UNITED STATES v. WILLIAMS (2024)

ORDER DENYING MOTION TO SUPPRESS ALL CELL SITE LOCATION INFORMATION (ECF NO. 44)

James Williams is charged, by a superseding indictment, with four counts of use of interstate commerce facilities in the commission of murders-for-hire, 18 U.S.C. § 1958(a) and 2. ECF No. 14. The Court previously summarized the alleged facts in its earlier order denying Defendant James Williams’ motion to dismiss the superseding indictment. ECF No. 34. As the Court stated in that order, according to the charges, “James Williams was hired to kill two people in two separate murder-for-hire plots. The first murder was accomplished. While attempting the second, William[s] and his co-conspirators shot the wrong man. Williams was charged with two counts of using facilities of interstate commerce to commit murder-for-hire. He was further charged with two counts of conspiracy to commit the same crime.” Id. at PageID.142.

Williams now moves to suppress all Cell Site Location Information (“CSLI”) provided to the Sterling Heights Police Department (“SHPD”) pursuant to a state court order, as well as all subsequent CSLI data associated with his phone collected pursuant to a second state search warrant. Williams contends that the order authorizing production of the CSLI is an unconstitutional general warrant. The government disagrees with both characterizations and justifies the search as a statutorily valid “tower dump” under the Stored Communications Act (“SCA”), codified at 18 U.S.C. §§ 2701–13.

After considering the motion, government response, reply brief, oral argument heard on March 20, 2024, and a supplemental brief from the government, the Court DENIES the motion to suppress.

I. BACKGROUND

In November 2016, Nikolla Berishaj was shot and killed while sitting in a vehicle in front of his apartment in Sterling Heights. ECF No. 52, PageID.315. Berishaj had last been seen on the night of his death at the Legends Night Club in downtown Detroit. On November 10, 2016, Sterling Heights Police Officer Matthew Willard, then assigned to the FBI Macomb County Gang and Violent Crime Task Force, filed an Application for an Order pursuant to 18 U.S.C. § 2703 directing AT&T, Sprint PCS, Metro PCS, T-Mobile and Verizon Wireless to provide CSLI for the following locations and times:

• 415 E. Congress St., Detroit, for the period of November 9, 2016, from 12:00 a.m. to 3:00 a.m. EST;

• 13328 Denver Circle North, Sterling Heights, for the period of November 9, 2016, from 2:00 a.m. to 4:00 a.m. EST.

ECF No. 44, PageID.236.

The 2703(d) Order was presented to and signed by 41A District Court Magistrate Michael J. Piatek. The order sought the following types of information characteristic of a “tower dump” from the cell service providers operating the cell towers serving the two locations during the designated time periods:

cell site activations; numbers dialed; call detail records for all outgoing calls made by devices that used the towers in the locations that provide coverage to the geographic areas listed above; call detail records for all incoming calls made by devices that called phones using the towers in the locations that provide coverage to the geographic areas listed above; call durations; an engineering map showing all cell site tower locations/addresses, sectors and orientations; the physical address/location of all cellular towers in the specified market; that the call detail records be provided in electronic format; and a list of channels, radio channels and their corresponding cell sites.

ECF No. 44-2, PageID.256–57.

On or about November 30, 2016, the SHPD received returns from the phone companies listed above and identified four cellphone numbers that were found to have been active in the vicinity of both Legends Night Club and Berishaj's apartment based on information from nearby cell towers during the requested time windows. ECF No. 44, PageID.236. One of the numbers was (517) 304-0044, an AT&T phone number registered to Defendant Williams. Id. According to the information produced, Williams’ number connected to the cell towers near the Legends Night Club 18 times from 12:00 a.m. to 3:00 a.m. and connected to the cell towers near Berishaj's Sterling Heights apartment two times between 2:00 a.m. and 4:00 a.m. ECF No. 52, PageID.325. More specifically, the records showed that (517) 304-0044 connected to cell towers servicing the area around Legends approximately 15 minutes before Berishaj left the club. Id. at PageID.317. The records also revealed that (517) 304-0044 connected to cell towers providing service to Berishaj's neighborhood at 3:15 a.m., approximately six minutes before he was shot in front of his apartment. Id.

II. LEGAL STANDARD

The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. To establish probable cause, officers must establish “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In other words, there must be a “nexus” between the “place” to be searched and the “things” to be seized. United States v. Reed, 993 F.3d 441, 447 (6th Cir. 2021).

In assessing the sufficiency of an affidavit supporting a warrant, the Court looks only to the four corners of the warrant; information known to an officer but not conveyed to the court is irrelevant. United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010).

III. DISCUSSION

A. General warrants

Contrary to Williams’ characterization, the court order requiring the providers to produce the data at issue is not accurately described as a “search warrant”—nor is it a general warrant. Defendant wishes to describe this as a case of first impression, arguing that the order is like a warrant that categorically sweeps in large volumes of unknown and innocent people into the dragnet of law enforcement and then works backwards as officers rummage through reams of personal data hoping to find something. Thus, according to Williams, by its nature, the warrant cannot establish probable cause and is a fishing expedition because it does not start with specific individuals or accounts to be searched.

Defendant argues, by analogizing to cases that predate mobile phone technology, that the order captures data pertaining to all cellphone users within a certain proximity to a crime scene and that such a broad search exceeds the scope of the probable cause. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (citing Sibron v. New York, 392 U.S. 40, 62–63, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)). Williams argues that the application for the order lacks any individualized suspicion to establish probable cause for each user with a cell phone that connected to a cell tower near the club and condo.

He compares the order to the kind of general warrant that the British monarchy used against colonial American settlers and drove the framers to write the Fourth Amendment. An example of such a general warrant would be one that authorizes a search of every house in one neighborhood because a burglary was reported in the area. See Carpenter v. United States, 585 U.S. 296, 303–04, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018) (summarizing colonialera general warrants and writs of assistance as British officers rummaging around settlers’ homes to find evidence of criminal activity without any restraint). The two policy concerns were unfettered, arbitrary discretion of officials to search and seize and presuming guilt before innocence by targeting individuals without any evidence of criminal activity (rather than vice versa).

The government asserts in response that Fourth Amendment analysis is not applicable because, in this case, an order was issued pursuant to 18 U.S.C. § 2703(d), which governs “Required disclosure of customer communications or records,” and that the instant court order is not a traditional search warrant. Rather, it is an order seeking the production of records issued under the authority of § 2703(c) that is different from a probable cause search warrant. Law enforcement investigators may also use a search warrant under § 2703(d) to obtain historical records from cellular carriers, such as tower dumps, but in this case, they applied for or an order. While the Fourth Amendment requires that search warrants much be based on probable cause, Section 2703 of the SCA applies a lower standard when certain kinds of records are being sought:

(c) Records concerning electronic communication service or remote computing service. --(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity-- ․ (B) obtains a court order for such disclosure under subsection (d) of this section; ․

(d) Requirements for court order. --A court order for disclosure under subsection ․ (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.

18 U.S.C. § 2703(c) & (d) (emphasis added).

The government clarifies that type of information produced in response to the order in this case is known as a “tower dump.” ECF No. 52, PageID.316 n.2. The Supreme Court has defined a “tower dump” as “a download of information on all the devices that connected to a particular cell site during a particular interval.” Carpenter, 585 U.S. at 316, 138 S.Ct. 2206. CSLI from a tower dump can only place a person within “a wedge-shaped sector ranging from one-eighth to four square miles.” Id. at 312, 138 S.Ct. 2206. This Court has previously grappled with 2703(d) orders that require the production of tower dumps and has distinguished them from Fourth Amendment search warrants. See e.g., United States v. Pembrook, 119 F.Supp.3d 577, 579–80 (E.D. Mich. 2015) (Michelson, J.). The records pertaining to a subscriber/customer obtained here included the type of connection, connection and termination time and date, originating number, dialed number, receiving number, call type, duration of call, number/IMSI/IMEI that had its transaction processed through the tower, and the tower that processed the transaction. ECF No. 55, PageID.349–50 (cleaned up); see 18 U.S.C. § 2703(c)(2)(A)–(F). Notably neither the names of callers nor contents of the calls were provided.

B. Orders under 18 U.S.C. § 2703(d)

1. Authority of the state magistrate

Defendant says the state court's appointment order did not permit Magistrate Piatek, who is not a state judge, to sign off on the order. The government responds that the order was issued pursuant to the federal SCA, which authorizes the order either as a state warrant or court order from any court of competent jurisdiction to issue search warrants under § 2703(d). Under Michigan state law, Michigan district court magistrates are authorized to issue search warrants. MCL § 780.651; MCL § 600.8511(g). Such authority is sufficient to permit the state magistrate to sign the § 2703(d) court order.

2. Applicability of § 2703(d) to tower dumps

Next, the Court must determine that the SCA indeed applies to tower dumps. It does. The Department of Justice's Computer Crime and Intellectual Property Section (“CCIPS”) has issued internal guidance that law enforcement may seek tower dumps through § 2703(d) orders or through traditional search warrants under the Fourth Amendment. U.S. Dep't of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations 130, 133 (3d ed. 2009), https://perma.cc/H9CR-YFRS. However, according to the government during oral argument, CCIPS advises that § 2703 orders present a greater litigation risk for the agencies. Defendant points to a different DOJ internal document called the Electronic Surveillance Manual, which includes form orders and warrants for electronic surveillance. According to Williams, those forms and guidance show that the language of § 2703(c) requires the government to identify a specific, individual telecommunications customer in a request for records, rather than seeking production of a tower dump, which by its nature involves a request for CSLI pertaining to many unidentified customers.

While Williams is correct that the application and affidavit for the order at issue here did not identify how many customers’ records were being sought, courts have considered and rejected the argument that the “single subscriber” language in the statute means that § 2703 orders may not require the production of tower dumps. See e.g., United States v. Walker, No. 18-37, 2020 WL 4065980, at *8 (E.D.N.C. July 20, 2020) (“In determining the meaning of any Act of Congress, unless the context indicates otherwise—words importing the singular include and apply to several persons, parties, or things. 1 U.S.C. § 1.”). This Court agrees that the statute's reference to “a subscriber” also authorizes requests for records regarding multiple subscribers.

Indeed, § 2703 orders are routinely used to seek tower dumps and are granted without issue. ECF No. 55, PageID.350 (citing In re Cell Tower Recs. Under 18 U.S.C. 2703(d), 90 F. Supp. 3d 673, 677 (S.D. Tex. 2015), In re Application of the U.S.A. for an Ord. Pursuant to 18 U.S.C. 2703(c), 2703(d) Directing AT & T, Sprint/Nextel, T-Mobile, Metro PCS, Verizon Wireless, 42 F. Supp. 3d 511, 513–14 (S.D.N.Y. 2014), United States v. Bacon, No. 18-75, 2021 WL 5051364, at *8 (D. Del. Nov. 1, 2021)). These cases adopt a broad reading of the statute and its terms: “record[s] or other information pertaining to a subscriber to or customer” of a service. 18 U.S.C. § 2703(c)(1).

Williams cites to two cases casting doubt on whether § 2703 orders may be used to require production of tower dumps. Both opinions, however, rested on somewhat conclusory statements on the issue and were decided by a single magistrate judge who stands alone in having reached this conclusion. In re U.S. ex rel. Ord. Pursuant to 18 U.S.C. Section 2703(d), 930 F. Supp. 2d 698, 700 (S.D. Tex. 2012); In re Application of U.S. for an Ord. Pursuant to 18 USC 2703(d), 964 F. Supp. 2d 674, 677 (S.D. Tex. 2013). Without analysis explaining why tower dump records are not “record[s] or other information pertaining to a subscriber to or customer of such [telecommunications] service” under the SCA, this Court cannot rely on those minority cases. 18 U.S.C. § 2703(c)(1). Defendant concedes that there is no authority from the circuit courts of appeal that support this reading.

3. Sufficiency of the application under the statute

a. Narrowness of scope of application

The standard for disclosure of CSLI by telecommunications providers requires that “the government entity offers specific and articulable facts showing that there are reasonable grounds to believe that the ․ records are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d) (emphasis added). In Williams’ case, there were reasonable grounds to believe that the CSLI was relevant and material to the murder investigation. The application and order explained where the victim was last seen and the circumstances, timing, and location of the shooting. It explained the timeline of events: the victim went to the Legends club in downtown Detroit, he was seen there becoming involved in an altercation with another group, he went home, and he was found shot through the passenger window of his vehicle, parked outside his condo in Sterling Heights. The tower dump order sought information that was limited in time (five hours total) and geographic scope (the two relevant locations). CSLI is collected by telecommunications companies to help track their quality of service and modernize technological systems—and in the form produced here—consists of records that are difficult to distinguish from standard business records, which can easily be obtained by a Grand Jury subpoena without raising Fourth Amendment concerns. The records sought here were not tracking the continuing location of any users. They merely consisted of the cell tower's logged record of numbers connecting to the tower, the numbers they dialed, and similar session information.

Though probable cause was not required, the government points out that the detectives established probable cause. The available facts and the affiant's training and experience created a reasonable belief that Berishaj was followed from the club to his condo (20 miles away) where he was murdered. From the records produced, (517) 304-0044 became a “number of interest” because it pinged to towers servicing Legends 15 minutes before Berishaj left and also pinged towers servicing the condo six minutes before he was shot. Based on this, the state magistrate found there was probable cause based on specific and articulable facts. A magistrate's discretion to issue the warrant or order should only be reversed if the Court finds it was arbitrary. United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc). Probable cause is a higher standard than reasonable grounds. By finding probable cause, the magistrate necessarily found reasonable grounds to believe that the CSLI records were relevant and material to an ongoing criminal investigation.

Defendant challenges the affiant's conclusion, based on his training or expertise, that the suspected murderer would have likely used a cellphone because of the general popularity of such technological devices.¹ The government responds that the affiant's specific knowledge of criminals often using cell phones to “coordinate and execute illegal activity” was sufficient to support his reasonable belief that a tailored tower dump (tracking the scene of the fight at the club and then to the crime scene) would help identify a suspect. ECF No. 52, PageID.321. This is a substantial basis in the affidavit to conclude that a tower dump would likely uncover evidence. See United States v. Delgado, 682 F. Supp. 3d 661, 667–68 (E.D. Mich. 2023) (Ludington, J.) (citing United States v. James, 3 F.4th 1102, 1105 (8th Cir. 2021) (“Cell phones are common and, even if there was no direct evidence that the robber had one, criminals will, in the investigator's training and experience, use them to contact co-conspirators during or after committing a crime.”)).

But such a conclusion is reasonable and a matter of common experience even in the absence of any specialized training or expertise. Carpenter, 585 U.S. at 311, 138 S.Ct. 2206 (“While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor's offices, political headquarters, and other potentially revealing locales.”). The affiant's reliance on such a conclusion is not grounds for rendering the application invalid.

b. Reasonable expectation of privacy

The government argues that, if this were a Fourth Amendment search, Williams cannot meet his burden of proving he had a legitimate expectation of privacy in the CSLI available from a tower dump. Defendant replies that even if most Americans had cell phones in 2016, they did not agree to forfeit their Fourth Amendment protections against collection of their location data or consent to governmental surveillance when they agreed to the terms of service of their cell phone contract.

In Carpenter v. United States, 585 U.S. 296, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018), the Supreme Court held that users have a reasonable expectation of privacy in a specific type of cell-phone-related personal data: seven days of historical CSLI. But the Supreme Court declined to decide whether individuals have a reasonable expectation of privacy in tower dumps (consisting of stored data from a specified, limited time) or whether there is a shorter duration of time for which the government can obtain historical CSLI without invading the privacy protections afforded by the Fourth Amendment. Carpenter, 585 U.S. at 310, n.3, 138 S.Ct. 2206. The type of connection information collected here—limited to two known locations during five hours—was magnitudes short of the seven days of close location tracking in Carpenter. ECF No. 52, PageID.326–28 (collecting cases). The SHPD essentially received a list of time stamps with phone numbers called and received during five specified hours at two locations. This is distinct from “historical cell phone records that provide a comprehensive chronicle of the user's past movements” which concerned the Supreme Court in Carpenter. 585 U.S. at 300, 138 S.Ct. 2206. In oral argument, Defendant asked the Court to extend Carpenter to the facts presented in this case. But in Carpenter, the Supreme Court expressly stated that its holding did not apply to “cell tower dumps.” Id. at 316, 138 S.Ct. 2206 (“Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or ‘tower dumps[.]’ ”). The kind of CSLI in Carpenter involved the detailed chronicling of a person's whereabouts over an entire week. Here, the CSLI at issue is connection information, numbers called and received, and types of service, from two cell towers over a total of five hours. Gathering this kind of information does not permit the continuous tracking of an individual person's phone—it spot-checks the cell tower records in two different locations during two different limited time periods. It could have been that the two sets of information would have yielded no common numbers other than the victim's cell phone, in which case no other user's location would have been tracked from point A to point B. The Supreme Court excluded this kind of information from the scope of its holding in Carpenter, and with good reason. Unlike the more intrusive surveillance of a person's location over a week's time, which the Court found to be a search under the Fourth Amendment, the retrieval of the type of information collected in a tower dump is more akin to obtaining transactional records traditionally maintained by a third party—similar to old-fashioned, analog telephone toll records or banking records showing deposits and withdrawals in a monthly statement. Or, even more analogous—these records are like electronic records from a 24-hour ATM machine—which can reveal an account-holder's location at different times if she accesses her account at different branches over a period of time. There is no reasonable expectation of privacy in the records received in this tower dump—a probable cause search warrant under the Fourth Amendment was not required.

Further, in its supplemental brief, the government invokes United States v. Skinner, 690 F. 3d 772 (6th Cir. 2012), which precedes Carpenter, but may still be good law on the question of collecting CSLI for less than seven days. In Skinner, the Sixth Circuit held that there was no reasonable expectation of privacy in cellphone data that pinpointed the user's location over three days. Id. at 774–76 (affirming denial of motion to suppress evidence obtained as a result of collecting real-time location “ping data” from defendant's voluntarily procured pay-as-you-go burner phone). The court went on to raise the question of whether short-term tracking might raise a Fourth Amendment problem if, even when conducted using otherwise legal means, the comprehensiveness of tracking is unreasonable. Id. at 780. Again, five hours of records sought in a tower dump is well below three days (72 hours). See also United States v. Scott, No. 14-20780, 2015 WL 4644963, at –––– – ––––, 2015 U.S. Dist. LEXIS 102286, at *17–24 (E.D. Mich. Aug. 5, 2015) (Leitman, J.) (applying Skinner and finding that defendant did not establish a reasonable expectation of privacy in a tower dump of a 90-minute period in proximity of a carjacking location).

c. Suppression not available as a remedy

The government also argues that suppression is not appropriate for a non-constitutional violation of the SCA statute. See e.g., United States v. Beaudion, 979 F.3d 1092, 1101 (5th Cir. 2020); 18 U.S.C. § 2708 (“The remedies and sanctions described in this chapter are the only judicial remedies and sanctions for non[-]constitutional violations of this chapter.”). As Judge Michelson pointed out in Pembrook, the SCA allows for relief in the form of fines, imprisonment, and monetary damages, but the statute says nothing about suppression as a remedy for running afoul of its provisions. 119 F. Supp. 3d at 585. Defendant asserts in his reply brief that because the CSLI seized is protected by the Fourth Amendment, its seizure without probable cause is a Fourth Amendment violation punishable by suppression. But, as held above, Defendant's position is built on a faulty premise. The evidence was properly produced pursuant to a § 2703 order rather than a search warrant governed by the probable cause requirements of the Fourth Amendment. There was no constitutional violation, and thus, there are no grounds for suppression. While this application did not violate SCA, if it had, it would not be subject to the exclusionary rule.

C. Good faith doctrine

Assuming for the sake of argument that the order did violate Williams’ reasonable expectation of privacy in his CSLI retrievable in a tower dump, and that a probable cause warrant was therefore required, a seizure of such information in the absence of such a warrant could only be saved by the good faith exception. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

The government notes that the tower dump order here was issued in November 2016, which was one-and-a-half years before Carpenter was decided. “[T]he good faith exception applies when a search is executed pursuant to a statute that was valid at the time of the search but later declared unconstitutional.” United States v. Goldstein, 914 F.3d 200, 204 (3d Cir. 2019). In November 2016, the affiant relied in good faith upon the SCA and relevant case law that applied at the time, which held that tower dumps sought under the SCA could be obtained by a court order without the need of a search warrant. See e.g. United States v. Pendergrass, No. 17-315, 2018 WL 7283631, at *13–14 (N.D. Ga. Sept. 11, 2018) (applying the good-faith exception where the court order for tower dumps was sought 17 months before Carpenter was decided under Eleventh Circuit law that allowed SCA records to be obtained without a search warrant), report and recommendation adopted, No. 17-315, 2019 WL 102377 (N.D. Ga. Jan. 4, 2019). Even assuming that a warrant should have been obtained in light of some retroactive application of Carpenter, the affiant here acted in good faith by applying for a 2703(d) order, and suppression would not be appropriate.

IV. CONCLUSION

For all the reasons stated above, Defendant's motion to suppress all cell site location information collected as a result of the November 9, 2016 court order requiring a “tower dump” is hereby DENIED.

SO ORDERED.

FOOTNOTES

1.   “Based upon my training and experience criminals often utilize cellular telephones to coordinate and execute illegal activity, specifically in the period of time before and after the time of incident. Affiant believes that by comparing the wireless transactional access records (i.e. historical cell tower data, but not the content of any communications), they will identify one or more mobile communications devices common to the relevant locations and/or dates/times identified below; and that any such mobile communications device will be the yet-unidentified mobile communications device(s) used by suspect(s) in furtherance of the foregoing criminal activity or by witnesses likely to possess valuable information.” ECF No. 44-2, PageID.258

TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE