By Ken Wallentine
United States v. Ellis, 2017 WL 3641867 (N.D. Cal. 2017)
Purvis Lamar Ellis, allegedly a member of the violent Oakland street gang “Sem City,” was arrested with three other gang members following the shooting of a police officer. Investigators used a StingRay, a portable electronic device that simulates a nearby cell tower and tracks the location information of cell phones in range. Based on the StingRay information, the investigators located and arrested Ellis.
Ellis claimed that the use of the StingRay constituted a warrantless search under the Fourth Amendment. Though this is an open question in the 9th Circuit Court of Appeals, the trial judge ruled that Ellis had a reasonable expectation of privacy in his phone’s real-time location. Thus, the use of a StingRay device to obtain real-time cell phone location information was a search that would normally require a search warrant.
Notwithstanding, the court ruled that the exigent circumstances surrounding the investigation justified a warrantless search. Ellis had been identified by an eyewitness as the getaway driver in an attempted murder. The next day, an Oakland officer investigating the attempted murder was beaten and shot while Ellis was at the scene. Moreover, officers knew that Ellis had weapons and that he was “a known member of a gang with a violent history.” The court also ruled that the officers would have inevitably discovered Ellis’s location, so his claim also failed under the inevitable-discovery doctrine.
When the United States Supreme Court opens its October term, high on the docket is the case of Carpenter v. United States, a 6th Circuit case that we’ve discussed in prior issues of Xiphos. The Court will decide whether the warrantless seizure and search of historical cell phone records revealing cell site location information violates the Fourth Amendment. This case may well be the platform on which the Court builds a revision of the traditional third-party doctrine. Prior cases have held that information disclosed to a third party, such as the mobile phone service provider (historical cell site location records), a bank (checking account records), or landline telephone company (pen registers), may be shared with the government without the necessity of obtaining a search warrant. In the 2012 Supreme Court decision in United States v. Jones, addressing GPS tracking, Justice Sotomayor signaled her concerns with the third-party doctrine and suggested it is time for an overhaul. Stay tuned.
CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.