In re Warrant Application for use of Canvassing Cell-Site Simulator

654 F.Supp.3d 694

IN RE WARRANT APPLICATION FOR USE OF a CANVASSING CELL-SITE SIMULATOR

No. 22 M 00595

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

Signed February 1, 2023

Alejandro G. Ortega, DOJ-USAO, Chicago, IL, AUSA, Andrew J. Dixon, United States Attorney's Office, Chicago, IL, for United States of America.

William Hardwicke, Federal Defender Program, Chicago, IL, for Amicus Federal Defender Program.

MEMORANDUM OPINION AND ORDER

BETH W. JANTZ, United States Magistrate Judge

In recent years, the government has submitted warrant applications to courts nationwide seeking authorization to use emerging surveillance techniques and technologies in criminal investigations, including geofences and cell tower dumps. This matter concerns a surveillance technology called a canvassing cell-site simulator, which the government wishes to use in the course of a criminal investigation and on which there is sparse caselaw to date. The Court denied the government's initial warrant application in this matter. The Court now denies the government's revised warrant application and writes to explain its decision.

BACKGROUND

Procedural Background as to the Requested Search Warrant

On July 28, 2022, the government submitted to the Court a search warrant and accompanying application and affidavit seeking to use an investigative technique known as a canvassing cell-site simulator ("CCSS"). The affidavit in support of the warrant application described a criminal investigation, which the Court will only describe in general terms, as the warrant and application remain under seal. The affidavit outlined evidence of criminal activity taking place in Chicago, Illinois, and established probable cause to believe that a specified individual is using one or more unknown cellular devices in furtherance of that activity. The application sought approval of a warrant for use of a canvassing cell-site simulator for up to 30 days to identify and locate the unknown cell phone(s) used by that individual. The warrant identified three locations at which a CCSS could be used to identify the suspect's device(s) "when the officers to whom it is directed have reason to believe that [the suspect] is present": (1) the "surrounding area" of the suspect's residence; (2) the "surrounding area" of any location where law enforcement surveillance observes or has "recently" observed the suspect; and (3) the "surrounding area" where geo-location information for one of the suspect's [other] known cellular devices indicates that that phone is located. Redacted Warrant App., Dkt. 7 at 22. The Court denied the warrant application on July 29, 2022. Dkt. 6. On that same date, the government requested that it be given time to consider whether to re-present with modifications the search warrant and application and affidavit in support of the search warrant.

About a month later, on August 26, the government re-submitted its warrant and application, this time including the additional limitations on use of a CCSS identified in In the Matter of the Use of a Cell-Site Simulator To Identify a Cellular Device in a Narcotics Trafficking Case, No. 22 M 615, 623 F.Supp.3d 888 (N.D. Ill., Aug. 24, 2022) ("Narcotics Trafficking"). See Briefing Order, Dkt. 5. Specifically, the government applied to use a CCSS for up to 30 days during all times of day and night "when the officers to whom it is directed have reason to believe that [the suspect] is present," Redacted Warrant App., Dkt. 7 at 22, in the following locations: (1) within a quarter-mile radius of the suspect's residence; (2) within a quarter-mile radius of any location where law enforcement physically sees the suspect; and (3) within a quarter-mile radius of any location where law enforcement has physically seen the suspect within the last 30 days. See Gov. Br., Dkt. 8 at 2. The government also included that it would take no further investigative steps with respect to the device identifiers collected via use of the CCSS until after the identifiers for the suspect's device(s) had been captured at multiple locations and/or multiple times at a common location. Id. Finally, the government proposed that once investigators ascertained the identity of the suspect's device(s), they would end the collection and delete (within an unspecified time period) any information collected concerning any other cellular device other than the suspect's device(s). Id.

On September 1, 2022, this Court issued an order directing the government to file a brief in support of the warrant application. Dkt. 5. The Court also invited the Federal Defender Program for the Northern District of Illinois to file an amicus brief following the government's submission. To enable the Federal Defender Program to submit an amicus brief without revealing any sensitive details of the underlying criminal investigation, the Court instructed the government to submit to the Court a redacted version of the warrant and the application and affidavit in support of the search warrant. The redacted materials were transmitted to the Executive Director of the Federal Defender Program. The Court's briefing order also instructed amicus to assume that the suspect's residence is in Chicago, Illinois, without providing any additional information regarding the suspect's location. Id. at 1.

The Court's order identified numerous issues for which the Court sought briefing from the government and amicus, including: (1) an explanation of the capabilities of a CCSS, including the size and user density of its coverage area; (2) how or whether the warrant application meets the Fourth Amendment's particularity requirements; (3) the standard for probable cause the government must demonstrate for the warrant to issue; and (4) whether the warrant sufficiently cabined investigators' discretion in executing the warrant. The Court instructed the government and amicus that they need not brief whether the use of a CCSS constitutes a search under the Fourth Amendment, given that the government had requested a search warrant based on probable cause. The Court also instructed the government and amicus that they need not brief the existence of probable cause for the criminal offense(s) alleged in the warrant application.¹

What This Opinion Will Not Address

As the Court indicated in its briefing order, this opinion will not address whether, or the circumstances under which, the use of a cell-site simulator constitutes a search under the Fourth Amendment. Whether CSS use constitutes a Fourth Amendment search presents an interesting and open question on which only a handful of courts have opined. See, e.g., United States v. Ellis, 270 F. Supp. 3d 1134, 1146 (N.D. Cal. 2017) (use of CSS in location mode is a Fourth Amendment search requiring a warrant); United States v. Lambis, 197 F. Supp. 3d 606, 611 (S.D.N.Y. 2016) (same); United States v. Woodson, No. 4:16CR541AGF(SPM), 2018 WL 7150388, at *9 (E.D. Mo. Nov. 21, 2018), report and recommendation adopted, No. 4:16CR541AGF(SPM), 2019 WL 398453 (E.D. Mo. Jan. 31, 2019) (use of a CSS in canvassing mode "does not give rise to the same privacy and Fourth Amendment concerns articulated in Carpenter," and thus requires only a pen register order as opposed to a search warrant). In United States v. Patrick, the Seventh Circuit discussed—but did not decide—whether use of a cell-site simulator constituted a Fourth Amendment search. 842 F.3d 540, 543-44 (7th Cir. 2016). And in its most recent explication of the interaction between the Fourth Amendment and technology, the Supreme Court expressly left open the question of whether the government's efforts to obtain "real-time" cell-site location information ("CSLI") or "tower dumps" constituted a search, even as it determined that a warrant was required to obtain historical CSLI over a certain period of time. See Carpenter v. United States, — U.S. —, 138 S. Ct. 2206, 2220, 201 L.Ed.2d 507 (2018); see also United States v. Caira, 833 F.3d 803, 808-09 (7th Cir. 2016) (decided before Carpenter, but noting that the two concurring opinions in Jones, signed by five Supreme Court justices, "expressed the view that technology has changed the constitutional calculus" about whether monitoring a person's movements on public streets could amount to a "search").

The Court need not wade into this issue, however, because in this case, the government asks the Court to approve a search warrant for use of a canvassing cell-site simulator—and thus must meet all of the attendant Fourth Amendment requirements for obtaining a search warrant. See, e.g., Matter of Search of Info. Stored at Premises Controlled by Google, 481 F. Supp. 3d 730, 740 (N.D. Ill. 2020) ("Google II") (declining to reach question of whether proposed geofence constituted a search where government sought a search warrant); Matter of Search of Info. that is Stored at Premises Controlled by Google LLC, 579 F. Supp. 3d 62, 74 n. 14 (D.D.C. 2021) ("Google III") (noting that the court "need not take a position" on whether a geofence requires a warrant because "the government has applied for a warrant"). The Court notes that the government spent a substantial portion of its opening brief asserting that the proposed use of a canvassing cell-site simulator does not implicate any Fourth Amendment interest whatsoever. See Gov. Br., Dkt. 8 at 10-14. Under the government's view, no warrant is necessary, and it may use a cell-site simulator in the manner identified in the warrant and application without the Court's imprimatur. The Application and Affidavit also notes that a "search warrant may not be legally necessary to compel the investigative technique described herein. Nevertheless, I hereby submit this warrant application out of an abundance of caution." Redacted Warrant App., Dkt. 7 at 21. In any case, the government—in accordance with Department of Justice policy²—did ask for a search warrant, so the Court does not reach the issue of whether the use of a canvassing cell...