After Justin Green, “and others,” were charged with, and
convicted of, “conspiring to possess with intent to distribute and to
distribute oxycodone, a Schedule II controlled substance, in violation of 21U.S. Code § 846”, he appealed. U.S. v. Green, __ F.3d __, 2012 WL
5351172 (U.S. Court of Appeals for the 1st Circuit 2012). (He was sentenced to 210 months in prison,
after being convicted. U.S. v. Green, supra.)
According to the opinion, the prosecution arose in the fall
of 2008 when the
DEA [Drug Enforcement Administration] began
investigating a suspected oxycodone trafficking operation in and around Fall
River, Massachusetts. With the help of a cooperating witness, the DEA
identified Gilberto Aguiar as one of the participants and received court authorization
to intercept calls and text messages on Aguiar's cell phone, as well as on the
phones of Aguiar's suspected supplier, Dimas Almeida, and Almeida's suspected
supplier, Aaron Tripp.
The DEA agents intercepted calls
between Tripp and a man named Mark Carrolton, which revealed that Tripp was
planning to travel to Florida to buy several hundred thousand dollars' worth of
pills. Carrolton arranged for an individual named `J’ or `Justin’ (later
identified as . . . Justin Green) to supply Tripp with 30,000 30–milligram
oxycodone pills and 2,500 80–milligram pills. Carrolton also arranged for a
second supplier named `Twin’ to provide Tripp with 500
80–milligram oxycodone pills.
Tripp's trip to Florida was delayed for a week or
so, and on May 1, 2009, Carrolton received a text message from Green stating
the following: `I cant [sic] hold these for any longer. My people are backed up
and jumping down my throat. Im [sic] going to have [sic] get rid of them to
someone else if he isnt [sic] @erious [sic].’ Carrolton forwarded that message
to Tripp, warning Tripp that he could not `buy much more time’ and telling him
to read the forwarded message from `J.’
During a conversation with Tripp that day,
Carrolton confirmed Tripp was bringing enough cash (at least $300,000 or
$350,000) to Florida for the transaction and, at the end of the conversation,
told Tripp he was `going to call Justin right now.’ Carrolton immediately
placed six calls to Green's cell phone number.
On May 5, 2009, on his way down to
Florida, Tripp was pulled over by local law enforcement officers in South
Carolina, who seized $396,000 in cash from Tripp as part of a search of his
vehicle. Later that day, the DEA agents intercepted a call from Tripp to
Carrolton, in which Tripp reported what had happened and told Carrolton to
`ditch’ his phone. Carrolton responded that he would `call “J”’ and talk to
Tripp later. Carrolton then made three attempts to reach Green's cell phone
number. Carrolton also sent a text message to the same number that night.
U.S. v. Green, supra.
On May 6, the DEA agents
persuaded Tripp to cooperate with them. At the
agents' direction, Tripp placed several (recorded) calls to Carrolton and told
Carrolton he would return to Massachusetts for more money and then meet
Carrolton and Green in Florida to complete the transaction as planned.
On May 7, 2009, at approximately 7:30 p.m., Tripp
again called Carrolton, to finalize the plans for the drug deal. Shortly
thereafter, Carrolton and Green arrived at a Holiday Inn Express in Fort
Lauderdale, where the DEA agents had arranged for Tripp to rent a room. When
Carrolton and Green (who arrived separately) knocked on Tripp's hotel room
door, the DEA agents opened the door and identified themselves. Green ran down
the hallway, but the agents stopped him and arrested him. The agents also
arrested Carrolton.
U.S. v. Green, supra.
When they made the arrests, the DEA agents
seized a cell phone, backpack, and two bags of pills
from Carrolton (containing 748 30–milligram oxycodone pills and 442
80–milligram oxycodone pills). Carrolton later testified at trial that
`Twin’ had supplied some of those pills and that the rest were from Green. The
agents also seized two cell phones from Green: a black MetroPCS Samsung phone
and a Blackberry device.
U.S. v. Green, supra.
Two weeks later, on May 21, 2009, DEA Special Agent Carl Rideout,
by then back in Massachusetts, removed
the back outside casing and battery from each of Green's cell phones and
retrieved the International Mobile Subscriber Identity (IMSI) number from each.
Rideout did not have a warrant.
According to the government, the `DEA
agents used the IMSI numbers to obtain toll and subscriber information
(including the telephone numbers) for the cellular telephones. Agents learned,
among other things, that the telephone number associated with Green's MetroPCS
black Samsung cellular telephone was (954) 245–2759.’
U.S. v. Green, supra.
In June of 2009, Green, Carrolton, Tripp “and others” were,
as noted above, charged with conspiring to possess with intent to distribute
and to distribute oxycodone. U.S. v. Green, supra. On March 31, 2010, Green filed a motion to
suppress the cell phones
and all evidence obtained from them,
and on October 15, 2010, the district court heard oral argument on that motion.
. . . [O]n November 1, 2010, Rideout obtained consent from Carrolton to
activate Carrolton's cell phone (seized from him at the scene) and retrieve
Green's number from the phone's electronic address book, listed under the name
`JSTN.’ That number matched the one the DEA had obtained using Green's IMSI
number. . . . On January 11, 2011, the district court denied Green's motion to
suppress, finding that the retrieval of his IMSI number did not constitute a
`search’ within the meaning of the Fourth Amendment.
U.S. v. Green, supra.
On appeal, Green argued, among other things, that “the
district court should have granted his motion to suppress, because the DEA
agents' retrieval of his IMSI number from his cell phone constituted a 4th
Amendment search.” U.S. v. Green, supra.
The Court of Appeals began its analysis of his argument by
explaining that the
two cell phones seized from Green at
the time of his arrest were a black MetroPCS Samsung phone and a BlackBerry
device. Two weeks later, after returning to Massachusetts, Rideout opened the
back of each phone, removed the battery, and obtained each phone's IMSI number.
The IMSI number of the Samsung phone was visible on the phone after the battery
was removed, and the IMSI number of the Blackberry phone was on a card inserted
into a slot where the battery had been.
Because the government does not appear
to have introduced any evidence at trial that it acquired using the
Blackberry's IMSI number, we focus on the retrieval of the IMSI number from the
Samsung device.
The DEA agents used that IMSI number to
determine that (954) 245–2759 was the phone number associated with the phone,
to obtain Green's toll records from MetroPCS, and to obtain what the government
has described as other `subscriber information.’ The government's brief does
not make clear what that other subscriber information included, nor has either
party provided us with the trial exhibit that might answer that question. When
asked, at oral argument, exactly what information can be gleaned about a
subscriber using his IMSI number, neither party was able to provide an answer.
. . .
U.S. v. Green, supra.
Since Green was claiming that the retrieval of his IMSI
number was a 4th Amendment “search,” he had to show he had a
“reasonable expectation of privacy” in the number or in the phone. As I have noted in earlier posts, and as
Wikipedia explains, in Katz v. U.S.,
389 U.S. 347 (1967), the U.S. Supreme Court held that a 4th Amendment
“search” violates a “reasonable expectation of privacy”, which means that the
owner of the place or thing (i) subjectively believes it is private and (ii)
society accepts that belief as objectively reasonable.
The opinion does not explain how Green argued that this test
was satisfied with regard to the retrieval of his IMSI number, but it does note
that the prosecution argued that the “retrieval of Green's IMSI number did not
constitute a search, because an individual does not have a reasonable expectation
of privacy either in his IMSI number, which is shared with the telephone
company, or in the inside casing of his cell phone.” U.S. v. Green, supra.
The Court of Appeals then did what courts sometimes do –
ducked the issue:
The question Green raises -- whether
the DEA agents' retrieval of his IMSI number constituted a search within . . . the
4th Amendment -- is not, in our
view, an easy one. It implicates an important and developing area of 4th
Amendment law: the extent of the privacy interest an individual has in his cell
phone and cellular communications. . . . But we find this case to
be the wrong vehicle for exploring those novel issues, both because the record
is insufficiently developed and because, even assuming that a 4th Amendment
search occurred here, any error was harmless.
U.S. v. Green, supra.
As Wikipedia notes, harmless error is a trial judge’s ruling
that, while mistaken, does not require the reversal of a conviction. As the
Court of Appeals noted, admitting “evidence obtained in violation of the 4th
Amendment is harmless if the government can `prove beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.’” U.S. v. Green, supra (Chapman v.
California, 386 U.S. 18 (1967)).
The court then explained why the error, in any, in denying
Green’s motion to dismiss was harmless error:
The government maintains, and Green
does not dispute, that if the district court had granted [his] motion to
suppress, the only evidence that would not have been admitted at trial was that
the Samsung cell phone the agents seized from him on May 7, 2009 was assigned
telephone number (954) 245–2759. Though the DEA agents did also obtain Green's
toll records using his IMSI number, the government apparently did not use those
records at trial. The government submitted a chart summarizing Carrolton's
telephone contacts with Green, but that chart was based entirely on Carrolton's
toll records, obtained with his consent.
The other piece of evidence the DEA agents obtained
using Green's IMSI number was that his telephone number was (954) 245–2759, but
that evidence would still have come in at trial, through Carrolton's testimony
and information obtained from Carrolton's phone with his consent. Perhaps more importantly, Green stipulated at
trial that (954) 245–2759 was `the mobile telephone number assigned to a telephone
used by Justin Green.’
Furthermore, there was a great deal of other
evidence connecting Green to the conspiracy. [It] . . . included the trial
testimony of co-conspirators Carrolton and Tripp, the intercepted wire
communications between and among Green's co-conspirators, the fact Green
arrived at the Holiday Inn Express on May 7, 2009 for the expected drug
transaction, and the fact [he] fled when the DEA agents confronted him.
We cannot imagine that the jury would
have rendered a different verdict in the absence of the one, relatively minor,
piece of evidence derived exclusively from the retrieval of Green's IMSI
number: namely, that the particular phone he was carrying on the day he was
arrested was assigned telephone number (954) 245–2759. We therefore find beyond
a reasonable doubt that any error here did not contribute to the verdict, and
we leave the 4th Amendment question for another day.
U.S. v. Green, supra.
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