2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 DOMINIQUE HOUSTON, Case No. 3:19-cv-00758-MMD-CSD 7 Plaintiff, ORDER 8 v. 9 OFFICER ROBERTS, et al., 10 Defendants. 11 12 I. SUMMARY 13 In this case, brought under 42 U.S.C. § 1983, the Court permitted pro se Plaintiff 14 Dominique Houston to proceed on his warrantless search claims based on the Fourth 15 Amendment and Art. 1 Section 18 of the Nevada Constitution against Defendants Scott 16 Roberts and Allison Jenkins-Kleidosty. (ECF No. 23 at 5-6.1) Defendants have moved for 17 summary judgment on the claims (“Motion”). (ECF No. 33.) The Court will grant the Motion 18 as to the Fourth Amendment claim because it was not clearly established in November 19 2018 that requesting a single locational ping of a suspect’s cell phone from their cellular 20 service provider required a warrant under the Fourth Amendment. The Court declines to 21 exercise supplemental jurisdiction over Houston’s Nevada constitutional claim. 22 II. BACKGROUND 23 The following facts are undisputed.2 24 Following an initial investigation, officers of the Reno Police Department suspected 25 that the perpetrator of a recent robbery was Plaintiff Dominique Houston. (ECF No. 33 at 26
27 1 It appears that the conclusion of the order erroneously omitted reference to the corollary Nevada constitutional claim. 28 2Houston did not respond to the Motion, and his allegations in the complaint are 2 Among several other methods employed to find Houston, Officer Scott Roberts requested 3 that AT&T, Houston’s cell service provider, perform a single locational “ping” to obtain his 4 real-time cell-site location information (“CSLI”).3 (Id.; ECF No. 18 at 3.) The ping identified 5 the location of Houston’s phone as 2401 Harvard Way, Apartment 162. (ECF No. 33 at 6 2.) With this and additional information obtained through further investigation, Officer 7 Allison Jenkins-Kleidosty applied for and obtained a warrant to search Apartment 162. 8 (Id.; ECF Nos. 33-1 at 10, 18 at 4.) 9 The state charged Houston in Nevada’s Second Judicial District Court with use of 10 a deadly weapon, battery with the use of a deadly weapon, two counts of burglary, and 11 fraudulent use of a debit or credit card. (ECF Nos. 33 at 3, 33-2 at 3-4.) Houston moved 12 to suppress the single positional ping of his cell phone, as well as evidence obtained with 13 the search warrant granted as a result of that ping, on the grounds that the ping was a 14 warrantless search in violation of the Fourth Amendment. (ECF Nos. 33 at 3, 33-2 at 2- 15 4.) The district court concluded that the ping constituted a ‘search’ but denied Houston’s 16 motion to suppress. (ECF Nos. 33 at 3, 33-2 at 14.) The case proceeded to trial, and 17 Houston was convicted of robbery, both burglary counts, and credit card fraud. (ECF Nos. 18 33 at 3, 33-3 at 5.) 19 Houston appealed his conviction to the Nevada Court of Appeals. (ECF Nos. 33 at 20 3, 33-3 at 5.) The Court of Appeals upheld the district court’s determination that the ping 21 of Houston’s phone was a search requiring a warrant under the Fourth Amendment4 and 22 still found that, even setting aside “all the evidence obtained from the ping and search 23 24
25 3As noted in the magistrate judge’s screening order on Houston’s amended complaint, Houston does not expressly state whether Officer Roberts requested his 26 historical or real-time CSLI, but this is the undisputed version of the facts presented in the Motion. (ECF Nos. 23 at 5, 33 at 2.) 27 4The Court of Appeals limited its holding to the case at issue given the limited 28 briefing on the topic. 2 Nos. 33 at 4, 33-3 at 13.) 3 On December 20, 2019, Houston filed this lawsuit against AT&T, former AT&T 4 Chairman and CEO Randall Stephenson, the Reno Police Department, and Officer Scott 5 Roberts of the Reno Police Department. (ECF No. 1-1 at 2.) The Court dismissed with 6 prejudice Houston’s claims against AT&T, Stephenson, and the Reno Police Department5 7 but dismissed Houston’s Fourth Amendment claim against Officer Roberts with leave to 8 amend. (ECF Nos. 3, 19.) Houston amended his complaint to allege that Defendants, 9 Officers Roberts and Jenkins-Kleidosty, had violated his Fourth Amendment rights and 10 his rights under Art. 1 Section 18 of the Nevada Constitution by pinging his cell phone 11 without a warrant. (ECF No. 18 at 2-4.) Defendants filed this Motion on July 17, 2023. 12 (ECF No. 33.) 13 III. DISCUSSION 14 A. Fourth Amendment Warrantless Search 15 In Houston’s amended complaint, he alleges that Roberts requested AT&T to 16 perform a locational ping on his cell phone without a warrant in violation of the Fourth 17 Amendment and that Jenkins-Kleidosty then used the pinged address to obtain a search 18 warrant for 2401 Harvard Way, Apartment 162. (ECF No. 18 at 4.) In the Motion, 19 Defendants argue that they are entitled to qualified immunity, Houston cannot prove that 20 Defendants’ requested cell phone ping caused either the search of his apartment or his 21 conviction, and Houston’s failure to respond to Defendants’ requests for admission 22 constitute his concession that no constitutional violation occurred. (ECF No. 33 at 6-8.) 23 Houston does not meaningfully contest the facts that Defendants articulated in the Motion. 24 25 26 27 5The Court granted Houston leave to amend his claims against the Reno Police 28 Department so long as those amendments were consistent with Judge Cobb’s report and 2 Defendants are entitled to qualified immunity. 3 “In determining whether a state official is entitled to qualified immunity in the 4 context of summary judgment, [courts] consider (1) whether the evidence viewed in the 5 light most favorable to the plaintiff is sufficient to show a violation of a constitutional right 6 and (2) whether that right was clearly established at the time of the violation.” Sandoval 7 v. Cnty. of San Diego, 985 F.3d 657, 671 (9th Cir. 2021), cert. denied sub nom. San Diego 8 Cnty. v. Sandoval, 142 S.Ct. 711 (2021) (citation and quotation marks omitted). District 9 judges may exercise their discretion in deciding which qualified immunity prong to 10 address first based on the circumstances of the case at issue. See Pearson v. Callahan, 11 555 U.S. 223, 236 (2009). The Court discusses, and decides this case based upon, only 12 the ‘clearly established’ prong of the qualified immunity test. 13 To overcome a claim of qualified immunity, Houston must show that the law 14 regarding his allegedly violated constitutional right was clearly established when 15 Defendants requested the ping of his phone. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 16 (2011). For a government official’s conduct to have violated clearly established law, the 17 “rule’s contours must [have been] so well defined that it [was] clear to a reasonable officer 18 that his conduct was unlawful in the situation he confronted.” City of Tahlequah v. Bond, 19 142 S.Ct. 9, 11 (2021) (citation and quotation marks omitted). This means the 20 constitutional question must have been placed “beyond debate,” Ashcroft, 562 U.S. 731 21 at 741, by either a controlling authority or a “robust consensus of cases of persuasive 22 authority,” Tuuamalemalo v. Greene, 946 F.3d 471, 477 (9th Cir. 2019) (citation omitted). 23 If existing precedent does not address the exact circumstances at issue, the plaintiff must 24 instead identify precedent holding certain conduct unconstitutional “under facts not 25 distinguishable in a fair way from the facts presented in the case at hand.” Orn v.
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2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 DOMINIQUE HOUSTON, Case No. 3:19-cv-00758-MMD-CSD 7 Plaintiff, ORDER 8 v. 9 OFFICER ROBERTS, et al., 10 Defendants. 11 12 I. SUMMARY 13 In this case, brought under 42 U.S.C. § 1983, the Court permitted pro se Plaintiff 14 Dominique Houston to proceed on his warrantless search claims based on the Fourth 15 Amendment and Art. 1 Section 18 of the Nevada Constitution against Defendants Scott 16 Roberts and Allison Jenkins-Kleidosty. (ECF No. 23 at 5-6.1) Defendants have moved for 17 summary judgment on the claims (“Motion”). (ECF No. 33.) The Court will grant the Motion 18 as to the Fourth Amendment claim because it was not clearly established in November 19 2018 that requesting a single locational ping of a suspect’s cell phone from their cellular 20 service provider required a warrant under the Fourth Amendment. The Court declines to 21 exercise supplemental jurisdiction over Houston’s Nevada constitutional claim. 22 II. BACKGROUND 23 The following facts are undisputed.2 24 Following an initial investigation, officers of the Reno Police Department suspected 25 that the perpetrator of a recent robbery was Plaintiff Dominique Houston. (ECF No. 33 at 26
27 1 It appears that the conclusion of the order erroneously omitted reference to the corollary Nevada constitutional claim. 28 2Houston did not respond to the Motion, and his allegations in the complaint are 2 Among several other methods employed to find Houston, Officer Scott Roberts requested 3 that AT&T, Houston’s cell service provider, perform a single locational “ping” to obtain his 4 real-time cell-site location information (“CSLI”).3 (Id.; ECF No. 18 at 3.) The ping identified 5 the location of Houston’s phone as 2401 Harvard Way, Apartment 162. (ECF No. 33 at 6 2.) With this and additional information obtained through further investigation, Officer 7 Allison Jenkins-Kleidosty applied for and obtained a warrant to search Apartment 162. 8 (Id.; ECF Nos. 33-1 at 10, 18 at 4.) 9 The state charged Houston in Nevada’s Second Judicial District Court with use of 10 a deadly weapon, battery with the use of a deadly weapon, two counts of burglary, and 11 fraudulent use of a debit or credit card. (ECF Nos. 33 at 3, 33-2 at 3-4.) Houston moved 12 to suppress the single positional ping of his cell phone, as well as evidence obtained with 13 the search warrant granted as a result of that ping, on the grounds that the ping was a 14 warrantless search in violation of the Fourth Amendment. (ECF Nos. 33 at 3, 33-2 at 2- 15 4.) The district court concluded that the ping constituted a ‘search’ but denied Houston’s 16 motion to suppress. (ECF Nos. 33 at 3, 33-2 at 14.) The case proceeded to trial, and 17 Houston was convicted of robbery, both burglary counts, and credit card fraud. (ECF Nos. 18 33 at 3, 33-3 at 5.) 19 Houston appealed his conviction to the Nevada Court of Appeals. (ECF Nos. 33 at 20 3, 33-3 at 5.) The Court of Appeals upheld the district court’s determination that the ping 21 of Houston’s phone was a search requiring a warrant under the Fourth Amendment4 and 22 still found that, even setting aside “all the evidence obtained from the ping and search 23 24
25 3As noted in the magistrate judge’s screening order on Houston’s amended complaint, Houston does not expressly state whether Officer Roberts requested his 26 historical or real-time CSLI, but this is the undisputed version of the facts presented in the Motion. (ECF Nos. 23 at 5, 33 at 2.) 27 4The Court of Appeals limited its holding to the case at issue given the limited 28 briefing on the topic. 2 Nos. 33 at 4, 33-3 at 13.) 3 On December 20, 2019, Houston filed this lawsuit against AT&T, former AT&T 4 Chairman and CEO Randall Stephenson, the Reno Police Department, and Officer Scott 5 Roberts of the Reno Police Department. (ECF No. 1-1 at 2.) The Court dismissed with 6 prejudice Houston’s claims against AT&T, Stephenson, and the Reno Police Department5 7 but dismissed Houston’s Fourth Amendment claim against Officer Roberts with leave to 8 amend. (ECF Nos. 3, 19.) Houston amended his complaint to allege that Defendants, 9 Officers Roberts and Jenkins-Kleidosty, had violated his Fourth Amendment rights and 10 his rights under Art. 1 Section 18 of the Nevada Constitution by pinging his cell phone 11 without a warrant. (ECF No. 18 at 2-4.) Defendants filed this Motion on July 17, 2023. 12 (ECF No. 33.) 13 III. DISCUSSION 14 A. Fourth Amendment Warrantless Search 15 In Houston’s amended complaint, he alleges that Roberts requested AT&T to 16 perform a locational ping on his cell phone without a warrant in violation of the Fourth 17 Amendment and that Jenkins-Kleidosty then used the pinged address to obtain a search 18 warrant for 2401 Harvard Way, Apartment 162. (ECF No. 18 at 4.) In the Motion, 19 Defendants argue that they are entitled to qualified immunity, Houston cannot prove that 20 Defendants’ requested cell phone ping caused either the search of his apartment or his 21 conviction, and Houston’s failure to respond to Defendants’ requests for admission 22 constitute his concession that no constitutional violation occurred. (ECF No. 33 at 6-8.) 23 Houston does not meaningfully contest the facts that Defendants articulated in the Motion. 24 25 26 27 5The Court granted Houston leave to amend his claims against the Reno Police 28 Department so long as those amendments were consistent with Judge Cobb’s report and 2 Defendants are entitled to qualified immunity. 3 “In determining whether a state official is entitled to qualified immunity in the 4 context of summary judgment, [courts] consider (1) whether the evidence viewed in the 5 light most favorable to the plaintiff is sufficient to show a violation of a constitutional right 6 and (2) whether that right was clearly established at the time of the violation.” Sandoval 7 v. Cnty. of San Diego, 985 F.3d 657, 671 (9th Cir. 2021), cert. denied sub nom. San Diego 8 Cnty. v. Sandoval, 142 S.Ct. 711 (2021) (citation and quotation marks omitted). District 9 judges may exercise their discretion in deciding which qualified immunity prong to 10 address first based on the circumstances of the case at issue. See Pearson v. Callahan, 11 555 U.S. 223, 236 (2009). The Court discusses, and decides this case based upon, only 12 the ‘clearly established’ prong of the qualified immunity test. 13 To overcome a claim of qualified immunity, Houston must show that the law 14 regarding his allegedly violated constitutional right was clearly established when 15 Defendants requested the ping of his phone. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 16 (2011). For a government official’s conduct to have violated clearly established law, the 17 “rule’s contours must [have been] so well defined that it [was] clear to a reasonable officer 18 that his conduct was unlawful in the situation he confronted.” City of Tahlequah v. Bond, 19 142 S.Ct. 9, 11 (2021) (citation and quotation marks omitted). This means the 20 constitutional question must have been placed “beyond debate,” Ashcroft, 562 U.S. 731 21 at 741, by either a controlling authority or a “robust consensus of cases of persuasive 22 authority,” Tuuamalemalo v. Greene, 946 F.3d 471, 477 (9th Cir. 2019) (citation omitted). 23 If existing precedent does not address the exact circumstances at issue, the plaintiff must 24 instead identify precedent holding certain conduct unconstitutional “under facts not 25 distinguishable in a fair way from the facts presented in the case at hand.” Orn v. City of 26 Tacoma, 949 F.3d 1167, 1178 (9th Cir. 2020) (quotation marks omitted). 27 As of November 2018, there was no controlling precedent, nor was there a robust 28 consensus of persuasive authority, that individuals have a reasonable expectation of 2 before requesting cell phone pings. See United States v. Green, 981 F.3d 945, 957-58 3 (11th Cir. 2020) (“The question of whether acquiring [real-time tracking data] constitutes 4 a search was unanswered in 2013 and remains unanswered today.”). Houston cites 5 Carpenter v. United States, 138 S. Ct. 2206 (2018), in an effort to establish that accessing 6 his CSLI constituted a search requiring a warrant under the Fourth Amendment. (ECF 7 No. 1-1 at 4.) Though the Supreme Court in Carpenter did find that there is a Fourth 8 Amendment right to privacy in historical CSLI, the majority opinion expressly left open the 9 question of whether that same conclusion could be reached about real-time CSLI. See 10 138 S. Ct. at 2220. 11 The screening order of Houston’s amended complaint notes that Houston failed to 12 clarify in his complaint whether Officer Roberts requested his historical or real-time CSLI. 13 (ECF No. 23 at 5; see also ECF No. 18 at 3-4.) But the Court finds that, though the facts 14 must be construed in the light most favorable to Houston as the non-moving party, the 15 only “rational” or “reasonable” reading of the operative complaint given the undisputed 16 facts in the record is that Roberts requested only Houston’s real-time CSLI. (ECF Nos. 17 33 at 2-3 (making unopposed assertions that Roberts only requested one ping for real- 18 time CSLI), 33-2 at 3 (stating the Second Judicial District Court of Nevada’s 19 understanding that Houston’s motion to suppress related to the acquisition of real-time 20 CSLI from his phone), 33-3 at 3 (stating the Nevada Court of Appeals’ understanding that 21 Officer Roberts requested for AT&T to locate Houston’s phone using “prospective” CSLI).) 22 See also T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th 23 Cir. 1987). Carpenter, accordingly, does not control here. 24 And this Court’s independent research did not suggest that other cases had clearly 25 established that real-time CSLI pings constitute Fourth Amendment searches at the time. 26 Indeed, only a few pre-November 2018 cases had discussed privacy interests in the real- 27 time short-term tracking of cell phones, and almost all of them are based on facts 28 “distinguishable in a fair way” from Houston’s allegations because they involved cell site 2 F.3d at 1178; see, e.g., State v. Andrews, 134 A.3d 324, 349 (Md. 2016); United States 3 v. Lambis, 197 F. Supp. 3d 606, 610 (S.D.N.Y. 2016); United States v. Ellis, 270 F. Supp. 4 3d 1134, 1141, 1145-46 (N.D. Cal. 2017). 5 Houston additionally cites to United States v. Katzin, 732 F.3d 187 (3d Cir. 2013), 6 as evidence that Defendants’ requested ping of his phone violated the Fourth 7 Amendment. (ECF No. 1-1 at 4.) But any holdings in that opinion which may have 8 bolstered Houston’s arguments were vacated when the Third Circuit granted rehearing 9 en banc. See United States v. Katzin, Case No. 12-2548, 2013 WL 7033666, at *1 (3d 10 Cir. Dec. 12, 2013). Rehearing was granted only on the issue of whether evidence should 11 be shielded from suppression under the good faith exception to the exclusionary rule, and 12 in determining whether this exception applied, the court declined to decide whether GPS 13 tracking of a suspect’s van constituted an unreasonable search. See United States v. 14 Katzin, 769 F.3d 163, 169-70 (3d Cir. 2014) (en banc). As a result, Katzin cannot support 15 the contention that Houston’s alleged Fourth Amendment right was clearly established. 16 Considering the state of the law in November 2018, the Court concludes that it was 17 not clearly established that requesting a single ping to obtain a suspect’s real-time CSLI 18 constituted a search requiring a warrant under the Fourth Amendment. Defendants have 19 therefore shown that they are entitled to qualified immunity to Houston’s Fourth 20 Amendment warrantless search claim. 21 The Court will thus grant the Motion (ECF No. 33) as to Houston’s Fourth 22 Amendment claim. 23 B. Nevada Constitution Article I, Section 18 Warrantless Search 24 Having dismissed Houston’s Fourth Amendment claim, the Court no longer has 25 original jurisdiction over any claim and declines to exercise supplemental jurisdiction over 26 Houston’s remaining claim Nevada constitutional claim. See 28 U.S.C. § 1367(c)(3) 27 (“[D]istrict courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . 28 the district court has dismissed all claims over which it has original jurisdiction.”). 1 || IV. CONCLUSION 2 The Court notes that the parties made several arguments and cited several cases 3 || not discussed above. The Court has reviewed these arguments and cases and 4 || determines that they do not warrant discussion as they do not affect the outcome of the 5 || issues before the Court. 6 It is therefore ordered that Defendants’ motion for summary judgment (ECF No. 7 || 33) is granted as to the Fourth Amendment claim. 8 The Court declines to adjudicate the Motion (ECF No. 33) as it relates to the 9 || Nevada constitutional claim because the Court declines to exercise supplemental 10 || jurisdiction over this claim. The Court dismisses the claim without prejudice. 11 The Clerk of Court is directed to enter judgment accordingly and close this case. 12 DATED THIS 1% Day of September 2023. 13
15 ST MIRANDA M. DU 16 CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28