First Circuit Holds That Cell Phones Are Not Tracking Devices

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Recently, the U.S. Court of Appeals for the First Circuit held that cell phones are not tracking devices for the purposes of 18 U.S.C. § 3117. The First Circuit also held that the good-faith exception applies to a warrant issued in violation of Federal Rule of Criminal Procedure 41.

In the fall of 2015, law enforcement officers in Maine began to investigate Carey Ackies for drug trafficking. Maine State Police Sergeant Thomas Pappas received information, including a cell phone number that belonged to an individual named “Boyd,” from a cooperating defendant under indictment for drug trafficking offenses.

In January 2016, Pappas applied for and received a precise location information (PLI) warrant for the cell phone, associated with the number provided by the cooperating defendant, from a magistrate judge in Maine pursuant to the Stored Communications Act (SCA), 18 U.S.C. §§ 2701 et seq., and Federal Rule of Criminal Procedure 41. The PLI warrant directed AT&T to provide precise location information for the cell phone for a period of thirty days, and AT&T complied with this direction. The information showed that the phone was in a building on 154th Street in Jamaica, New York on January 17-18, 2016.

Pappas also intercepted incoming calls and text messages on the cooperating defendant’s phone, and recognized the voice of the caller for the cell phone number associated with “Boyd” to be the same voice as the caller on second cell phone number. Pappas then arranged for the cooperating defendant to meet with the individual on the second cell phone number at a bus terminal in Portland, Maine. At the arranged meeting at the bus terminal, the cooperating defendant recognized a runner for “Boyd” on the bus, who he knew as “Mike.” Law enforcement then arrested “Mike,” and found heroin and cocaine base on him.  

“Mike” cooperated with Pappas, and provided to Pappas information about “Boyd’s” residence and vehicles. In particular, “Mike” named a Nissan Quest van. Pappas passed this information to the Drug Enforcement Administration (DEA), and the agents surveilled the provided address in New York, identified Ackies, and sent a booking photograph of Ackies to Pappas. Pappas shared this photograph with “Mike,” who named Ackies as the source of the drugs.

DEA agents then obtained a PLI warrant for the second cell phone under the SCA and Rule 41. The precise location information for the second cell phone placed the phone in the same area as the first cell phone on 154th Street in Jamaica, New York. On January 20, 2016, precise location information showed the second cell phone moving, and agents followed its location to a parking lot. The agents observed a Nissan Quest van, and arrested Ackies. Ackies was charged him conspiracy to possess and possession with intent to distribute heroin and cocaine base.

In March 2017, Ackies filed six pretrial motions, in part to suppress the evidence obtained from the issuance of the two PLI warrants. The district court denied the motions to suppress, finding that the two PLI warrants were properly issued under the SCA, and in the event a violation of Rule 41’s geographic limitations did occur, the good faith exception applied.

Ackies appealed the district court’s denial of the motions to suppress to the U.S. Court of Appeals for the First Circuit. Ackies argued that the PLI warrants for the cell phones were “jurisdictionally void” since a cell phone used to track a person’s movements is a “tracking device” under 18 U.S.C. § 3117, and Rule 41(b) bars a Maine magistrate judge from issuing PLI warrants for phones located outside of Maine.

The court of appeals first considered the applicability of the SCA to the PLI warrants in this case. Under 18 U.S.C. § 2703(a), the SCA provides that “[a] governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication … only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure … by a court of competent jurisdiction.” Per 18 U.S.C. § 2703(c)(1)(A), the SCA also provides that “[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 government entity … obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure … by a court of competent jurisdiction.”

The court rejected Ackies’ argument that a cell phone used for obtaining precise location information is “an electronic or mechanical device which permits the tracking of the movement of a person or object” under 18 U.S.C. § 3117(b). The court found that a cell phone used for obtaining precise location information does not fit within the definition of a “tracking device” in 18 U.S.C. § 3117.  Specifically, the court referred to 18 U.S.C. § 3117(a), which permits a court to issue a warrant for the “installation of a mobile tracking device.” According to the court, the plain meanings of “installation” and “device” refer to the physical placement of some hardware or equipment. The court therefore found that Ackies’s reading of the 18 U.S.C. § 3117(b) to include cell phones as “tracking device[s]” ignores the relevant textual context of 18 U.S.C. § 3117(a).

The court noted that some district courts have broadly read the words “tracking device” in 18 U.S.C. § 3117 to include a cell phone. However, the court disagreed with these courts, finding their decisions unpersuasive. The court of appeals also observed that several sister circuits have assumed, without holding, that the SCA properly applies to information gather about the “real-time location of [a] mobile device.”

The court of appeals found that the SCA was a proper basis for the PLI warrants issued here. The court found that the government properly requested warrants for the cell phones from a “court of competent jurisdiction,” and requested precise location information from the “provider of electronic communication service” and this precise location information “pertain[ed] to a subscriber to or customer of such service.”

The court of appeals next considered the application of Federal Rule of Criminal Procedure 41. Rule 41(b)(1), at the time, stated that “[a]t the request of a federal law enforcement officer or an attorney for the government … a magistrate judge with authority in the district … has authority to issue a warrant to search for and seize a person or property located within the district.”

Ackies argued that since the SCA requires a warrant to be issued “using the procedures described in the Federal Rules of Criminal Procedure,” Rule 41 applies and bars the issuance of a warrant for a New York subscribers’ phones by a Maine magistrate judge. The court of appeals disagreed. The court noted that the Seventh and Third Circuits have found that Rule 41 discusses the circumstances when a court may issue a warrant, not the procedures to be used for issuing a warrant.  The court agreed with these sister circuits and held that Rule 41 does not apply to the PLI warrants issued under the SCA.

The court of appeals found that even assuming arguendo that the PLI warrants violated Rule 41, the good-faith exception applies. The court noted that the Third, Eighth, Ninth, and Tenth Circuits have each held that a Rule 41 violation does not prevent the application of the good-faith exception. In addition, the court of appeals, in United States v. Levin, held that the good-faith exception applies in the analogous context of a network investigative technique (NIT) warrant issued in violation of Rule 41. The court agreed with these circuits and expressly extended Levin to PLI warrants under the SCA.

Applying the good-faith exception here, the court found that the law enforcement officers reasonably relied on the warrants, and there was no evidence that their reliance on the warrants amounted to bad faith.

The court of appeals found that Ackies’s additional arguments, including that the law enforcement officers lacked probable cause for the PLI warrant for the first cell phone, fail. Thus, the court of appeals affirmed the decision of the district court.

Read the full case: United States v. Ackies


This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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