United States District Court, D. Vermont
For Frank Caraballo, Defendant: Mark A. Kaplan, Esq., Kaplan and Kaplan, Burlington, VT; Natasha Sen, Esq., Brandon, VT.
For USA, Plaintiff: Joseph R. Perella, Paul J. Van de Graaf, United States Attorney's Office, District of Vermont, Burlington, VT.
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BASED ON THE GOVERNMENT'S WARRANTLESS USE OF REAL-TIME CELL PHONE LOCATION INFORMATION
Christina Reiss, Chief United States District Judge.
This matter came before the court on Defendant's Motion to Suppress Evidence Based on the Government's Warrantless Use of Real-Time Cell Phone Location Information. (Doc. 38). Defendant contends that the government's warrantless search of his cell phone violated his Fourth Amendment rights. The government opposes the motion, contending that no search occurred and that if it did, it was justified by exigent circumstances, a reasonable good faith understanding of the applicable law, the automobile exception, and the inevitable discovery doctrine.
The government is represented by Assistant United States Attorney Joseph R. Perella, and Assistant United States Attorney Paul J. Van de Graaf. Defendant Frank Caraballo is represented by Mark A. Kaplan, Esq. and Natasha Sen, Esq.
Defendant is charged in a four count Second Superseding Indictment as follows: Count one: conspiring to distribute mixtures or substances containing detectable amount cocaine, cocaine base, and heroin, as part of a conspiracy involving 280 grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. § § 841(a), (b)(1)(A), 846; Count two: possession and use of a firearm in furtherance of a drug trafficking crime with an allegation that Defendant discharged the firearm and caused the death of Melissa Barratt by murder, in violation of 18 U.S.C. § § 924(c)(1)(A)(iii),
(j)(1); Count three: possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and Count Four: possession of a firearm by a felon, with an allegation that Defendant has been convicted of four prior drug trafficking felonies in violation of 18 U.S.C. § § 922(g)(1), 924(a)(2), (e)(1).
I. FINDINGS OF FACT.
A. The Barratt Homicide Investigation.
At approximately 10:45 a.m. on the morning of July 29, 2011, law enforcement responded to a report that a body of a woman had been found in a wooded area down an enbankment near a stream approximately thirty yards from the East West Road in Dummerston, Vermont. The location was " off the beaten path," Tr. 6/14/13 (" Tr." ) at 144, and on the outskirts of the town limits of Brattleboro, Vermont. When law enforcement arrived on the scene, they found the woman on the ground in a kneeling position with her hands clasped in front of her. She had a gunshot wound to the back of her head and because of the position of her body, her clasped hands, and the absence of a firearm nearby, law enforcement concluded that the woman did not commit suicide. It also did not appear that her body had been carried to the location at which it was found as there was no trail of blood or other signs that would support that conclusion. Law enforcement suspected that the woman was the victim of a homicide and that her assailant could still be armed. Based upon information from a construction crew that was working approximately a half mile from the scene and who reported they had heard what sounded like a gunshot that morning, law enforcement concluded the apparent homicide had occurred that day.
By the tattoos on the body of the deceased, criminal activity records, and a previous photo, law enforcement identified the woman as Melissa Barratt. Law enforcement learned that Ms. Barratt had been arrested on May 31, 2011 in Brattleboro, in conjunction with the sale of narcotics. After her arrest, law enforcement interviewed Ms. Barratt, who advised that she was involved in drug activity in Brattleboro with an individual named Frank Caraballo, that " she was extremely nervous and afraid of a Frank Caraballo," and that " if he knew that she was talking to [the police officer], he would hurt her, kill her." Tr. at 18-19. Ms. Barratt also told law enforcement that Defendant had " access to guns and was armed and [she] was afraid of him." Tr. at 38. These firearms included " shotguns, Tech 9s and other types of weapons." Tr. at 194-95. Ms. Barratt described Defendant as someone who was " very dangerous" and told law enforcement that " she had firsthand knowledge of him doing or assaulting or possibly involved in other homicides." Tr. at 148. She " did not want to give out any information about him because of her fear of him. And the fact that if she did provide information she would basically be killed." Id. Law enforcement had information that Ms. Barratt was still associated with Defendant on the day of the homicide.
In the late morning of July 29, 2011, Detective Sergeant Richard Holden of the Vermont State Police (" VSP" ) reviewed the radio log for the Barratt homicide investigation. At the time, he was employed in VSP's Bureau of Criminal Investigation, which handled all major crimes for the VSP including homicides, missing persons, thefts, rapes, and kidnappings. He contacted VSP Detective Frank LaBombard, the case agent for the Barratt homicide investigation, to see if he needed
any help. Detective LaBombard showed Detective Sergeant Holden digital photos of Ms. Barratt's deceased body that appeared to confirm that Ms. Barratt was the victim of a homicide. Indeed, it was Detective Sergeant Holden's belief at the time that the Barratt homicide was " a coldblooded execution." Tr. at 26.
A command post for the Barratt homicide investigation was set up at the West Dummerston Fire Department approximately one half mile from the crime scene and approximately fifteen minutes from the Brattleboro area. Law enforcement gathered at the command post to assign tasks and to ensure that information gleaned from the investigation was shared with appropriate personnel. Throughout the day, information that was obtained was disseminated from the command post to law enforcement officers working on the case in the field. Detective Sergeant Holden was tasked with obtaining information regarding Defendant. He was informed that Brattleboro law enforcement had engaged in at least three recent controlled buys of narcotics from Defendant for which he had not yet been arrested or charged.
Detective Sergeant Holden contacted VSP's Fusion Center which, at the time, served as an intelligence center and database for law enforcement. Through the Fusion Center, Detective Sergeant Holden determined that the Fusion Center had processed a request for information regarding Defendant one month previously which was " extremely important" to him because it indicated " something was going on which is very valuable to us." Tr. at 46. Detective Sergeant Holden discovered Defendant's criminal history included drug activity. He also determined that Defendant's brother was Michael Caraballo who had been charged a few months prior to the Barratt homicide with a drive-by shooting in southern Vermont. Detective Sergeant Holden read the police reports in Michael Caraballo's case, but he did not have any personal knowledge of that investigation or prosecution other than it was his understanding that Frank and Michael Caraballo had worked together in selling illegal drugs in the Brattleboro area. Detective Sergeant Holden found the information regarding Michael Caraballo's drive-by shooting case concerning because it suggested that Defendant may have access to firearms through his brother. Based upon this information, Detective Sergeant Holden considered Defendant an immediate danger to law enforcement, noting that: " He's armed and dealing drugs. I'm pretty sure that's a threat to law enforcement." Tr. at 47. Detective LaBombard echoed these concerns. He testified that law enforcement's arrest of Michael Caraballo included gun possession charges and that when Michael " went to jail . . . Frank had taken over the operation and was distributing narcotics in the area" and that some of Defendant's background included " criminal involvements with assaults." Tr. at 150.
After it became clear that Defendant was " a person of interest" in the Barratt homicide investigation, Detective Sergeant Holden " thought it was extremely important to locate [Defendant] that day just because of the safety aspects of it." Tr. at 25. Detective Sergeant Holden described those safety concerns as follows:
I was concerned that if there was information leaked before the homicide occurred we did not know what extent that information was. We knew that we had our narcotics officers in deep working with their C.I.s [confidential informants] investigating Frank Caraballo. And we were concerned that if there was some sort of information leaked we weren't sure if he was going to be going after
any sort of C.I.s or narcotic officers at that point.
We were also concerned that if [Frank Caraballo] was stopped by a local law enforcement officer who did not know the situation of what was ongoing that he would be at risk or she would be at risk at the time of the car stop . . . [because] there wasn't a gun found at the scene, I mean we had to assume, you know, the person was still armed and dangerous. If a local police officer stopped the vehicle for, you know, a minor infraction such as speeding and they had no idea what was going on just the totality of the stress of the driver, you know, there could have been a shoot out in a public area. We just didn't know. That was another concern of ours. . . . [Mr. Caraballo] wouldn't know why he was being stopped. I would have to assume that he was thinking it was in connection with the homicide, but that's not necessarily the case.
Tr. at 26-27. Detective Sergeant Holden's safety concerns extended to people " involved in the drug operation" with Defendant. Tr. at 27. He was aware that, in addition to Ms. Barratt, Defendant was involved with " a lot of other individuals in the Brattleboro area. And we weren't sure why the homicide occurred. And we were concerned at that point about the safety of the other people." Tr. at 27-28.
Law enforcement was also concerned about the possible destruction or dissipation of evidence. Detective LaBombard credibly testified that in the Barratt homicide investigation, access to the potential assailant shortly after the homicide was likely to yield important and irreplaceable evidence such as a homicide weapon, gunshot residue, DNA, clothing, blood splatters on clothing or shoes, and footprint and tire impressions that could be tied to the crime scene if discovered promptly, but which may be destroyed, dissipate, or disappear thereafter if the assailant was not promptly apprehended.
Law enforcement personnel conferred to consider their options. They considered having confidential informants contact Defendant, discern his whereabouts, and arrange a meeting. They also considered having VSP troopers posted on major roadways in the hope of identifying Defendant's passing vehicle based upon their knowledge of the vehicles that had been associated with him. Law enforcement was aware that Defendant had no apparent permanent residence in Vermont but, instead, stayed in hotels and travelled frequently to and from Massachusetts where his family resided.
B. The Decision to " Ping" Defendant's Cellphones.
Law enforcement also considered the possibility of obtaining a search warrant for Defendant's cell phones. Through controlled buys with Defendant, law enforcement was aware that Defendant had recently used two cell phone numbers: (413) 657-3540 and (802) 288-6558. Detective Sergeant Holden determined that the time necessary to obtain a warrant would be approximately six hours based upon his prior experience. Law enforcement would then need to serve the warrant on the cell phone companies and await a response which, in his experience, would not be immediate in the absence of exigent circumstances but instead was likely to involve " a huge delay of getting the information from the company that we're requesting it from." Tr. at 28. Detective Sergeant Holden concluded that there were sufficient safety concerns to justify a request for cell phone data without a warrant. At the time, it was his understanding that applicable law permitted law enforcement to request a warrantless
search of cell phone location information if there was an emergency involving a threat of serious bodily injury or death.  This investigative technique, commonly referred to as cell phone " pinging," consists of the cell phone carrier surreptitiously accessing by satellite the cell phone's GPS location, or if unavailable, its location in terms of its proximity to the nearest cell phone tower. At the time of the Barratt homicide investigation, Detective Sergeant Holden had obtained such information without a warrant on two previous occasions: one involving a kidnapping and the other involving a missing person.
Detective Sergeant Holden conferred with Detective LaBombard and credibly testified that they were " both of the mindset like this is, this is a legitimate emergency. We have to do this or potentially someone is going to get hurt or killed." Tr. at 29. He also consulted with Windham County State's Attorney, Tracy Shriver, who was at the command center and who agreed " that the cell phone pinging at that time was the way to go" and " was appropriate and it was probably the best action to take." Tr. at 30-31. The court finds that, in deciding to ping Defendant's cell phones, law enforcement held a good faith, reasonable belief that there was a serious and imminent threat to human life and that federal law authorized a warrantless cell phone pinging in those circumstances.
Thereafter, Detective Sergeant Holden contacted the Fusion Center to assist in pinging Defendant's cell phones. He spoke with VSP Detective Cari Crick, briefed her on the situation, and advised her that he had the state's attorney's approval to proceed with a warrantless request to ping Defendant's cell phones and that it was an emergency. Detective Crick had some familiarity with the Barratt homicide investigation as she had assisted Detective Sergeant Holden with his requests that day for information regarding Frank Caraballo. After consulting with Detective Sergeant Holden, Detective Crick contacted Sprint Nextel and explained the situation and the information she was requesting. Sprint Nextel made the determination to fax Detective Crick a request form consisting of a one-page document titled " Mandatory Information for Exigent Circumstances Requests." Gov't Ex. 1. The form requires that Sprint Corporate Security be called before the request form is faxed and that any such fax be accompanied by an agency cover sheet. The form also requires identification of the law enforcement agency requesting the information, its address, phone number, and fax number, as well as the requesting agent's name, title, email address, and his or her supervisor's name and phone number.
In completing the form, Detective Crick requested " Precision Location of mobile device (GPS Location)" for both of Defendant's cell phones, as well as subscriber information and call detail records with cell site information (within the past week). The form requires the requesting agent to certify that he or she has been granted authority by the identified law enforcement agency " to determine and declare an exigent situation involving . . . [an] immediate danger of death or serious bodily injury to any person[.]" Id. Detective Crick's notes, created at the time, reflect her understanding that the state's attorney had requested the ping and include the
phrase " primary suspect" after noting that the request was for Frank Caraballo's cell phone. Tr. at 125; Gov't Ex. 7. At the bottom of the form, Detective Crick certified that she had the authority to declare an exigent situation which she described as " Male with phones is suspect in possible homicide." Gov't Ex. 1.  Detective Crick further certified on the form under penalty of perjury that the information she had provided was true and correct.
Detective Crick credibly testified that, when she completed the Sprint Nextel pinging request form, she believed applicable law permitted a warrantless pinging of a cell phone where there was " some sort of emergent incident occurring that there was a threat to an individual or somebody else" that created a " safety issue of concern." Tr. at 115. She relied upon " the immediate danger of death or serious bodily injury to . . . any person," Tr. at 124, provision of the request form. Detective Crick believed these circumstances existed in the Barratt homicide investigation based upon what Detective Sergeant Holden had told her. The court finds that she held a good faith belief that an exigent situation existed and that applicable law authorized a warrantless cell phone pinging on that basis.
C. The Technology of Defendant's Nextel Phone and Sprint Nextel's Terms and Conditions of Services with Regard to It.
A Sprint Nextel cell phone acts as a cordless handset that connects with a cell tower or antenna in order to transmit data and call information. Each cell phone tower is connected to what is called a " switch" which is part of the public telephone network which transmits and receives domestic and international calls. When a Sprint Nextel cell phone is on, it is in communication with cell phone towers, even when a call is not being made. Through its communication with the cell tower, the cell phone is constantly updating the system with its location, asking, in effect, " Do you have any calls for me?" Tr. at 73-74. This process is necessary because the cell tower, in turn, needs to know the approximate location of the cell phone so that it may send calls to that location. The cell phone's communication with the cell tower does not occur on the same channel that it uses to make phone calls but, instead, uses a " control channel." There is no notification to the cell phone user that this communication is taking place and the cell phone user has no control or involvement in these communications other than placing the phone in " on" mode. If the cell phone is in " off" mode, no communications take place.
Sprint Nextel's technology for responding to emergency requests for cell phone location information varies depending upon the type of cell phone involved. A Sprint cell phone uses a technology called CDMA. A Nextel cell phone uses a network technology called GSM. The two types of technology differ only in the manner in which the data is connected. Both types of technology attempt to use GPS satellites to determine the cell phone's location. The majority of cell phones sold by Sprint Nextel in 2011 contained a GPS receiver which permits access to satellite information in order to provide enhanced location services when the user accesses 911. The GPS receiver, if activated, also provides information to Sprint Nextel regarding the cell phone's location. If the cell phone is
turned off, no GPS information is transmitted.
Defendant's Nextel (802) 288-6558 cell phone is the type of phone that attempts to use three or more GPS satellites to obtain location information to calculate its location by longitude and latitude. If the cell phone is unable to locate three or more satellites, it will automatically " step down" to determine what cell phone tower the phone is " hitting off of," Tr. at 82, which it will use to provide a location for the phone within a default 4,999 meter radius. This same default radius will be provided whether the cell tower is ten feet away or five miles away because, in this instance, the location data merely reveals the cell tower with which the cell phone is communicating.
In 2011, Sprint Nextel offered two types of cell phone service: a " postpaid" service that involves the cell phone service subscriber receiving a monthly bill in the mail for his or her usage and a " prepaid" service which means the subscriber purchases minutes in advance and when those minutes have been used, the subscriber loses the ability to make phone calls until additional minutes are purchased. Defendant's Nextel phone used a prepaid plan. It was registered to " Walter Smith," which could be information Defendant provided to Sprint Nextel or could be a default name used by the Sprint Nextel representative who sold Defendant the phone. When a cell phone is on a prepaid plan, Sprint Nextel does not need to know the identity of the account holder. When a cell phone is not prepaid, Sprint Nextel requires a credit check so that it can verify the identity of the account holder. Otherwise, the two types of cell phone plans are identical.
Sprint Nextel's general terms and conditions of service are provided to customers in conjunction with the purchase and sale of a Sprint Nextel cell phone. By activating the cell phone, the cell phone subscriber is deemed by Sprint Nextel to have agreed to those general terms and conditions. If the purchase and sale transaction occurs online or over the phone, the subscriber is required to acknowledge that he or she accepts Sprint Nextel's general terms and conditions.
In 2011, Sprint Nextel's general terms and conditions of service advised its customers, in relevant part that: " Our networks generally know the location of your Device when it is outdoors and/or turned on. By using various technologies to locate your Device, we can provide enhanced emergency 911 services and optional location- enabled services provided by us or a third party." Govt's Ex. 2 at 13. Sprint Nextel's privacy policies, which are incorporated by reference in its general terms and conditions of service, describe how Sprint Nextel collects, accesses, uses, and discloses its customers' personal information in providing " Services" which are defined as all " products, services, and web sites." Gov't Ex. 3 at 1. In relevant part, they advise:
We collect personal information about you in various ways. We may also get information from other sources and may combine it with information we collect about you.
Information you give us. The personal information we collect includes information you give us such as name, postal address, telephone number, e-mail address, date of birth, social security number or other government identification number, demographics, activities, location information, and personal preferences. You may give us information in a variety of ways such as when you sign up for ...