On April 30, 2021, the Seventh Circuit Court of Appeals decided the United States v. Harris[i], which is instructive regarding the validity of court orders, in lieu of search warrants, to track cell phone location. The relevant facts of Harris, taken directly from the case, are as follows:
In late 2016 Ryan Williams was charged in Indiana state court for selling drugs. In March 2017, as an act of cooperation, Williams provided South Bend police the number to a phone (ending in -5822) that, he claimed, drug dealers in the South Bend area used to sell drugs. Over the next several months, officers made 28 controlled buys using the phone number. In these controlled buys, a confidential informant or undercover officer would call the number and follow instructions to buy heroin. Each controlled buy involved half-gram increments of heroin. Different dealers, including Williams himself on occasion, would show up to deliver the drugs. The dealers would sell indiscriminately to anyone who called the number. At meeting spots, cars lined up to buy drugs.
A few months into the investigation, officers sought to establish surveillance of the phone’s location. In July 2017, officers submitted an affidavit to an Indiana state court judge requesting an order for Sprint, the phone’s service provider, to supply 30 days of precise, real-time GPS location data for the phone. The affidavit described two separate controlled buys in which a confidential informant had called the phone and met someone who sold him heroin. One of the controlled buys had occurred two and a half months earlier; the other had occurred the day before. The affidavit did not cite Federal Rule of Criminal Procedure 41 (which governs search warrants based on probable cause). Indeed, the affidavit did not mention probable cause at all. Instead, it cited federal statutes governing the installation of mobile tracking devices, pen registers, and trap and trace devices. See 18 U.S.C. §§ 3117, 3124.
Based on the affidavit, an Indiana judge signed a “court order” finding probable cause to believe that the user of the -5822 phone had engaged in illegal drug possession and trafficking, and that precise tracking of the phone’s location would facilitate the user’s apprehension. Thus, the judge ordered Sprint to supply 30 days of precise, real-time GPS location data for the phone. As authority for the order, the judge cited Rule 41, the Stored Communications Act, see 18 U.S.C. § 2703, and the federal statutes governing mobile tracking devices, pen registers, and trap and trace devices, see 18 U.S.C. §§ 3117, 3123, 3124. Per the order, Sprint gave officers 24-hour access to the phone’s precise location for 30 days.
At the end of the 30-day period, officers submitted a second affidavit, requesting 30 more days of real-time cellphone tracking. The affidavit explained that, since obtaining the first court order, officers had carried out several more controlled buys using the same phone number. It described one of them in detail. The affidavit added that “this is a very complex organization with approximately fifteen members who utilize the [phone] to facilitate drug trafficking.” In all other respects, the second affidavit mirrored the first. Based on the affidavit, the state court judge signed another order, essentially identical to the first, authorizing 30 more days of real-time cellphone tracking.
The same series of events happened one more time. At the end of the second 30-day period, officers submitted a third affidavit, requesting 30 more days of GPS tracking data for the phone. This affidavit closely resembled the second one. It described in detail “one of several undercover officer buys” made in the previous 30-day period. The state court judge signed another materially identical order authorizing 30 more days of real-time cellphone tracking.
Officers eventually recovered the -5822 phone in October 2017 when they pulled over a man named Raymond Love for a traffic violation. Love had two “flip phones” on him, including the -5822 phone. Throughout the traffic stop, both phones rang nonstop.
While tracking the -5822 phone, officers observed that it was located at various times in houses that they later connected to Gibson and Harris. Officers executed a search warrant on the home associated with Harris, where they found a digital scale and almost $4,000 cash.[ii]
Gibson and Harris were indicted under federal law with one count of conspiring to distribute more than one kilogram of heroin. The defendants filed a motion to suppress the evidence and argued that the officers could not lawfully track the phone without a search warrant. The trial court denied the motion and ruled that the court order was sufficient to track the phone location. [Note: While this case also presented issues from the trial and sentencing, this article will focus only on the issue regarding the motion to suppress.]
The defendants appealed the denial of the motion to suppress to the Seventh Circuit Court of Appeals. This issue was whether the state court order to track the cellphone location information was sufficient to substitute for a search warrant.
The court of appeals first noted that
A valid search warrant “require[s] only three things”: (1) an independent magistrate issuing it; (2) a showing of probable cause “that the evidence sought will aid in a particular apprehension or conviction for a particular offense”; and (3) a particular description of “the things to be seized, as well as the place to be searched.” Dalia v. United States, 441 U.S. 238, 255, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979) (internal quotations and citations omitted); accord United States v. Brewer, 915 F.3d 408, 414 (7th Cir. 2019). Substance matters more than form in this context. Thus, a court order can satisfy the warrant requirement even if it is not labeled a “warrant.” Dalia, 441 U.S. at 256 (wiretap order was a valid warrant); United States v. Ning Wen, 477 F.3d 896, 898 (7th Cir. 2007) (same). And a warrant that finds probable cause and cites Rule 41 satisfies the Fourth Amendment even if it also recites the lower standard of the Stored Communications Act. United States v. Sanchez-Jara, 889 F.3d 418, 421 (7th Cir. 2018)[iii]
The court of appeals noted that the court order in Harris’s case satisfied the requirements of a search warrant. This was based on several reasons. First, the state court judge that issued the warrant was “neutral and detached.” Second, the court orders cited Rule 41 and found probable cause to believe the cell phone location tracking would lead to evidence to apprehend drug traffickers. Third, the orders particularly described the object of the search, particularly the location of the -5822 phone. The court stated
With respect to the particularity requirement, we have held that “a warrant authorizing police to follow an identified phone, to see where it goes and what numbers it calls, particularly describes the evidence to be acquired.” Sanchez-Jara, 889 F.3d at 421; accord Brewer, 915 F.3d at 414 (“Judges must describe the specific person, phone, or vehicle to be tracked to satisfy the Fourth Amendment‘s particularity requirement.”)[iv]
The court also noted that
It makes no difference that the court orders were not labeled “warrants,” or that they cited, in addition to Rule 41, other statutes including the Stored Communications Act. See Dalia, 441 U.S. at 256; Ning Wen, 477 F.3d at 898; Sanchez-Jara, 889 F.3d at 421.[v]
Harris also argued that the court orders failed to provide evidence sufficient to establish probable cause. The court of appeals discussed the standard for probable cause and stated
Probable cause for issuance of a search warrant exists if there is “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). . .
We have held that a properly executed controlled buy is generally “a reliable indicator as to the presence of illegal drug activity.” United States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006); see also United States v. Bacon, 991 F.3d 835, 839 (7th Cir. 2021) (“[C]ontrolled buys ordinarily go a long way toward establishing probable cause.”).[vi]
In this case, officers made two controlled buys to support the first court order. The buys were set up by calling the -5822 phone number. While the defendant’s argued that one of the buys was two-and-a-half months prior to the court order, the second buy was one day before the judge signed the order. Thus, this established the continued nature of the criminal activity. The second and third affidavits involved additional controlled buys where officers called the same -5822 number and set up deals for heroin. The court of appeals held that this was sufficient to establish probable cause.
The defendant’s also argued that the search warrant did not specifically name them as suspects. However, the court of appeals noted that a search warrant does not need to be tied to a particular person. Rather, a search warrant requires a “fair probability that evidence” will be found “in a particular place.”[vii]
Therefore, the court of appeals held the state court orders were sufficient to act as a valid warrant to track the -5822 phone and affirmed the denial of the motion to suppress.
[i] No. 20-1236 and 20-2234 (7th Cir. Decided April 30, 2021)
[ii] Id. at 3-6
[iii] Id. at 14 (emphasis added)
[iv] Id. at 15 (emphasis added)
[v] Id. (emphasis added)
[vi] Id. at 15-16 (emphasis added)
[vii] Id. at 17