Antoine Jones cell tower motion

8/2/2019 Antoine Jones cell tower motion

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES :

:v. : Case No. 05-CR-386(1) (ESH)

: Trial: 5/7/12

ANTOINE JONES, :

:

Defendant. :

DEFENDANTS MOTION TO SUPPRESS CELL SITE DATA AND MEMORANDUM

OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Defendant Antoine Jones (Jones), by and through undersigned counsel,

respectfully moves this Honorable Court pursuant to Federal Criminal Rule of Criminal

Procedure 12, 41, and 47, and the Fourth, Fifth, and Sixth Amendments and the Due Process

Clause of the United States Constitution, to suppress all cell phone records obtained without a

warrant and a showing of probable cause. In support thereof counsel states the following:

FACTS

1. Mr. Jones has been charged in a Superseding Indictment with Conspiracy

to Distribute and Possess with Intent to Distribute Five Kilograms or More of Cocaine and Fifty

Grams or More of Cocaine Base. The government alleges that Mr. Jones was part of a narcotics

conspiracy from at least 2003 until October 24, 2005, which spanned from the District of

Columbia, Maryland, Texas, North Carolina and elsewhere. In particular, the government

alleges that Jones was the primary supplier of cocaine to members of the organization in the

District of Columbia and Maryland.

2. On June 20, 2005, the government filed pursuant to 18 U.S.C.

2703(c)(1)(B) and 2703(d) an Application for Pen Register, Caller Identification Device,

Case 1:05-cr-00386-ESH Document 606 Filed 03/29/12 Page 1 of 11


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Subscriber and Cell Site Information (the June 20 Application). (See Exh. 1 June 20, 2005

Application), seeking cell site information for cellular telephone number 202-538-3946. In

relevant part, the government stated:



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Although the government also sought authorization for a pen register, trap and trace and caller

identification device on (202) 538-3946, this motion pertains to the cell site evidence.

3. Magistrate Judge Facciola granted the Application the same day

authorizing the disclosure of the requested material for a period of 60 days. On August 1, 2005,

the government sought an extension (the August 1 Extension Application) of the original

Order (See Exh. 2 August 1 Extension). This time, Magistrate Judge Kay granted the

Extention Application for another 60 days. On September 19, 2005, the government once again

sought an Order, this time for cellular telephone number 202-746-0470. (the September 19



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Amended Application). (See Exh. 3 September 19 Amended Application). Magistrate

Facciola granted that request the same day. In total, the government sought cell site date for

approximately four months.

4. The government has produced material obtained through court orders for

the relevant cellular telephone numbers. Upon information and belief, now that the illegally

obtained GPS data cannot be used as evidence in this case, the government will seek to introduce

cell site data in its place in an attempt to demonstrate Mr. Jones movements and whereabouts

during relevant times. Mr. Jones submits that the government obtained the cell site data in

violation of the Fourth Amendment to the United States Constitution and therefore it must be

suppressed.

ARGUMENT

5. The Stored Communications Act permits the government to obtain an

order seeking the cell- site-location records at issue here. See 18 U.S.C. 2703(c)(1), (d);see

also In the Matter of an Application of the United States for an Order Authorizing the Use of

Two Pen Register and Trap and Trace Devices, 632 F.Supp.2d 202 (E.D.N.Y. 2008). The

relevant statutory provision states, 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 or customer of such service (not including the contents of

communications) only when the governmental entity ... obtains a court order for such disclosure

under subsection (d) of this section. 18 U.S.C. 2703(c)(1)(B). Such an order may be issued

by any court that is a court of competent jurisdiction and shall issue only if the governmental

entity offersspecific 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



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sought, are relevant and material to an ongoing criminal investigation. 18 U.S.C. 2703(d)

(emphasis added). This showing is lower than the probable cause standard required for a search

warrant. See United States v. Maynard, 615 F.3d 544, 566 (D.C. Cir. 2010) (citingKatz v.

United States, 389 U.S. 347, 357 (1967)).

6. The Fourth Amendment guarantees that [t]he right of the people to be

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

shall not be violated, and no War- rants shall issue, but upon probable cause, supported by Oath

or affirmation, and par- ticularly describing the place to be searched, and the persons or things to

be seized. U.S. Const. amend. IV. A search conducted without a warrant is per se

unreasonable under the Fourth Amendmentsubject only to a few specifically established and

well-delineated exceptions. Maynard, 615 F.3d at 566 (quotingKatz, 389 U.S. at 357.

7. Whether Government action constitutes a search depends upon whether

the person invoking its protection can claim a justifiable, a reasonable, or a legitimate

expectation of privacy that has been invaded by government action. Smith v. Maryland, 442

U.S. 735, 740 (1979). The Supreme Court inKatz v. United States set forth a two part standard

for when a Fourth Amendment search has occurred: (1) the individual has manifested a

subjective expectation of privacy in the thing searched; and (2) society is willing to recognize

that expectation as reasonable.Kyllo v. United States, 533 U.S. 27, 33 (2001). The first element

addresses whether the individual's conduct has exhibited an actual (subjective) expectation of

privacy ... [which is demonstrated by] whether ... the individual has shown that he seeks to

preserve something as private. United States v. Knotts, 460 U.S. 276, 281 (1983) (citations and

quotation marks omitted). The second element looks to whether the individual's expectation,

viewed objectively, is justifiable under the circumstance.Id. (citations and punctuation



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omitted).

8. Electronic surveillance of an individuals location as he travels in public

has traditionally not been construed as a Fourth Amendment search, although electronic

surveillance of his location within his home has been. See Knotts, 460 U.S. at 28085; United

States v. Karo, 468 U.S. 705, 71318 (1984). However, the Supreme Court recently decided in

United States v. Jones, 132 S.Ct. 945 (2012), that electronic tracking (GPS) of Mr. Jones over an

extended period of time (30 days) was a search and seizure within the meaning of the Fourth

Amendment. Similarly, in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), cert.

granted, United States v. Jones, 131 S.Ct. 3064 (2011), the District of Columbia Circuit found

that while the defendant inKatzdid not have a reasonable expectation of privacy over his

location while traveling from one place to another, Mr. Jones did have a reasonable expectation

of privacy over the totality of his movements over the course of a month. The court reasoned that

the totality of ones movements over an extended time period is not actually exposed to the

public because the likelihood a stranger would observe all those movements is not just remote,

it is essentially nil.Maynard, 615 F.3d at 560. The court concluded that people have an

objectively reasonable expectation of privacy in the totality of their movements over an extended

period because an individual's privacy interests in the totality of his movements far exceeds any

privacy interest in a single public trip from one place to another. Id.

9. In this case, the government seeks to do with cell site data what it cannot

do with the suppressed GPS data. It sought an order for cell site data spanning from June 2005

to October 2005, a period of approximately four months. The cell site location records sought

here captures enough of the users location information for a long enough time period

significantly longer than the four weeks inMaynardto depict a sufficiently detailed and



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intimate picture of his movements to trigger the same constitutional concerns as the GPS data in

Maynard. In the Matter of an Application for an Order Authorizing the Release of Historical

Cell Site Information, 809 F. Supp.2d 113, 119 (E.D.N.Y. 2011) (denying application; holding

that order required a search warrant based on probable cause). See also In re The Application of

the United States for an Order Directing a Provider of Elec. Commcn Serv. to Disclose Records

to the Govt, 534 F. Supp.2d 585, 588 (W.D. Pa. 2008) (denying application; specific and

articulable facts not sufficient);In the Matter of an Application of the United States for an

Order (1) Authorizing the Use of a Pen Register and a Trap and Trace Device and (2)

Authorizing Release of Subscriber Information and/or Cell Site Information, 384 F. Supp.2d 562

(E.D.N.Y. 2005) (denying application);In the Matter of the Application of the United States of

America for an Order Authorizing the Release of Prospective Cell Site Information, 407 F.

Supp.2d 134 (D.D.C. 2006) (Facciola, M.J.) (denying application; requiring showing of probable

cause.But seeUnited States v. Graham, 2012 WL 691531 (D. MD 2012) (denying motion to

suppress cell site data; probable cause not required).

10. Furthermore, in its various applications, the government cites as the

specific and articulable facts showing that there is reasonable grounds to believe that the cell

site information regarding (202) 538-3946 will be relevant and material to an ongoing criminal

investigation:



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(Exh. 1). Even under the lower standard in the text of the statute, the government has utterly

failed to state any specific and articulable facts. Rather, it states boilerplate language

applicable to any investigation. In fact, the government does state any facts pertaining to the

investigation of Mr. Jones and never even mentions him.

11. The government has seized evidence without probable cause that it now

seeks to admit at trial. The government bears the burden of establishing probable cause for the

seizure of evidence without a warrant. See United States v. Watson, 423 U.S. 411, 432 n.5



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(1976) (Powell, J., concurring) (emphasizing the Supreme Court's long-standing position that [a

warrantless] arrest should receive careful judicial scrutiny if challenged);Henry v. United

States, 361 U.S. 98, 102 (1959) (probable cause requirement strictly enforced). It is settled

law that all fruits of an illegal search and seizure must be suppressed. See Wong Sun v. United

States, 371 U.S. 471, 483 (1963) (all evidence come at by the exploitation of that illegality must

be suppressed).

12. Mr. Jones had a constitutionally protected expectation of privacy in the

evidence seized.1

The seizure of this evidence was illegal and must be suppressed.

WHEREFORE, for the foregoing reasons and any others that may become

apparent to the Court, Mr. Jones respectfully requests that this Motion be GRANTED.

Dated: Washington, DCMarch 29, 2012 Respectfully submitted,

BALAREZO LAW

/s/

By: ________________________________________A. Eduardo Balarezo, Esq.

D.C. Bar # 462659400 Fifth Street, NW; Suite 300

Washington, DC 20001(202) 639-0999

Counsel for Antoine Jones

1Counsel understands that there is pending proposed legislation in both the Senate and House that would require a

warrant before tracking a cellphone's location. See, e.g., The Electronic Communications Privacy Act: Promoting

Security and Protecting Privacy in the Digital Age: Hearing Before the S. Judiciary Comm., 111th Cong. (2010);ECPA Reform and the Revolution in Location Based Technologies and Services: Hearing Before the Subcomm. on

the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary , 111th Cong. (2010); The

Collection and Use of Location Information for Commercial Purposes: Hearing Before the Subcomm. on

Commerce, Trade, and Consumer Protection and the Subcomm. on Commc'ns, Tech., and the Internet of the H.

Comm. on Energy & Commerce, 111th Cong. (2010).



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 29th

day of March 2012, I caused a true and

correct copy of the foregoing Defendants Motion to Suppress Cell Site Data and Memorandum

of Points and Authorities in Support Thereof to be delivered to the parties in this matter via

Electronic Case Filing (ECF).

/s/

______________________________A. Eduardo Balarezo, Esq.



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Antoine Jones cell tower motion