A Red Herring, Not – – –

— Or more likely you can’t un-ring the phone.

United States v. Thomas, 2009 U.S. Dist. LEXIS 4389, No.08-cr-87-bbc-02 (W.D. Wis. January 20, 2009), is of interest for several reasons: the use of cellphone tracking technology, and application of the recent U.S. Supreme Court decision in Herring v. United States.

First for the techies. Police were investigating a bank robbery involving four suspects. As a result of some astute investigating they interviewed a potential suspects mother. During the interview she told the police about some cellphone calls, in particular a lot of calls from one number where she didn’t know the caller. Acting on a hunch, a good hunch as it turned out, police then obtained a trap and trace warrant on that cellphone number. Police then used some sophisticated equipment.

A DCI employee at a fixed location obtained information from area cell towers to determine which side of which tower was picking up signals from the target telephone when it made or received a call, powered up or shut down. This tower information narrowed the location of the target telephone to an arc extending out from the tower one to five miles. DCI’s tower-monitoring agent relayed this information to a DCI technical agent, who was chasing the target telephone in a van containing equipment that would allow him to track the telephone’s movement more precisely once he got it within the two-to-three block range of his more sensitive equipment. Agent Wormet’s equipment included a screen that showed a targeted telephone’s actual location, movement and direction in real time.

Note, the cellphone has to be on for this to work. Here’s some EPICc information about new age tracking. And here is an Application for Pen Register and Trap/Trace Device with Cell Site Location Authority.

Information from a Fond du Lac cell tower indicated that the target telephone phone was within two miles. Agent Wormet drove through the area following a grid pattern, trying to detect the target telephone with his mobile tracking equipment. Agent Wormet picked up the signal and determined that the target telephone was located in a vehicle parked at a Kwik Trip gas station on West Johnson Street in Fond du Lac. Agent Wormet drove to the gas station and circled the gas pump island at a distance of 30-40 feet. Based on the location and strength of the signal he obtained while circling, Agent Wormet concluded that the target telephone was in a vehicle at the pump island. Agent Wormet observed three African-American men talking to each other outside of two cars at the island. Based on Agent Wormet’s knowledge of the descriptions of the bank robbers he concluded that these men were the suspects and that one of them possessed the target telephone.

As the two cars began to leave the gas station, the signal that Agent Wormet was receiving from the target telephone changed in direction and strength in a manner consistent with the cars’ exit. Agent Wormet alerted his convoy. About 12 to 15 deputies, state troopers and local law enforcement agents (collectively referred to hereafter as deputies) rushed to the scene in their vehicles and blocked the two cars.

Detective Dorn patted down Thomas (a suspect), felt a cell phone in his pocket and retrieved it without opening it. Detective Wegner called the number of the target telephone; Thomas’s telephone rang. (Once rung you can’t unring the cellphone.)

And now the lawyers.

(H)ow can you fault tenacious police work that results in the capture of a suspected armed bank robber, even if this capture is the result of some guesses and gut feelings? (Said the magistrate judge deciding the suppression issue.)

Well,

This appears to be such a case. Suppressing the fruits of this search should encourage local law enforcement officers more assiduously to present accurate recitations of material facts to courts when seeking investigative orders and search warrants, and also encourage them to be more mindful of the distinction between arrests and searches justified by probable cause and Terry stops and frisks justified by reasonable suspicion.

In coming to his conclusion to suppress the arrest and search the magistrate judge evaluated and applied Herring. Before getting to application of Herring, the magistrate was ready to suppress. In his evaluation the police over-reacted when they stopped the suspects. By his terms the information they were acting on was tenuous and full of hunches (as police work often is). The hunch was that the cellphone belonged to one of the robbers, plus something of a description of the robbers. Accordingly, the police should have initiated a citizen encounter or a Terry stop, rather than going in guns blazing, handcuffing and searching (these people who had recently committed an armed robbery). The magistrate looked to Herring to see if he could save the case for the prosecution, and found he couldn’t.

He calls Herring a paradigm shift (and acknowledges the triteness of the phrase); and he states the rule of Herring and Hudson v. Michigan, 547 U.S. 586 (2006), thus:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the judicial system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.

This was not a Barney Fife moment. This was really good police work under fast developing facts. I must be going soft, because to me the magistrate got it wrong in this case. My sense is that the evidence would be allowed in a British prosecution under the Police and Criminal Evidence Act of 1984, but we can leave that to another day.