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United States v. Rosario

United States District Court, N.D. Illinois, Eastern Division

May 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOEL ROSARIO, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN Z. LEE, UNITED STATES DISTRICT JUDGE

         In February 2016, Defendant Joel Rosario was charged with interstate transportation of stolen property and possession of a firearm in violation of federal law. During the investigation leading to these charges, the Government obtained historical cell-site location information (CSLI) for Rosario's cell phone from his service provider. Rosario has moved to suppress the CSLI, contending that the Government violated his Fourth Amendment rights by procuring it without first obtaining a warrant. For the reasons that follow, the Court holds that the Government's acquisition of CSLI from Rosario's service provider was not a search in violation of the Fourth Amendment. Rosario's motion to suppress is therefore denied.

         Background

         On or around December 5, 2013, a store in Ann Arbor, Michigan, was burglarized after it closed for the day. Gov't's Resp. Def.'s Mot. Suppress at 1, ECF No. 95. The store specialized in the sale of firearms, rare coins, and precious metals. Id. Twenty-four firearms, as well as various collector coins and other property, were stolen from the premises. Id.

         According to the store's owner, three men entered the store to look at firearms about forty-five minutes before closing time on December 5. Id. The next morning, the owner discovered that the store had been burglarized overnight. Id. at 2. The owner also determined that, after the store had closed for the day on December 5, it had received a phone call from a private caller. Id. The owner passed this information to law enforcement officers, who in turn contacted Comcast, the store's telephone service provider, to request the private caller's phone number. Id. Comcast accommodated this request and provided the phone number to the officers. Id.

         Using open-source records, officers determined that Sprint was the service provider for the cell phone corresponding to the number Comcast had provided. Id. The officers contacted Sprint to request CSLI[1] for the cell phone, and Sprint provided the requested information. Id. The CSLI revealed that the phone had “pinged” off of various cell towers in Illinois on December 3 and 4. Def.'s Mot. Suppress at 2, ECF No. 81. It also revealed that the phone had pinged off of a tower in Lansing, Michigan, at 9:26 p.m. on December 4 and a tower in Ann Arbor, Michigan, at 11:14 p.m. later that same night. Id. Finally, the CSLI showed that, from 11:14 p.m. on December 4 to 6:37 p.m. on December 5, all of the pings from the cell phone came from towers in the Ann Arbor area. Id.

         In addition to requesting the CSLI, officers attempted to determine the owner of the cell phone that was associated with the number Comcast had provided. See Resp. at 2 n.1. After surveying hotels in the Ann Arbor area, officers learned that the phone number had been provided to a Comfort Inn under Rosario's name. Id.

         On February 24, 2016, Rosario was indicted with one count of interstate transportation of stolen property in violation of 18 U.S.C. § 2314 and one count of possession of a firearm in violation of 18 U.S.C. § 922(g) in connection with the robbery that took place in Ann Arbor. Id. at 3. The Government disclosed the CSLI to defense counsel during discovery, Mot. Suppress at 2, and Rosario now argues that the CSLI was improperly used as a basis for his arrest and prosecution. Reply at 2, ECF No. 112.

         Analysis

         Rosario has moved to suppress the CSLI that the Government requested from Sprint. He argues that the Government requested the CSLI in violation of his Fourth Amendment rights by failing to first obtain a warrant supported by probable cause authorizing the CSLI's acquisition. See Id. at 1-2.[2]

         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.” U.S. Const. amend. IV. A “search” falling within the ambit of the Fourth Amendment occurs “when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001); accord United States v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006).

         The Seventh Circuit has not addressed whether the Government's acquisition of CSLI from a third-party service provider violates a reasonable expectation of privacy so as to constitute a search under the Fourth Amendment. See United States v. Daniels, 803 F.3d 335, 351 (7th Cir. 2015) (expressly declining to decide this question); United States v. Thousand, 558 F. App'x 666, 670 (7th Cir. 2014) (same). So far, however, every federal court of appeals to confront this issue has held that the acquisition of CSLI from a third-party service provider is not a Fourth Amendment search. United States v. Graham, 824 F.3d 421, 424-25 (4th Cir. 2016) (en banc), petition for cert. filed (Sept. 26, 2016) (No. 16-6308); United States v. Carpenter, 819 F.3d 880, 886-90 (6th Cir. 2016), petition for cert. filed (Sept. 26, 2016) (No. 16-402); United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (en banc), cert. denied, 136 S.Ct. 479 (2015); In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 608-15 (5th Cir. 2013). Districts courts within the Seventh Circuit to consider this issue have likewise concluded that the acquisition of CSLI is not a Fourth Amendment search. United States v. Adkinson, No. 4:15-CR-25, 2017 WL 1318420, at *5 (S.D. Ind. Apr. 7, 2017); United States v. Wheeler, 169 F.Supp.3d 896, 910 (E.D. Wis. 2016); United States v. Lang, 78 F.Supp.3d 830, 836 (N.D. Ill. 2015); Rogers, 71 F.Supp.3d at 750; United States v. Benford, No. 2:09-CR-86, 2010 WL 1266507, at *3 (N.D. Ind. Mar. 26, 2010).

         In holding that the acquisition of CSLI from a service provider is not a Fourth Amendment search, courts have relied on the third-party doctrine. Under the third-party doctrine, an individual does not have a reasonable expectation of privacy in information that he voluntarily turns over to a third party, and the Government therefore does not engage in a Fourth Amendment search when it acquires such information. Smith v. Maryland, 442 U.S. 735, 743 (1979); United States v. Miller, 425 U.S. 435, 442 (1976). The reason for this rule is that an individual “takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.” Miller, 425 U.S. at 443. The third-party doctrine applies to information provided to a third party “even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Id.

         Among the Supreme Court precedents expounding the third-party doctrine, Smith v. Maryland brings the most to bear on the present case. In Smith, the Court considered whether the Government's use of a pen register[3] to record the numbers dialed on a home telephone constituted a search under the Fourth Amendment. 442 U.S. at 736. The Court applied the third-party doctrine to hold that such use of a pen register is not a Fourth Amendment search. Id. at 743-46. In so holding, the Court explained that, “[w]hen he used his phone, petitioner voluntarily conveyed numerical information [i.e., the phone numbers he dialed] to the telephone company and ‘exposed' that information to its ...


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