United States v. Remus

          FINDINGS, RECOMMENDATION AND ORDER

          Cheryl R. Zwart United States Magistrate Judge.

         The defendant, Shawn Thomas Brooks, moved to suppress his historical cell site location information (CSLI) obtained pursuant to a Rule 2703 order, and statements he made to law enforcement during a custodial interview. (Filing No. 43 and Filing No. 68-1). Brooks also filed a motion in limine requesting the government be prohibited from introducing evidence regarding Brooks' alleged or admitted illicit drug possession and/or use. (Filing No. 45). For the reasons discussed below, I recommend that the motions to suppress should be denied, and I defer to the district judge to rule on the motion in limine.

         BACKGROUND

         On December 30, 2016, the Lancaster County District Court granted an Order pursuant to 18 U.S.C. § 2703, requiring certain electronic communication service providers and/or remote computing services to disclose records and other information described in an attachment to the Order.

         The district court found the government had “offered specific and articulable facts showing that the records or other information sought are relevant and material to an ongoing criminal investigation…” (Filing No. 68-1 at CM/ECF p 8). Pursuant to that order, the named companies provided the government with historical cell site location information and other data for communications made in the area of six unsolved robberies between November 29, 2016 and December 28, 2016. The application of the State of Nebraska to obtain CSLI alleged that the same unidentified suspects may have been involved in each of the robberies, as they wore similar clothing, displayed a similar weapon, and had similar features. Filing No. 68-1 at CM/ECF p.4).

         Brooks was arrested on January 6, 2017, and he was subjected to a custodial interview by officers of the Lincoln Police Department.

         On November 20, 2017, the government filed an application for an order pursuant to 18 U.S.C. § 2703, requiring Cellco Partnership d/b/a Verizon Wireless (Cellco), a cellular service provider, to disclose certain records and other information pertaining to a specific telephone number. (Exhibit 1 p. 1-5). The application alleged that the government was investigating a series of violent armed robberies of businesses that participated in, impacted, and affected interstate commerce and federally insured banks in Lincoln, Nebraska, such robberies occurring between December 26 and December 30, 2016. The application further alleged that a fingerprint was located on a plastic bag dropped during a robbery. The fingerprint matched Marcus Remus, who identified his accomplice as Shawn Brooks. (Exhibit 1, p. 3). Remus consented to an examination of his telephone, which contained logs and text messages indicating communications with a specific phone number. That number matched the contact telephone number Brooks provided to the Lincoln Police Department in October 2016.

         On November 20, 2017, the undersigned magistrate judge issued an order requiring Cellco to disclose to the United States certain information pursuant to 18 U.S.C. § 2703(d). (Exhibit 2, p. 1). The undersigned magistrate judge found that the United States had offered specific and articulable facts showing that there were reasonable grounds to believe that the records or other information sought were relevant and material to an ongoing criminal investigation. Id.

         On January 17, 2018, Brooks was indicted for violations of 18 U.S.C. § 1951, 18 U.S.C. § 924(c), 18 U.S.C. § 2113(a), and 18 U.S.C. § 2. (Filing No. 19 at CM/ECF pp. 1-4). Facts relevant to Brooks' motions to suppress and motion in limine will be discussed in more detail, below.

         ANALYSIS

         1. Motion to Suppress CSLI

         On July 30, 2018, Brooks filed a motion to suppress CLSI Data, including any evidence gathered from the government's acquisition of his CSLI following the order of the Lancaster County District Court. (Filing No. 68-1 at CM/ECF pp. 1-11). He argued the information was obtained in violation of his Fourth Amendment rights.

         Defendant's motion was orally amended without objection at a hearing on September 21, 2018. The CSLI evidence Brooks now challenges was obtained pursuant to the application granted by the undersigned magistrate judge pursuant to 18 U.S.C. § 2703(d) (Exhibit 2).^[1] Brooks asserts the government's acquisition of his CSLI pursuant to the Stored Communication Act (SCA) is a violation of his Fourth Amendment rights because he has a reasonable expectation of privacy in his CSLI, and the CSLI was acquired without a warrant.

         The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Carpenter v. United States,138 S.Ct. 2206 (2018). The purpose of this Amendment is to “safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 528 (1967). Historically, the Supreme Court has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” United States v. Miller, 425 U.S. 435, 442-44 (1976); Smith v. Maryland,442 U.S. 735, 743-44 (1979). “[W]hen an individual reveals private information to another, he assumes the risk that ...