United States v. Lambis

197 F.Supp.3d 606

UNITED STATES of America,

v.Raymond LAMBIS, Defendant.

15cr734

United States District Court, S.D. New York.

Signed July 12, 2016

James M. McDonald, U.S. Department of Justice, New York, NY, for Plaintiff.

Christopher Aaron Flood, Federal Defenders of New York Inc., Bernard Alan Seidler, B. Alan Seidler, Esq., New York, NY, for Defendant.

OPINION & ORDER

WILLIAM H. PAULEY III, District Judge:

Raymond Lambis moves to suppress narcotics and drug paraphernalia recovered by law enforcement agents in connection with a search of his apartment. Lambis's motion to suppress is granted.

BACKGROUND

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. Pen register information is a record from the service provider of the telephone numbers dialed from a specific phone. CSLI is a record of non- content-based location information from the service provider derived from "pings" sent to cell sites by 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.

Using CSLI, DEA agents were able to determine that the target cell phone was located in the general vicinity of "the Washington Heights area by 177th and Broadway." (April 12, 2016 Suppression Hearing Transcript ("Supp. Tr."), at 39.) However, this CSLI was not precise enough to identify "the specific apartment building," much less the specific unit in the apartment complexes in the area. (Supp. Tr. at 39.)

To isolate the location more precisely, the DEA deployed a technician with a cell-site 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. The device then calculates the strength of the "pings" until the target phone is pinpointed. (See Supp. Tr. at 40.) 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. (Supp. Tr. at 41.)

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. (Supp. Tr. at 8–9.) Once in the apartment, DEA agents obtained Lambis's consent to search his bedroom. (Supp. Tr. at 13.) Ultimately, the agents recovered narcotics, three digital scales, empty zip lock bags, and other drug paraphernalia. (Supp. Tr. at 14.) Lambis seeks to suppress this evidence.

DISCUSSION

I. Fourth Amendment Search

The Fourth Amendment guarantees that all people shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. Amend. IV. "[T]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable." New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). "[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, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Barring a few narrow exceptions, "warrantless searches ‘are per se unreasonable under the Fourth Amendment.’ " City of Ontario v. Quon, 560 U.S. 746, 760, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). The home has special significance under the Fourth Amendment. " ‘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, 121 S.Ct. 2038 (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ).

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, 121 S.Ct. 2038. In so holding, the Court rejected the Government's argument that because the device only detected "heat radiating from the external surface of the house," there was no "search." Kyllo, 533 U.S. at 35, 121 S.Ct. 2038. The Court reasoned that distinguishing between "off-the-wall" observations and "through-the-wall surveillance" would "leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home." Kyllo, 533 U.S. at 35–36, 121 S.Ct. 2038. Thus, 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, 121 S.Ct. 2038.

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. See United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) ; see also State v. Andrews, 227 Md.App. 350, 395–96, 134 A.3d 324 (2016) (holding that the use of a cell site simulator requires a search warrant based on probable cause, and finding that the trial court properly suppressed evidence obtained through the use of the cell-site simulator). The DEA's use of the cell-site simulator revealed "details of the home that would previously have been unknowable without physical intrusion," Kyllo, 533 U.S. at 40, 121 S.Ct. 2038, namely, that the target cell phone was located within Lambis's apartment. Moreover, the cell-site simulator is not a device "in general public use." Kyllo, 533 U.S. at 40, 121 S.Ct. 2038. In fact, the DEA agent who testified at the hearing had never used one.

The Government counters that Kyllo is not implicated here. In Kyllo, the Court expressed concern that the Government could employ devices, like a thermal imaging device, to learn more intimate details about the interior of the home, such as "at what hour each night the lady of the house takes her daily sauna and bath." Kyllo, 533 U.S. at 38, 121 S.Ct. 2038. The Government contends that because the only information to be gleaned from a cell-site simulator is the location of the target phone (for which the Government had already obtained a warrant for CSLI), no intimate details of the apartment would be revealed and Lambis's expectation of privacy would not be implicated. But the Second Circuit has rejected a similar argument even when the search at issue could "disclose only the presence or absence of narcotics" in a person's home. United States v. Thomas, 757 F.2d 1359, 1366–67 (2d Cir.1985) (holding that a canine sniff that "constitutes a search under the Fourth Amendment ... when employed at a person's home").

The Government attempts to diminish the power of Second Circuit precedent by noting that Thomas represents a minority position among circuit courts. But this Court need not be mired in the Serbonian Bog of circuit splits. An electronic search for a cell phone inside an apartment is far more intrusive than a canine sniff because, unlike narcotics, cell phones are neither contraband nor illegal. In fact, they are ubiquitous. Because the vast majority of the population uses cell phones lawfully on a daily basis, "one cannot say (and the police cannot be assured) that use of the relatively crude equipment at issue here will always be lawful." Kyllo, 533 U.S. at 38, 121 S.Ct. 2038 ; see also United States v. Jacobsen, 466 U.S. 109, 124, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ("[T]he reason [a canine sniff of luggage at the airport does] not intrude upon any legitimate privacy interest was that the governmental conduct could reveal nothing about noncontraband items.").

The Supreme Court adopted a similar rationale in United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). There, the Court held that "[t]he monitoring of a beeper in a private residence, a location not opened to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence." Karo, 468 U.S. at 706, 104 S.Ct. 3296. The Government argued that "it should be able to monitor beepers in private residences without a warrant if there is the requisite justification in the facts for believing that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity." Karo, 468 U.S. at 717, 104 S.Ct. 3296. In rejecting the Government's argument, the Court explained that "[t]he primary reason for the warrant requirement is to interpose a neutral and detached magistrate between the citizen and the officer engaged in the often competitive enterprise of ferreting out crime," and that "[r]equiring a warrant will have the salutary effect of ensuring that use of beepers is not abused, by imposing upon agents the requirement that they demonstrate in advance their justification for the desired search." Karo, 468 U.S. at 717, 104 S.Ct. 3296 (quotations omitted). Thus, even though the DEA believed that the use of the cell-site simulator would reveal the location of a phone associated with criminal activity, the Fourth Amendment requires the Government to obtain a warrant from a neutral...