Kelly v. United States

281 A.3d 610

Terell A. KELLY, Appellant,

v.UNITED STATES, Appellee.

No. 19-CF-481

District of Columbia Court of Appeals.

Argued April 27, 2022

Decided September 1, 2022

Mindy Daniels for appellant.

William Collins, Public Defender Service, with whom Samia Fam, Public Defender Service, was on the briefs, as amicus curiae supporting appellant.

Kristina L. Ament, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, Timothy J. Shea, United States Attorney at the time the opening brief was filed, and Chrisellen R. Kolb, Elizabeth Trosman, Suzanne Grealy Curt, Bryan Han, and T. Patrick Martin, Assistant United States Attorneys, were on the briefs, for appellee.

Before Beckwith and McLeese, Associate Judges, and Fisher, Senior Judge.

McLeese, Associate Judge:

Appellant Terell A. Kelly was convicted of robbery. Mr. Kelly argues that (1) the trial court erroneously denied Mr. Kelly's motion to suppress evidence obtained as a result of an unlawful search; (2) the evidence was insufficient to support the conviction; and (3) the trial court erroneously refused to permit the jury to decide whether the robbery occurred in the District of Columbia. We affirm.

I. Factual Background

In brief, the evidence at trial was as follows. Jordan Tyler got on a Metro train at the Southern Avenue Metro Station in Maryland. Mr. Tyler took a window seat. Soon thereafter, Mr. Kelly sat next to Mr. Tyler and asked, "You know me?" Mr. Tyler, who did not know Mr. Kelly, responded, "no bro." Mr. Kelly said, "I'm not your bro," and asked for Mr. Tyler's cell phone. Mr. Tyler noticed that Mr. Kelly had a gun under his leg. Mr. Tyler handed his cell phone to Mr. Kelly. Mr. Kelly asked Mr. Tyler for other items, including his headphones, his book bag, and his shoes, which were white and blue Jordan Retro 8s with pink laces. Mr. Tyler handed over those items. Mr. Tyler did not ask for help, because he did not "want to make any movements that would cost [his] life." Mr. Tyler did not willingly give Mr. Kelly his possessions. This encounter took place while the train was moving from the Southern Avenue Metro Station in Maryland to the Congress Heights Metro Station in the District of Columbia.

Metro surveillance cameras captured the incident, and the jury viewed video footage of the incident. A weapon was not visible in the video footage.

Mr. Kelly and his girlfriend Jamilla Salahuddin got off the train at the Congress Heights Metro Station. Mr. Kelly was carrying a backpack that Ms. Salahuddin did not recognize. While Mr. Kelly and Ms. Salahuddin were riding a bus home, Mr. Kelly opened the backpack and gave Mr. Tyler's shoes to Ms. Salahuddin. Mr. Kelly then threw the backpack into a trash can.

After the incident was reported, a Metro Transit Police detective used video surveillance footage to determine when and where Mr. Kelly entered the Metro system before the incident and left the system after the incident. Based on that information, the detective determined the serial number of the SmarTrip card Mr. Kelly used to pay his fare. The detective set up an email alert so that the police would be notified each time that SmarTrip card was used.

The day after the incident, police used an email alert to locate Mr. Kelly and Ms. Salahuddin at the Gallery Place Metro Station. Ms. Salahuddin was wearing Mr. Tyler's shoes. An officer seized the shoes and took photos of Mr. Kelly and Ms. Salahuddin, but the officer did not make an arrest at that time. The police arrested Mr. Kelly a few days later. Mr. Kelly had the SmarTrip card on his person when he was arrested.

A jury found Mr. Kelly guilty of robbery but acquitted him of weapon offenses.

II. Motion to Suppress Evidence

Mr. Kelly argues that the police unlawfully searched and tracked Mr. Kelly's Metro SmarTrip card. We disagree.

A. Procedural and Factual Background

Mr. Kelly filed a pretrial motion to suppress evidence, arguing that the police had unlawfully searched and tracked his Metro SmarTrip card. The United States argued that the police's use of information about Mr. Kelly's SmarTrip card did not constitute a search within the meaning of the Fourth Amendment. See U.S. Const. Amend. IV (prohibiting "unreasonable searches and seizures").

The trial court held an evidentiary hearing on the motion. In brief, the evidence at the hearing was as follows. A SmarTrip card transmits information about the time and location of entry and exit from stations. The card will transmit that information only when the card is within two inches of a card reader. Otherwise, the card does not transmit information. WMATA uses information from SmarTrip cards to keep track of customers’ accounts. SmarTrip cards state that cardholders must produce the card if requested by an authorized employee or the police.

WMATA keeps a "tracking list" for SmarTrip cards of interest to WMATA's investigative unit. If a card is placed on that list, then WMATA personnel are automatically notified of the date, time, and station of use. That information is transmitted every thirty minutes, when WMATA's mainframe computer sends out email alerts. Mr. Kelly's SmarTrip card was put on this list on the date of the incident, and information from the tracking list was used to locate Mr. Kelly and stop him the next day at the Gallery Place Metro Station. In general, card numbers stay on the tracking list until the person holding the card is identified, after which the card number is removed from the tracking list within twelve hours.

The trial court denied the motion to suppress, concluding that the police's use of information about Mr. Kelly's SmarTrip card was not a search.

B. Analysis

"Government conduct is a search within the meaning of the Fourth Amendment if it invades an actual (subjective) expectation of privacy that society is prepared to recognize as reasonable." Jones v. United States , 168 A.3d 703, 711 (D.C. 2017) (ellipses and internal quotation marks omitted). We hold that the police conduct in this case was not a search.

In this case, the police used information generated and maintained by Metro for business purposes, and the police's use of that information provided relatively limited information: for a period of two days, where and when Mr. Kelly entered and left Metro stations. Decisions of the Supreme Court and other courts indicate that such conduct does not amount to a search, because such conduct does not invade a reasonable expectation of privacy. The most directly relevant case is Commonwealth v. Henley , 488 Mass. 95, 171 N.E.3d 1085 (2021). In Henley , the police physically seized a suspect's "CharlieCard" (a card, similar to a SmarTrip card, issued by the Massachusetts Bay Transportation Authority (MBTA)). Id. at 1095 n.2, 1101. The police then used the number on the card to determine, from records kept by the MBTA, the suspect's use of the MBTA system on two specific dates. Id. at 1101-02, 1105-06. The court held that, given the short time period and limited data involved, the police's use of MBTA records did not amount to a search. Id. at 1106-07.

In United States v. Knotts , 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), the Supreme Court of the United States held that it was not a search (1) to place a beeper inside a container that was transported by car; and (2) over the course of a trip from Minnesota to Wisconsin, to use the beeper to track the travels of the container primarily on public roads but also onto private property. Id. at 277-78, 281-82, 103 S.Ct. 1081. The Court explained that a "person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in [the person's] movements from one place to another." Id. at 281, 103 S.Ct. 1081. The Court noted, however, that if such surveillance expanded into "dragnet type law enforcement practices ... different constitutional principles may be applicable." Id. at 284, 103 S.Ct. 1081.

In our view, the present case fits comfortably with Henley and Knotts . The police apparently received very limited information about Mr. Kelly's SmarTrip card, over a period of two days. During that time, the police received email notifications informing the police when Mr. Kelly used the card to enter or leave a Metro station. The notifications simply provided sporadic information about Mr. Kelly's location in a public place at particular moments. They did not permit Mr. Kelly's precise movements to be continuously monitored in real time. We therefore hold that the police's use of the information at issue in this case did not amount to a search.

We are not persuaded by Mr. Kelly's reliance on Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), and Jones , 168 A.3d at 711-12. In Carpenter , the Supreme Court held that it was a search for the police to access seven days’ worth of a suspect's cell-phone location information. 138 S. Ct. at 2213-20, 2217 n.3. As the Supreme Court explained, such information "tracks nearly exactly the movements" of the cell phone's owner. Id. at 2218. Such data thereby "provides an intimate window into a person's life, revealing not only [the person's] particular movements, but through them [the person's] familial, political, professional, religious, and sexual associations." Id. at 2217 (internal quotation marks omitted). In concluding that a search occurred in Carpenter , the Supreme Court explicitly distinguished cell-phone location information from the more limited information available through the "rudimentary tracking" that had occurred in Knotts . Carpenter , 138 S. Ct. at 2215, 2219-20. We view this case as far more comparable to Knotts than to Carpenter .

Jones involved the use of a cell-site simulator. 168 A.3d at 708-10. That device can identify the signal of a particular cell phone, mimic a cell-phone tower, cause the cell phone to communicate with the simulator, and thereby determine the precise location of the cell phone. Id. at 709-10. This court held that the use of...