Supervised Release, and Limitations of Appellate Review

The Honorable Judge Eric Miller

  Ninth nixes appellate fixes.

United States v. Ped, 2019 WL 6042813 (9th Cir. Nov. 15, 2019), decision available here.

Players: Decision by Judge Eric Miller, joined by Judges Owens and Ryan D. Nelson. 

  Supervised release win for AFPD Gia Kim, Central District of California.  

Facts: After a parole search for his brother produced guns at his house, felon Ped plead guilty, with a conditional plea agreement. The agreement allowed Ped to challenge the denial of a motion to suppress. Id. at *2.

  The district court imposed (old) standard conditions of supervised release: 1) that Ped “support his . . . . dependents and meet other family responsibilities,” that he 2) “work regularly at a lawful occupation,” and 3) that he “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” Id. at *4.

  In United States v. Evans, 883 F.3d 1154 (9th Cir. 2018), the Ninth had held that these conditions were unconstitutionally vague. Id. Ped asked these conditions be corrected on appeal.

Issue(s): The government declined to assert the appeal waiver, and agreed that the conditions were unconstitutional. On appeal, “the government suggested that we rewrite the conditions and affirm the judgment as modified.” Id. at *4.

Held: “Upon further consideration, the government changed its position and argued that a remand is appropriate. We agree.” Id.

Of Note: The key aspect of the supervised release beef in Ped is not whether the conditions of supervised release are constitutional: they aren’t.

  Instead, Judge Miller spills a fair amount of ink explaining why the appellate court cannot cobble together a fix, and instead must vacate the contested conditions and remand for resentencing. Id. at *5.

  Judge Miller is a new Ninthjurist, and Ped may offer an interesting insight into his views of the limited roles of an appellate court. That worked well for the defense here – but we may be less keen on this district-court deference when we’re attacking a decision under an “abuse of discretion” standard.

How to Use: Ped won this S/R battle, but lost the parole-search war at the heart of this case. Id. at *1. 

  The cops in this case learned that Ped’s brother, who was on “post-release community supervision” (like parole), lived in a house where Ped also resided. Id. at *1. Three months later (and after the Probation Officer was given a new and updated address for the brother) the cops searched the brother’s old original residence without a warrant. Id. at *2. The cops discovered Ped, meth pipe in hand, and went on to extract Ped’s confession to the guns found at the house. Id.

  The suppression issue was whether these sloppy cops had probable cause to believe the brother still lived at Ped’s house, when they relied upon three-month old residence info and when they didn’t bother to learn the new and correct address given to the P.O. Id. at *3.

  “Meh - good enough for government work,” is the gist of the disappointing Fourth Amendment holding: “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.” Id. at *3.

  Ped, unfortunately, is an important – albeit fact-bound – decision on probable cause and parole searches of third-party residences. It merits a close read for parole-search cases.

                                               

For Further Reading: We defense attorneys review our clients’ priors. Turns out we should be checking cops’ priors as well. In a fascinating piece, the East Bay Times reveals the number of cops with “dubious backgrounds” in the McFarland Police Department. See article here.

  Want to see if a cop in your case has a conviction? This article has a link to a convicted-cop database, that you can use to run hundreds of current and former California law enforcement officers who were convicted of a crime since 2008. 

  With our Federal courthouse transforming into the Northern branch office of San Francisco’s Hall of Justice, see article here, this convicted-cop database is of particular interest to the NorCal federal defense bar.

Image of the Honorable Judge Eric Miller from https://www.youtube.com/watch?v=nHQYcZ9Kr98

Image of the Hall of Justice seal from https://www.kqed.org/news/11722940/san-francisco-investigator-disciplined-for-issuing-subpoena-under-false-pretenses 

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

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Case o' The Week: (Not) Making a List, (Not) Checking it Twice - Garay and Listless Inventory Searches

Q: What does one call an “inventory” that neglects to actually inventory the items purportedly inventoried?

 A: An "inventory" search.

United States v. Garay, 2019 WL 4419679 (9th Cir. Sept. 17, 2019), decision available here.

Players: Decision by Judge Schroeder, joined by Judges Graber and DJ Watson.

Facts: Garay lead officers on a high-speed chase, crashed the car in a ditch, and fled on foot. Id. at *1-*2. When Garay was arrested, cash and drugs were found on him. Id. 

  The officers searched the car (without a warrant) before it was towed. Id. They found guns, ammo, and a cell phone attributed to Garay. Id. A later search revealed that the phone had pictures on it that tied Garay to one of the guns. Id. at *1. 

  Contrary to the Sheriff’s inventory policy, the officers who, well, rummaged through the car did not complete an inventory sheet listing the property recovered. Id. at *3. 

  State and, later, federal search warrants for the cell phone asserted that “that individuals who possess firearms take pictures of them and communicate via text messages to further their criminal activity.” Id. at *2. The federal warrant application added an assertion that the “‘collective experiences’ of law enforcement agents that felons prohibited from possessing guns use mobile phones to coordinate buying and selling guns.” Id. 

  The motion to suppress was denied. Id. at *1.

Issue(s): “Garay contends that the warrantless seizure of the phone itself was unreasonable and that the affidavits supporting the search of the contents of Garay’s phone were inadequate.” Id. at *2. 

   “Garay contends . . . that the officers used their authority to inventory the car’s contents here to unlawfully rummage for evidence. Inventory searches are consistent with the Fourth Amendment only if they are not used as an excuse to rummage for evidence.” Id.

Held: “[W]e see no reason to hold that the officers were rummaging for evidence. The contents of the wrecked car had to be removed and safeguarded before the car was towed from the site. That is the essence of an inventory search. Because the site was in effect a crime scene, the items in the car were sensibly treated as evidence. The searching officer complied with the department’s inventory-search policy in material respects. . . . . That the officer did not complete the inventory list that ordinarily would be completed as part of a department inventory search is not, on its own, a material deviation from policy.” Id. at *3.

  “Given the circumstances leading up to the search, the officers no doubt expected to find evidence of criminal activity inside the vehicle. But that expectation would not invalidate an otherwise reasonable inventory search.” Id. at *4.

Of Note: The Ninth’s holding on the “inventory” search is disappointing; its holding on the phone search doubly so.

  Garay persuasively argued that “the affiants’ belief on the basis of their ‘training and experience,’ unadorned by sufficient supporting details, cannot properly be considered in establishing probable cause. He argues that, before the affiants’ beliefs may be taken into consideration, the affiants must detail the nature of their expertise or experience and how that experience bears on the facts prompting the search.” Id. at *4.

  Judge Schroeder explains the Ninth’s “standards . . . are not so stringent.” Id.

  Bad facts make bad law: the high-speed chase, crash, drugs, wads of cash, guns, and ammo of Garay makee for a troubling opinion on search warrant affidavits.

How to Use: The only bright spot in a dark decision? Garay’s flight is not a threshold jurisdictional issue that prevents the Court from getting to his Fourth challenge. Id. at *2 (citing the Supreme Court's 2018 decision in Byrd). 

  Garay and Byrd can get our fleeing clients around any jurisdictional bars and to a Fourth Amendment analysis (although our quest for the suppression remedy may get a little complicated).  

                                               

For Further Reading: President Trump has nominated two more candidates to the Ninth (one without a California Blue Slip). See article here. 

  If these appointments are confirmed, the President will have nominated ten of the Ninth’s twenty-nine judges. See WSJ Op Ed here.  

Image of “Inventory” from https://www.qstockinventory.com/blog/7-tips-warehouse-inventory-management/

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

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Case o' The Week: Don't Bother With Fed, Use County Instead - Artis and Federal Agent Execution of State Search Warrants

  Where do federal agents go for search warrants, for searches to be undertaken by federal investigators, producing evidence leading to federal prosecutions?

  

  Alameda County, of course.

United States v. Artis, 2019 WL 1375260 (9th Cir. Mar. 27, 2019), decision available here.

Players: Decision by Judge Watford, joined by Judge Tashima and visiting DJ Robreno.

  Hard-fought appeals by ND Cal CJA Stalwarts John Jordan and Steven Gruel (whose names are curiously omitted from the opinion). Underlying suppression of evidence by ND Cal DJ Chhabria.

Facts: Artis and Hopkins were allegedly involved in credit card fraud. Id. at *1. They were state fugitives. Id. 

  Federal Special Agent Stonie Carlson was assigned to the "Pacific Southwest Regional Fugitive Task Force," a joint state-federal task force under the direction of the Marshals. 

  Agent Carlson found Artis, scuffled with him, and ended up with Artis’ phone when Artis fled. Id. Agent Carlson sought a warrant to search the phone from an Alameda County Superior Court (California) judge. Id. Carlson didn’t base the warrant on Artis’ fugitive status – it was instead based on alleged “evidence of crime.” Id. The warrant was directed to “any peace officer in Alameda County” (and federal agents are not “peace officers” under California law.) Id. 

  Federal agents searched the phone, and obtained evidence leading to federal prosecutions. Id. at *2. 

  Northern District of California District Judge Chhabria suppressed the evidence from warrants for both Artis and Hopkins. 

  The government appealed.

Issue(s): “Whether the warrants were improperly executed by federal agents is a closer question. California law requires search warrants to be executed by ‘peace officers,’ but federal agents may assist a peace officer in executing a search warrant, provided the federal agent is acting ‘in aid of the officer on his requiring it, he being present and acting in its execution.’ . . . . [I] t seems doubtful that this requirement was satisfied here, although California courts do not appear to have addressed how strictly this provision should be construed when federal agents execute a search warrant as members of a joint federal-state task force that includes peace officers.” Id. at *4.

Held: “We find it unnecessary to decide whether federal agents violated California law by executing the Artis and Hopkins warrants. Even if such a violation occurred, the warrants would still be valid under the Fourth Amendment. An otherwise properly issued search warrant is not rendered void for Fourth Amendment purposes merely because it was executed by law enforcement officers who lacked warrant-executing authority under state law.” Id. at *5.

  [The Ninth later affirms Judge Chhabria as to suppression on the Artis warrant: there was insufficient probable cause. Id. at *7].

Of Note: In this same case, Agent Stonie Carlson obtained another search warrant, for a cell-site simulator for Artis' co-defendant, Hopkins. 

  As with the Artis warrant, Agent Carlson got an Alameda County judge to sign the warrant. Id. at *3. Agent Carlson then deployed the cell-site simulator – in San Francisco County! Id. at *3 & n.2. 

  Judge Watford avoids deciding the legality of that gambit, but notes Hopkins is free to raise that issue on remand. Id. 

  County-hopping search warrants are common in NorCal: will be interesting to see how this challenge pans out.

How to Use: Agent Carlon could have easily obtained a (federal) warrant to search the phone based on Artis’ fugitive status. Instead, he bungled, and relied on an “evidence of crime” theory that didn’t show probable cause. 

  “Meh, close enough for government work,” the Feds pleaded on appeal. The government urged the Ninth to uphold the search warrant based on a “fugitive” theory not identified in the warrant application. 

  The Ninth was unimpressed. Judge Watford “reject[s] the government assertion that the warrant may be upheld” on this alternative “fugitive” basis: the government is stuck with the probable cause basis actually articulated in the warrant application. Id. at *5. 

  The Ninth's limitation on alternative search warrant theories in Artis is a useful rejection of a government dodge.   

                                               

For Further Reading: Judge Chhabria didn’t mince words, when describing this investigation. “[T]he whole string of errors embodied in these warrant applications militates against applying the good-faith exception. Indeed, although the above-described errors are the most egregious ones, they are not the only instances of sloppy, inappropriate law enforcement work.”

  For a more fulsome description of a very troubling case (including a French Poodle Sheriff analysis), see Judge Slams FBI for Improper Cellphone Search, Stingray Use, here. 

Image of Task Force patch from https://www.worthpoint.com/worthopedia/marshal-pacific-southwest-regional-1788753130

Alameda County Seal from http://www.acgov.org/government/ 

San Francisco City & County Seal from https://www.linkedin.com/company/city-and-county-of-san-francisco 

French Poodle image from https://en.wikipedia.org/wiki/Poodle 

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

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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: The Fourth in the Ninth Goes Back to the Future - Lamar Johnson and Search "Incident" to Arrest

A search “incident” to arrest can happen before an arrest, and need not be supported by probable cause for the actual arrest that followed the search that was “incident” to arrest.

(And you thought the space-time quirks of “Back to the Future” were confusing.)

  United States v. Lamar Johnson, 2019 WL 137929 (9th Cir. Jan. 9, 2019), decision available here.

Players: Decision by Judge Wallace, joined by Judge Rawlinson.

 Compelling concurrence by Judge Watford.

  Hard-fought appeal by Oakland AFPD Robin Packel, Northern District of California.  

Hon. Judge J. Clifford Wallace

Facts: Johnson was stopped while driving. Id. at *2. The cop claimed he then smelled marijuana. Id. The officer asked for registration and insurance: Johnson explained he was borrowing the car and rummaged through the glovebox. Id. The officer opined this rummaging was inconsistent with how someone would (sincerely?) dig through a glove box. Id. The officer learned Johnson had been arrested for parole violations. Id. He asked Johnson to step out of the car, searched him, discovered he was wearing a bulletproof vest, and arrested him for being a felon in possession of body armor. Id. A later car search revealed a gun, drugs, scales, and plastic bags. Id.

  The defense motion to suppress was denied.

  This was the Northern District of California, so there was no conditional plea -- the defense and the District Court were forced to go through the rigamarole of a stip facts bench trial to preserve an important Fourth Amendment issue for appeal. Id. at *3.

Issue(s): “Johnson argues that the warrantless search of his person, [and] the warrantless search of his car . . . violated the Fourth Amendment.” Id. at *3. “[A] search, incident to a lawful arrest, does not necessarily need to follow the arrest to comport with the Fourth Amendment.” Id. “[W]hen the officer’s known facts provide probable cause to arrest for an offense, the officer’s subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Id. at *3 (internal quotations and citations omitted).

  “The question presented in this case is whether these two well-established principles may coincide without violating the Fourth Amendment. Johnson contends that to do so would create a ‘search incident to probable cause’ rule, allowing officers to search a person whenever probable cause to arrest exists. Johnson argues that the existence of such a rule will cause widespread fishing expeditions that are pre-textual and discriminatory.” Id. at *4.

Held: “[T]he precise crime for which an officer has probable cause is irrelevant. . . . So long as the search was incident to and preceding a lawful arrest—which is to say that probable cause to arrest existed and the search and arrest are roughly contemporaneous, . . . the arresting officer’s subjective crime of arrest need not have been the crime for which probable cause existed.” Id. at *4.

  “We . . . join our sister circuits in holding that Knowles does not prevent a search incident to a lawful arrest from occurring before the arrest itself, even if the crime of arrest is different from the crime for which probable cause existed.” Id. at *4 (emphases added).

Of Note: Under Lamar Johnson, an officer can now:

  1) search "incident" to arrest before an arrest, and

  2) that search can later be upheld, even if the probable cause wasn’t for the actual arrest that (followed) the search “incident” to arrest!

  Huh?

Hon. Judge Paul Watford

  In a well-reasoned concurrence, Judge Watford politely tears apart this troubling holding. Id. at *7 *(Watford, J., concurring). He explains that he is forced to concur because of the Ninth’s 2004 decision in Smith. Id. Judge Watford persuasively explains, however, that the Smith decision is “doctrinally unsound” and not “consistent” with Supreme Court precedents. Id. at *9.

  The concurrence ends with a trenchant understatement: “it is no secret that people of color are disproportionate victims of this type of scrutiny.” Id. at *10. Judge Watford correctly warns, “So long as Smith remains the law of our circuit, it will only exacerbate this problem.” Id.

  Judge Watford is right - Smith (and Johnson) should go en banc. This dangerous Fourth Amendment decision, and this line of Circuit authority that has strayed far afield from SCOTUS precedent, merits a close second look by the en banc court.

How to Use: Don’t concede a Fourth challenge because of Lamar Johnson: preserve. La Lucha continues.

                                               

For Further Reading: Whither the Judiciary (and FPD) as the shutdown staggers into uncharted territory? For an article that accurately describes the looming crisis, see a helpful NYT piece here. 

Image of Marty McFly of “Back to the Future” from https://memegenerator.net/instance/68739897/marty-mcfly-i-think-i-got-confused

Image of the Honorable J. Clifford Wallace from https://wallaceinnsd.org/our-founder/

Image of the Honorable Judge Paul Watford from https://livzey.com/corporate/portraiture/attachment/judgewatford_9960/

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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