NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION 2017

THOMAS TANG NATIONAL MOOT COURT COMPETITION

Instructions

For purposes of this moot court competition, please make the following assumptions: 1. All filings and appeals were timely and properly made, and any required administrative appeals were taken.

2. There are no currently contested issues relating to jurisdiction, venue, immunity, or other matters not raised in the opinion.

3. Counsel properly made and preserved all objections pertaining to the issues raised on appeal.

4. The case is properly before the Supreme Court of the State of Apalsa, which granted certiorari on April 1, 2017, and set argument for the Fall Term of 2017.

5. Any measures passed by Congress and signed into law after April 1, 2017, that

affect the questions raised herein are not retroactive and have no effect on this case.

6. Any judicial decisions (including those of state courts, federal district courts,

circuit courts of appeal, or the United States Supreme Court) that address matters raised herein rendered after April 1, 2017 are not to be referenced in your arguments.

7. The state of Apalsa, its state courts, the Fourteenth Circuit Court of Appeals, and

the “facts” specific to this problem are fictitious. For purposes of this problem, please consider Apalsa to be the 51st state of the United States, located within the jurisdiction of the Fourteenth Circuit.

8. Subject to the limitations above, all relevant historical facts and legal precedent

from the “real world” apply.

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SUPREME COURT OF APALSA No. S16C3110

EIKO ENDO, et al., Petitioners v.

STATE OF APALSA, Respondent ORDER GRANTING WRIT OF CERTIORARI The petition for a writ of certiorari to the Court of Appeals of the State of Apalsa, Case No. A16A9876, is hereby granted. All the Justices concur.

Argument shall be shall be set for the Fall Term of 2017, and shall be limited to the following issues:

I. Whether the government’s acquisition of historical cell phone records, without a warrant,

for the purpose of identifying an individual’s location over the course of several months violates the prohibition on unreasonable searches and seizures found in the Fourth Amendment to the United States Constitution.

II. Whether the warrantless use of cell-site simulators to track an individual’s location and movements in real-time violates the prohibition on unreasonable searches and seizures found in the Fourth Amendment to the United States Constitution.

SO ORDERED this 24th day of April, 2017.

______________________________ Evelyn Kethavongsa Clerk of Court

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IN THE COURT OF APPEALS

OF THE STATE OF APALSA No. A16A9876

EIKO ENDO et al., Appellants v.

STATE OF APALSA, Appellee

Decided: December 5, 2016

OPINION AND ORDER

Liu, Presiding Judge.

Appellants Eiko Endo, Dominic Dinh, and Sylvia Santos were co-defendants in one of

numerous jury trials held in the Superior Court for the City and County of Napa following violent

protests intended to halt the construction of a major oil pipeline across the northern portion of the

State of Apalsa. Following denial of their motions to suppress both historical and real-time cell

phone evidence concerning their locations and movements, Appellant Endo was convicted of

felony conspiracy to riot and Appellants Dinh and Santos were convicted of felony incitement to

riot. This appeal challenges the trial court’s denial of the motion to suppress evidence. Because

the evidence is uncontroverted and credibility is not an issue, we review the constitutional

questions raised by Appellants de novo, construing all evidence in favor of the trial court’s

judgment. For the reasons explained below, we hold that the government’s use of cell site location

information (“SCLI”) in this case did not violate Appellants’ rights under the Fourth Amendment

to the United States Constitution and affirm their convictions.

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Background

On September 19, 2015, a major protest rally and march took place in Napa, our state

capital. Responding to solicitations for a “Day of Action” posted primarily on social media, an

estimated 1200 people participated in a march protesting the environmental impact of the

Northside Oil Pipeline (“NOP”), then under construction across northern Apalsa. The

demonstration began with a rally at the state capitol, where protesters demanded that the governor

and legislature act to stop the pipeline. They then proceeded through downtown Napa,

demanding divestment by banks known to be funding NOP. Although the march began

peacefully, within an hour protesters had shattered plate glass windows at several banks. Some 90

people were arrested at the scene. Most of those arrested faced felony riot charges as well as

numerous related misdemeanor charges.

Appellants, all law students at the time, were present at the march but were wearing vests

identifying them as “legal observers” and were not arrested. Each of the Appellants, however,

had been under surveillance by law enforcement after a confidential informant had identified

them as “ringleaders” and “agitators” associated with several prior protest actions in the City.

Using historical data obtained from Appellants’ cell service providers, Napa Police Department

(“NPD”) intelligence officers determined that, over a span of some eleven months, Appellants

engaged in numerous 3-way calls, sometimes lasting over an hour, immediately prior to seven

different protest actions. The historical location information obtained placed Appellants

physically together in public locations on multiple occasions—in small gatherings, at larger

organizing meetings, and at the protests that took place. Video and photographic evidence from

those actions subsequently confirmed not only their presence, but that Appellants also functioned

as organizers and leaders. Based on this information, the NPD opened internal “Political

Agitator” files on each of the Appellants and began compiling information, obtained from

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undercover agents and confidential informants, concerning their attendance at public events and

organizing meetings as well as their postings on social media.

In July 2015, after a confidential informant notified the NPD that Appellants were

planning a large-scale pipeline protest action, the NPD began compiling CSS real-time data on

when, and from where, they were communicating with each other. In early August 2015,

intelligence officers noted a marked increase in calls between and among Appellants, and on

August 22, 2015, used CSS data to track Appellants Dinh and Santos to Jitterbug Java, a coffee

shop and bookstore known to host gatherings of individuals and organizations with “radical” or

“anarchist” leanings. A confidential informant was dispatched to the coffee shop, and he reported

that Dinh and Santos were drafting a flyer for the September 19 “Day of Action.” That flyer,

subsequently obtained by the NPD, included inflammatory statements such as “Those who make

peaceful revolution impossible will make violent revolution inevitable” and “Stop NOP … by

any means necessary.” After the September 19 march did, in fact, become violent, this

information was used to demonstrate that the three Appellants had conspired to riot, and that

Appellants Dinh and Santos had engaged in the incitement of a riot. Indictments were issued and

they were arrested the week following the “Day of Action.”

At trial, Appellants moved to suppress the evidence derived from the historical and real-

time cell site location data, arguing that because none of this information was obtained pursuant

to a warrant based on probable cause, its use violated their Fourth Amendment rights. The trial

court denied the motion, ruling that the Fourth Amendment was not implicated by the

government’s use of either historical or real-time cell phone data, because (1) the government had

complied with the relevant statutory provisions governing the acquisition of information

concerning the numbers from which Appellants received calls, or to which they made calls, and

(2) any information about their movements or locations was limited to public spaces in which

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they had no expectation of privacy. At trial, Appellant Endo was convicted of conspiracy to riot,

A.S.A. 18-1551 (2012)1, and sentenced to 18 months in prison; Appellants Dinh and Santos were

convicted of inciting a riot, A.S.A. 18-1244 (2012) 2, and each was sentenced to 3 years in prison.

Statutory Authorization for Electronic Surveillance

Apalsa law governing electronic surveillance is based upon and parallels the Federal

Wiretap Act, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §

2510 et seq. While warrants based upon a showing of probable cause are required for wiretaps

that intercept live communications and their content, non-content information can be obtained

based upon lower standards of proof. Like Title II of the federal act, known as the Stored

Communications Act (“SCA”), 18 U.S.C. § 2703 et seq., Apalsa’s Stored Communications Act

(“ASCA”), A.S.A. 11-3202 (2008), allows governmental entities to require cell phone service

providers to disclose certain records that have been stored for more than 180 days (referred to

herein as “historical” information), without notice to the subscriber or customer. It provides that

1 A.S.A. 18-1551 (2012), Conspiracy to commit a crime, provides:

A person is guilty of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy. A person convicted of the offense of criminal conspiracy to commit a felony shall be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which he could have been sentenced if he had been convicted of the crime conspired to have been committed.

2 A.S.A. 18-1244 (2012), Riot and Incitement to Riot, provides:

(a) A person is guilty of riot, a Class C felony, if he participates with two or more others in a course of disorderly conduct: (1) with intent to commit or facilitate the commission of a felony or misdemeanor; (2) with intent to prevent or coerce official action; or (3) when the actor or any other participant to the knowledge of the actor uses or plans to use a deadly weapon. (b) A person is guilty of incitement to riot, a Class C felony, if by words or conduct he knowingly encourages others to engage in riot as defined in subsection (a) under circumstances which produce a clear and present danger of injury to persons or property or a breach of the public peace.

The penalty for a Class C felony is 3 to 7 years.

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an order for disclosure of such information “may be issued by any court of competent jurisdiction,

and shall issue only if the governmental entity offers specific and articulable facts showing that

there are reasonable grounds to believe that the information sought is relevant and material to an

ongoing criminal investigation.” A.S.A. 11-3202(c)(iii). The information that can be obtained

under this provision of the ASCA includes the name and address of the customer; local and long

distance telephone records revealing the numbers to which calls were placed and the numbers

from which calls were received; and the time, duration, and location of such calls. It does not

authorize release of the content of the communications.

In this case the NPD obtained ACSA court orders and utilized the historical cell phone

information it obtained from Appellants’ service providers to obtain arrest and search warrants for

each of the Appellants and as evidence at trial. The “specific and articulable facts” standard

under which the ASCA orders were obtained requires less than the probable cause needed to

obtain a warrant. However, it requires more than the showing needed to establish “relevance”

under the provisions of the pen register statute discussed below. See In re Application of the

United States for an Order Directing a Provider of Electronic Communication Service to Disclose

Records to the Government, 620 F.3d 304, 315 (3d Cir. 2010). In this case, it is uncontested that

the facts provided were sufficient to obtain the ACSA orders for historical CSLI, but did not rise

to the level of establishing probable cause that a crime had been or was likely to be committed.

Apalsa’s Pen-Trap Records Act (“PTRA”), A.S.A. 11-3203 (2006), parallels Title III of

the federal act, 18 U.S.C. § 3121 et seq., and provides for the use of pen registers or trap and trace

(“pen-trap”) devices, without notice to the user, to obtain real-time, non-content profile data,

including numbers called and numbers from which calls are received, and the location of the cell

tower being used at the beginning and end of a call on a cellular telephone. See In re Application

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of the United States for an Order for Prospective Cell Site Location Information on a Certain

Cellular Telephone, 460 F.Supp.2d 448, 455 (2006) (noting that the USA PATRIOT Act of 2001

expanded the definitions of pen registers and trap and trace devices to include cell site

information as well as incoming or outgoing numbers). Like its federal counterpart, the PTRA

states that upon proper application, “the court shall enter an ex parte order upon finding that the

governmental authority has certified to the court that the information likely to be obtained by such

installation and use is relevant to an ongoing criminal investigation.” A.S.A. 11-3203(d)(i). In

this case the NPD provided such certification and obtained orders to utilize pen registers and trap

and trace devices on Appellants’ cell phones. The parties do not contest that the information thus

certified met the relevance standard mandated by the statute but did not establish probable cause

that a crime had been or was likely to be committed.

The real-time location and movement data at issue here was obtained by the NPD not from

Appellants’ service providers but from the NPD’s own cell-site simulators (“CSS”). Cell-site

simulators, sometimes known by the brand name “Stingray,” mimic cell phone towers, diverting

cell signals to the CSS before passing them on to the service provider’s tower. They are capable

of providing law enforcement with information about the cellular device being used; numbers of

incoming and outgoing calls; and date, time, and duration of calls. By triangulating signal

strength, CSS provide location and tracking data as long as a cellphone is turned on, regardless of

whether a call is being made. They also have the capacity to intercept and record content, send

“fake” text messages or calls, and interrupt call or data services. While it is not clear what data

the NPD may have collected in this case, its officers relied only upon real-time location and

movement data obtained from Appellants’ cell phones while Appellants were in public locations

to obtain arrest and search warrants for each of the Appellants and as evidence at trial.

In using CSS, federal law enforcement agents currently operate under the “Department of

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Justice Policy Guidance: Use of Cell-Site Simulator Technology” issued September 3, 2015. It

notes that “[w]hile the Department has, in the past, appropriately obtained authorization to use a

cell-site simulator by seeking an order pursuant to the Pen Register Statute, as a matter of policy,

and with certain exceptions, law enforcement agencies must now obtain a search warrant

supported by probable cause. . .”3 The Justice Department, however, “has not conceded that this

is constitutionally required.” United States v. Patrick, 842 F.3d 540, 545 (7th Cir. 2016). CSS

technology is not directly addressed by federal law or by legislation in most states, although a few

states do require warrants based on probable cause for the use of cell-site simulator technology.

See, e.g., Wash. Rev. Code § 9.73.260 (2015). Apalsa, like most states, does not have legislation

specifically addressing the use of cell-site simulators. In this case the state argued and the trial

court agreed that a warrant based upon probable cause is not require to obtain CSS information

and that the authorization obtained under the Pen-Trap Records Act was more than sufficient to

address any concerns arising under the Fourth Amendment.

Fourth Amendment

The Fourth Amendment to the U.S. Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.

Appellants contend that the trial court should have granted their motions to suppress because the

government did not obtain warrants based on probable cause before acquiring historical CSLI

from their service providers or real-time CSLI from the NPD’s cell site simulators.

These are questions of first impression for this court and for the federal courts of the

3 https://www.justice.gov/opa/file/767321/download.

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Fourteenth Circuit and, as noted above, we review them de novo. The United States Supreme

Court has not provided direct guidance on these issues. We believe our conclusions are

consonant with the majority of federal and state courts that have reached these issues, but

recognize that others have reached conflicting conclusions. For the reasons explained below, we

believe that existing state, federal and Supreme Court precedent provides ample support for our

conclusion that the government’s use of historical and real-time cell site location information does

not implicate the Fourth Amendment when it does not reveal the content of the communications

and when the location or movement information obtained is in the hands of third parties or is

otherwise publicly accessible.

Historical Cell Site Location Information

The historical cell site information in this case was obtained in compliance with Apalsa’s

Stored Communications Act. It was obtained from providers of electronic communication

services, the acquired records contained data specific to the handling of Appellants’ calls by those

providers, and the information provided was limited to the identification of the numbers of the

outgoing or incoming calls made or received by the Appellants, and the time and location of their

cellphones. No content-based information was revealed. For the reasons explained below, the

information that was gathered and used in this case did not implicate the Fourth Amendment’s

prohibition on unreasonable searches and seizures.

A cell phone user has no legitimate expectation of privacy in such records. As the

Supreme Court has repeatedly held, valid claims under the Fourth Amendment require a

subjective expectation of privacy that is also considered objectively reasonable in our society.

“[A] Fourth Amendment search occurs when the government violates a subjective expectation of

privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001)

(citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). While

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Appellants may have had subjective expectations of privacy in information about their past

locations or movements generated by their cell phones, such expectations were not objectively

reasonable.

It has long been established that one who uses a telephone “voluntarily convey[s]

numerical information to the telephone company and . . . assume[s] the risk that the company

would reveal to police the numbers he dialed.” Smith v. Maryland, 442 U.S. 735, 744 (1979). At

the time Smith was decided, the business records maintained by the service providers included the

physical address where the telephone was located and, therefore, if those business records were

obtained by law enforcement, they would have revealed the location from which calls were made.

If users had no reasonable expectation of privacy in those business records, they had no

reasonable expectation of privacy in the location of the “landlines” from which their calls were

made.

Today, cell phone users are similarly aware that their service providers have information

about the locations from which calls are made. Those who choose to use cell phones know the

signals from their cell phones are transmitted to cell towers, and are constantly reminded about

their proximity to such towers by the signal strength shown on their devices. Most now use

“smart phones” that utilize location information to provide driving directions as well as

information about restaurants, gas stations, or other public facilities located nearby. “Cell phone

users, therefore, understand that their service providers record their location information when

they use their phones at least to the same extent that the landline users in Smith understood that

the phone company recorded the numbers they dialed.” In re U.S. for Historical Cell Site Data,

724 F.3d 600, 613 (5th Cir. 2013); see also United States v. Davis, 785 F.3d 498, 511 (11th Cir.

2015) (“cell users know that they must transmit signals to cell towers” and that when they make

or receive calls they are “necessarily conveying or exposing” location information to their

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providers). Those who do not wish their location information to be readily available can simply

turn off their cell phones. See In re Smartphone Geolocation Data Application, 977 F. Supp. 2d

129 (E.D. N.Y. 2013).

Beyond the fact that location information is thus reasonably anticipated to be found in a

service providers’ records, in this case all of the location information relied upon by the

government pertained to public roads and locations. In United States v. Knotts, 460 U.S. 276

(1983), the Supreme Court found that the warrantless monitoring of a beeper placed in a container

being transported by the respondent did not violate the Fourth Amendment because “[a] person

travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in

his movements from one place to another.” Id. at 281. Knotts “voluntarily conveyed to anyone

who wanted to look the fact that he was travelling over particular roads in a particular direction,

the fact of whatever stops he made, and the fact of his final destination when he exited from

public roads onto private property.” Id. at 281-282. In this case, Appellants’ movements over

public roads, on public transportation, and in public spaces such as coffee shops or public parks,

were similarly voluntarily conveyed to anyone who cared to observe them. See United States v.

Forest, 355 F.3d 942, 951 (6th Cir. 2004) (finding, under Knotts, no expectation of privacy in cell-

site data tracking movements on public highways) (judgment vacated on other grounds by Garner

v. United States, 543 U.S. 1100 (2005)).

The Court has found the Fourth Amendment to have been violated only in cases where the

government utilized tracking devices to reveal information about an individual’s location at or

within his or her private residence, or trespassed on private property to obtain the data. See

United States v. Karo, 468 U.S. 705, 714-715 (1984) (using beeper to track location of contraband

within a home unconstitutional); Kyllo, 533 U.S. at 34-35 (use of thermal imaging information

revealing location within a private residence prohibited absent probable cause); United States v.

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Jones, 565 U.S. 400 (2012) (warrantless installation of GPS device involving trespass onto

private property and subsequent use of device to track vehicle constituted a search under the

Fourth Amendment). None of these concerns applies to the historic CSLI obtained by the

government in this case. We see no reason why the Court’s longstanding body of precedent

concluding that individuals do not have a reasonable expectation of privacy in business records

maintained by third parties, or in information pertaining to their location on public roads or in

public spaces, should be disregarded simply because technological advances have allowed the

government to more expeditiously access the information at issue. This conclusion accords with

the holdings of the majority of those federal circuits that have addressed the issue. See, e.g.,

United States v. Graham, 824 F.3d 421 (4th Cir. 2016); United States v. Carpenter, 819 F.3d 880

(6th Cir. 2016); United States v. Davis, 785 F.3d 498 (11th Cir. 2015); In re U.S. for Historical

Cell Site Data, 724 F.3d 600 (5th Cir. 2013).

Real-time Cell Site Location Information

We now turn to Appellants’ claim that the gathering and use of real-time CSLI by law

enforcement violated the Fourth Amendment. The government obtained a pen-trap order,

pursuant to state law, allowing it to gather real-time information regarding calls made or received

by the Appellants from their service providers. However, rather than obtaining that information

from the service providers, the NPD utilized its own cell site simulators. Unlike the historical

CSLI obtained pursuant to the ACSA, the real-time CSLI obtained in this case this did not involve

business records and, thus, the third party doctrine of Smith is not relevant. However, as noted

above, the information gathered involved only otherwise-accessible information about

Appellants’ location and movements on public roads and in public locations. Thus, under Knotts,

there is no reason to presume that the government’s actions constituted a search or seizure under

the Fourth Amendment.

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There is no warrant requirement for obtaining CSS information, either under federal law

or the laws of the State of Apalsa. Until recently, the U.S. Justice Department (“DOJ”) and

various federal agencies considered pen register or trap and trace authorization sufficient for the

gathering of real-time CSLI via cell site simulators such as those utilized by the NPD in this case.

The dissent emphasizes the fact that the DOJ has recently decided to require a warrant for

obtaining such information. However, this change was made as a matter of policy, not law. It

does not change the applicable precedent of the Supreme Court, and there is nothing to indicate

that this policy change was required by the Fourth Amendment.

Appellants may or may not have been aware that cell site simulators are increasingly

utilized by law enforcement. Nonetheless, “[t]he law cannot be that a criminal is entitled to rely

on the expected untrackability of his tools.” United States v. Skinner, 690 F.3d 772, 777 (2012),

cert. denied __ U.S. __, 133 S.Ct. 2852 (2013). As noted above, Appellants knew that their

service providers routinely collected location information and that such information was readily

available to law enforcement under the third party doctrine. In addition, it could be obtained

pursuant to the Pen-Trap Act upon a showing of “relevance.” In this case, the government had

already obtained statutory authorization to obtain pen-trap records. Like the Sixth Circuit in

Skinner, we believe that “[a]lthough not necessary to find that there was no Fourth Amendment

violation in this case, the Government’s argument is strengthened by the fact that the authorities

sought court orders to obtain information on [Appellants’] location. . . .” Skinner, 690 F.3d at 779.

The fact that the same information was being obtained from the government’s own

equipment rather than that of the service provider is not a distinction upon which a fundamental

constitutional right should rest. The only meaningful distinction is that cell site simulators are

capable of providing information concerning location even when calls are not being made.

However, if Appellants had actually intended their CSLI to remain private, they always had the

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option to turn off their phones. “If a telephone caller does not want to reveal dialed numbers to

the telephone company, he has another option: don’t place a call. If a cell phone user does not

want to reveal his location to a cellular carrier, he also has another option: turn off the cell

phone.” United States v. Davis, 785 F.3d 498, 520 (11th Cir. 2015).

The CSS information obtained by the government in this case did not involve physical

trespass. In United States v. Jones, 565 U.S. 400 (2012), the Supreme Court did hold that

attaching a GPS device to a vehicle and using it to track the vehicle’s movements on public streets

constituted a search for purposes of the Fourth Amendment. However, that decision clearly

rested upon the fact of the trespass. Id. at 404. Furthermore, while the CSS data may have

indicated that Appellants had arrived at or departed from private residences, it revealed nothing

about the interior of those homes. No information was obtained through CSS technology that

could not have been obtained by visually tracking Appellants on public roads or in public

locations. We appreciate Justice Alito’s concern in Jones that technological innovations have

made it possible to “secretly monitor and catalogue every single movement” of a suspect in a

criminal investigation, 565 U.S. at 430. That, however, is not what occurred in this case. The

CSS technology was used merely to determine when the parties to a conspiracy communicated

amongst themselves and to establish that such communications preceded activities that were

intended to incite violent and unlawful conduct and, in fact, succeeded in doing so.

Conclusion

An individual’s decision to use a cell phone is one made entirely voluntarily. “The

Government does not require a member of the public to own or carry a phone. . . . And it does not

require him to make a call, let along to make a call at a specific location.” In re U.S. for

Historical Cell Site Data, 724 F.3d at 613. It is widely known that cell service providers

routinely collect real-time CSLI, and that they maintain historical CSLI in their business records.

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Under these circumstances, a cell phone user cannot have an objectively reasonable expectation

that his or her location information—past, present, or prospective—is protected by the Fourth

Amendment. Federal or state legislative authorities are free to require law enforcement agencies

to obtain warrants based on probable cause prior to utilizing historical CSLI, real-time CSLI from

service providers, and/or real-time CSLI obtained directly by utilizing cell site simulators. Even

should they choose to do so, however, the Fourth Amendment would not be implicated in the

failure of law enforcement officials to obtain such warrants. Individuals have no reasonable

expectation of privacy in information that would otherwise be readily available by direct

observation or from third party service providers.

Judgment affirmed. Kahananui, J., concurring.

DISSENTING OPINION

Reginald Park, J., dissenting.

For the reasons explained below, I believe that the use of historical or real-time cell phone

data to establish and track location information constitutes a search under the Fourth Amendment.

Therefore, unless another established exception to the warrant requirement applies, such searches

are unreasonable unless authorized by warrants based upon probable cause. I would reverse and

remand.

Appellants Endo, Dinh, and Santos are law students who served as legal observers at the

September 19, 2015 “Day of Action” march and rally. This was a largely peaceful event at which

Apalsa residents exercised their rights, protected by the First Amendment, to freedom of speech

and association. In the course of the march, three plate glass windows were broken, triggering a

chaotic scene in which 90 participants were “kettled” by law enforcement officers in an alley

leading to a parking garage, tear-gassed, and arrested in a manner that subsequently resulted in

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several lawsuits alleging that the officers employed excessive force. Appellants have not been

accused of engaging in any unlawful activity on September 19. Nonetheless, because perhaps six

out of some 1200 participants engaged in the destruction of two banks’ plate glass windows, the

entire event has been characterized as a “riot.” Appellants, in turn, were charged with conspiracy

to riot because they participated in planning the event. No evidence was provided, however, that

any unlawful activities were planned. The “course of disorderly conduct” that made the event a

“riot” under A.S.A. 18-1244 may have been spontaneous or it may have been planned by the six

individuals charged with breaking the windows. It may even have been the work of agents

provocateurs. But the record provides no evidence that the Appellants encouraged, instigated, or

were even aware of any plan to engage any form of violence or property damage.

Each person arrested at the Day of Action was initially charged with one count of felony

riot as well as one or more misdemeanor charges. For most, however, the state could only

provide evidence that the defendants were present at the event, had the opportunity to leave, and

failed to do so prior to being arrested. Of the ninety people arrested on September 19, twelve pled

to misdemeanor charges. Felony charges were dismissed against all but six of the remaining

defendants based on lack of evidence. Of those who went to trial, more than half were acquitted

and the rest were convicted of minor misdemeanors. No one received a penalty harsher than a

$500 fine and/or a probated sentence of one year. Appellants, however, have been convicted on

felony charges and sentenced to prison terms. This raises the serious possibility that they were

targeted not because they engaged in illegal conduct, but because they engaged in politically

controversial conduct.

The record reflects that Appellant Endo was convicted of conspiracy to riot because she

met and conferred with Appellants Dinh and Santos to help plan this and other events, and that

Appellants Dinh and Santos were convicted of incitement to riot based upon a flyer they prepared

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that included quotes from former President John F. Kennedy and Malcolm X. This evidence was

made available to law enforcement by virtue of the historical cell site location information

obtained by the Napa Police from Appellants’ cell service providers and the real-time cell site

location information obtained by the NPD using its cell site simulators. The government

complied with the statutory requirements for obtaining court orders to access historical CSLI by

meeting the “specific and articulable facts” standard, and orders to access pen register and trap

and trace information, again from the service providers, based on a showing of “relevance” to a

criminal investigation. The orders were not warrants based upon probable cause, and no warrants

were sought to track Appellants’ locations using the NPD’s cell site simulators. For reasons

explained below, I believe that all of this CSLI was obtained in violation of the Fourth

Amendment and should have been suppressed by the trial court.

The Fourth Amendment to the U.S. Constitution guarantees “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The majority supports its conclusion that the acquisition of CSLI at issue in this case did not

constitute a search under the Fourth Amendment by citing Supreme Court precedent holding that

individuals do not have a reasonable expectation of privacy in information voluntarily turned over

to third parties, as well as precedent establishing that individuals have no reasonable expectation

of privacy in their location or movement on public thoroughfares. However, the Court’s Fourth

Amendment jurisprudence has always evolved with societal changes, and in United States v.

Jones, 565 U.S. 400, 409 (2012), a majority of the justices recognized the need to adapt, once

again, to meet the challenges of technology that now allows for virtually non-stop surveillance of

most of the citizenry.

We must begin from the premise that “[w]arrantless searches are presumptively

unreasonable, though the court has recognized a few limited exceptions to this general rule.”

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United States v. Karo, 468 U.S. 705, 717 (1984). The court orders obtained by the NPD under

ASCA and PTRA are distinct from the warrants referenced in Karo because warrants require a

showing of probable cause. The question before us, therefore, is whether the government’s

actions resulting in the acquisition of CSLI in this case fall within one of the “few limited

exceptions” recognized by the Supreme Court.

In Katz v. United States, the Supreme Court refused to limit “constitutionally protected

area[s]” to particular physical locations, noting that the Fourth Amendment “protects people, not

places.” 389 U.S. 347, 351-353 (1967). Recently, the Court clarified that “Katz did not narrow

the Fourth Amendment’s scope.” Jones, 565 U.S. at 409. Rather, “the Katz reasonable-

expectation-of-privacy test has been added to, not substituted for, the common-law trespassory

test” historically undergirding the Fourth Amendment. Id. at 410. In Jones the Court held that

the government’s placing of a GPS location-tracking device on an individual’s vehicle and its use

of that device to monitor the vehicle’s movements, without a valid warrant, constituted an

unreasonable search under the Fourth Amendment. The Court’s opinion, written by Justice

Scalia, emphasized that in placing the tracking device, “[t]he Government physically occupied

private property for the purpose of obtaining information.” Id. at 404. In this case, trespass is not

at issue so Jones is not determinative.

For our purposes, what is most significant about the Jones decision is that a majority of

the Court, writing in two separate concurrences, expressed concern about the extent to which

modern technology facilitates location-tracking. Justice Alito, in an opinion joined by Justices

Ginsburg, Breyer and Kagan, noted that while “relatively short-term monitoring of a person’s

movements on public streets accords with expectations of privacy that our society has recognized

as reasonable, . . . the use of longer term GPS monitoring in investigations of most offenses

impinges on expectations of privacy.” Jones, 565 U.S. at 430 (citing Knotts, 460 U.S. 276, 281-

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282 (1983)). He concluded that at some unspecified point during the four weeks of tracking

engaged in by law enforcement, the monitoring became a search. Id. Justice Sotomayor, in her

separate concurrence, agreed with Justice Alito that “the same technological advances that have

made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the

evolution of societal privacy expectations” and that “longer term GPS monitoring . . . impinges on

expectations of privacy.” Id. at 415.

As of 2015, 92 percent of adults in the United States own cell phones, and 68 percent have

“smart phones” equipped with GPS location tracking devices.4 When cell phones are turned on,

they transmit their location to cell towers every seven seconds. See State v. Earls, 70 A.3d 630,

632 (2013) (finding a reasonable expectation of privacy under the state constitution in the location

of an individual’s cell phone). In urban areas, there may be cell towers every 200 feet. In re

United States for an Order Directing a Provider of Electronic Communication Service to Disclose

Records to the Government, 534 F. Supp. 2d 585, 590 (W.D. Pa. 2008), order vacated on other

grounds, 620 F. 3d 304 (3d Cir. 2010). In other words, information obtained from service

providers, especially when triangulated, can provide remarkably specific details about an

individual’s location. When cell site simulators are employed, even more precise results can be

obtained.

Here the majority, relying on older Supreme Court cases such as Katz, interprets the

ubiquitous nature of location information derived from cell phones to diminish the likelihood that

individuals who possess cell phone have subjective expectations of privacy in their location, or

that society as a whole would consider such an expectation to be reasonable. This, however, is

the real question before us: If the government could access information about all of our

4 See http://www.huffingtonpost.com/entry/americans-think-smartphones-hurt-socializing-but-use-them-anyway_us_55de233ee4b08cd3359e7031 (summarizing data provided by the Pew Research Center).

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movements, all of the time, and we all knew it, would the concept of a reasonable expectation of

privacy simply become irrelevant?

Concurring in Jones, Justice Sotomayor expressed concern about the “unique attributes of

GPS surveillance” even in cases of short-term monitoring, because it is capable of “generat[ing] a

precise, comprehensive record of a person’s public movements that reflects a wealth of detail

about her familial, political, professional, religious, and sexual associations.” Jones, 565 U.S. at

415. Moreover, “[t]he Government can store such records and efficiently mine them for

information years into the future” and, because such monitoring can be done both surreptitiously

and with little expense, “it evades the ordinary checks that constrain abusive law enforcement

practices.” Id. at 415-416 (internal citations omitted).

In this case, the information obtained from both historical CSLI and real-time CSS

monitoring was used to develop a database about Appellants’ political associations, and to use

those associations to engage in increasingly detailed surveillance. Political expression and

association protected by the First Amendment thus became the basis for the monitoring of

otherwise lawful activity, and information generated by that surveillance was subsequently used

as evidence for felony conspiracy charges. I believe the government’s actions in this case

constituted unwarranted searches under the Fourth Amendment and that evidence derived from

those searches was used in politically motivated prosecutions intended to deter not just Appellants

but other potential protesters from exercising rights protected by the First Amendment.

Justice Sotomayor’s concurrence cautions us about this possibility. “Awareness that the

Government may be watching chills associational and expressive freedoms. And the

Government’s unrestrained power to assemble data that reveal private aspects of identity is

subject to abuse. The net result is that GPS monitoring . . . may ‘alter the relationship between

citizen and government in a way that is inimical to democratic society.’” Jones, 565 U.S. at 416

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(quoting United States v Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. 2011) (Flaum, J., concurring)).

With respect to historical CSLI, the majority relies upon the third party doctrine to find

that Appellants had no reasonable expectation of privacy in the business records maintained by

third party providers. However, the two concurrences in Jones indicate that, as of 2012, a majority

of the Supreme Court believes that society does find long-term surveillance of an individual’s

location and movements to violate reasonable expectations of privacy and, in this case, eleven

months of records were obtained. Historical CSLI allows the government to track not only where

a person has traveled on public roads, but also when that person has entered or left her home, and

what calls have been made or received while at home. Even thought tracking telephone calls is

not the same as tracking movements within the home, the ability to identify calls made and

received within the home invades an individual’s privacy in a manner similar to that found to

constitute a search in Kyllo v. United States, 533 U.S. 27 (2001).

There are exceptions to the third party doctrine, the most obvious being that the content of

communications, even if available to service providers, may not be accessed without a warrant.

See Katz, 389 U.S. at 352 (what the petitioner “sought to exclude when he entered the [telephone]

booth was not the intruding eye—it was the uninvited ear”). Historical CSLI covering significant

periods of time—such as occurred in this case, where the NPD obtained information spanning

eleven months—can reveal patterns about individuals’ daily lives and lifestyles that are the

functional equivalent of communications content. I believe that most individuals have subjective

expectations of privacy in such information, and that those expectations are objectively

reasonable. This was the conclusion reached by the federal district court in In re For an Order

Authorizing the Release of Historical Cell-Site Information, 809 F. Supp. 2d 113 (E.D. N.Y.

2011) (holding that the government’s request for 113 days of historical CSLI constituted a search

under the Fourth Amendment). There, the court noted there are subsets of data excepted from the

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third party disclosure doctrine, and that long-term, cumulative cell site location records should be

among them. Id. at 126. “The fiction that the vast majority of the American population consents

to warrantless access to the records of a significant share of their movements by ‘choosing’ to

carry a cell phone must be rejected.” Id. at 127; see also Commonwealth v. Estabrook, 38 N.E. 3d

231 (2015) (requiring a warrant for historical CSLI for two-week period based on the

Massachusetts Declaration of Rights).

The government argues that no warrant or other authorization is required to use its cell site

simulators to gather real-time CSLI and that, in any case, its use of CSS in this case was covered

by the order it obtained under the Pen-Trap Records Act. This was, until recently, the position of

the U.S. Justice Department (“DOJ”), but in 2015 it changed its policy to require warrants prior to

the use of cell site simulators. See Department of Justice Policy Guidance: Use of Cell-Site

Simulator Technology, Sept. 15, 2015, https://www.justice.gov/opa/file/767321/download. As

the majority notes, the DOJ has not said that it has made this change because it believes it to be

constitutionally required, but the new policy can certainly be interpreted to reflect a shift in

societal expectations with respect to the use of cell site simulators.

The government’s argument that the CSS data it obtained were covered by the order

authorizing pen register and trap and trace surveillance might be convincing if the data collected

were limited to numbers dialed and numbers from which calls were received. When location

information is sought and obtained, however, a different inquiry is in order. CSS surveillance,

especially when maintained over time, can become the functional equivalent of GPS tracking that

the Court found to be unconstitutional in Jones. In other words, at some point the cell site

simulators become tracking devices. See In re Application of the United States for an Order (1)

Authorizing The Use of a Pen Register and a Trap and Trace Device and (2) Authorizing Release

of Subscriber Information and/or Cell Site Information, 384 F. Supp. 2d 562, 564 (E.D. N.Y.

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2005); In re Application for Pen Register and Trap/Trace Device with Cell Site Location

Authority, 396 F. Supp. 2d 747, 754 (S.D. Tex. 2005).

Illustrating this point, the Southern District Court of New York recently concluded that

use of a cell site simulator by the Drug Enforcement Administration (“DEA”) to track a suspect to

his home constituted an unreasonable search under the Fourth Amendment. United States v.

Lambis, 197 F. Supp. 3d 606 (S.D. N.Y. 2016). It reasoned that, like the thermal imaging device

employed in Kyllo, use of the CSS constituted a search “because the ‘pings’ from [the

individual’s] cell phone to the nearest cell site were not readily available ‘to anyone who wanted

to look’ without the use of a cell-site simulator.” Lambis, 197 F. Supp. 3d at 610 (S.D. N.Y.

2016). In Lambis the DEA obtained warrants for pen register and CSLI information from the

suspect’s service provider. After using the CSLI to determine that the targeted cell phone was in

the vicinity of a particular intersection, agents then deployed a cell site simulator to identify the

apartment building and then the specific apartment in which the phone was located. Id. at 609.

Although the CSS did not otherwise reveal intimate details about the interior of the apartment, the

district court concluded that using the CSS to determine the presence or absence of a cell phone

inside the apartment constituted a search. Id. at 610.

Like the Lambis court, I would find that “[a]bsent a search warrant, the Government may

not turn a citizen’s cell phone into a tracking device.” Lambis, 197 F. Supp. 3d at 611. It is

simply insufficient to say, as the majority does, that one can turn off one’s cell phone to avoid

being tracked. As the Florida Supreme Court has observed, “Requiring a cell phone user to turn

off the cell phone just to assure privacy from governmental intrusion that can reveal a detailed and

intimate picture of the user’s life places an unreasonable burden on the user to forego necessary

use of his cell phone, a device now considered essential by much of the populace.” Tracey v.

State, 152 So. 3d 504, 523 (Fla. 2014); see also State v. Earls, 70 A.3d 630, 644 (N.J. 2013)

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(requiring a warrant for real-time CSLI under the New Jersey Constitution).

For all of the foregoing reasons, I respectfully dissent. Because I believe the trial court

should have granted Appellants’ motions to suppress, I would reverse and remand.

Date: December 5, 2016

Before Liu, Kahananui, and Park, JJ.

All citations: 158 Ap.App. 618.