United States v. Lambis

197 F. Supp. 3d 606, 2016 WL 3870940
CourtDistrict Court, S.D. New York
DecidedJuly 12, 2016
Docket15cr734
StatusPublished
Cited by22 cases

This text of 197 F. Supp. 3d 606 (United States v. Lambis) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lambis, 197 F. Supp. 3d 606, 2016 WL 3870940 (S.D.N.Y. 2016).

Opinion

OPINION & ORDER

WILLIAM H. PAULEY III, District Judge:

Raymond Lambis moves to suppress narcotics and drug paraphernalia recovered by law enforcement agents in connection with a search of his apartment.- Lam-bis’s motion to suppress is granted.

BACKGROUND

In 2015, the Drug Enforcement Administration (the “DEA”) conducted an investigation into an international drug-trafficking organization. As a part of that investigation, the DEA sought a warrant for pen register information and cell site location information (“CSLI”) for a target cell phone. Pen register information is a record from the service provider of the telephone numbers dialed from a specific phone. CSLI is a record of non-[609]*609content-based location information from the service provider derived from “pings” sent to cell sites by a target cell phone. CSLI allows the target phone’s location to be approximated by providing a record of where the phone has been used.

Using CSLI, DEA agents were able to determine that the target cell phone was located in the general vicinity of “the Washington Heights area by 177th and Broadway.” (April 12, 2016 Suppression Hearing Transcript (“Supp. Tr.”), at 39.) However, this CSLI was not precise enough to identify “the specific apartment building,” much less the specific unit in the apartment complexes in the area. (Supp. Tr. at 39.)

To isolate the location more precisely, the DEA deployed a technician with a cell-site simulator to the intersection of 177th Street and Broadway. A cell-site simulator—sometimes referred to as a “StingRay,” “Hailstorm,” or “TriggerFish”—is a device that locates cell phones by mimicking the service provider’s cell tower (or “cell site”) and forcing cell phones to transmit “pings” to the simulator. The device then calculates the strength of the “pings” until the target phone is pinpointed. (See Supp. Tr. at 40.) Activating the cell-site simulator, the DEA technician first identified the apartment building with the strongest ping. Then, the technician entered that apartment building and walked the halls until he located the specific apartment where the signal was strongest. (Supp. Tr. at 41.)

The cell-site simulator identified Lam-bis’s apartment as the most likely location of the target cell phone. That same evening, DEA agents knocked on Lambis’s apartment door and obtained consent from Lambis’s father to enter the apartment. (Supp. Tr. at 8-9.) Once in the apartment, DEA agents obtained Lambis’s consent to search his bedroom. (Supp. Tr. at 13.) Ultimately, the agents recovered narcotics, three digital scales, empty zip lock bags, and other drug paraphernalia. (Supp. Tr. at 14.) Lambis seeks to suppress this evidence.

. DISCUSSION

I. Fourth Amendment Search

The Fourth Amendment guarantees that all people shall be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, Amend. IV. “[T]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable.” New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). “[A] Fourth Amendment search occurs when the government violates a subjective expéctation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Barring a few narrow exceptions, “warrantless searches ‘are per se unreasonable under the Fourth Amendment.’” City of Ontario v. Quon, 560 U.S. 746, 760, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). The home has special significance under the Fourth Amendment. “ ‘At the very core’ of the. Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” Kyllo, 533 U.S. at 31, 121 S.Ct. 2038 (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)).

In Kyllo, the Supreme Court held that a Fourth Amendment search occurred when Government agents used a thermal-imaging device to detect infrared radiation emanating from a home. 533 U.S. at 40, 121 S.Ct. 2038. In so holding, the Court rejected the Government’s argument that because the device only detected “heat ra[610]*610diating from the external surface of the house,” there was no “search.” Kyllo, 533 U.S. at 35, 121 S.Ct. 2038. The Court reasoned that distinguishing between “off-the-wall” observations and “through-the-wall surveillance” would “leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home.” Kyllo, 533 U.S. at 35-36, 121 S.Ct. 2038. Thus, the Court held that “[w]here ... the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Kyllo, 533 U.S. at 40, 121 S.Ct. 2038.

Here, as in Kyllo, the DEA’s use of the cell-site simulator to locate Lambis’s apartment was an unreasonable search because the “pings” from Lambis’s cell phone to the nearest cell site were not readily available “to anyone who wanted to look” without the use of a cell-site simulator. See United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983); see also State v. Andrews, 227 Md.App. 350, 395-96, 134 A.3d 324 (2016) (holding that the use of a cell site simulator requires a search warrant based on probable cause, and finding that the trial court properly suppressed evidence obtained through the use of the cell-site simulator). The DEA’s use of the cell-site simulator revealed “details of the home that would previously have been unknowable without physical intrusion,” Kyllo, 533 U.S. at 40, 121 S.Ct. 2038, namely, that the target cell phone was located within Lambis’s apartment. Moreover, the cell-site simulator is not a device “in general public use.” Kyllo, 533 U.S. at 40, 121 S.Ct. 2038. In fact, the DEA agent who testified at the hearing had never used one.

The Government counters that Kyllo is not implicated here. In Kyllo, the Court expressed concern that the Government could employ devices, like a thermal imaging device, to learn more intimate details about the interior of the home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” Kyllo, 533 U.S. at 38, 121 S.Ct. 2038. The Government contends that because the only information to be gleaned from a cell-site simulator is the location of the target phone (for which the Government had already obtained a warrant for CSLI), no intimate details of the apartment would be revealed and Lambis’s expectation of privacy would not be implicated. But the Second Circuit has rejected a similar argument even when the search at issue could “disclose only the presence or absence of narcotics” in a person’s home. United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir.1985) (holding that a canine sniff that “constitutes a search under the Fourth Amendment ... when employed at a person’s home”).

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Cite This Page — Counsel Stack

Bluebook (online)
197 F. Supp. 3d 606, 2016 WL 3870940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lambis-nysd-2016.