United States District Court, D. Nevada
ORDER MOTION TO SUPPRESS [ECF NO. 131]
FERENBACH UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant Brian Wright's Motion to Suppress
Evidence Obtained from February 9, 2017 Court Order. (ECF No.
131). For the reasons discussed below, Defendant's motion
faces charges arising from two robberies in January 2017 by
several suspects. (ECF No. 109). Investigators determined
that DeAndre Brown, a co-defendant in this case, was likely
involved in the robberies and obtained the Call Detail
Records (CDRs) for his phone. (ECF No. 132-1 at 3). The CDRs
showed that Brown's phone had contact with
Defendant's phone. (Id.).
Government applied for a court order to obtain information
from Defendant's phone service provider including records
for incoming and outgoing calls and the phone's location
from January 2017. (Id. at 2). In support of their
application, the Government stated, “Analysis of the
CDR records revealed substantial contact between Brown's
number and [Defendant's phone number] before, during and
after the January 13th robbery at the M.J.
Christensen Diamond Center.” (Id. at 3). In
addition, “Wright's probation officers have had
frequent contact with Wright via [his phone number] prior and
subsequent to the aforementioned January 13th
armed robbery.” (Id.). The Nevada State Court
granted the application. (ECF No. 132-2).
now moves for evidence obtained via the order to be
suppressed. (ECF No. 131). In his motion, Defendant argues
obtaining information from his phone required a search
warrant supported by probable cause. (Id. at 5). In
response, the government argues it followed the proper
standard under 18 U.S.C. § 2703 to obtain a court order
for production of a cell phone carrier's business records
containing historical cell site location information. (ECF
No. 138 at 3). 18 U.S.C. § 2703 requires a showing of
specific and articulable facts rather than probable cause.
(Id. at 3-6). In reply, Defendant asserts that the
Government's application for a court order failed to
provide specific and articulable facts as required under 18
U.S.C. § 2703. (ECF No. 146 at 2-5).
Fourth Amendment protects the right of people to be secure
against unreasonable searches and seizures. Though the Fourth
Amendment does not specifically preclude admission of
evidence obtained in violation of its provisions, the courts
have established “an exclusionary rule that, when
applicable, forbids the use of improperly obtained evidence
at trial.” Herring v. United States, 555 U.S.
135, 139-40 (2009). Obtaining a warrant generally requires a
showing of probable cause. Illinois v. Gates, 462
U.S. 213, 236 (1983). However, under 18 U.S.C. § 2703(d)
a court order for information regarding an electronic
communication will issue “if the governmental entity
offers specific and articulable facts showing that there are
reasonable grounds to believe that…the records or
other information sought, are relevant and material to an
ongoing criminal investigation.” The Ninth Circuit has
not ruled on whether historical cell site location
information can be obtained under 18 U.S.C. § 2703(d) or
whether a search warrant is required. However, many
districts, including the District of Nevada, have ruled that
an order under 18 U.S.C. § 2703(d) can be used to obtain
historical cell site location information. See United
States v. Anderson, No. 2:15-cr-00200-KJD-PAL, 2016 WL
4191045, at *8 (D. Nev. Apr. 27, 2016), report and
recommendation adopted, No. 2:15-cr-00200-KJD-PAL, 2016
WL 4180965 (D. Nev. Aug. 5, 2016); United States v.
Gray, No. CR-15-08076-PCT-DGC, 2017 WL 3675383, at *6
(D. Ariz. Aug. 25, 2017). The Court notes that the order in
this case was obtained in Nevada State Court. (ECF No.
132-2). Nevada has ruled that the “‘specific and
articulable facts' standard under § 2703(d) is
sufficient to obtain historical cell phone information
because a defendant has no reasonable expectation of privacy
in business records made, kept, and owned by his or her cell
phone provider.” Taylor v. State, 371 P.3d
1036, 1043 (2016).
an order under 18 U.S.C. § 2703(d) is sufficient to
obtain information regarding Defendant's phone calls, the
Court must determine whether the Government demonstrated
specific and articulable facts in its application. The burden
can be likened to a Terry stop, “requiring
that the government show ‘reasonable
grounds'” that the records are related to the crime
being investigated. In re Applications of the United
States of Am. for an Order Pursuant to 18 U.S.C. §
2703(d), 206 F.Supp.3d 454, 455-56 (D.D.C. 2016);
see also Pittman v. Smith, 210 F.3d 384 (9th Cir.
Court finds the Government demonstrated sufficient specific
and articulable facts to obtain an order under 18 U.S.C.
§ 2703, though it is a close call. The Government stated
that a phone associated with another suspect in the robberies
had “substantial contact” with Defendant's
phone “before, during and after the January
13th robbery.” (ECF No. 132-1 at 3, emphasis
added). It is reasonable to conclude that a phone call made
during a robbery is related to that robbery. In
addition, the Government alleged that Defendant had
consistent control of his phone during the relevant
timeframe, as his probation officers had frequent contact
with Defendant through his phone. (Id.). Based on
these statements, there were sufficient grounds for the Court
to grant the Government's application for an order under
18 U.S.C. § 2703.
and for good cause shown, IT IS HEREBY ORDERED that
Defendant's Motion to Suppress Evidence Obtained from
February 9, 2017 Court Order (ECF No. 131) is DENIED.
 Though the Court need not address
arguments raised for the first time in a reply brief,
United States v. Gianelli, 543 F.3d 1178, 1184 n.6
(9th Cir. 2008), ...