US v. Raymond Lambis, 15cr734 (SDNY, Judge Pauley, July 12, 2016).

In 2015, the Drug Enforcement Administration (the “DEA”) conducted an
investigation into an international drug-trafficking organization.
As a part of that investigation, the DEA sought a warrant for pen register information and cell site location information (“CSLI”) for a target cell phone. CSLI allows the target phone’s location to be approximated by providing a record of where the phone has been used.

To isolate the location more precisely, the DEA deployed a technician with a cellsite simulator to the intersection of 177th Street and Broadway. A cell-site simulator—  sometimes referred to as a “StingRay,” “Hailstorm,” or “TriggerFish”—is a device that locates cell phones by mimicking the service provider’s cell tower (or “cell site”) and forcing cell phones to transmit “pings” to the simulator.

Activating the cell-site simulator, the DEA technician first identified the apartment building with the strongest ping. Then, the technician entered that apartment building and walked the halls until he located the specific apartment where the signal was strongest. The cell-site simulator identified Lambis’s apartment as the most likely location of the target cell phone. That same evening, DEA agents knocked on Lambis’s apartment door and obtained consent from Lambis’s father to enter the apartment. Ultimately, the agents recovered narcotics, three digital scales, empty zip lock bags, and other drug paraphernalia.

DISCUSSION
I. Fourth Amendment Search

“[A] Fourth Amendment search 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). “‘At the very core’ of the Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Kyllo, 533 U.S. at 31.

In Kyllo, the Supreme Court held that a Fourth Amendment search occurred when Government agents used a thermal-imaging device to detect infrared radiation emanating from a home. 533 U.S. at 40. The Court held that “[w]here . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’and is presumptively unreasonable without a warrant.” Kyllo, 533 U.S. at 40.

Here, as in Kyllo, the DEA’s use of the cell-site simulator to locate Lambis’s apartment was an unreasonable search because the “pings” from Lambis’s cell phone to the nearest cell site were not readily available “to anyone who wanted to look” without the use of a cell-site simulator.

The fact that the DEA had obtained a warrant for CSLI from the target cell phone  does not change the equation. “If the scope of the search exceeds that permitted by the terms of a validly issued warrant . . . , the subsequent seizure is unconstitutional without more.” Horton v. California, 496 U.S. 128, 140 (1990).

CONCLUSION

Lambis’s motion to suppress the evidence recovered by DEA Agents from his apartment is granted.

This entry was posted in 7th Circuit Criminal Law Alert, Press Releases, Search and Seizure. Bookmark the permalink.