Opposition Brief — Damian Patrick, Petitioner v. United States

No. 17-6256

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

DAMIAN PATRICK, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN P. CRONAN

Acting Assistant Attorney General

FRANCESCO VALENTINI

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether petitioner’s Fourth Amendment rights were violated by

law

enforcement’s

acquisition of real-time

precision

location

information for petitioner’s cell phone, obtained pursuant to a

state-court order, where the information traced him to a vehicle

parked in an apartment building parking lot.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 17-6256

DAMIAN PATRICK, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-A8) is

reported at 842 F.3d 540.

The order of the district court is

unreported but is available at 2015 WL 106158.

JURISDICTION

The judgment of the court of appeals was entered on November

23, 2016.

A petition for rehearing was denied on May 9, 2017 (Pet.

App. C1).

On July 27, 2017, Justice Kagan extended the time within

which to file a petition for a writ of certiorari to and including

October 6, 2017.

The petition was filed on October 2, 2017.

jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

The

2

STATEMENT

Following a conditional guilty plea in the United States

District Court for the Eastern District of Wisconsin, petitioner

was convicted of unlawful possession of a firearm by a felon, in

violation of 18 U.S.C. 922(g)(1).

Judgment 1.

The district court

sentenced petitioner to 57 months of imprisonment, to be followed

by three years of supervised release.

appeals affirmed.

1.

Id. at 2-3.

The court of

Pet. App. A1-A8.

In October 2013, petitioner was wanted pursuant to a

valid arrest warrant for violating the terms of his probation

following a drug conviction. Pet. App. A1; D. Ct. Doc. 17-1, ¶¶ 47 (Jan. 30, 2014); D. Ct. Doc. 17-2.

To locate petitioner, the

Milwaukee district attorney’s office applied for a court order

authorizing law enforcement officers to obtain real-time precision

location and other information for a cell phone used by petitioner.

D. Ct. Doc. 42-1 (July 15, 2014).

A supporting affidavit stated

that, on July 27, 2013, “the Wisconsin Department of Corrections

entered a valid felony warrant” for petitioner and that the warrant

remained valid.

Id. at 8.

The affidavit also set forth facts

connecting petitioner to the target cell phone.

Id. at 6, 8.

The

state court found probable cause and issued the search order.

Id.

at 1-5.

As relevant here, the order “[a]pprove[d] the release of

information” about the target cell phone, including specified cell

phone identifiers and “global positioning system (GPS) location

3

information or other precision locating information.”

3.

Id. at 2-

It also “authorize[d] the identification of the physical

location of the target cellular telephone.”

Id. at 3.

The order

directed the cell phone’s service provider to “initiate a signal

to determine the location of the subject’s mobile device on the

service provider’s network or with such other reference points as

may be reasonabl[y] available and at such intervals and times as

directed

by

the

law

enforcement

agent[s]”;

to

assist

with

“precision location based information queries”; and to “lend all

reasonable assistance to permit [law enforcement agencies]

to triangulate target location.”

The

following

day,

* * *

Ibid.

Milwaukee police

officers apprehended

petitioner.

Gov’t C.A. Br. 6; Mot. to Suppress Hr’g Tr. (Tr.) 10-

11, 28-29.

Working with agents from the FBI, the officers used

location data provided by the cell service provider and a handheld

cell-site simulator to locate petitioner.

n.4; Tr. 13, 30, 34-36.1

Gov’t C.A. Br. 6, 18

Based on that information, the officers

Cell-site simulators are devices that transmit signals

to cell phones within the simulator’s coverage area as if they

were a cell tower.

See generally Department of Justice Policy

Guidance:

Use of Cell-Site Simulator Technology,

2 (Sept. 3,

2015),

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

In

response, cellular devices transmit signals that identify the

device in the same way as they would with a networked cell-phone

tower. Ibid. Upon identifying the target device, the simulator

obtains signaling information for the device (i.e., the relative

signal strength and general direction), which can be used to

triangulate the position of the device. Ibid.

1

4

located petitioner in the front passenger seat of a vehicle parked

in an apartment building parking lot.

Br. 6; Tr. 13-15, 31.

A firearm was in plain view on the floor of

the front passenger side.

18, 32.

2.

returned

Pet. App. A2; Gov’t C.A.

Pet. App. A2; Gov’t C.A. Br. 6-7; Tr.

Petitioner was arrested.

Gov’t C.A. Br. 6.

A federal grand jury in the Eastern District of Wisconsin

an

indictment

charging

petitioner

with

unlawful

possession of a firearm by a felon, in violation of 18 U.S.C.

922(g)(1). Indictment 1. Petitioner moved to suppress the firearm

on the ground that the state-court order authorizing acquisition

of his cell-phone location data did not “amount to a warrant under

the Fourth Amendment.”

37.

D. Ct. Doc. 44, at 13 (Aug. 1, 2014); Tr.

The government assumed, for purposes of this case, that the

acquisition

of

real-time

precision

location

information

for

petitioner’s cell phone constituted a search under the Fourth

Amendment. The government argued that the state-court search order

was based on a valid finding of probable cause and satisfied any

applicable warrant requirement.

D. Ct. Doc. 45, at 5 (Aug. 14,

2014).

A magistrate judge recommended that petitioner’s motion be

denied.

D. Ct. Doc. 47 (Sept. 30, 2014).

The magistrate judge

concluded that the state-court order constituted a valid search

warrant.

Id. at 11-13.

The district court adopted the magistrate

5

judge’s recommendation and denied petitioner’s motion.

D. Ct.

Doc. 54 (Jan. 7, 2015).

Petitioner entered a conditional guilty plea, reserving his

right to appeal the district court’s denial of his suppression

motion.

Plea Agreement 1, 7.

The district court sentenced

petitioner to 57 months of imprisonment, to be followed by three

years of supervised release.

Judgment 2-3.

3.

The court of appeals affirmed.

Pet. App. A1-A8.

a.

The court of appeals noted that it “need not tackle” the

question whether the officers’ acquisition of information on the

location of petitioner’s cell phone was a Fourth Amendment search

because the government had conceded for the purposes of this case

that a search had occurred.

16; Gov’t C.A. Br. 10.

Pet. App. A3; see Pet. C.A. Br. 15-

The court rejected petitioner’s argument

that the state-court order was invalid because petitioner himself

“was not contraband or the proceeds of a crime.”

see Pet. C.A. Br. 17-18.

Pet. App. A2;

The court reasoned that the state-court

order was a valid search warrant under this Court’s decision in

Warden v. Hayden, 387 U.S. 294 (1967), which “authorized the use

of warrants to get evidence to locate a wanted person.”

Pet. App.

A2.

The court of appeals further concluded that a search warrant

was not required in any event because “[a] warrant is necessary

only when the police need to enter a private area to capture [a]

6

wanted person” and petitioner, who was subject to a valid arrest

warrant and “visible to the general public” at the time of his

arrest, “did not have any privacy interest in his location.”

Pet.

App. A2 (citing United States v. Watson, 423 U.S. 411 (1976), and

Payton v. New York, 445 U.S. 573 (1980)).

The court found further

support for its conclusion in Utah v. Strieff, 136 S. Ct. 2056

(2016), which “held that a valid arrest warrant precludes the

suppression of evidence seized in an arrest, even if the arrest

was set in motion by officers who had neither probable cause nor

knowledge of the warrant.”

Pet. App. A2.

Because the court of appeals concluded that a warrant was not

required, the court found it unnecessary to determine whether it

was significant that the state court that issued the order may not

have known that police would use a cell-site simulator to locate

petitioner’s cell phone -- a “fact that came to light while this

case was in th[e] [court of appeals].”

Pet. App. A2. 2

The court

In the district court, as the magistrate judge

explained, petitioner’s suppression motion challenged the validity

of the cell phone location warrant, not its manner of execution.

See D. Ct. Doc. 47 at 13 n.5 (“[Petitioner] does not specifically

attack the reasonableness of the order’s execution.”).

In the

court of appeals, however, an amicus brief challenged the warrant’s

manner of execution, stating that the government “may have used”

a cell-site simulator to locate petitioner’s phone. Elec. Frontier

Found. et al. Amicus Br. 18, 21. The government then disclosed to

defense counsel that a cell-site simulator had, in fact, been used.

In his reply brief, petitioner contended that the case should be

remanded for “additional briefing on the government’s use of [a

cell-site simulator].” Pet. C.A. Reply Br. 12.

2

7

reserved judgment on the questions “whether use of a simulator is

a search, if so whether a warrant authorizing this method is

essential, and whether in a particular situation a simulator is a

reasonable means of executing a warrant.”

Ibid.

The court noted

that those questions “have yet to be addressed by any United States

court of appeals.”

b.

Ibid.

Chief Judge Wood dissented.

Pet. App. A4-A8.

In her

view, the record was insufficient to determine (i) whether the use

of a cell-site simulator “was sufficiently outside the scope of

the

warrant

to

merit

blanket

suppression”

and

(ii)

whether,

assuming the cell-site simulator “gathered information from the

phone that went beyond [petitioner’s] location,” the arrest “was

based in whole or in part on information gathered in violation of

Title III of the Omnibus Crime Control and Safe Streets Act of

1968.”

Id. at A4-A5.

Chief Judge Wood would have remanded the

case for further fact-finding.

She

Strieff.

was

also

unpersuaded

Pet. App. A7.

Id. at A8.

by

the

majority’s

reliance

on

She explained that in Strieff, there was

a “break in the causal chain” when police discovered that a person

they had stopped without reasonable suspicion was subject to an

arrest warrant, which diminished any Fourth Amendment concerns

about the admissibility of drugs found during a subsequent search

incident to arrest.

Ibid.

In this case, on the other hand, the

officers’ awareness of petitioner’s arrest warrant could not have

8

been a break in the causal chain because it preceded both the

acquisition

of

the

cell-phone

location

information

discovery of the firearm during petitioner’s arrest.

and

the

Ibid.

ARGUMENT

Petitioner contends (Pet. 13-16) that this Court should grant

certiorari to decide whether the government’s acquisition of realtime precision location information for a cell phone constitutes

a Fourth Amendment search. That question is not properly presented

in this case.

The court of appeals assumed that the government’s

acquisition of that information constituted a Fourth Amendment

search.

It affirmed petitioner’s conviction and sentence on the

grounds that a search warrant could be issued to obtain information

on the location of a fugitive subject to a valid arrest warrant,

and that a search warrant was not required to acquire information

about the location of a cell phone that belongs to a fugitive

subject to a valid arrest warrant. Petitioner does not seek review

of those holdings of the court of appeals, and he therefore cannot

benefit from a determination by this Court that the acquisition of

real-time precision location data for a cell phone constitutes a

search.

The Court could, however, elect to hold the petition

pending its decision in Carpenter v. United States, No. 16-402

(argued

Nov.

29,

2017),

which

involves

a

challenge

to

the

9

acquisition without a warrant of 127 days of historical cell-site

location data from a cellular-service provider. 3

1.

The government has previously addressed petitioner’s

argument that the government’s acquisition of real-time location

information for a cell phone constitutes a Fourth Amendment search

in its brief in opposition to the pending petition for a writ of

certiorari in Rios v. United States, No. 16-7314 (filed Dec. 21,

2016).

See U.S. Br. in Opp. at 11-18, Rios, supra (No. 16-7314).

For the reasons explained in that brief, a copy of which is being

served

on

petitioner,

review

of

petitioner’s

claim

is

not

warranted.

2.

Furthermore, even if the question identified in the

petition warranted this Court’s review, this case would be an

unsuitable vehicle in which to address it.

The court of appeals

assumed that the acquisition of real-time precision location data

for petitioner’s cell phone was a Fourth Amendment search, and it

held not only that a search warrant could be (and was) obtained to

locate

a

fugitive,

but

also

that

a

search

warrant

for

that

information was not required because petitioner was a fugitive

subject to a valid arrest warrant.

Pet. App. A2-A3.

Although

petitioner asserts (Pet. 12) that, in reaching that conclusion,

The question presented in this case is similar to the

question presented in the petition for a writ of certiorari in

Rios, supra (No. 16-7314), which the Court appears to be holding

for Carpenter. See also Riley v. United States, No. 17-5943 (filed

Sept. 2, 2017).

3

10

the court of appeals “misappli[ed]” this Court’s decision in Utah

v. Strieff, 136 S. Ct. 2056 (2016), he does not ask this Court to

review those questions or explain why this Court’s review would be

warranted.

See Pet. 2 (question presented); Pet. 13-16 (reasons

for granting the writ).

Accordingly, petitioner cannot benefit

from a determination by this Court that the acquisition of realtime precision location information for his cell phone constitutes

a Fourth Amendment search.

Petitioner also does not seek review of the issue relating to

the officers’ execution of the state-court order that was disputed

in the court of appeals, i.e., the significance of the fact that

the “police did not reveal to the state judge

* * *

that they

planned to use a cell-site simulator” and “implied that they

planned to track [petitioner] down using his phone company’s data.”

Pet. App. A2-A3; see Pet. 13-16.

Review of any issue related to

the officers’ execution of the state-court search order would also

be unwarranted.

The panel majority did not decide whether the

officers’ execution of the search order was unreasonable, Pet.

App. A2-A4, and Chief Judge Wood found the suppression record

inadequate to resolve the question.

Id. at A4-A5, A8 (Wood, J.,

dissenting).4 As the court of appeals observed, moreover, no court

Because petitioner did not challenge the manner of the

warrant’s execution in the district court, see p. 6 n.2, supra,

the suppression record did not reveal the precise manner in which

law enforcement officers located petitioner’s phone. See U.S. Br.

in Opp. at 12 n.1, Rios, supra (No. 16-7314) (describing

4

11

of

appeals

has

addressed

the

government’s

simulators in a precedential decision.

use

of

Id. at A4.

cell-site

This Court’s

intervention would therefore be premature.

3.

requests

In

the

alternative

to

plenary

that the

Court

hold

(Pet. 13)

review,

his

petitioner

petition

pending

disposition of Carpenter, supra, No. 16-402 (argued Nov. 29, 2017),

which involves the question whether the government’s acquisition

of historical cell-site records from a cellular service provider,

created and maintained for the cell provider’s business purposes,

violates the Fourth Amendment rights of the individual customer to

whom the records pertain.

(No.

16-402).

U.S. Br. at 14-41, Carpenter, supra

The government’s brief

in

opposition

in

Rios

explains why the government’s acquisition of real-time precision

location information for a cell phone can be distinguished from

the government’s acquisition of historical cell-site records from

a cellular-service provider.

supra (No. 16-7314).

See U.S. Br. in Opp. at 18-20, Rios,

For the reasons explained in that brief, it

is unlikely that this Court’s decision in Carpenter will affect

the

proper

disposition

of

this

petition,

particularly

given

petitioner’s failure to challenge the court of appeals’ holdings

that a valid search warrant could be obtained to locate a fugitive

and that the existence of a valid arrest warrant eliminated the

technologies used by cellular-service providers to obtain realtime precision location information); see p. 3 n.1, supra

(describing cell-site simulators).

12

need for a search warrant.

Nevertheless, if the Court believes

that its forthcoming decision in Carpenter may bear on the proper

analysis in this case, it may wish to hold this petition pending

its decision in Carpenter and then dispose of the petition as

appropriate in light of its decision in that case.

CONCLUSION

The petition for a writ of certiorari should be denied.

In

the alternative, it should be held for Carpenter v. United States,

No. 16-402 (argued Nov. 29, 2017), and disposed of as appropriate

in light of this Court’s decision in that case.

Respectfully submitted.

NOEL J. FRANCISCO

Acting Solicitor General

JOHN P. CRONAN

Acting Assistant Attorney General

FRANCESCO VALENTINI

Attorney

FEBRUARY 2018