Petition for Writ of Certiorari — Juan Manuel Sanchez-Jara, Petitioner v. United States

APPENDIX A

Case: 17-2593 Document: 45 Filed: 05/03/2018 Pages: 6

In the

United States Court of Appeals

For the Seventh Circuit

No. 17-2593

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

JUAN MANUEL SANCHEZ-JARA,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15 CR 457 — Jorge L. Alonso, Judge.

ARGUED APRIL 6, 2018 — DECIDED May 3, 2018

Before EASTERBROOK, RIPPLE, and HAMILTON, Circuit

Judges.

EASTERBROOK, Circuit Judge. Like United States v. Patrick,

842 F.3d 540 (7th Cir. 2016), this appeal concerns the use of a

cell-site simulator to locate someone. And like Patrick it does

not require us to determine when, if ever, the use of this device must be authorized by a warrant supported by probable

cause, for in this case such a warrant was obtained.

Case: 17-2593 Document: 45 Filed: 05/03/2018 Pages: 6

2 No. 17-2593

The warrant, issued by a federal district judge in July

2015, authorizes federal agents to use pen registers, trapand-trace devices, historical cell-call records, and “electronic

investigative techniques ... to capture and analyze signals

emitted by the Subject Phones, including in response to signals sent by law enforcement officers” (boldface in original)

to find two cell phones and understand the nature of their

owners’ apparently criminal activity. The warrant’s reference to “electronic investigative techniques” is a description

of a cell-site simulator, a device that pretends to be a cell

tower and harvests identifying information, including location data, about every phone that responds to its signals. The

Department of Justice contends that it discards information

about all phones other than those it has been programmed to

look for and does not obtain the contents of any call. Here is

the Department's description:

Cell-site simulators ... function by transmitting as a cell tower. In

response to the signals emitted by the simulator, cellular devices

in the proximity of the device identify the simulator as the most

attractive cell tower in the area and thus transmit signals to the

simulator that identify the device in the same way that they

would with a networked tower.

A cell-site simulator receives and uses an industry standard

unique identifying number assigned by a device manufacturer

or cellular network provider. When used to locate a known cellular device, a cell-site simulator initially receives the unique

identifying number from multiple devices in the vicinity of the

simulator. Once the cell-site simulator identifies the specific cellular device for which it is looking, it will obtain the signaling information relating only to that particular phone. When used to

identify an unknown device, the cell-site simulator obtains signaling information from non-target devices in the target's vicinity for the limited purpose of distinguishing the target device.

Case: 17-2593 Document: 45 Filed: 05/03/2018 Pages: 6

No. 17-2593 3

By transmitting as a cell tower, cell-site simulators acquire the

identifying information from cellular devices. This identifying

information is limited, however. Cell-site simulators provide on-

ly the relative signal strength and general direction of a subject

cellular telephone; they do not function as a GPS locator, as they

do not obtain or download any location information from the

device or its applications. Moreover, cell-site simulators used by

the Department must be configured as pen registers, and may

not be used to collect the contents of any communication, in accordance with 18 U.S.C. §3127(3). This includes any data contained on the phone itself: the simulator does not remotely capture emails, texts, contact lists, images or any other data from the

phone. In addition, Department cell-site simulators do not provide subscriber account information (for example, an account

holder’s name, address, or telephone number).

Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology (Sept. 3, 2015) at 2. See also the Wikipedia

entry at <en.wikipedia.org/wiki/IMSI-catcher>.

Whether the simulator works this way is potentially important, because the warrant did not authorize the investigators to obtain the contents of any calls, to plumb any phone's

address book or instant messages, or otherwise to get anything except location and certain metadata, the sorts of

things available from pen registers and trap-and-trace devices. To get the contents of calls and messages, the agents

would have needed a warrant under the wiretap statutes. 18

U.S.C. §§ 2510-22. The agents did not obtain a warrant of

that kind or satisfy the conditions, such as the attempted use

of other investigatory means and the minimization of intrusion, that are essential to wiretap warrants.

The warrant issued in 2015 was based not on the wiretap

statutes but on 18 U.S.C. §2703(d) and Fed. R. Crim. P. 41.

Subsection (d) provides that “reasonable grounds to believe

A.3

Case: 17-2593 Document: 45 Filed: 05/03/2018 Pages: 6

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that the contents of a wire or electronic communication, or

the records or other information sought, are relevant and

material to an ongoing criminal investigation” permit a

judge to issue a warrant for the production of information

described in subsection (c), which includes cell-phone information such as numbers called, but not the content of

conversations. (Subsections (a) and (b), which deal with

stored communications such as email, are not at issue here.)

Sanchez-Jara contends that “reasonable grounds” differs

from “probable cause” and that a warrant issued under

§2703(d) therefore does not comply with the Fourth

Amendment, which provides that “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.”

To this the United States replies that “reasonable

grounds” is just an alternative way to describe probable

cause, which under Illinois v. Gates, 462 U.S. 213 (1983),

means enough to lead a prudent person to think that the

search may well reveal evidence of crime. The prosecution

also contends that, if there is a difference, something less

than probable cause suffices to obtain the sort of information

covered by §2703(c), much of which may be available with-

out either probable cause or a warrant. (What kinds of cellphone data require warrants is an issue in Carpenter v. United

States, No. 16-402, which has been under advisement in the

Supreme Court since November 29, 2017.)

None of this matters, however, because the warrant not

only recites the language of §2703(d) but also states that the

searches are justified by probable cause. The warrant declares that this finding applies to both §2703 and Rule 41, the

Case: 17-2593 Document: 45 Filed: 05/03/2018 Pages: 6

No. 17-2593 5

standard source of authority for criminal search and arrest

warrants. Given the district judge’s finding of probable

cause—a finding that carries a strong presumption of correctness, see United States v. McIntire, 516 F.3d 576 (7th Cir.

2008)—this warrant suffices to support use of a cell-site simulator that does not gather information that would require a

wiretap warrant. And because this warrant was supported

by probable cause, the discoveries do not taint the later consents that enabled the agents to find 99 kilograms of cocaine

and three guns.

Nothing in the record of this case suggests that the agents

acquired information that would have required a wiretap

warrant. Certainly the United States did not propose to use

any information about the content of Sanchez-Jara’s calls or

personal data scraped from his cell phone. After the district

court denied Sanchez-Jara’s motion to suppress the location

and traffic data, he entered a conditional guilty plea to drug

and firearms charges and reserved the right to argue that the

search was not supported by a valid warrant. We do not

read either his conditional plea or his appellate brief as attempting to present a contention that the agents obtained or

used information that would have required a wiretap war-

rant.

At oral argument counsel for Sanchez-Jara maintained

that the warrant authorized a general search. Counsel seems

to have meant two things by this: first that agents sought not

contraband but evidence of crime, and second that the

agents could follow the phones wherever they went. Neither

of these is constitutionally problematic. The first theme

harks back to the days before Warden v. Hayden, 387 U.S. 294

(1967), disapproved the “mere evidence” doctrine. Hayden

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holds that searches for “mere evidence” do not violate the

Fourth Amendment. The second theme misunderstands

what makes a general warrant invalid. The Constitution demands that a warrant “particularly describ[e] the place to be

searched, and the persons or things to be seized.” Thus authorization to search a whole home for evidence of any

crime flunks the particularity requirement. See Andresen v.

Maryland, 427 U.S. 463, 480-82 (1976). But a warrant authorizing police to follow an identified phone, to see where it

goes and what numbers it calls, particularly describes the

evidence to be acquired. It is no different in principle from a

warrant authorizing a GPS device that enables police to

track the location of a moving car, and none of the Justices in

United States v. Jones, 565 U.S. 400 (2012), saw any problem

with such a warrant. The 2015 warrant is not an open-ended

authorization for public officials to rummage where they

please in order to see what turns up.

AFFIRMED

A.6

APPENDIX B

Case: 17-2593 Document: 50 Filed: 06/01/2018 Pages: 1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

June 1, 2018

Before

FRANK H. EASTERBROOK, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 17-2593 Appeal from the United

States District Court for

UNITED STATES OF AMERICA, the Northern District of

P laintiff Ap pellee, Illinois, Eastern Division.

0. No. 15 CR 457

JUAN MANUEL SANCHEZ-JARA, Jorge L. Alonso, Judge.

Defendant-Appellant.

Order

Defendant-appellant filed a petition for rehearing on May 11, 2018. All of the

judges on the panel have voted to deny rehearing. The petition for rehearing is

therefore DENIED.

Case: 17-2593 Document: 51 Filed: 06/11/2018 Pages: 2

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Office of the Clerk

Phone: (312) 435-5850

www.ca7.uscourts. gov

Everett McKinley Dirksen United States Courthouse

Room 2722 - 219 S. Dearborn Street

Chicago, Illinois 60604

NOTICE OF ISSUANCE OF MANDATE

June 11, 2018

To: Thomas G. Bruton

UNITED STATES DISTRICT COURT

Northern District of Illinois

Chicago , IL 60604-0000

UNITED STATES OF AMERICA,

Plaintiff - Appellee

No. 17-2593 v.

JUAN MANUEL SANCHEZ-JARA,

Defendant - Appellant

District Court No: 1:15-cr-00457-1

Northern District of Illinois, Eastern Division

District Judge Jorge L. Alonso

Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A

certified copy of the opinion/order of the court and judgment, if any, and any direction as to

costs shall constitute the mandate.

RECORD ON APPEAL STATUS: No record to be returned

NOTE TO COUNSEL:

If any physical and large documentary exhibits have been filed in the above-entitled cause, they are

Case: 17-2593 Document: 51 Filed: 06/11/2018 Pages: 2

to be withdrawn ten (10) days from the date of this notice. Exhibits not withdrawn during this period

will be disposed of.

Please acknowledge receipt of these documents on the enclosed copy of this notice.

Received above mandate and record, if any, from the Clerk, U.S. Court of Appeals for the

Seventh Circuit.

Date: Received by:

form name: c7_Mandate(form ID: 135)

APPENDIX C

Page 589

2984; Pub. L. 107-56, title II, §212(a)(1), Oct. 26,

2001, 115 Stat. 284; Pub. L. 107-296, title II,

§225(d)(1), Nov. 25, 2002, 116 Stat. 2157; Pub. L.

108-21, title V, §508(b), Apr. 30, 2003, 117 Stat. 684;

Pub. L. 109-177, title I, §107(a), (b)(1), (c), Mar. 9,

2006, 120 Stat. 202, 203; Pub. L. 110-401, title V,

§501(b)(2), Oct. 18, 2008, 122 Stat. 4251.)

AMENDMENTS

2008—Subsecs. (b)(6), (c)(5). Pub. L. 110-401 substituted

“section 2258A”’ for ‘section 227 of the Victims of Child

Abuse Act of 1990 (42 U.S.C. 13032)’’.

2006—Subsec. (a). Pub. L. 109-177, §107(c), inserted ‘‘or

(c)” after ‘Except as provided in subsection (b)”’.

Subsec. (b)(8). Pub. L. 109-177, §107(b)(1)(A), struck

out “Federal, State, or local’? before ‘governmental

entity”’.

Subsec. (c)(4). Pub. L. 109-177, §107(b)(1)(B), added par.

(4) and struck out former par. (4) which read as follows:

“to a governmental entity, if the provider reasonably

believes that an emergency involving immediate danger of death or serious physical injury to any person

justifies disclosure of the information;”’.

Subsec. (d). Pub. L. 109-177, §107(a), added subsec. (d).

2003—Subsec. (b)(5). Pub. L. 108-21, §508(b)(1)(C),

which directed amendment of par. (5) by striking ‘‘or”’

at the end, could not be executed because ‘“‘or’’ did not

appear at the end. See 2002 Amendment note below.

Subsec. (b)(6). Pub. L. 108-21, §508(b)(1)(D), added par.

(6). Former par. (6) redesignated (7).

Subsec. (b)(6)(B). Pub. L. 108-21, §508(b)(1)(A), struck

out subpar. (B) which read as follows: “if required by

section 227 of the Crime Control Act of 1990; or’’.

Subsec. (b)(7), (8). Pub. L. 108-21, §508(b)(1)(B), redesignated pars. (6) and (7) as (7) and (8), respectively.

Subsec. (c)(5), (6). Pub. L. 108-21, §508(b)(2), added par.

(5) and redesignated former par. (5) as (6).

2002—Subsec. (b)(5). Pub. L. 107-296, §225(d)(1)(A),

struck out ‘‘or’’ at end.

Subsec. (b)(6)(A). Pub. L. 107-296, §225(d)(1)(B), inserted ‘‘or’’ at end.

Subsec. (b)(6)(C). Pub. L. 107-296, §225(d)(1)(C), struck

out subpar. (C) which read as follows: ‘“‘if the provider

reasonably believes that an emergency involving immediate danger of death or serious physical injury to any

person requires disclosure of the information without

delay.”

Subsec. (b)(7). Pub. L. 107-296, § 225(d)(1)(D), added par.

(7).

2001—Pub. L. 107-56, §212(a)(1)(A), substituted ‘‘Voluntary disclosure of customer communications or

records” for “Disclosure of contents” in section catchline.

Subsec. (a)(3). Pub. L. 107-56, §212(a)(1)(B), added par.

(3).

Subsec. (b). Pub. L. 107-56, §212(a)(1)(C), substituted

“Exceptions for disclosure of communications” for

“Exceptions” in heading and ‘‘A provider described in

subsection (a)” for “‘A person or entity’ in introductory provisions.

Subsec. (b)(6)(C). Pub. L. 107-56, §212(a)(1)(D), added

subpar. (C).

Subsec. (c). Pub. L. 107-56, §212(a)(1)(E), added subsec.

(c).

1998—Subsec. (b)(6). Pub. L. 105-314 amended par. (6)

generally. Prior to amendment, par. (6) read as follows:

“to a law enforcement agency, if such contents—

“(A) were inadvertently obtained by the service

provider; and

“(B) appear to pertain to the commission of a

crime.”

1988—Subsec. (b)(2). Pub. L. 100-690 substituted ‘'2517”

for ‘‘2516”’.

EFFECTIVE DATE OF 2002 AMENDMENT

Amendment by Pub. L. 107-296 effective 60 days after

Nov. 25, 2002, see section 4 of Pub. L. 107-296, set out as

an Effective Date note under section 101 of Title 6, Domestic Security.

TITLE 18—CRIMES AND CRIMINAL PROCEDURE

§ 2703

§2703. Required disclosure of customer communications or records

(a) CONTENTS OF WIRE OR ELECTRONIC COMMU-

NICATIONS IN ELECTRONIC STORAGE.—A governmental entity may require the disclosure by a

provider of electronic communication service of

the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred

and eighty days or less, only pursuant to a warrant issued using the procedures described in the

Federal Rules of Criminal Procedure (or, in the

case of a State court, issued using State warrant

procedures) by a court of competent jurisdiction. A governmental entity may require the

disclosure by a provider of electronic communications services of the contents of a wire or

electronic communication that has been in electronic storage in an electronic communications

system for more than one hundred and eighty

days by the means available under subsection

(b) of this section.

(b) CONTENTS OF WIRE OR ELECTRONIC COMMU-

NICATIONS IN A REMOTE COMPUTING SERVICE.—(1)

A governmental entity may require a provider

of remote computing service to disclose the contents of any wire or electronic communication

to which this paragraph is made applicable by

paragraph (2) of this subsection—

(A) without required notice to the subscriber

or customer, if the governmental entity obtains a warrant issued using the procedures

described in the Federal Rules of Criminal

Procedure (or, in the case of a State court, issued using State warrant procedures) by a

court of competent jurisdiction; or

(B) with prior notice from the governmental

entity to the subscriber or customer if the

governmental entity—

(i) uses an administrative subpoena authorized by a Federal or State statute or a

Federal or State grand jury or trial subpoena; or

(ii) obtains a court order for such disclosure under subsection (d) of this section;

except that delayed notice may be given pursuant to section 2705 of this title.

(2) Paragraph (1) is applicable with respect to

any wire or electronic communication that is

held or maintained on that service—

(A) on behalf of, and received by means of

electronic transmission from (or created by

means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of

such remote computing service; and

(B) solely for the purpose of providing storage or computer processing services to such

subscriber or customer, if the provider is not

authorized to access the contents of any such

communications for purposes of providing any

services other than storage or computer proc-

essing.

(c) RECORDS CONCERNING ELECTRONIC COMMU-

NICATION SERVICE OR REMOTE COMPUTING SERV-

Ick.—(1) A governmental entity may require a

provider of electronic communication service or

remote computing service to disclose a record or

other information pertaining to a subscriber to

§ 2703

or customer of such service (not including the

contents of communications) only when the governmental entity—

(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court,

issued using State warrant procedures) by a

court of competent jurisdiction;

(B) obtains a court order for such disclosure

under subsection (d) of this section;

(C) has the consent of the subscriber or customer to such disclosure;

(D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or

customer of such provider, which subscriber or

customer is engaged in telemarketing (as such

term is defined in section 2325 of this title); or

(E) seeks information under paragraph (2).

(2) A provider of electronic communication

service or remote computing service shall disclose to a governmental entity the—

(A) name;

(B) address;

(C) local and long distance telephone connection records, or records of session times and

durations;

(D) length of service (including start date)

and types of service utilized;

(E) telephone or instrument number or other

subscriber number or identity, including any

temporarily assigned network address; and

(F) means and source of payment for such

service (including any credit card or bank account number),

of a subscriber to or customer of such service

when the governmental entity uses an administrative subpoena authorized by a Federal or

State statute or a Federal or State grand jury or

trial subpoena or any means available under

paragraph (1).

(3) A governmental entity receiving records or

information under this subsection is not required to provide notice to a subscriber or cus-

tomer.

(d) REQUIREMENTS FOR COURT ORDER.—A court

order for disclosure under subsection (b) or (c)

may be issued by any court that is a 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 contents of a

wire or electronic communication, or the

records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental

authority, such a court order shall not issue if

prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider,

may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order

otherwise would cause an undue burden on such

provider.

(e) No CAUSE OF ACTION AGAINST A PROVIDER

DISCLOSING INFORMATION UNDER THIS CHAPTER.—

No cause of action shall lie in any court against

any provider of wire or electronic communica-

TITLE 18—CRIMES AND CRIMINAL PROCEDURE

Page 590

tion service, its officers, employees, agents, or

other specified persons for providing information, facilities, or assistance in accordance with

the terms of a court order, warrant, subpoena,

statutory authorization, or certification under

this chapter.

(f) REQUIREMENT TO PRESERVE EVIDENCE.—

(1) IN GENERAL.—A provider of wire or electronic communication services or a remote

computing service, upon the request of a governmental entity, shall take all necessary

steps to preserve records and other evidence in

its possession pending the issuance of a court

order or other process.

(2) PERIOD OF RETENTION.—Records referred

to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an

additional 90-day period upon a renewed request by the governmental entity.

(g) PRESENCE OF OFFICER NOT REQUIRED.—Notwithstanding section 3105 of this title, the presence of an officer shall not be required for service or execution of a search warrant issued in

accordance with this chapter requiring disclosure by a provider of electronic communications

service or remote computing service of the contents of communications or records or other information pertaining to a subscriber to or customer of such service.

(Added Pub. L. 99-508, title II, §201{(a)], Oct. 21,

1986, 100 Stat. 1861; amended Pub. L. 100-690, title

VU, §§ 7038, 7039, Nov. 18, 1988, 102 Stat. 4399; Pub.

L. 103-322, title XX XIII, §330003(b), Sept. 18, 1994,

108 Stat. 2140; Pub. L. 103-414, title II, §207(a),

Oct. 25, 1994, 108 Stat. 4292; Pub. L. 104-132, title

VIII, §804, Apr. 24, 1996, 110 Stat. 1305; Pub. L.

104-293, title VI, §601(b), Oct. 11, 1996, 110 Stat.

3469; Pub. L. 104-294, title VI, §605(f), Oct. 11,

1996, 110 Stat. 3510; Pub. L. 105-184, §8, June 23,

1998, 112 Stat. 522; Pub. L. 107-56, title II,

§§ 209(2), 210, 212(b)(1), 220(a)(1), (b), Oct. 26, 2001,

115 Stat. 283, 285, 291, 292; Pub. L. 107-273, div. B,

title IV, §4005(a)(2), div. C, title I, §11010, Nov. 2,

2002, 116 Stat. 1812, 1822; Pub. L. 107-296, title I,

§225(h)(1), Nov. 25, 2002, 116 Stat. 2158; Pub. L.

109-162, title XI, §1171(a)(1), Jan. 5, 2006, 119 Stat.

3123; Pub. L. 111-79, §2(1), Oct. 19, 2009, 123 Stat.

2086.)

REFERENCES IN TEXT

The Federal Rules of Criminal Procedure, referred to

in subsecs. (a), (b)(1)(A), and (c)(1)(B)(i), are set out in

the Appendix to this title.

AMENDMENTS

2009—Subsecs. (a), (b)(1)(A), (c)(1)(A). Pub. L. 111-79,

which directed substitution of ‘(or, in the case of a

State court, issued using State warrant procedures) by

a court of competent jurisdiction’”’ for ‘‘by a court with

jurisdiction over the offense under investigation or an

equivalent State warrant’’, was executed by making

the substitution for ‘‘by a court with jurisdiction over

the offense under investigation or equivalent State

warrant” to reflect the probable intent of Congress.

2006—Subsec. (c)(1)(C). Pub. L. 109-162 struck out ‘‘or”’

at end.

2002—Subsec. (c)(1)(E). Pub. L. 107-278, §4005(a)(2), realigned margins.

Subsec. (e). Pub. L. 107-296 inserted ‘‘, statutory au-

thorization”’ after ‘‘subpoena’”’.

Subsec. (g). Pub. L. 107-273, §11010, added subsec. (g).

2001—Pub. L. 107-56, §212(b)(1)(A), substituted “‘Re-

quired disclosure of customer communications or

Page 591

records” for ‘‘Requirements for governmental access”’

in section catchline.

Subsec. (a). Pub. L. 107-56, §§209(2)(A), (B), 220(a)(1),

substituted ‘“‘Contents of Wire or Electronic” for ‘‘Contents of Electronic’ in heading and ‘‘contents of a wire

or electronic’”’ for ‘“‘contents of an electronic’’ in two

places and ‘‘using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation’ for

“under the Federal Rules of Criminal Procedure” in

text.

Subsec. (b). Pub. L. 107-56, §209(2)(A), substituted

“Contents of Wire or Electronic’”’ for ‘‘Contents of Elec-

tronic” in heading.

Subsec. (b)(1). Pub. L. 107-56, §§ 209(2)(C), 220(a)(1), sub-

stituted ‘“‘any wire or electronic communication”’ for

“any electronic communication” in introductory provisions and ‘‘using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation’’ for

“ander the Federal Rules of Criminal Procedure” in

subpar. (A).

Subsec. (b)(2). Pub. L. 107-56, §209(2)(C), substituted

“any wire or electronic communication”’ for ‘‘any electronic communication” in introductory provisions.

Subsec. (c)(1). Pub. L. 107-56, §§212(b)(1)(C), 220(a)(1),

designated subpar. (A) and introductory provisions of

subpar. (B) as par. (1), substituted ‘‘A governmental entity may require a provider of electronic communication service or remote computing service to’’ for ‘‘(A)

Except as provided in subparagraph (B), a provider of

electronic communication service or remote computing

service may’’ and a closing parenthesis for provisions

which began with ‘‘covered by subsection (a) or (b) of

this section) to any person other than a governmental

entity.’’ in former subpar. (A) and ended with ‘“(B) A

provider of electronic communication service or remote

computing service shall disclose a record or other information pertaining to a subscriber to or customer of

such service (not including the contents of communications covered by subsection (a) or (b) of this section) to

a governmental entity’’, redesignated clauses (i) to (iv)

of former subpar. (B) as subpars. (A) to (D), respectively, substituted ‘‘using the procedures described in

the Federal Rules of Criminal Procedure by a court

with jurisdiction over the offense under investigation”

for ‘‘under the Federal Rules of Criminal Procedure” in

subpar. (A) and “; or’ for period at end of subpar. (D),

added subpar. (E), and redesignated former subpar. (C)

as par. (2).

Subsec. (c)(2). Pub. L. 107-56, §210, amended par. (2),

as redesignated by section 212 of Pub. L. 107-56, by substituting ‘“‘entity the—” for ‘‘entity the name, address,

local and long distance telephone toll billing records,

telephone number or other subscriber number or identity, and length of service of a subscriber”’ in introductory provisions, inserting subpars. (A) to (F), striking

out ‘‘and the types of services the subscriber or customer utilized,” before ‘‘when the governmental entity

uses an administrative subpoena”’, inserting ‘‘of a subscriber’’ at beginning of concluding provisions and designating ‘‘to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or

State grand jury or trial subpoena or any means available under paragraph (1).’’ as remainder of concluding

provisions.

Pub. L. 107-56, § 212(b)(1)(C)(iii), (D), redesignated sub-

par. (C) of par. (1) as par. (2) and temporarily substituted ‘‘paragraph (1)’’ for ‘‘subparagraph (B)’’.

Pub. L. 107-56, §212(b)(1)(B), redesignated par. (2) as

(3).

Subsec. (c)(3). Pub. L. 107-56, §212(b)(1)(B), redesig-

nated par. (2) as (3).

Subsec. (d). Pub. L. 107-56, §220(b), struck out ‘‘described in section 3127(2)(A)”’ after ‘‘court of competent

jurisdiction’.

1998—Subsec. (c)(1)(B)(iv). Pub. L. 105-184 added cl.

iv).

( 1996—Subsec. (c)(1)(C). Pub. L. 104-293 inserted ‘‘local

and long distance”’ after ‘‘address,’’.

TITLE 18—CRIMES AND CRIMINAL PROCEDURE

§ 2704

Subsec. (d). Pub. L. 104-294 substituted ‘tin section

3127(2)(A)” for “‘in section 3126(2)(A)”’.

Subsec. (f). Pub. L. 104-182 added subsec. (f).

1994—-Subsec. (c)(1)(B). Pub. L. 103-414, §207(a)(1)(A),

redesignated cls. (ii) to (iv) as (i) to (iii), respectively,

and struck out former cl. (i) which read as follows:

“uses an administrative subpoena authorized by a Federal or State statute, or a Federal or State grand jury

or trial subpoena;”’.

Subsec. (c)(1)(C). Pub. L. 103-414, §207(a)(1)(B), added

subpar. (C).

Subsec. (d). Pub. L. 103-414, §207(a)(2), amended first

sentence generally. Prior to amendment, first sentence

read as follows: ‘‘A court order for disclosure under

subsection (b) or (c) of this section may be issued by

any court that is a court of competent jurisdiction set

forth in section 3127(2)(A) of this title and shall issue

only if the governmental entity shows that there is

reason to believe the contents of a wire or electronic

communication, or the records or other information

sought, are relevant to a legitimate law enforcement

inquiry.’’

Pub. L. 103-322 substituted ‘“‘section 3127(2)(A)” for

“section 3126(2)(A)”’.

1988—Subsecs. (b)(1)(B)(i), (c)(1)(B)(i). Pub. L. 100-690,

§ 7038, inserted ‘“‘or trial” after ‘“‘grand jury”’.

Subsec. (d). Pub. L. 100-690, §7039, inserted ‘‘may be

issued by any court that is a court of competent jurisdiction set forth in section 3126(2)(A) of this title and”

before ‘‘shall issue’’.

EFFECTIVE DATE OF 2002 AMENDMENT

Amendment by Pub. L. 107-296 effective 60 days after

Nov. 25, 2002, see section 4 of Pub. L. 107-296, set out as

an Effective Date note under section 101 of Title 6, Do-

mestic Security.

§ 2704. Backup preservation

(a) BACKUP PRESERVATION.—(1) A _ governmental entity acting under section 2703(b)(2)

may include in its subpoena or court order a requirement that the service provider to whom

the request is directed create a backup copy of

the contents of the electronic communications

sought in order to preserve those communications. Without notifying the subscriber or customer of such subpoena or court order, such

service provider shall create such backup copy

as soon as practicable consistent with its regular business practices and shall confirm to the

governmental entity that such backup copy has

been made. Such backup copy shall be created

within two business days after receipt by the

service provider of the subpoena or court order.

(2) Notice to the subscriber or customer shall

be made by the governmental entity within

three days after receipt of such confirmation,

unless such notice is delayed pursuant to section

2705(a).

(3) The service provider shall not destroy such

backup copy until the later of—

(A) the delivery of the information; or

(B) the resolution of any proceedings (including appeals of any proceeding) concerning

the government’s subpoena or court order.

(4) The service provider shall release such

backup copy to the requesting governmental entity no sooner than fourteen days after the governmental entity’s notice to the subscriber or

customer if such service provider—

(A) has not received notice from the subscriber or customer that the subscriber or customer has challenged the governmental entity’s request; and

APPENDIX D

Case: 1:15-cr-00457 Document #: 137-2 Filed: 11/18/17 Page 1 of 10 PagelD #:869

UNITED STATES DISTRICT COURT oy

NORTHERN DISTRICT OF ILLINOIS G

TE, 4

EASTERN DIVISION SR ¥ Uy &

IN THE MATTER OF THE APPLICATION UNDER. SEAL "Qe Me

OF THE UNITED STATES OF AMERICA No. 14 GJ 1008 %, oy,

FOR AN ORDER RELATING TO . ye

TELEPHONE NUMBER (312) 399-9606 Rubén Castillo

(‘SUBJECT PHONE 14”) AND Chief Judge

TELEPHONE NUMBER (708) 261-2832

(“SUBJECT PHONE 15”)

WARRANT AND ORDER

THIS MATTER has come before the Court pursuant to an application by Paul

H. Tzur, an attorney for the government, which application relates to:

a. the telephone currently assigned telephone number (312) 399-9606,

and used by an unidentified individual (“UI5”), with service provided

by Sprint/Nextel (hereafter, “Subject Phone 14”); and

b. the telephone currently assigned telephone number (708) 261-2832,

and used by an unidentified individual (“UI6”), with service provided

by Sprint/Nextel (hereafter, “Subject Phone 15”) (collectively, the

“Subject Phones’).

In its Application, the government requests that this Court enter an order

granting the following relief:

° Authorizing the installation and use, for a period of 30 days, of a pen

register and trap and trace device on the Subject Phones; and

° Requiring service providers to furnish, for a 30-day period coinciding

with the duration of the pen register authority requested in this

Application, subscriber information for and subscriber information for

telephone numbers in contact with the Subject Phones; and

® Requiring service providers to provide historical call detail records for

the Subject Phones and records reflecting the cell tower and antenna

face (“cell site”) used at the start and end of each call for the Subject

Phones, for the period from March 1, 2015, through July 24, 2015; and

Ded

Case: 1:15-cr-00457 Document #: 137-2 Filed: 11/18/17 Page 2 of 10 PagelD #:870

° Requiring service providers to provide, for a period of 30 days, all

information, facilities, and technical assistance needed to ascertain the

physical location of the Subject Phones (the “Requested Location

Information”),! and authorizing, for a period of 30 days, investigating

agents to use a pen register, in the form of electronic investigative

techniques that capture and analyze signals emitted by cellular

telephones, including in private places, to ascertain the physical

location of the Subject Phones.

UPON REVIEW OF THE APPLICATION, THIS COURT FINDS THAT:

The Applicant has certified that the information likely to be obtained by use

of the pen register and trap and trace on the Subject Phones, with respect to

telephone calls as well as direct connect, push-to-talk, and digital dispatch

numbers, is relevant to an ongoing criminal investigation into offenses that include

but are not necessarily limited to conspiracy to distribute narcotics, in violation of

Title 21, United States Code, Sections 846 and 841(a), and money laundering, in

violation of Title 18, United States Code, Sections 1957 and 1957 (the “Subject

Offenses”).

The government has represented that Subject Phone 14 is used by UI5,

that Subject Phone 15 is used by UI6, and that the principal subjects of the aspect

of the investigation presently before the Court are UI5 and UI6.

1 Such information shall include but not be limited to per call measurement data

(“PCMD”), evolution data optimized (“EVDO”), Internet protocol detail record (“IPDR’),

range-to-tower (“RTT”), tower distance information, data indicating the specific latitude

and longitude and street address of the Subject Phones, as well as records reflecting the

cell tower and antenna face used by the Subject Phones at the start and end of any call,

and access through any means reasonably available to all location-based services with

respect to the Subject Phones, such as “Enhanced 911,” precision location information,

mobile locator information, GPS, or “pinging.”

Case: 1:15-cr-00457 Document #: 137-2 Filed: 11/18/17 Page 3 of 10 PagelD #:871

Pursuant to Title 18, United States Code, Section 2703(d), the government

has set forth specific and articulable facts showing that there are reasonable

erounds to believe that subscriber information for and subscriber information for

telephone numbers in contact with the Subject Phones is relevant and material to

an ongoing criminal investigation.

Pursuant to Title 18, United States Code, Section 2703(d), the government

has set forth specific and articulable facts showing that there are reasonable

grounds to believe that historical call detail records for the Subject Phones and

historical cell site information for the Subject Phones for the period from March 1,

2015, through July 24, 2015, are relevant and material to the ongoing drug

trafficking investigation.

Pursuant to Title 18, United States Code, Section 2703(c)(1)(A) and Rule 41

of the Federal Rules of Criminal Procedure, the government has established

probable cause to believe that information concerning the location of the Subject

Phones at times determined by investigators will constitute or lead to evidence of

the Subject Offenses.

Pursuant to Title 18, United States Code, Section 3103a(b), the Court finds

that immediate notification of the execution of the Order requested by the

government for the seizure of information concerning the location of the Subject

Phones may have an adverse result, as defined in 18 U.S.C. § 2705(a)(2), namely

flight from prosecution and otherwise seriously jeopardizing an investigation, that

the facts of this case justify a period of delay in excess of 30 days, and that the

D.3

Case: 1:15-cr-00457 Document #: 137-2 Filed: 11/18/17 Page 4 of 10 PagelD #:872

government has shown reasonable necessity for the seizure of such location

information.

- Upon consideration of the government's Application and the Court having

found probable cause:

IT IS ORDERED, pursuant to Title 18, United States Code, Section 3123,

that officers and employees of Homeland Security Investigations, and other

authorized law enforcement officers, may install and use a pen register to record

and decode dialing, routing, addressing, and signaling information transmitted by

the Subject Phones, including direct connect, push-to-talk, and digital dispatch

numbers, and also including “post-cut-through” digits, meaning those digits dialed

from the Subject Phones after the initial call set-up is completed, subject to the

limitations of 18 U.S.C. § 3121(c), to record the date and time of such transmissions,

and to record the length of time the telephone receiver in question is off the hook for

incoming or outgoing calls, for a period of 30 days, provided that Homeland Security

Investigations shall use technology reasonably available to it that restricts the

recording or decoding of electronic or other impulses to the dialing, routing,

addressing, and signaling information utilized in the processing and transmission of

wire or electronic communications so as not to include the contents of any wire or

electronic communication.

IT IS FURTHER ORDERED, pursuant to Title 18, United States Code,

Section 3123 that officers and employees of Homeland Security Investigations may

direct Sprint/Nextel and any other communications service provider to install a trap

Case: 1:15-cr-00457 Document #: 137-2 Filed: 11/18/17 Page 5 of 10 PagelD #:873

and trace device, including a caller identification feature known by the trade name

“Caller ID Deluxe,” on the Subject Phones to capture the incoming electronic or

other impulses, including the originating telephone in call forwarding, terminating

at the Subject Phones, which identify the originating number, or other dialing,

routing, addressing, and signaling information reasonably likely to identify the

source of such incoming impulses, for a period of 30 days, and that the trap and

trace device be without geographic limits, provided that Homeland Security

Investigations shall use technology reasonably available to it that restricts the

recording or decoding of electronic or other impulses to the dialing, routing,

addressing, and signaling information utilized in the processing and transmission of

wire or electronic communications so as not to include the contents of any wire or

electronic communication.

IT IS FURTHER ORDERED, pursuant to Title 18, United States Code,

Section 3123(b)(2), that Sprint/Nextel and any other communications service

provider shall furnish officers and employees of Homeland Security Investigations

forthwith all information, facilities, and technical assistance necessary to

accomplish the installation and use of the pen register and trap and trace devices

unobtrusively and with a minimum of interference with the services accorded to the

party with respect to whom the installation and use is to take place.

IT IS FURTHER ORDERED, pursuant to Title 18, United States Code,

Section 3127(3) and Rule 41 of the Federal Rules of Criminal Procedure, that

officers and employees of Homeland Security Investigations, and other authorized

Case: 1:15-cr-00457 Document #: 137-2 Filed: 11/18/17 Page 6 of 10 PagelD #:874

law enforcement officers, may employ electronic investigative techniques, for a

period of 30 days, including in private places, to capture and analyze signals

emitted by the Subject Phones, including in response to signals sent by law

enforcement officers, at any time of the day or night, with the restriction that

officers and employees of Homeland Security Investigations may neither retain nor

make affirmative investigative use of the data acquired beyond that necessary to

determine the location of the Subject Phones. Agents and employees of Homeland

Security Investigations, and other authorized law enforcement officers, may send

communications to the Subject Phones for the purpose of identifying the Subject

Phones and its location.

IT IS FURTHER ORDERED that the government shall commence execution

of this Order with respect to electronic investigative techniques that capture signals

emitted by cellular telephones within 10 days. |

IT IS FURTHER ORDERED that within 10 days after the termination of the

execution of this Order with respect to electronic investigative techniques that

capture signals emitted by cellular telephones, the government return this Order to

the judge designated in this Order, together with an inventory advising this Court

of the date and time that the techniques were first initiated and the period during

which they were utilized.

IT IS FURTHER ORDERED, pursuant to Title 18, United States Code,

Section 2703(d), that any service provider shall provide all information, facilities,

and technical assistance necessary to determine the subscriber information set forth

Case: 1:15-cr-00457 Document #: 137-2 Filed: 11/18/17 Page 7 of 10 PagelD #:875

in 18 U.S.C. § 2703(c)(2)(A)-(F), specifically, subscriber name, address, local and

long distance telephone connection records, length of service (including start date)

and types of services utilized, telephone or instrument number or other subscriber

identification number (including but not limited to International Mobile Subscriber

Identity number, Mobile Subscriber Identity Number, International Mobile

Equipment Identity number, Universal Mobile Equipment Identity number,

Electronic Serial Number, and Mobile Equipment Identity number), and means and

source of payment for service (including any credit card or bank account number),

for the Subject Phones and for telephone numbers in contact with the Subject

Phones.

IT IS FURTHER ORDERED, pursuant to Title 18, United States Code,

Section 2703(d), that Sprint/Nextel and any other communications service provider

provide historical call detail records for the Subject Phones and further directing

that Sprint/Nextel provide historical cell site information reflecting the cell tower

and antenna face used at the start and end of each call, text message, and data

transaction, including per call measurement data (“PCMD”), evolution data

optimized (“EVDO”), Internet protocol detail record (“IPDR”), range-to-tower

(‘RTT’) and tower distance information, for Subject PhonelO for the period from

March 1, 2015 through July 24, 2015.

IT ISFURTHER ORDERED, pursuant to Title 18, United States Code,

Section 2703(c)(1)(A) and Rule 41 of the Federal Rules of Criminal Procedure, that

Sprint/Nextel and any other communications service provider, as defined in Section

D.7

Case: 1:15-cr-00457 Document #: 137-2 Filed: 11/18/17 Page 8 of 10 PagelD #:876

2510(15) of Title 18, United States Code, shall assist agents of Homeland Security

Investigations by providing all information, facilities and technical assistance to

ascertain the physical location of the Subject Phones (the “Requested Location

Information”) for a period of 30 days.

IT IS FURTHER ORDERED that Sprint/Nextel and any other

communications service provider, as defined in Section 2510(15) of Title 18, United

States Code, shall disclose the Requested Location Information concerning the

Subject Phones, and initiate a signal to determine the location of the Subject

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

may be reasonably available and at such intervals and times as directed by

Homeland Security Investigations, and shall furnish the technical assistance

necessary to accomplish the acquisition unobtrusively and with a minimum of

interference with such services as that provider affords the user of the Subject

Phones, at any time of the day or night, good cause having been shown for

obtaining such information outside of daytime hours.

IT IS FURTHER ORDERED that the government shall commence execution

of this Order with respect to the seizure of the Requested Location Information

within 10 days.

IT IS FURTHER ORDERED that within 10 days after the termination of the

execution of this Order with respect to the seizure of the Requested Location

Information, the government return this Order to the judge designated in this

Order, together with an inventory advising this Court of the date and time that

Case: 1:15-cr-00457 Document #: 137-2 Filed: 11/18/17 Page 9 of 10 PagelD #:877

acquisition of the Requested Location Information was first initiated and the period

during which it was acquired.

IT IS FURTHER ORDERED, pursuant to Title 18, United States Code,

Section 2706, that all service providers shall be compensated by the government at

the prevailing rate for reasonable expenses incurred in furnishing the information,

_ facilities and technical assistance necessary to comply with this Order, except, as

provided in Title 18, United States Code, Section 2706(c), for providing records or

other information maintained by the service provider that relate to telephone toll

records and telephone listings.

IT IS FURTHER ORDERED that the furnishing of said information, facilities

and technical assistance by soruine providers shall terminate after 30 days,

measured from the earlier of the day on which service providers begin to furnish

such assistance pursuant to this Order, or ten days from the date this Order is

entered, unless otherwise ordered by this Court.

IT IS FURTHER ORDERED that no service provider, their representatives,

agents, and employees, may disclose in any manner, directly or indirectly, by any

action or inaction, to the listed subscriber for the Subject Phones, the subscribers

of the incoming calls to or the outgoing calls from the Subject Phones, or to any

person, the existence of the Court’s order, in full or redacted form, or of this

investigation unless ordered by this Court.

IT IS FURTHER ORDERED that this Court’s orders and the application be

sealed until further notice of this Court, except that copies of the Order to Service

Case: 1:15-cr-00457 Document #: 137-2 Filed: 11/18/17 Page 10 of 10 PagelD #:878

Provider, in full or redacted form, may be served by law enforcement officers

assisting in the investigation, on any service provider and their representatives,

agents, and employees, as necessary to effectuate this Court’s Order to Service

Provider.

IT IS FURTHER ORDERED that pursuant to Rule 41(f(8) and Title 18,

United States Code, Section 3103a(b), the government may delay notification of the

execution of any Order issued in this matter regarding the seizure of the location

information with respect to the Subject Phones until October 21, 2015.

ENTERED:

Pa a ie Ceak: 47

RUBEN CASTILLO

Chief Judge

United States District Court

Northern District of Illinois

D.10

10