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United States v. Gibson

United States District Court, N.D. Indiana, South Bend Division

May 28, 2019




         Defendants David Gibson and Jerry Harris have been indicted with conspiring to distribute over one kilogram of heroin [DE 1]. Harris has moved to suppress evidence arguing that the court order authorizing the location tracking of the conspiracy's suspected drug phone was not sufficiently premised on probable cause as required by Carpenter v. United States, 138 S.Ct. 2206 (2018) [DE 127]. Gibson has joined the motion [DE 132]. For the following reasons, the Court denies the motions.


         During the Spring of 2017, investigators learned that at least one cellular phone with phone number (872) 333-5822 (“the drug phone”) was being shared by at least twelve individuals to distribute heroin at the retail level in South Bend, Indiana. Customers would call the drug phone and order heroin, typically sold by the half-gram. Whichever dealer possessed the drug phone at the time would arrange a meeting with the customer. At the meeting location, someone would show up and sell heroin to the customer. Eventually, undercover buys were executed using both confidential informants and undercover officers, but investigators were unable to identify any one particular person as the primary user or possessor of the drug phone; rather, the subscriber was listed as “John John.”

         On July 20, 2017, Investigator Brandon Stec of the St. Joseph County Drug Investigations Unit (“DIU”) signed a template (or form) affidavit setting forth a summary of key points in the investigation [Gov't Exb. 1, Def. Exb. 1, DE 129-1]. He described two controlled purchases of heroin in May and July of 2017, that were arranged and executed by calling the drug phone. Investigator Stec believed that, given his twelve years of law enforcement experience, including time spent investigating narcotics violations, drug traffickers used cellular communication devices to place and receive telephone calls and text messages in furtherance of their drug trafficking activity. Thus, Investigator Stec opined that by acquiring the location information for the drug phone, the users' location, identity, and apprehension would be obtained.[1]

         Later that day, a judge from the superior court issued the location tracking order which expired after thirty days.[2] The order indicated that probable cause existed to believe that the user of the drug phone had been engaged in illegal drug dealing and that the apprehension of the user would be obtained through use of Global Positioning System (“GPS”) location tracking technology [Gov't Exb. 2, Def. Exb. 1, DE 129-2]. DIU investigators submitted similar updated affidavits and obtained similar court orders allowing the continued GPS tracking of the drug phone through October 18, 2017 [Gov't Exbs. 3-6, Def. Exb. 1, DE 129-3, 4, 5, 6]. The location information received from the cellular service provider was essentially real time (as long as the drug phone was turned on) and relatively precise (sometimes within nine to ten meters).

         Defendant Harris, joined by Defendant Gibson, have moved to suppress evidence of their alleged crimes[3] arguing that the state court orders were not sufficiently premised on probable cause, per Carpenter.

         II. DISCUSSION Probable Cause

         The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The basic purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Carpenter v. United States, 138 S.Ct. 2206, 2213 (citing Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 528 (1967)). And because “an individual maintains a legitimate expectation of privacy in the record of his physical movements, ” the Supreme Court held in Carpenter that accessing seven days' or more worth of historical cell-site location information was enough to require the securing of a warrant supported by probable cause. See 138 S.Ct. at 2217-21.

         In this case, the defense argues that a state court order issued pursuant to the Stored Communications Act, 18 U.S.C. § 2703 (“SCA”), is not a permissible mechanism for tracking the location of the drug phone.[4] In other words, the defense contends that because the SCA was explicitly cited in the state court search orders, then the issuing judge looked only for “reasonable grounds” for believing that the information was “relevant and material to an ongoing criminal investigation” under 18 U.S.C. § 2703(d), as opposed to making a determination that individualized probable cause existed. For the reasons that follow, the Court respectfully disagrees with these contentions.

         The search orders issued by the superior court judge in July, August, and September 2017, authorized the cellular provider to give the St. Joseph County DIU the drug phone's precise location information, using “GPS Precision Location” technology, at reasonable intervals for twenty-four hours per day, seven days per week. The search orders did not authorize the release of the contents of any calls and messages. However, the orders indicated that they were issued pursuant to Federal Rule of Criminal Procedure 41 and Sections 3117, 3123, 3124, and 2703 of Title 18. While some of the statutory references were clearly inapplicable since they concern the use of pen registers and trap-and-trace devices, Rule 41 represents the standard source of authority for criminal search and arrest warrants. Moreover, the search orders not only recited the language of § 2703(d), but they explicitly stated that the searches were justified by probable cause.

         In particular, the state judge declared that probable cause existed to believe that the users of the drug phone had been engaged in illegal drug dealing and that the apprehension of the users would be obtained through use of GPS location tracking technology. This finding was premised on affidavits from experienced DIU investigators which detailed controlled purchases of heroin that were set-up and executed by calling the drug phone. The DIU investigators conveyed their knowledge that drug traffickers typically use cellular devices to further their drug trafficking, along with their belief that the instant drug phone was being used to distribute heroin in South Bend. Thus, the DIU investigators opined that by acquiring the location information for the drug phone, the users' location, identity, and apprehension could be obtained.

         Given the totality of the circumstances, the Court concludes that the state court judge's finding of probable cause-a finding that carries a presumption of correctness, see United States v. McIntire, 516 F.3d 576 (7th Cir. 2008)-was appropriate and that the orders sufficed to support use of GPS technology to gather location information for the drug phone. See, e.g., United States v. Sanchez-Jara, 889 F.3d 418, 421 (7th Cir. 2018), cert. denied. In so concluding, the Court notes that the defense's reliance on United States v. Powell, 943 F.Supp.2d 759, 783 (E.D. Mich. 2013), aff'd, 847 F.3d 760 (6th Cir. 2017) is unavailing. In Powell, the warrant's affidavit failed to sufficiently set forth facts demonstrating a nexus between the cell phone and the criminal activity, where it did not state that the cell phone was used for drug trafficking. Powell, 943 F.Supp.2d at 783. Unlike the affidavit in Powell, the DIU investigators in this case described with particularity how the drug phone was used to initiate and complete various heroin transactions. Additionally, the Court also rejects the defense's argument that a warrant's affidavit must specifically identify the defendant in order to be valid. Rather, the affidavit can simply provide a sufficient basis for believing that the individuals associated with the phone number are involved in illegal activity and the search is authorized based on the phone number's association with the crime. See, e.g., United States v. Alejandre, No. 16-CR-00053-3, 2019 WL 118506, at *2-3 (N.D. Ill. Jan. 7, 2019) (the affidavit did not actually claim that the number was used by the defendant; rather, it stated that it was used by an unknown kidnapping suspect and provided good reason for believing that the individual associated with that number was involved in the kidnapping). In fact, the whole point of securing the search orders was to locate, identify, and apprehend those who were using the drug phone because no particular person could be identified as the primary user of the phone. And yet, there was probable cause to believe that the particular cellphone was being used by at least a dozen dealers to traffic in heroin. Accordingly, the search orders appropriately authorized law enforcement to follow the identified phone and to see where it went and when-such an order particularly describes the evidence to be acquired. See Sanchez-Jara, 889 F.3d at 421.

         Because the search orders were supported by probable cause, the later discovery of evidence leading to the identification and indictment of the defendants need not be suppressed. Although probable cause supports ...

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