United States v. Patrick, No. 15-2443 (7th Cir. 2016)
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Patrick, on parole, did not comply with the conditions of his release from state prison. A warrant issued for his arrest. Milwaukee police obtained a second warrant, which authorized them to locate Patrick using cell‐phone data. Police arrested him in a car, on a public street, in possession of a firearm. The Seventh Circuit affirmed denial of a motion to suppress evidence of the gun, rejecting Patrick’s challenge to the validity of the location‐tracking warrant, in which he argued that his person was not contraband nor the proceeds of a crime, so that it was off limits to investigation. The court noted that no warrant was required. Patrick was visible to the general public. The court noted that, under recent Supreme Court precedent, even if the police had stopped Patrick’s car for no reason and later learned that he was a fugitive, the gun would have been admissible. The officers who arrested Patrick had both probable cause to believe that he was a fugitive and knowledge of the arrest warrant. The court discussed the use of a cell-site simulator, which potentially reveals information about many persons other than the suspect, but stated that a “fugitive cannot be picky about how he is run to ground.”
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 2443 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DAMIAN PATRICK, Defendant Appellant. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13 CR 234 — Rudolph T. Randa, Judge. ____________________ ARGUED MAY 24, 2016 — DECIDED NOVEMBER 23, 2016 ____________________ Before WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges. EASTERBROOK, Circuit Judge. Police in Wisconsin arrested Damian Patrick while he was in a car on a public street and found him armed. That led to this federal prosecution, be cause Patrick’s criminal record made it unlawful for him to possess firearms. 18 U.S.C. §922(g)(1). The district court de nied his motion to keep the gun out of evidence. 2015 U.S. 2 No. 15 2443 Dist. LEXIS 1421 (E.D. Wis. Jan. 7, 2015), approving a magis trate judge’s recommendation, 2014 U.S. Dist. LEXIS 179522 (E.D. Wis. Sept. 30, 2014). Patrick pleaded guilty but reserved the opportunity to contest the validity of his arrest, and thus the validity of the gun’s seizure. He now appeals from the 57 month sentence he received. Patrick was serving a term of parole that followed his re lease from state prison. He did not comply with the condi tions of his release, and a warrant was issued for his arrest. (He does not contest that warrant’s validity.) In an effort to find Patrick, Milwaukee’s police obtained a second warrant, which authorized them to locate Patrick using cell phone da ta. Patrick’s cell phone revealed his location, which enabled the police to find him. Patrick attempts to undermine the validity of the loca tion tracking warrant by contending that his person was not contraband or the proceeds of a crime, and that it therefore was off limits to investigation. That sounds like an attempt to resurrect the “mere evidence” doctrine that the Supreme Court disapproved in Warden v. Hayden, 387 U.S. 294 (1967). Hayden authorized the use of warrants to get evidence to lo cate a wanted person. See also Steagald v. United States, 451 U.S. 204 (1981) (search warrant to enter house to look for person to arrest). Police were entitled to use a warrant to ob tain data that would help them track down Patrick’s location. Indeed, they were entitled to arrest him without a war rant of any kind, let alone the two warrants they had. United States v. Watson, 423 U.S. 411 (1976), holds that probable cause alone is enough for an arrest in a public place. A war rant is necessary only when the police need to enter a private area to capture the wanted person. See Payton v. New York, No. 15 2443 3 445 U.S. 573 (1980). Because Patrick was visible to the gen eral public, he did not have any privacy interest in his loca tion at the time. More: the Supreme Court recently held that a valid arrest warrant precludes the suppression of evidence seized in an arrest, even if the arrest was set in motion by officers who had neither probable cause nor knowledge of the warrant. Utah v. Strieff, 136 S. Ct. 2056 (2016). Strieff tells us that, if the police had stopped Patrick’s car for no reason at all and learned only later that he was a wanted man, the gun would have been admissible in evidence. The officers who nabbed Patrick, by contrast, had both probable cause to believe that he was a fugitive from justice and knowledge of the arrest warrant. The gun cannot be less admissible than in Strieff, even if we knock out the means used to track his location. Because Patrick was arrested in a public place, and the arrest was supported by both probable cause and a valid ar rest warrant that had been issued before any effort to learn his location (an effort that therefore could not “taint” the ar rest in the parlance of the exclusionary rule), we need not resolve some difficult issues posed by a fact that came to light while the case was in this court. After Patrick filed his opening brief, the prosecutor revealed that Patrick’s location had been pinned down using data from a cell site simulator. That device (often called a Stingray, the trademark of one brand) pretends to be a cell phone access point and, by emit ting an especially strong signal, induces nearby cell phones to connect and reveal their direction relative to the device. Here is a description from the Department of Justice: Cell site simulators … function by transmitting as a cell tower. In response to the signals emitted by the simulator, cellular devices 4 No. 15 2443 in the proximity of the device identify the simulator as the most attractive cell tower in the area and thus transmit signals to the simulator that identify the device in the same way that they would with a networked tower. A cell site simulator receives and uses an industry standard unique identifying number assigned by a device manufacturer or cellular network provider. When used to locate a known cellu lar device, a cell site simulator initially receives the unique iden tifying number from multiple devices in the vicinity of the simu lator. Once the cell site simulator identifies the specific cellular device for which it is looking, it will obtain the signaling infor mation relating only to that particular phone. When used to identify an unknown device, the cell site simulator obtains sig naling information from non target devices in the target s vicini ty for the limited purpose of distinguishing the target device. By transmitting as a cell tower, cell site simulators acquire the identifying information from cellular devices. This identifying information is limited, however. Cell site simulators provide on ly the relative signal strength and general direction of a subject cellular telephone; they do not function as a GPS locator, as they do not obtain or download any location information from the device or its applications. Moreover, cell site simulators used by the Department must be configured as pen registers, and may not be used to collect the contents of any communication, in ac cordance with 18 U.S.C. §3127(3). This includes any data con tained on the phone itself: the simulator does not remotely cap ture emails, texts, contact lists, images or any other data from the phone. In addition, Department cell site simulators do not pro vide subscriber account information (for example, an account holder s name, address, or telephone number). Department of Justice Policy Guidance: Use of Cell Site Sim ulator Technology (Sept. 3, 2015) at 2. See also the Wikipedia entry at <en.wikipedia.org/wiki/Stingray_phone_tracker>. If the Department’s description is accurate (a question not explored in this litigation) law enforcement officials get the No. 15 2443 5 same sort of information that a phone company could pro vide using its own facilities, and they get it in real time ra ther than waiting for the phone company to turn over data. But instead of collecting information on just one person, as the warrant in this proceeding entitled the police to learn Patrick’s location, a cell site simulator collects the relative location of everyone whose phone is induced to connect to the simulator—though it may discard that information before alerting officials to the presence of the sought after person (just as the phone company, which has location data about all of its customers, would disclose only one person’s loca tion). One potential question posed by use of a cell site simula tor would be whether it is a “search” at all, or instead is cov ered by Smith v. Maryland, 442 U.S. 735 (1979), and United States v. Knotts, 460 U.S. 276 (1983). The former holds that a pen register is not a search because it reveals the making of a call, and the number called, but not the call’s communicative content. The latter holds that the use of a beeper is not a search, because it reveals a suspect’s location but nothing else. Recent decisions such as United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc), and United States v. Carpen ter, 819 F.3d 880 (6th Cir. 2016), apply these principles to hold that tracking a person via data from phone companies is not a search within the scope of the Fourth Amendment. (Graham involved historical cell tower location information and Carpenter involved “transactional records” from phone companies, so both cases dealt with the sort of information covered by the location warrant in this proceeding.) Police freely use databases, containing information such as the ad dresses associated with automobile license plates and per sons licensed to drive, to track down suspects; they search 6 No. 15 2443 trash for credit card receipts showing where he made pur chases; they consult a suspect’s relatives and friends (and sometimes his enemies) to learn his whereabouts; no one thinks that those methods require a search warrant. A contrary line of argument analogizes cell site simula tors to GPS locators, which are treated as searches when po lice enter private property to install them, see United States v. Jones, 132 S. Ct. 945 (2012), and may be searches when used for extended durations even if installed with a vehicle own er’s consent, id. at 954–64 (concurring opinions of Sotomayor and Alito, JJ.). If a cell site simulator is like a GPS tracker, and if the approach of the concurring opinions in Jones is adopted, then it would be necessary to know how long the police used a simulator while searching for Patrick and just how accurate is the location information it provides. (Is it information that leaves uncertainty about where in several city blocks a suspect may be, such as the beeper in Knotts, or is it closer to the precise location supplied by a GPS tracker?) Cf. Kyllo v. United States, 533 U.S. 27 (2001) (thermal image of the inside of a house is a search, given a person’s strong pri vacy interest in his dwelling). The United States has conceded for the purpose of this litigation that use of a cell site simulator is a search, so we need not tackle these questions. The parties join issue, how ever, on the significance of the fact that police did not reveal to the state judge who issued the location tracking warrant that they planned to use a cell site simulator—indeed, im plied that they planned to track him down using his phone company’s data. Patrick says that leaving the judge in the dark (perhaps misleading the judge by omitting a potentially material fact) makes the location tracking warrant invalid. No. 15 2443 7 This poses the question whether a judge is entitled to know how a warrant will be executed. The Fourth Amendment requires that warrants be based “upon probable cause, supported by Oath or af rmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Supreme Court stated in Dalia v. United States, 441 U.S. 238, 256 (1979), that neither constitutional text nor precedent suggests that “search war rants also must include a specification of the precise manner in which they are to be executed.” The manner of search is subject only to “later judicial review as to its reasonable ness.” Id. at 258. And the Justices added in Richards v. Wis consin, 520 U.S. 385 (1997), that courts cannot limit a warrant so as to foreclose a particular means of execution. In Richards the police sought a warrant that would have authorized a no knock entry to conduct a search. The judge denied that request but issued a warrant for a regular search. After the police conducted a no knock entry anyway, the Court held that this was proper because it was reasonable to carry out the search that way under the circumstances. This means that the police could have sought a warrant authorizing them to find Patrick’s cell phone and kept silent about how they would do it. Or affidavits and the warrant itself might have said that “electronic means that reveal loca tions of cell phones” will be used. Professor Kerr has con cluded from Dalia and Richards, and other considerations, that the Fourth Amendment forbids judges to attempt to reg ulate, ex ante, how a search must be conducted, and confines the judiciary to ex post assessments of reasonableness. Orin S. Kerr, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241, 1260–71 (2010). 8 No. 15 2443 We can imagine an argument that it will often be unrea sonable to use a cell site simulator when phone company da ta could provide what’s needed, because simulators poten tially reveal information about many persons other than the suspects. (The contrary argument is that data from simula tors is current, while data relayed through phone companies’ bureaucracies may arrive after the suspect has gone elsewhere.) But if the problem with simulators is that they are too comprehensive, that would not lead to suppres sion—though it might create a right to damages by other persons whose interests were unreasonably invaded. Patrick is not entitled to invoke the rights of anyone else; suppres sion is proper only if the defendant’s own rights have been violated. See, e.g., United States v. Payner, 447 U.S. 727 (1980). Patrick contends that, even if ex ante authorization of the method is unnecessary, the police must be candid with the judiciary when they mention potential methods of executing a search warrant. He seeks, at a minimum, a remand to ex plore those questions, after the fashion of a Franks hearing (see Franks v. Delaware, 438 U.S. 154 (1978)), at which the court would decide whether the warrant still would have issued if the affidavits had been more forthcoming. But for the reasons given earlier we conclude that the an swers do not control this appeal. A person wanted on proba ble cause (and an arrest warrant) who is taken into custody in a public place, where he had no legitimate expectation of privacy, cannot complain about how the police learned his location. Recall that the cell site simulator (unlike the GPS device in Jones) was not used to generate the probable cause for arrest; probable cause to arrest Patrick predated the effort to locate him. From his perspective, it is all the same whether No. 15 2443 9 a paid informant, a jilted lover, police with binoculars, a bar tender, a member of a rival gang, a spy trailing his car after it left his driveway, the phone company’s cell towers, or a de vice pretending to be a cell tower, provided location infor mation. A fugitive cannot be picky about how he is run to ground. So it would be inappropriate to use the exclusionary rule, even if the police should have told the judge that they planned to use a cell site simulator to execute the location warrant. The Department of Justice announced last September that in the future it would ordinarily seek a warrant, plus an or der under the pen register statute, 18 U.S.C. §3123, before using a cell site simulator, but it has not conceded that this is constitutionally required. Questions about whether use of a simulator is a search, if so whether a warrant authorizing this method is essential, and whether in a particular situa tion a simulator is a reasonable means of executing a war rant, have yet to be addressed by any United States court of appeals. We think it best to withhold full analysis until these issues control the outcome of a concrete case. AFFIRMED 10 No. 15 2443 WOOD, Chief Judge, dissenting. This case raises serious is sues about the use of cell site simulators to track down the location of a target person. That is how police found Damian Patrick, for whom an arrest warrant had been issued for pa role violations. My colleagues see no serious Fourth Amend ment issues in Patrick’s case, because they believe that a de fendant has no interest in the manner in which a warrant is executed. They also question whether the use of a cell site simulator is a “search” at all, noting that Smith v. Maryland, 442 U.S. 735 (1979), holds that the use of a pen register is not a “search,” and that United States v. Knotts, 460 U.S. 276 (1983), says the same thing about the use of a beeper. Finally, they note that Patrick was arrested in a “public place,” by which they mean sitting in the passenger seat of a parked car. All of this matters greatly to Patrick, because if his initial arrest was invalid, then the gun that the police spotted in plain view in the car should have been suppressed as “fruit of the poison ous tree,” see Wong Sun v. United States, 371 U.S. 471, 488 (1963), and Patrick’s conviction under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for being a felon in possession of a firearm would need to be revisited. If the arrest complied with the Fourth Amendment, the gun was lawfully found and seized and his conviction must be affirmed. Because I believe that the panel opinion underestimates the relevant technology’s capa bilities and extends Utah v. Strieff, 136 S. Ct. 2056 (2016), too far, I dissent. This is the first court of appeals case to discuss the use of a cell site simulator, trade name “Stingray.” We know very little about the device, thanks mostly to the government’s re fusal to divulge any information about it. Until recently, the government has gone so far as to dismiss cases and withdraw evidence rather than reveal that the technology was used. See No. 15 2443 11 Memorandum Agreement between Amy S. Hess, Assistant Director, Operational Technology Division, FBI, and David Salazar, Chief of Police, MPD (Aug. 13, 2013) (agreeing to dis miss cases rather than disclose use of Stingray). Indeed, in this case, the government appears to have purposefully concealed the Stingray’s use from the issuing magistrate, the district court, defense counsel, and even this court. It ultimately ad mitted its use of the device only in response to an amicus curiae brief filed during this appeal. Although, as we all agree, Patrick does not have standing to challenge any location information gathered from other persons’ cell phones, see Jones v. United States, 362 U.S. 257, 261 (1960), overruled on other grounds by United States v. Sal vucci, 448 U.S. 83 (1980), he is entitled to challenge the use of the Stingray itself, along with the gathering of any non loca tion information from his cell phone. The record is painfully—indeed fatally—inadequate with respect to critical details about the way the Stingray was used. We are thus not in a position to determine whether (1) its use was sufficiently outside the scope of the warrant to merit blanket suppression; and whether (2) Patrick’s arrest (putting the warrant to one side) was based in whole or in part on in formation gathered in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510– 20 (if, as it may, that statute applies). Even if the Stingray re vealed no information beyond Patrick’s location, we must know how it works and how the government used it before we can judge whether it functions in a manner sufficiently dif ferent from the location gathering methods specified in the warrant that it amounted to a search outside the warrant’s scope. 12 No. 15 2443 The majority offers a long quote from the Department of Justice Policy Guidance manual on the use of cell site simula tor technology, ante at 3–4, but that information is contestable. We are given no reason to think that a municipal police de partment such as MPD was bound in any way to the guidance offered by the DOJ, or that the MPD chose to follow the DOJ Guidance as a matter of internal policy. There is another side to the story, but because of the government’s furtiveness, Pat rick never had the chance to present it. With certain software (known as “Fishhawk” and “Por poise”), the Stingray is much more than a high tech pen reg ister. It can capture the “emails, texts, contact lists, images,” and other data disclaimed by the last paragraph of the major ity’s excerpt of the Policy Guidance. It can eavesdrop on tele phone conversations and intercept text messages. See Stepha nie K. Pell & Christopher Soghoian, Your Secret Stingray’s No Secret Anymore: The Vanishing Government Monopoly over Cell Phone Surveillance and Its Impact on National Security and Con sumer Privacy, 28 HARV. J.L. & TECH. 1, 11–12 (2014) (“Depend ing on the particular features of the surveillance device and how they are configured by the operator, IMSI catchers can be used to identify nearby phones, locate them with extraordi nary precision, intercept outgoing calls and text messages, as well as block service, either to all devices in the area or to par ticular devices.” (footnotes omitted)). Because many third party apps automatically send and receive data through the subscriber’s network, it is reasonable to assume that a Sting ray can collect other information from a cell phone, as well. We know nothing about the way in which the Stingray used in Patrick’s case was configured, nor do we know the extent of its surveillance capabilities. The majority properly No. 15 2443 13 notes that DOJ’s description may or may not be accurate, ei ther in general or for particular cases. It is worth underscoring how inaccurate that description may be and how important it is, both for Patrick and as a matter of Fourth Amendment ju risprudence and public policy, that these questions be ex plored. In this case, the location warrant authorized only methods of fixing Patrick’s location that involved gathering infor mation that would reveal his phone’s connection with cell phone towers. The Supreme Court has recognized that a search of cell phone data requires a warrant. See Riley v. Cali fornia, 134 S. Ct. 2473, 2494–95 (2014) (associating a warrant less search of a cell phone with the “reviled ‘general warrants’ and ‘writs of assistance’” against which the Fourth Amend ment was aimed). The authorization of the collection of loca tion data cannot be expanded to permit a search of the con tents of Patrick’s cell phone. If the Stingray gathered infor mation from the phone that went beyond his location, such a “search” of his phone would have been unauthorized, and suppression of the additional information (which might have pinpointed Patrick’s location) would likely be required. See United States v. Foster, 100 F.3d 846, 850–51 (10th Cir. 1996) (applying blanket suppression where agents performed gen eral search of residence and seized “anything of value” even though warrant authorized only search for four firearms and marijuana). Title III may also be pertinent here, depending on what the facts reveal about the device that was used. It seems clear that if the MPD intercepted any cell phone conversations, text messages, or data, Title III covered those interceptions. Under section 2511(a), any person who “intentionally intercepts … 14 No. 15 2443 any wire, oral, or electronic communication” without follow ing the proper procedures is liable under the statute. “Title III now applies to the interception of conversations over both cel lular and cordless phones.” Bartnicki v. Vopper, 532 U.S. 514, 524 (2001). The Act defines “electronic communication” as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photoop tical system that affects interstate or foreign commerce.” 18 U.S.C. § 2510(12). Text messages and cell phone data trans missions easily fit that definition. None of the relevant excep tions to that definition applies, see id., and there is no reason to think that the interception of text messages or data trans missions would otherwise be excluded from it. See Brown v. Waddell, 50 F.3d 285, 289 (4th Cir. 1995) (“The principal pur pose of the [Electronic Communications Privacy Act] amend ments to Title III was to extend to ‘electronic communications’ the same protections against unauthorized interceptions that Title III had been providing for ‘oral’ and ‘wire’ communica tions via common carrier transmissions.”); see also Joffe v. Google, Inc., 746 F.3d 920, 930 (9th Cir. 2013) (electronic infor mation transmitted over Wi Fi network does not fit 18 U.S.C. § 2511(g) exceptions). The MPD concededly never followed the procedures re quired for an order for electronic surveillance. See 18 U.S.C. § 2518. Any interception of the substance of Patrick’s commu nications would thus almost certainly be illegal. The remedy for a Title III violation is normally the suppression of the ille gally intercepted communications and any evidence derived from them. 18 U.S.C. § 2515. If such evidence is relevant to Patrick’s conviction, Title III might require suppression and, No. 15 2443 15 in the absence of the suppressed evidence, a reversal of the conviction. Even if the Stingray did not gather any information from Patrick’s cell phone other than its location, its use still might be problematic. The court order authorized “cellular tele phone global positioning system (GPS) location information … if available,” and the “identification of the physical location of the target cellular telephone.” But that is not all it said: it specified in some detail the manner in which that information was to be collected—from the service provider. “Such service provider,” it stated, “shall initiate a signal to determine the location of the subject’s mobile device on the service pro vider’s network or with such other reference points as may be reasonably available[.]” It “[a]pprove[d] the release of infor mation,” not the use of a device that would allow the MPD to track Patrick’s phone on its own. While it also “authorize[d] the identification of the physical location of the target cellular phone,” the context implied that the identification would be derived from information released by a service provider. I take these limitations, built into the warrant, seriously; they circumscribe the authority granted by the warrant just as surely as a physical limitation to the house but not the garage, or vice versa, would do. At oral argument, the government argued that the warrant authorized it to obtain Patrick’s location with no restrictions on how it went about accomplishing that task. It relies on Da lia v. United States, 441 U.S. 238, 257 (1979), which held that a warrant was not defective for lack of particularity where it authorized police officers to install an electronic listening de vice in the defendant’s office but did not specify that the of ficers would covertly enter the premises to do so. Dalia noted 16 No. 15 2443 that “the specificity required by the Fourth Amendment does not generally extend to the means by which warrants are ex ecuted.” Id. But that statement must be understood in context. Here, the device itself is what is at issue. Because of its capa bilities, the way it was used could affect the scope and loca tion of the search itself. We are in all likelihood not looking at two interchangeable tools for gathering exactly the same information. If the facts ultimately show that the MPD had gathered the identical in formation in the same manner that Sprint would have used, I would concede that there is no problem. In such a case, the only difference between using the Stingray and obtaining the information from Sprint would be who gathered the infor mation. And the majority may even be correct that the gov ernment’s regrettable lack of candor about the manner of the search is not enough by itself to render the search unconstitu tional. Under these circumstances, there would be no addi tional privacy intrusion from the use of the Stingray, and the misrepresentation would not affect whether there was proba ble cause for the search. See United States v. Mittelman, 999 F.2d 440, 444 (9th Cir. 1993) (holding that because “only false statements that are material in causing the warrant to issue will invalidate it,” “misstatements regarding the manner of a search do not bear on the issue of whether the search itself was justified” under the Fourth Amendment (quoting United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985))); see also Franks v. Delaware, 438 U.S. 154, 156 (1978) (warrant based in part on false statements is void if “with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause”). This means that the critical questions in a case such as this one, where a much more sophisticated device is used, are how the Stingray was No. 15 2443 17 used, how it works, and whether, conceptually, it “searched” Patrick’s phone in the same manner that Sprint would or much more intrusively. According to extra record information provided by amici, the Stingray is different in kind, not just in degree. On this record, we do not have sufficient information to say whether that is right or wrong. We do not know whether the warrant’s authorization of Sprint to “initiate a signal to determine the location of the subject’s mobile device on the service pro vider’s network or with such other reference points as may be reasonable available” also describes the working of the Sting ray that was used. If so, perhaps all is well. If the Stingray works in a different manner—for instance, by forcing the cell phone to transmit location data housed inside the cell phone rather than using a signal to locate the cell phone on the Sprint network—it might not. See C. Justin Brown & Kasha M. Leese, Stingray Devices Usher in A New Fourth Amendment Battle ground, 39 CHAMPION 12, 14 (2015) (arguing that cell site sim ulators engage in “electronic … intrusion” possibly constitut ing trespass because they force cell phones to transmit infor mation that they would not otherwise). The relevant point is that a location warrant does not (without saying more) au thorize a search of the contents of the cell phone itself. If that is the right way to describe what the Stingray did, its use would constitute an impermissible search, and the gun would be fruit of the poisonous tree. At this point, we do not have the facts to say. My colleagues finally dismiss my concerns for a different reason: they contend that the existence of a warrant for Pat rick’s arrest brings this case under the rule of Utah v. Strieff, 18 No. 15 2443 136 S. Ct. 2056 (2016), and precludes the application of the ex clusionary rule. In Strieff, the Supreme Court held that a valid, pre existing arrest warrant could attenuate the link between an unlawful investigatory stop and evidence seized as a result of that stop. Id. at 2062. But I do not read Strieff so broadly. It is critical in this connection to recall that Strieff rests on the idea of a break in the causal chain, and it is that break that attenuates any Fourth Amendment concerns. In Strieff, the of ficer stopped the defendant without reasonable suspicion and then conducted a warrant check; based on the warrant he dis covered, he arrested the defendant. Id. at 2060. The drugs at issue were found by the search incident to that arrest. Id. As a result, the causal chain between the officer’s illegal action— the initial, unjustified Terry stop—and the search was “brok[en]” by the intervening discovery of the warrant. Id. at 2063. The arrest warrant was “downstream” of the tainting action, and “upstream” of the search. Our case presents a different sequence. The arrest warrant here (and the relevant officers’ awareness of it) preceded both the potentially illegal action and the potentially valid search—it was “upstream” of both. The MPD got the arrest warrant, got the location warrant, used the Stingray to locate Patrick, and then found the gun in plain view in the process of arresting him. The arrest warrant is therefore not an inter vening cause, at least in the temporal sense. One could per haps argue that the arrest warrant resurfaced in the causal chain at the moment the MPD located Patrick, and then moved to apprehend him. (Ironically, in this case, an arrest warrant was not even necessary to authorize the finding of the gun, which was in plain view.) But any causal connection No. 15 2443 19 in this case between a potentially illegal search and the dis covery of Patrick’s gun had to do with the timing of the search—not whether the search could be conducted at all. As a result, the arrest warrant did not do anything to attenuate the potential taint. I recognize that Strieff contains language that could be stretched to suggest that a warrant’s existence, regardless of the actual causal chain, is sufficient attenuation. See id. at 2062 (“The Segura Court suggested that the existence of a valid warrant favors finding that the connection between unlawful conduct and the discovery of evidence is ‘sufficiently attenu ated to dissipate the taint.’ That principle applies here.” (cita tion omitted)). But elsewhere in the opinion the Court empha sized not only that the “warrant was valid” and “predated [the officer’s] investigation,” but also that it “was entirely un connected with the stop,” and that the officer’s decision to ar rest the defendant was “a ministerial act that was inde pendently compelled by the pre existing warrant.” Id. (em phasis added). Here, the use of the Stingray led to the arrest, and neither the arrest nor the search was a ministerial act. It oversimplifies Strieff to focus solely on whether an inter vening circumstance can be identified. That is important, but it is not enough by itself. Strieff, like all attenuation cases, also rests on two other factors: (1) the “temporal proximity” be tween the potentially unlawful action and the “search,” and (2) the culpability of the police misconduct. Id. As in Strieff, the relative temporal proximity in our case between the po tentially illegal conduct and the search weighs against atten uation. But unlike the situation in Strieff, the facts here do not permit us to say that the MPD’s conduct was merely negli 20 No. 15 2443 gent: the police knew what they were doing. Purposeful eva sion of judicial oversight of potentially illegal searches is ex actly the kind of “police misconduct … most in need of deter rence.” Id. at 2063 (noting that exclusion should be applied where misconduct is “purposeful or flagrant”). I would find that all three factors identified in Strieff weigh against finding attenuation in this case. None of the other doctrines that might counsel against use of the exclusionary rule applies here. Although the independ ent source doctrine precludes the operation of the exclusion ary rule, see Murray v. United States, 487 U.S. 533, 537 (1988), there was no alternate source here that enabled the MPD to find Patrick. Nor is this case a likely candidate for the inevita ble discovery rule. See Nix v. Williams, 467 U.S. 431, 444 (1984) (exclusionary rule does not apply if “prosecution can estab lish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by law ful means”). Patrick’s gun was found because it was in the car where he was sitting at the time of his apprehension. If not for the Stingray, he might not have been apprehended in his ve hicle, or he might have been apprehended at a time when the gun was not located in his vehicle. Neither would the good faith exception apply. “The good faith exception precludes application of the exclusionary rule when law enforcement reasonably and in good faith believed that a search was lawful.” United States v. Tomkins, 782 F.3d 338, 349 (7th Cir. 2016) (citing United States v. Leon, 468 U.S. 897, 922 (1984)). The contents of the search warrant applica tion, the warrant itself, and the government’s litigation of this case all tend to show that the officers deliberately deceived No. 15 2443 21 the issuing judge about how they planned to execute the war rant. While the test for the exception is “an objective one,” Leon, 468 U.S. at 919 n.20, that fact is designed to safeguard the Fourth Amendment’s substantive protections, not to limit them. See id. at 915 n.13. Deception of the issuing magistrate is just the kind of misconduct “sufficiently deliberate that ex clusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice sys tem.” Herring v. United States, 555 U.S. 135, 144 (2009). Leon specifically noted that the good faith exception should not ap ply “when the affiant misleads the magistrate with a reckless or knowing disregard for the truth.” United States v. Glover, 755 F.3d 811, 818 (7th Cir. 2014) (citing Leon, 468 U.S. at 914 (suppression appropriate where officers dishonest in prepar ing affidavit)). A number of other courts have suggested that bad faith, especially when manifested by insufficient candor to the issu ing magistrate, may justify suppression. See United States v. Sells, 463 F.3d 1148, 1161 n.7 (10th Cir. 2006) (noting that “a number of courts have concluded that the severance doctrine is not applicable where the Government has added particu larized descriptions of items to be seized for which probable cause exists as a pretext to support an otherwise unlawful search and seizure”); United States v. Woerner, 709 F.3d 527, 534 (5th Cir. 2013) (collecting cases for principle that suppres sion is appropriate where the “officer applying for the war rant knew or had reason to know that the information was tainted and included it anyway without full disclosure and explanation”); United States v. Reilly, 76 F.3d 1271, 1281 (2d Cir. 1996) (rejecting application of good faith exception “when the officers are themselves ultimately responsible for the defects in the warrant”). Although these cases are about 22 No. 15 2443 affidavits supporting probable cause, their logic applies equally to the execution of the search. After all, the Leon ex ception was meant to prevent the “[p]enalizing [of] the officer for the magistrate’s error,” Leon, 468 U.S. at 921, and to “allow some latitude for honest mistakes.” Maryland v. Garrison, 480 U.S. 79, 87 (1987). If the MPD misled the magistrate or reason ably should have known that the warrant did not cover a Stingray, neither concern applies here. Even if my colleagues’ reading of Strieff were correct or another doctrine precluding the exclusionary rule applied, those facts would not resolve any potential Title III issues dis covery could reveal. Our sister circuits disagree about whether the Title III suppression remedy is affected by the judge made exclusionary rule. Compare United States v. Rice, 478 F.3d 704, 711 (6th Cir. 2007) (good faith exception does not apply); United States v. Spadaccino, 800 F.2d 292, 296 (2d Cir. 1986) (using this same rationale and reaching the same conclusion in analyzing whether the Leon good faith excep tion applied to a state wiretapping statute); United States v. Vest, 813 F.2d 477, 484 (1st Cir. 1987) (rejecting judicially cre ated exception); with United States v. Moore, 41 F.3d 370, 376 (8th Cir. 1994) (good faith exception applies); United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988) (same, alt hough without analysis); United States v. Brewer, 204 Fed. App’x 205, 208 (4th Cir. 2006) (same). No court of appeals has found that the attenuation rule applies to the Title III suppres sion remedy. In fact, United States v. Giordano, 416 U.S. 505, 528 (1974), seems to suggest it does not. Unless we are pre pared to weigh in on this question without knowing whether it is before us, we should remand for further fact finding. No. 15 2443 23 It is time for the Stingray to come out of the shadows, so that its use can be subject to the same kind of scrutiny as other mechanisms, such as thermal imaging devices, GPS trackers, pen registers, beepers, and the like. Its capabilities go far be yond any of those, and cases such as Riley indicate that the Supreme Court might take a dim view of indiscriminate use of something that can read texts and emails, listen to conver sations, and perhaps intercept other application data housed not just on the target’s phone, but also on those of countless innocent third parties. Governmental entities, including the Justice Department itself, see DOJ Policy Guidance, ante at 3– 4, and the State of Illinois, see Citizen Privacy Protection Act, Pub. Act 099 0622 (2016) (delineating court order, disclosure, and minimization requirements for police use of cell site sim ulators), have recognized the weighty Fourth Amendment concerns the device provokes. It is possible that discovery could reveal that none of those concerns is triggered in this case. But before we dismiss them, we should have all the facts before us. For that reason, I would remand this case for fur ther fact finding. I respectfully dissent.
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