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United States v. Brown

United States District Court, D. Nebraska

August 23, 2017



          Cheryl R. Zwart United States Magistrate Judge

         Pending before the court are Motions to Suppress filed by Defendants Isaiah Brown, Wakonda Hazel, and Bajah Pittman. (Filing Nos. 134, 136, & 138). The defendants seek to suppress historical cell-site location information and related evidence compiled and obtained by the government through 18 U.S.C. §2703(c) & (d).


         Between January 2014 and April 2016, several bank larcenies and attempted bank larcenies were committed in which the suspects pulled and dragged automatic teller machines (“ATMs”) through broken glass doorways and windows with chains, ropes, or other cables attached to stolen vans or pickup trucks.

         On November 23, 2015, one such bank larceny was committed in the lobby of First State Bank in Waverly, Nebraska. Bank surveillance video revealed multiple suspects. One of the suspects appeared to be using a cellular telephone while at the ATM. The Lancaster County Sheriff's Office (“LCSO”) and the Lincoln Police Department (“LPD”) conducted analysis of the video surveillance tapes and cellular tower data, and with telephone record analysis, identified Darnell Gordon and Cal McCoy as suspects in the incident. On the same day, Gordon was arrested for driving with a suspended license. After the arrest, LCSO reported that Gordon made jail calls to several individuals, including numerous calls to a cellular telephone number ending in 8674 which was subscribed to Defendant Wakonda Hazel.

         LPD conducted additional telephone analysis and received pen registers for Gordon's phone. The analysis and records revealed frequent calls between Gordon and a telephone number ending in 1358 which was subscribed to Defendant Isaiah Brown. Brown had been previously arrested in 2014 for burglary and possession of a stolen ATM.

         On March 27, 2016, Douglas County Sheriff's Office (“DCSO”) conducted a traffic stop on a blue 2011 Hyundai Sonata, a 2016 Chevrolet HHR SUV, and a stolen white pickup truck near Fremont, Nebraska. The Sonata was registered to Defendant Bajah Pittman. Occupants of the vehicles were Hazel, Darnell Gordon, Lyle Gordon, and Kentrell Reed. Each occupant was arrested and on March 29, 2016, Pittman was arrested for conspiracy to commit a felony. A search warrant was executed on her cell phone which has a number ending in 0844.

         Based upon the above facts, as part of its investigation, the United States Attorney's Office applied for and received orders seeking the disclosure of cell phone records, including subscriber name, call information, telephone or instrument numbers, user activity records, and cell tower data for certain time periods for phone numbers ending in 8674, 0844, and 1358. (See Exhs. 3A, 5A, & 7A). These numbers were subscribed to Defendants Hazel, Pittman, and Brown respectively. The undersigned magistrate granted each order pursuant to the Stored Communications Act (“SCA”), 18 U.S.C. § 2703(c) & (d).

         With the defendants' historical cell-site information, [1] the Federal Bureau of Investigations (“FBI”) compiled the defendants' information for the specific robbery dates and created maps showing whether defendants' individual phones were active within close proximity (in location and time) to the robberies. (See Defense Exh. 3). For an example, the historical cell-site location data received from Sprint regarding Defendant Hazel's cell phone showed that her phone actively used Sprint towers 93, 94, & 96 which were respectively located 5.2 miles north of, 4.9 miles south of, and 6.8 miles southeast of the Nehawka Bank on the September 25, 2015 robbery date; the activity consisted of phone calls received from co-defendants Brown and Darnell Gordon.

         In total, the collected data and maps showed: Defendant Hazel's phone was active the vicinity of the robberies of the Nehawka Bank in Union, Nebraska on September 25, 2015; the Casey's Convenient Store in Des Moines, Iowa on October 8, 2015; and the First State Bank in Waverly, Nebraska on November 23, 2015. Defendant Brown's phone was active in the vicinity of the robberies of Nehawka Bank in September, 2015 and Casey's Convenient Store in October, 2015. Defendant Pittman's phone was active in the vicinity of the First State Bank robbery in November, 2015.

         On January 19, 2017, Defendants Isaiah Brown, Bajah Pittman, Wakonda Hazel, and seven co-defendants were indicted by a federal grand jury. (Filing No. 1). The indictment charges the defendants with a wide-ranging conspiracy to commit bank larceny and attempted bank larceny of ATM machines from January 2014 to April 2016, sometimes by using stolen vehicles.[2] The indictment alleges some of the defendants, as part of the conspiracy, “conducted visual surveillance of the areas around businesses with ATM machines to attempt to detect the possible presence of law enforcement, while other defendants broke and entered into the businesses and removed the ATM machines.” (Filing No. 1). The indictment additionally alleges “it was also part of the conspiracy that defendants utilized cellular telephones to monitor the location of local law enforcement in relation to the business where the ATM machines were located, while the defendants attempted to remove the ATM machines from the businesses.” Id.

         On June 2, 2017, Brown, Pittman, and Hazel filed the instant motions to suppress. (Filing Nos. 134, 136, & 138).


         Defendants Brown, Pittman, and Hazel each seek to suppress evidence of historical cell-site location data obtained through the orders pursuant to 18 U.S.C. § 2703(c)& (d). They argue the disclosure of their cell-site ...

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