United States v. Wayne Hill

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-2019

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WAYNE HILL,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11 CR 850-1 — Sharon Johnson Coleman, Judge.

____________________

ARGUED SEPTEMBER 25, 2015 — DECIDED MARCH 21, 2016

____________________

Before WOOD, Chief Judge, and BAUER and EASTERBROOK,

Circuit Judges.

WOOD, Chief Judge. They say the house always wins.

Wayne Hill found out the hard way that if you have robbed

a bank, that adage applies even if your trip to the casino was

just to get change. Hill was caught attempting to launder a

large amount of dye-stained currency, still in bank bands, by

stuffing the bills into a slot machine at the Horseshoe Casino

in Hammond, Indiana. He was ultimately convicted of bank

2 No. 14-2019

robbery, money laundering, and transportation of stolen

funds.

Hill filed pretrial motions to suppress his arrest, the con-

tents of his bags, and his statements at the time he was

caught. He also filed a motion in limine seeking to exclude

expert testimony under Federal Rule of Evidence 702 about

historical analysis of cellular telephone sites. Hill appeals the

district court’s denials of all four motions. Because the dis-

trict court properly resolved each one, we affirm its judg-

ment.

I

On November 19, 2011, Hill walked into the Illiana Fi-

nancial Credit Union in Naperville, Illinois, pointed a pistol

at the teller, and ordered her to give him money. While Hill

threatened repeatedly to shoot her, another teller handed

over roughly $134,000 in cash. Hill fled the scene with a bag

full of stacks of wrapped bills.

At that moment, Hill might have thought he was home

free. But there was something he did not know: one of the

tellers had managed to toss a dye pack into the bag along

with the cash. As Hill fled from the bank, it exploded, stain-

ing most of his haul a telltale red. Three days later, Hill

sought to remedy that problem. He drove to the Potawatomi

Hotel and Casino in Milwaukee, Wisconsin, where he sat

down in front of a slot machine and fed dye-stained bills into

it without playing the game. Instead, he cashed out, receiv-

ing vouchers in the amount of money he had put into the

machine. After repeating this maneuver on a number of ma-

chines, he redeemed the vouchers for unstained currency. He

managed to rid himself of $6,650 in stained bills that night.

No. 14-2019 3

On November 26, 2011, Hill tried to repeat his money-

laundering gambit. He strolled into the Horseshoe Casino in

Hammond, Indiana, with a backpack and a Santa hat filled

with thousands of dollars of dye-stained bills. He sat down

in front of a slot machine and began feeding it cash. But this

time, a slot attendant noticed what he was doing and

thought it strange. The slot attendant told Daniel Faulkner, a

casino security employee, that there was a guest at a slot ma-

chine with a bag containing a large amount of money. He

also told Faulkner that the money had red dye on it and that

the guest was sticking the money into the machine and cash-

ing it out without playing the slots.

Faulkner called over the radio, and Monaye Perry, anoth-

er casino security employee, responded. By the time Perry

arrived, Hill had told a casino employee that one of his bills

had gotten stuck in the machine, and a slot attendant had

opened the machine to recover it. Faulkner told Perry what

Hill had been doing. Faulkner’s report made Perry suspi-

cious, because it was very unusual for a guest to be cashing

out of the machine without playing, not to mention for the

money to be stained red. Perry questioned Hill briefly. She

noted that he seemed nervous and hesitant and that he was

short with his responses. Perry then contacted Eugene

Kasper, her shift manager. As she did so, Hill abandoned the

slot machines and moved to the casino’s cash-out area.

Kasper arrived with company: Hammond Police Lieu-

tenant Patrick McKechnie. McKechnie was moonlighting as

a security officer at the casino. Perry relayed Faulkner’s ac-

count to Kasper and McKechnie and noted that she had re-

ceived the information from Faulkner himself. McKechnie

and Kasper followed Hill to the cash-out area and confront-

4 No. 14-2019

ed him. As Hill stood in line, McKechnie asked Hill why his

greenbacks were red and where he had gotten the money.

Hill did not respond to the first question, but in reply to the

second he said that he had found the money while changing

a tire near a lake.

McKechnie found Hill’s story bizarre and suspicious. He

knew from his law-enforcement experience that bank em-

ployees often attempt to hide red dye-packs among stolen

money during robberies. He could see red dye-stained bills,

still wrapped in bank bands, in Hill’s hand. Surveillance

footage shows Kasper examining stacks of cash wrapped in

bank bands as several casino security personnel stand by. It

then shows Hill being led away, along with his bag and San-

ta hat, to an interview room. In the interview room, Hill was

questioned further and his bag was searched, revealing the

remainder of the money.

Hill was indicted for money laundering, bank robbery,

and transporting stolen money in interstate commerce in vi-

olation of 18 U.S.C. §§ 1956(a)(1)(B)(i), 2113(a), (c), and (d),

and 2314. Before trial, Hill filed motions to suppress his ar-

rest, the search of his backpack and Santa hat, and his state-

ments to McKechnie. He also filed a motion in limine seek-

ing to exclude expert testimony regarding historical cell site

analysis under Rule 702 of the Federal Rules of Evidence.

The district court denied all four motions. A jury convicted

Hill on April 7, 2014, and he was sentenced to 360 months’

imprisonment. This appeal followed.

II

Hill argues that his statements in the cash-out area and

the evidence seized incident to his arrest should have been

No. 14-2019 5

suppressed because (1) Lieutenant McKechnie’s initial con-

versation with Hill was an arrest for which McKechnie did

not have probable cause; (2) if that encounter was not an ar-

rest, McKechnie did not have adequate reasonable suspicion

to perform an investigatory stop; and (3) McKechnie did not

have probable cause to remove Hill to the interview room

where the entirety of Hill’s store of stolen cash was discov-

ered. He also argues that the district court abused its discre-

tion in admitting Agent Joseph Raschke’s expert testimony

regarding historical cell site analysis.

A

We look first at Hill’s three motions to suppress. We re-

view the district court’s rulings under a dual standard: we

apply the clear error standard to its factual determinations,

with special deference to the district court’s credibility de-

terminations, United States v. Villalpando, 588 F.3d 1124, 1127

(7th Cir. 2009); we take a de novo approach to its conclusions

of law. Id.

1

Hill contends that his initial encounter with McKechnie

was an arrest, but we conclude that it was not. A seizure

qualifies an arrest only if “a reasonable person in the sus-

pect’s position would have understood the situation to con-

stitute a restraint on freedom of movement of the degree

which the law associates with formal arrest.” Abbott v. San-

gamon Cnty., Ill., 705 F.3d 706, 719 (7th Cir. 2013). This defini-

tion is somewhat circular. But it is clear that an arrest re-

quires at minimum that the subject’s “freedom of movement

is terminated or restrained by intentionally applied physical

force or submission to an assertion of authority.” Id. (citing

6 No. 14-2019

California v. Hodari D., 499 U.S. 621, 626 (1991)). Importantly,

contrary to Hill’s arguments, the inquiry is objective and

“presupposes an innocent person.” Id. (citing United States v.

Drayton, 536 U.S. 194, 202 (2002)).

It is hard to offer a crisp definition of what exactly consti-

tutes an arrest. But courts have made clear that “a brief, on-

the-spot stop on the street and a frisk for weapons” does not

qualify. Dunaway v. New York, 442 U.S. 200, 209 (1979) (citing

Terry v. Ohio, 392 U.S. 1, 19–20 (1968)). McKechnie’s interview

with Hill was not even as intrusive as a stop-and-frisk. He

made no “assertion of authority” and used no “physical

force.” Nor did his two questions contain any of the indicia

of a traditional arrest, no matter the number of casino securi-

ty personnel who were by then hanging around. At most, the

interaction represented an investigatory stop. Indeed, the

government maintains that it was consensual, and therefore

did not even constitute a seizure under the Fourth Amend-

ment. But we need not decide whether the interaction was

consensual: even if it were not, McKechnie’s questioning of

Hill qualified as a valid investigatory stop.

An investigatory stop is valid when supported by “a rea-

sonable, articulable suspicion that criminal activity is afoot.”

Illinois v. Wardlow, 528 U.S. 119, 123 (2000). A “reasonable,

articulable suspicion” is less than probable cause; it requires

only “a minimal level of objective justification.” Id. In decid-

ing whether the officer’s suspicion was justified, the court

must consider the “totality of the circumstances” surround-

ing the stop. United States v. Arvizu, 534 U.S. 266, 273 (2002).

The officer may “draw on [his or her] own experience and

specialized training to make inferences from and deductions

about the cumulative information available ... that might

No. 14-2019 7

well elude an untrained person.” Id. (internal quotation

marks omitted).

The district court found as a fact that McKechnie had

learned a great deal before he confronted Hill. Perry had told

him directly that (1) a slot attendant had seen Hill trying to

cash out a large amount of red-dyed money through a slot

machine; (2) the slot attendant had told Faulkner what he

saw; (3) Faulkner had told Perry; and (4) Perry had ques-

tioned Hill and found his answers and demeanor suspicious.

Additionally, McKechnie knew from experience that dye

packs are used to mark stolen currency. He said that he

would find it suspicious if someone were using a slot ma-

chine “as a change machine.” None of these factual findings

were clearly erroneous. The information McKechnie pos-

sessed represented far more than “a minimal level of objec-

tive justification.” See Wardlow, 528 U.S. at 123. It was suffi-

cient to arouse reasonable suspicion that Hill had committed

a crime, and thus to make McKechnie’s interaction with Hill

in the cash-out area a valid investigatory stop.

2

Hill argues that even if his initial interview with

McKechnie was a valid investigatory stop, he was arrested

without probable cause when he was escorted to the inter-

view room. This argument can succeed only if, at that time,

McKechnie lacked probable cause to believe Hill had com-

mitted a crime. But the record supports a finding of probable

cause by then. Hill was therefore validly arrested when he

was taken to the interview room.

An arrest is lawful under the Fourth Amendment so long

as it is made based on probable cause. Rodriguez v. United

8 No. 14-2019

States, 135 S. Ct. 1609, 1621 (2015). Probable cause “means

facts and circumstances within the officer’s knowledge that

are sufficient to warrant a prudent person, or one of reason-

able caution, in believing, in the circumstances shown, that

the suspect has committed, is committing, or is about to

commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37

(1979). Whether probable cause exists is a “commonsense,

practical question” made considering the totality of the cir-

cumstances. Illinois v. Gates, 462 U.S. 213, 230–31 (1983).

When a court reviews probable cause determinations, the

evidence must be weighed “as understood by those versed

in the field of law enforcement.” Id. at 232 (quoting United

States v. Cortez, 449 U.S. 411, 418 (1981)).

Once he approached Hill in the cash-out line, McKechnie

could see that Hill was holding a stack of currency stained

with red dye and wrapped in bank bands. Based on Perry’s

report, his own observations, and his prior experience,

McKechnie surmised that the money was from a bank rob-

bery and that Hill was trying to launder it. McKechnie asked

Hill why the money was dyed red and where he had ob-

tained it. Hill initially refused to answer either question, but

then offered the unlikely story that he found it while chang-

ing a tire by a lake. Hearing this, McKechnie was justifiably

suspicious. A reasonably prudent person in McKechnie’s po-

sition would think that Hill had committed or was commit-

ting a crime. See, e.g., United States v. Curry, 538 F.3d 718, 730

(7th Cir. 2008) (search warrant based largely on observation

of suspect handling red-dyed currency “clearly supported a

determination of probable cause”). McKechnie therefore had

probable cause to arrest Hill.

No. 14-2019 9

3

Finally, the search that revealed Hill’s remaining currency

was unobjectionable. A search incident to arrest is valid if it

does not extend beyond “the arrestee’s person and the area

within his immediate control.” Arizona v. Gant, 556 U.S. 332,

339 (2009) (internal quotation marks omitted). The zone of

“immediate control” includes “the area from within which

[the suspect] might gain possession of a weapon or de-

structible evidence.” Id. When he was detained, Hill was

holding the bag containing his hoard of dye-stained cash

and was plainly exercising immediate control over it.

McKechnie’s search was therefore a permissible search inci-

dent to arrest, and the district court was correct to deny

Hill’s motions to suppress.

B

Hill’s other argument focuses on expert testimony from

Agent Raschke about historical cell-site analysis. This testi-

mony, he contends, violated Federal Rule of Evidence 702

because the district court improperly applied the rule and

the Supreme Court’s framework in the line of cases begin-

ning with Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

589 (1993). We review the analytical approach the district

court took de novo and its application of that framework to

the facts before it for abuse of discretion. Lees v. Carthage

Coll., 714 F.3d 516, 520 (7th Cir. 2013).

Historical cell-site analysis uses cell phone records and

cell tower locations to determine, within some range of error,

a cell phone’s location at a particular time. A cell phone is

essentially a two-way radio that uses a cellular network to

10 No. 14-2019

communicate. Aaron Blank, The Limitations and Admissibility

of Using Historical Cellular Site Data to Track the Location of A

Cellular Phone, 18 RICH. J.L. & TECH. 3, 5 (2011). Each cell

tower covers a certain geographic area. That geographic area

depends upon “the number of antennas operating on the cell

site, the height of the antennas, topography of the surround-

ing land, and obstructions (both natural and manmade).” Id.

In urban areas, cell towers may be located every one-half to

one mile, while cell sites in rural areas may be three to five

miles apart. Id. When a cell phone user makes a call, the

phone generally “connect[s] to the cell site with the strongest

signal,” although “adjoining cell [towers] provide some

overlap in coverage.” Id. While the proximity of the user is a

significant factor in determining the cell tower with which

the cell phone connects, it is not the only one. Id. Other fac-

tors include the towers’ technical aspects, including geogra-

phy and topography, the angle, number, and directions of

the antennas on the sites, the technical characteristics of the

relevant phone, and “environmental and geographical fac-

tors.” Id. at 7.

The parties here do not dispute that testimony about his-

torical cell-site analysis is expert testimony. That proposition

is not, however, universally applied, and perhaps not even

universally accepted. Some circuits have treated some kinds

of historical cell-site analysis as lay testimony. See, e.g., Unit-

ed States v. Graham, 796 F.3d 332, 364 (4th Cir. 2015) (finding

no abuse of discretion in admitting Sprint/Nextel employee’s

lay testimony that cell phones connect to the tower emitting

the strongest signal and cell towers in urban areas have a

two-mile maximum range, and law enforcement officer’s lay

testimony and maps regarding the defendant’s location

based on cell phone records and cell sites); United States v.

No. 14-2019 11

Henderson, 564 F. App’x 352, 364 (10th Cir. 2014) (nonprece-

dential) (law enforcement agent’s plotting of the defendant’s

locations through historical cell-site analysis was proper lay

testimony so long as the agent did not testify about how cell

towers operate), reh’g en banc granted, 624 F. App’x 75 (4th

Cir. 2015).

Agent Raschke’s testimony in this case included state-

ments about how cell phone towers operate. In our view, this

fits easily into the category of expert testimony, such that

Rule 702 governs its admission. See Graham, 796 F.3d at 364

(holding historical cell-site analysis testimony about how cell

phones and towers connect “clearly ‘based on scientific,

technical, or specialized knowledge within the scope of Rule

702.’” (quoting FED. R. EVID. 701(c))); United States v. Yeley-

Davis, 632 F.3d 673, 684 (10th Cir. 2011) (“[T]estimony con-

cerning how cell phone towers operate constituted expert

testimony because it involved specialized knowledge not

readily accessible to any ordinary person.”).

When evaluating whether an expert’s testimony should

be admitted, a court must consider whether the expert’s tes-

timony is “supported by appropriate validation” and “will

assist the trier of fact to understand or determine a fact in

issue.” Daubert, 509 U.S. at 590–92; Kumho Tire Co. v. Carmi-

chael, 526 U.S. 137, 147 (1999) (extending the Daubert’s “gate-

keeping function” to all expert evidence). Rule 702’s purpose

is to “establish[] a standard of evidentiary reliability.” Kumho

Tire, 526 U.S. at 149 (quoting Daubert, 509 U.S. at 590). The

Supreme Court emphasized the importance of carefully vet-

ting expert testimony, noting that it “can be both powerful

and quite misleading because of the difficulty in evaluating

it.” Daubert, 509 U.S. at 595 (quoting Jack B. Weinstein, Rule

12 No. 14-2019

702 of the Federal Rules of Evidence Is Sound; It Should Not Be

Amended, 138 F.R.D. 631, 631–32 (1991)).

Rule 702 sets out four criteria for the admission of expert

testimony:

(a) the expert’s scientific, technical, or other special-

ized knowledge will help the trier of fact to understand

the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles

and methods; and

(d) the expert has reliably applied the principles and

methods to the facts of the case.

FED. R. EVID. 702. In applying those criteria, courts must also

bear in mind the fact that “the gatekeeping inquiry must be

tied to the facts of a particular case.” Kumho Tire, 526 U.S. at

150 (internal quotation marks omitted). The trial judge has

“broad latitude” to determine how to evaluate expert testi-

mony and whether to hold an evidentiary hearing in any

particular case. Id. at 153.

District courts that have been called upon to decide

whether to admit historical cell-site analysis have almost

universally done so. See United States v. Jones, 918 F. Supp. 2d

1, 5 (D.D.C. 2013) (collecting cases). Ironically, one of the few

exceptions involved Agent Raschke himself. See United States

v. Evans, 892 F. Supp. 2d 949, 956 (N.D. Ill. 2012) (admitting

traditional historical cell-site analysis, but rejecting Raschke’s

novel and “wholly untested” theory of “granulization”). The

government argues that the numerous district court deci-

sions to admit historical cell-site analysis constitute “general

No. 14-2019 13

acceptance” of the technique. But judicial acceptance is not

relevant; what matters is general acceptance in the relevant

expert (scientific or otherwise) community. See Daubert, 509

U.S. at 594; Gen. Elec. Co. v. Joiner, 522 U.S. 136, 148 (1997)

(Breyer, J., concurring) (“[J]udges are not scientists and do

not have the scientific training that can facilitate the making

of such decisions.”).

No federal court of appeals has yet said authoritatively

that historical cell-site analysis is admissible to prove the lo-

cation of a cell phone user. The Sixth Circuit gave the tech-

nique an unfavorable appraisal recently in United States v.

Reynolds, 626 F. App’x 610, 616–17 (6th Cir. 2015) (nonprece-

dential). Because the government there used historical cell-

site analysis to prove that certain people were not in a certain

area at a particular time, the court did not need to rule on the

technique’s reliability for proving where a person was at a

given time. The court noted, however, that claims of success-

ful use by law enforcement personnel were “precisely the

sort of ‘ipse dixit of the expert’ testimony that should raise a

gatekeeper’s suspicion,” were it “not subject to independent

peer review,” and “fail[ed] to establish an error rate with

which to assess reliability because there was no information

on how many times the technique was employed unsuccess-

fully.” Id. at 616 (quoting Kumho Tire, 526 U.S. at 157). The

Fifth Circuit, in contrast, has affirmed the admission of his-

torical cell-site analysis under Rule 702 to prove an individ-

ual’s location. See United States v. Schaffer, 439 F. App’x 344,

347 (5th Cir. 2011) (nonprecedential). But the Sixth Circuit

singled out Schaffer for criticism in Reynolds. 626 F. App’x at

616–17. And even the Fifth Circuit only remarked that

“[t]estimony established that the field is neither untested nor

14 No. 14-2019

unestablished.” 439 F. App’x at 347. This is hardly a ringing

endorsement.

The contested cell-site analysis in Hill’s case covers two

days. The first is November 14, 2011. Agent Raschke testified

that Hill’s cell phone records and the locations of relevant

cell towers indicated that on that day, Hill’s T-Mobile cell

phone used a tower that was roughly a mile and half from

the Credit Union that was later robbed. Agent Raschke also

used historical cell-site analysis to trace the whereabouts of

Hill’s phone on November 19, 2011, the day of the robbery.

Most significantly, Agent Raschke testified that at 11:54 am—

16 minutes after the robber fled the Credit Union—Hill’s

Nextel phone engaged a tower in Naperville, Illinois, that

was located approximately 11 miles east of the Credit Union

and 35 miles south of Hill’s residence. Agent Raschke then

traced connections between Hill’s cell phone and towers

moving north along the interstate. The clear implication of

the testimony was that Hill’s cell phone was in the general

area of the Credit Union shortly after the robbery, and then

moved rapidly northward along the highway immediately

afterward. It wound up near his residence at 12:28 pm before

moving north again at 1:08 pm and ending at his work ad-

dress at 1:33 pm.

The government used Agent Raschke’s historical cell-site

analysis against Hill for two purposes at closing. The first

was to argue that Hill’s alibi statement to Agent Hoogland—

that he was at work at 12:30 pm on November 19, 2011, and

therefore could not have been at the Credit Union at 11:38

am—was a lie. As this involved proving where Hill was not,

rather than where he was, this use is uncontroversial. See,

e.g., Reynolds, 626 F. App’x at 617. But, more problematically,

No. 14-2019 15

the government used Agent Raschke’s testimony to argue

that Hill was in the general vicinity of the Credit Union 16

minutes after it was robbed on that day, and that he then

drove rapidly north back to his house, before continuing on

to work 40 minutes later.

In his trial testimony, Agent Raschke emphasized that

Hill’s cell phone’s use of a cell site did not mean that Hill was

right at that tower or at any particular spot near that tower.

This disclaimer saves his testimony. Historical cell-site anal-

ysis can show with sufficient reliability that a phone was in a

general area, especially in a well-populated one. It shows the

cell sites with which the person’s cell phone connected, and

the science is well understood. Evans, 892 F. Supp. 2d at 956

(noting that methods of “historical cell site analysis can be

and have been tested by scientists”). The technique requires

specialized training, which Agent Raschke has and has em-

ployed successfully on hundreds of occasions. A mathemati-

cal error rate has not been calculated, but the technique has

been subjected to publication and peer criticism, if not peer

review. See, e.g., Matthew Tart et al., Historical Cell Site Analy-

sis – Overview of Principles and Survey Methodologies, 8 DIGITAL

INVESTIGATION 185–86 (2012); Blank, 18 RICH. J.L. & TECH. at

3–5; Herbert B. Dixon Jr., Scientific Fact or Junk Science? Track-

ing A Cell Phone Without GPS, 53 JUDGES’ J. 37 (2014). The ad-

vantages, drawbacks, confounds, and limitations of histori-

cal cell-site analysis are well known by experts in the law en-

forcement and academic communities. Agent Raschke de-

scribed many of them at trial.

Nonetheless, we have some concerns about Agent

Raschke’s testimony. On cross-examination, he admitted that

he did not know any of the particular characteristics of the

16 No. 14-2019

cell tower with which Hill’s phone connected at 11:54 am,

including its power or the direction its antennae were facing.

He did not perform any tests of that cell tower’s area of sig-

nal coverage. Based on his experience, he disputed defense

counsel’s suggestion that a cell phone could connect from 20

or 10 miles away from a particular cell site, but he admitted

that it could travel “over 5 miles.” On re-direct he stated that

his experience was that the range of Chicago area towers

was “very limited,” and that he had never, in hundreds of

investigations in Chicago, seen a cell phone “jump” to con-

nect with a cell tower 20 miles away. Based on this testimony,

the jury could reasonably and reliably infer that at 11:54 am

on November 19, 2011, Hill was within a five-mile radius of

the cell tower located 11 miles east of the Credit Union. The

testimony is relevant and probative, and therefore somewhat

helpful to the trier of fact—even if not that helpful.

Our concern is that the jury may overestimate the quality

of the information provided by this analysis. We therefore

caution the government not to present historical cell-site ev-

idence without clearly indicating the level of precision—or

imprecision—with which that particular evidence pinpoints

a person’s location at a given time. The admission of histori-

cal cell-site evidence that overpromises on the technique’s

precision—or fails to account adequately for its potential

flaws—may well be an abuse of discretion. In this case, how-

ever, Agent Raschke’s testimony on both direct and cross-

examination made the jury aware not only of the technique’s

potential pitfalls, but also of the relative imprecision of the

information he gleaned from employing it in this case. The

science and methods upon which the technique is based are

understood and well documented. Admitting Agent

Raschke’s testimony was therefore not an abuse of the dis-

No. 14-2019 17

trict court’s considerable discretion under either Rule 702 or

Rule 403.

III

Because the district court did not err in denying any of

Hill’s four motions, we AFFIRM its judgment.