George Floyd, general warrants, and cell-site simulators

• Author: Brian L. Owsley
• Position: Associate Professor of Law, University of North Texas Dallas College of Law
• Pages: 149-196

GEORGE FLOYD, GENERAL WARRANTS, AND CELL-SITE

SIMULATORS

Brian L. Owsley*

ABSTRACT

The Fourth Amendment was enacted to prevent the government from utilizing

general warrants. Instead, the government must obtain a warrant that is based

on the specificity or particularity of the person, place, or thing to be searched.

This approach evolved from a property-centric approach to safeguarding Fourth

Amendment rights to one that is based on reasonable expectations of privacy.

Technology has long been a factor in law enforcement and balancing Fourth

Amendment rights. As technology embeds itself in more of our lives, its constitu-

tional impact also grows. Law enforcement periodically uses a device called a

cell-site simulator to obtain personal information and data from cell phones.

Essentially, a cell-site simulator works by mimicking a cell phone tower. All cell

phones in a certain radius then attempt to register with the cell-site simulator for

purposes of assuring that they can receive and send calls and data.

In law enforcement’s gathering of data from a large number of cell phones,

law enforcement essentially has a general warrant that violates the Fourth

Amendment. The history of general warrants in England and in our own country

demonstrates the problem of gathering this data. This Article delves into this his-

tory, focusing on notable developments in England as well as colonial America.

Regardless of whether one applies a property-centric approach or a reasonable

expectation of privacy analysis, cell-site simulators present problems resembling

those of general warrants.

There are reports that cell-site simulators have been used to target crowds at

protest rallies in Chicago. Similarly, there were reports of such surveillance dur-

ing the protests over Freddie Gray’s death in Baltimore. Finally, the recent pro-

tests in the summer of 2020 over George Floyd’s death have drawn a massive

response by law enforcement. This Article seeks to establish that using cell-site

simulators constitutes a search based on United States v. Carpenter as well as

the handful of decisions that address cell-site simulators in state and federal

* Associate Professor of Law, University of North Texas Dallas College of Law; B.A., University of Notre

Dame, J.D., Columbia University School of Law, M.I.A., Columbia University School of International and

Public Affairs. From 2005 until 2013, the author served as a United States Magistrate Judge for the United States

District Court for the Southern District of Texas. The author appreciates the assistance of Dean Felecia Epps and

the UNT Dallas College of Law in support of this article. Similarly, the author owes much gratitude to the 2020

SEALS Criminal Law & Criminal Procedure Workshop, including Terrence Cain, Ngov Eang, Adam

Gershowitz, Nicholas Kahn-Fogel, Corinna Lain, Suparna Malempati, Jennifer Moore, and Melanie Wilson.

Finally, the author wants to thank Professor Christina Masso for her amazing assistance in editing and her

numerous suggestions that enhanced this article.

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courts. In addition, this Article calls for solutions to the problem they pose to

Fourth Amendment rights.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

I. THE EARLY BACKLASH AGAINST GENERAL WARRANTS . . . . . . . . . . . . . 152

A. The English Courts Reject General Warrants . . . . . . . . . . . . . 152

B. The American Colonists Reject General Warrants. . . . . . . . . . 154

C. State Constitutions and the Fourth Amendment Reject General

Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

II. THE SUPREME COURT’S FOURTH AMENDMENT JURISPRUDENCE REJECTS

GENERAL WARRANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

A. The Court Finds Fourth Amendment Violations Based on

Physical Trespass, But Not Based on Technologically Aided

Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

B. The Court Finds Fourth Amendment Violations Based on

Reasonable Expectation of Privacy . . . . . . . . . . . . . . . . . . . . 161

C. The Pendulum of Fourth Amendment Jurisprudence Swings

Back. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

III. LAW ENFORCEMENT CAN USE CELL-SITE SIMULATORS TO GATHER DATA

FROM CELL PHONES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

A. A Cell Phone Operates by Sending and Receiving Radio Waves

to a Cell Tower, and a Cell Cite Simulator Mimics a Cell Tower

to Gather Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

B. There Are an Array of Different Cell-site Simulators with

Different Features. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

C. Law Enforcement Officers Can Use Cell-site Simulators in

Three

Different Manners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

IV. THE USE OF CELL-SITE SIMULATORS CONSTITUTES A SEARCH . . . . . . . . . 173

A. The Supreme Court Has Not Explicitly Addressed Cell-Site

Simulators, But Its Decisions Provide Some Guidance . . . . . . 174

1. The Use of Thermal Imaging Devices Violates the Fourth

Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

2. Law Enforcement Must Obtain a Search Warrant in Order

to Obtain Cell Site Location Information . . . . . . . . . . . . . 176

B. Some Courts Have Specifically Concluded a Warrant Is

Required When the Police Use Cell-Site Simulators . . . . . . . . 178

C. Some Courts Analyze Cell-Site Simulator Decisions Based on

the Assumption that a Search Warrant is Necessary . . . . . . . . 183

D. In Some Prosecutions, the Government Has Conceded That a

Search Warrant Was Necessary to Use a Cell-Site Simulator . . . 185

150 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:149

V. LAW ENFORCEMENT OFFICIALS’ USE OF CELL-SITE SIMULATORS TO

CONDUCT MASS SURVEILLANCE VIOLATES THE FOURTH AMENDMENT AS A

GENERAL WARRANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

A. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

B. Chicago . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

C. Baltimore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

INTRODUCTION

A general warrant gives law enforcement officers broad powers to engage in a

search. In the modern parlance of the Fourth Amendment, it would be a search not

defined in terms of the particularity of the person, place, or thing to be searched.

The general warrant would then entitle the search officers to seize whatever they

found.

If a police officer obtains a warrant to search an apartment within a twenty-unit

building, that officer cannot then search all twenty apartments, but instead can only

search the one authorized by the warrant. If the officer were authorized to search

the entire building or an entire block, that would violate the Fourth Amendment as

a general warrant.

However, if an officer obtains a search warrant authorizing the use of a cell-site

simulator to locate a cell phone in that same twenty-unit building, that officer will

obtain cell phone evidence from the suspect’s apartment along with the remaining

nineteen apartments. The people in the other nineteen units would be the victims

of overzealous surveillance within a general warrant framework. While the former

circumstance is seemingly unheard of these days, the latter scenario is all too

common.

Problematically, law enforcement officials have used cell-site simulators to tar-

get protestors at rallies and protests around the country. Because of the secrecy sur-

rounding this device, usage on protestors is often only discovered long after the

protests are over. There is growing evidence that police officers used cell-site sim-

ulators at protests over the killings of Eric Garner, Michael Brown, and Freddie

Gray, as well as at other Black Lives Matter protests. Given this evidence, there is

every reason to believe that the recent protests across the nation over the killing of

George Floyd would have also attracted officers with cell-site simulators. With all

of the protests that have happened since 2020 and the likelihood that more are

coming, it is important to consider how cell-site simulators may be used during

such protests.

Part I of this Article discusses general warrants and how people in England and

America rejected their use before and up to the development of the Fourth

Amendment. This disdain occurred not only in colonial America but also amongst

the states as they developed their constitutions. Part II discusses the United States

2022] GEORGE FLOYD, WARRANTS, AND CELL-SITE SIMULATORS 151