United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION AND ORDER
R. Zwart United States Magistrate Judge.
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.
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.
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
was arrested on January 6, 2017, and he was subjected to a
custodial interview by officers of the Lincoln Police
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.
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.
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.
Motion to Suppress CSLI
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.
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). 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.
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 ...