       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         STATE OF FLORIDA,
                             Appellant,

                                   v.

                   QUINTON REDELL SYLVESTRE,
                            Appellee.

                            No. 4D17-2116

                          [September 5, 2018]

   Appeal and cross-appeal of non-final order from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Samantha Schosberg
Feuer, Judge; L.T. Case No. 502013CF003226BMB.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Senior Assistant Attorney General, West Palm Beach, for
appellant.

   Peter Grable, Palm Beach Gardens, for appellee.

KUNTZ, J.

   The State applied for a search warrant based on information obtained
from historical cell-site location information (“CSLI”) and a cell-site
simulator. After the Defendant moved to suppress evidence found during
the search, the circuit court found probable cause existed to support the
CSLI order. But the court suppressed evidence discovered through the
State’s warrantless use of the cell-site simulator.

   The State appeals the court’s order suppressing the search, and the
Defendant cross-appeals the court’s finding that the CSLI order was
supported by probable cause. We affirm.

                             Background

   The State charged the Defendant and two co-defendants with first-
degree murder with a firearm while wearing a mask and six counts of
robbery with a firearm while wearing a mask, arising from the robbery of
a Boca Raton restaurant.
    As part of its investigation, the State sought an order requiring the
Defendant’s cell phone service provider to disclose real-time CSLI for what
it believed was the Defendant’s cell phone number. A judge signed the
“CSLI Order,” which required the service provider to disclose “all cell-site
activations    and     sectors    for   all   incoming      and   outgoing
calls/communications . . . call detail location records, ‘angle from the
tower’ data, including contemporaneous (real-time) with these
communications, and historical calls/communications detail records.”

   The judge also signed an order requiring the service provider to install
a pen register and trap and trace device on the Defendant’s phone and
transmit the information collected to the Broward Sheriff’s Office (the
“Trap and Trace Order”).

   Later, the State applied for a search warrant of a Fort Lauderdale
residence. The affidavit filed in support of the warrant stated that “[m]obile
tracking was activated on [the Defendant’s] cell phone pursuant to a lawful
court order” and that the Defendant’s phone was “placed specifically” at
the residence and had been “stationary overnight within this residence for
several concurrent nights.” The search warrant was granted.

   Detectives searched the residence and found a black backpack
containing three firearms, a mask, ammunition, and a stun gun. The
State tracked the location of the Defendant’s cell phone and arrested him
while he was driving into Palm Beach County.

    After the Defendant’s arrest, he moved to suppress all evidence
recovered from the search of the residence. He argued that the CSLI Order
was unsupported by probable cause, as required by Tracey v. State, 152
So. 3d 504 (Fla. 2014). He also argued that the State exceeded the scope
of the CSLI Order by using a “cell-site simulator” to pinpoint his cell phone
inside the residence.

   At an evidentiary hearing, the court admitted transcripts of depositions,
including that of a Broward Sheriff’s Office sergeant. A defense witness
described by the circuit court as a telecommunications expert also
testified.

   The sergeant testified that “at the time” the service provider “didn’t
provide GPS location information. It only provided tower information.”
With that information, the State located the cell phone to within only a
general area, which the sergeant agreed could encompass several square


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blocks. So he pinpointed the Defendant’s phone at the residence “with the
use of a cell-site simulator.”

    Similarly, the Defendant’s expert testified that “there is not a technical
capability in a pen register to give you a specific location, only the
connection, which cell tower to which you were connected.” In the words
of the circuit court, the expert explained “that, at best, the CSLI Order
could provide general location information, which would only be accurate
for several square blocks of a particular area.” Only a cell-site simulator
could provide the State the exact location of the Defendant’s cell phone. 1

   The court found that the CSLI Order was supported by probable cause.
But it suppressed evidence obtained as a result of the warrantless use of
the cell-site simulator. The State appealed the court’s order suppressing
the search of the residence. In a cross-appeal, the Defendant challenges
the court’s conclusion that the CSLI Order was supported by probable
cause.

                       The Defendant’s Cross-Appeal

   We first address the Defendant’s cross-appeal. Generally, in a criminal
case, we lack jurisdiction to consider a defendant’s appeal of a non-final
order. But we do have jurisdiction to consider a defendant’s cross-appeal
when the issue relates to the issue raised in the state’s appeal. See Fla.
R. App. P. 9.140(b)(4) (2017). Thus, here, we have jurisdiction.

   The Defendant argues that the CSLI Order was unsupported by
probable cause because the affidavit did not establish that the cell phone’s
location would lead to evidence related to the restaurant robbery. He also
argues that the statutes the State relied on when applying for the order do
not require probable cause. See §§ 934.23, .42, Fla. Stat. (2012).

   We affirm the circuit court’s ruling that the CSLI Order was supported
by probable cause. In the application for the order, the detective alleged
that the Defendant was one of three men in surveillance video footage from
the robbery. The application also alleged that a watch dealer identified the
Defendant as the seller of a ladies’ watch taken during the robbery. These
facts, and others, were enough to establish probable cause.

1 While the carousel of technological progress continues to move forward, the
testimony presented to the circuit court does not. We recognize the ability to
track a specific cell phone to a precise location continues to improve. But the
Sergeant and the Defendant’s expert testified in 2016 and 2017 about a search
that took place in 2013, and we state the facts as presented to the circuit court.

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   We also address the Defendant’s argument that the CSLI Order is
insufficient because it was not a warrant. Relying on section 934.42,
Florida Statutes (2012), the Defendant argues that “not only does
subsection (4) not require a probable cause determination by the
Magistrate, but specifically states that it may not require ‘greater
specificity or additional information beyond which is required by this
section.’” So, according to the Defendant, the circuit court could not find
probable cause in support of the CSLI Order because the statute
authorizing the CSLI Order does not require probable cause. “By strict
statutory construction,” he argues, “everything contained in the fact
section [of the affidavit] was superfluous.”

   We agree that the statute prevents a court from imposing a stricter
standard when reviewing an application for a CSLI Order. But the statute
does not prevent a court from making additional findings to support a
showing of probable cause. Had the court not made those findings, the
CSLI Order would have violated the Fourth Amendment. See Carpenter v.
United States, 138 S. Ct. 2206, 2221 (2018); Tracey, 152 So. 3d at 525.
Thus, the court’s additional findings were not “superfluous,” but
necessary.

  The content of a court’s order—not the label affixed to it—determines
whether a warrant satisfies the Fourth Amendment. Here, in issuing the
CSLI Order, the court found probable cause existed. We affirm.

                           The State’s Appeal

    The State argues the court erred in suppressing the search of the
residence because (1) the CSLI Order permitted the use of a cell-site
simulator, and (2) the State did not have to disclose its intention to use a
cell-site simulator.

                         i. Cell-Site Simulators

   “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.” United States v. Lambis, 197
F. Supp. 3d 606, 609 (S.D.N.Y. 2016).

   At the evidentiary hearing, the Defendant’s expert read from a House
Committee Report and a Department of Justice Policy Guidance document
to explain cell-site simulators. Those documents explain that “[l]aw

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enforcement agents can use cell-site simulators to help locate cellular
devices whose unique identifiers are already known to law enforcement, or
to determine the unique identifiers of an unknown device by collecting
limited signaling information from devices in the simulator user’s vicinity.”
U.S. DEP’T OF JUSTICE, DEPARTMENT OF JUSTICE POLICY GUIDANCE: USE OF
CELL-SITE        SIMULATOR       TECHNOLOGY          1       (Sept.        3,
2015), https://www.justice.gov/opa/file/767321/download.

   Generally, a cell-site simulator “transform[s] a cell phone into a real
time tracking device.” Staff of Comm. on the Oversight and Government
Reform, 114th Cong., Law Enforcement Use of Cell-Site Simulation
Technologies: Privacy Concerns and Recommendations (Dec. 19,
2016), https://oversight.house.gov/wp-content/uploads/2016/12/THE-
FINAL-bipartisan-cell-site-simulator-report.pdf. It “‘tricks’ nearby cell
phones into thinking that it’s a cell tower, thereby causing nearby cell
phones to send signals to the device, which allows the operator of the
device to locate the phone being sought.” United States v. Artis, No. 16-
CR-00477-VC, 2018 WL 3241400, at *2 (N.D. Cal. July 3, 2018) (citations
omitted); see also Lambis, 197 F. Supp. 3d at 609.

   Thus, cell-site simulators present significant privacy concerns. At the
same time, they “are invaluable law enforcement tools that locate or
identify mobile devices during active criminal investigations.” U.S. DEP’T
OF HOMELAND SECURITY, DEPARTMENT POLICY REGARDING THE USE OF CELL-SITE
SIMULATOR TECHNOLOGY 1 (Oct. 19, 2015), https://www.dhs.gov/sites/
default/files/publications/Department%20Policy%20Regarding%20the%
20Use%20of%20Cell-Site%20Simulator%20Technology.pdf.

    These competing interests are not novel. Technological advancement
often collides with the Fourth Amendment. When balancing these
interests, we must “ensure that the ‘progress of science’ does not erode
Fourth Amendment protections.” Carpenter, 138 S. Ct. at 2223 (quoting
Olmstead v. United States, 277 U.S. 438, 473–74 (1928) (Brandeis, J.,
dissenting)). To do so, the Supreme Court appears to “adjust[] legal rules
to restore the preexisting balance of police power” as technology advances.
Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment,
125 HARV. L. REV. 476, 482 (2011).

    For example, in Katz the Supreme Court held that what a person “seeks
to preserve as private, even in an area accessible to the public, may be
constitutionally protected.” Katz v. United States, 389 U.S. 347, 351–52
(1967). The “Court suggested for the first time that a search triggering the
Fourth Amendment occurs when the government violates an ‘expectation
of privacy’ that ‘society is prepared to recognize as reasonable.’” Carpenter,

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138 S. Ct. at 2261 (Gorsuch, J., dissenting) (quoting Katz, 389 U.S. at 361
(Harlan, J., concurring)).

    After Katz, the Supreme Court rejected the government’s “contention
that it should be able to monitor beepers in private residences without a
warrant if there is the requisite justification in the facts for believing that
a crime is being or will be committed and that monitoring the beeper
wherever it goes is likely to produce evidence of criminal activity.” United
States v. Karo, 468 U.S. 705, 717 (1984). The Supreme Court found
“[i]ndiscriminate monitoring of property that has been withdrawn from
public view would present far too serious a threat to privacy interests in
the home to escape entirely some sort of Fourth Amendment oversight.”
Id. at 716 (footnote omitted).

   Later, the Supreme Court held that when “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 v. United States, 533 U.S. 27, 40 (2001).

   More recently, the Supreme Court held that attaching a GPS tracking
device to a vehicle constitutes a search under the Fourth Amendment.
United States v. Jones, 565 U.S. 400, 404 (2012). Two years later, the
Supreme Court held that “a warrant is generally required before such a
search [of a cell phone], even when a cell phone is seized incident to arrest.”
Riley v. California, 134 S. Ct. 2473, 2493 (2014). The Court recognized
that cell phones hold “the privacies of life,” id. at 2495 (quoting Boyd v.
United States, 116 U.S. 616, 630 (1886)), and noted that “[t]he fact that
technology now allows an individual to carry such information in his hand
does not make the information any less worthy of the protection for which
the Founders fought.” Id.

   Following Riley, the Florida Supreme Court held that a defendant

      had a subjective expectation of privacy in the location signals
      transmitted solely to enable the private and personal use of
      his cell phone, even on public roads, and that he did not
      voluntarily convey that information to the service provider for
      any purpose other than for its intended purpose.

Tracey, 152 So. 3d at 525.

   And recently, the United States Supreme Court recognized the “deeply
revealing nature of CSLI, its depth, breadth, and comprehensive reach,

                                      6
and the inescapable and automatic nature of its collection[.]” Carpenter,
138 S. Ct. at 2223. The Supreme Court stated:

      [T]he progress of science has afforded law enforcement a
      powerful new tool to carry out its important responsibilities.
      At the same time, this tool risks Government encroachment of
      the sort the Framers, “after consulting the lessons of history,”
      drafted the Fourth Amendment to prevent.

Id. (quoting United States v. Di Re, 332 U.S. 581, 595 (1948)). Thus, the
Supreme Court applied Professor Kerr’s equilibrium-adjustment theory
and held that the government “must generally obtain a warrant supported
by probable cause before acquiring such records.” Id. at 2221.

   Together these cases hold that, without a warrant, the government
cannot: use technology to view information not visible to the naked eye,
attach a device to property to monitor your location, search a cell phone
in your possession without a warrant, or obtain real-time location
information from the cell carrier.

   With a cell-site simulator, the government does more than obtain data
held by a third party. The government surreptitiously intercepts a signal
that the user intended to send to a carrier’s cell-site tower or independently
pings a cell phone to determine its location. Not only that, a cell-site
simulator also intercepts the data of other cell phones in the area,
including the phones of people not being investigated.

   If a warrant is required for the government to obtain historical cell-site
information voluntarily maintained and in the possession of a third party,
see Carpenter, 138 S. Ct. at 2221, we can discern no reason why a warrant
would not be required for the more invasive use of a cell-site simulator.
See, e.g., United States v. Ellis, 270 F. Supp. 3d 1134, 1145 (N.D. Cal.
2017). This is especially true when the cell phone is in a private residence,
Karo, 468 U.S. at 718, or other private locations “beyond public
thoroughfares” including “doctor’s offices, political headquarters, and
other potentially revealing locales.” Carpenter, 138 S. Ct. at 2218.

   Thus, absent a valid exception to the warrant requirement, the
government must establish probable cause and receive court authorization
before using a cell-site simulator. In other words, “get a warrant.” Riley,
134 S. Ct. at 2495.




                                      7
 ii. The Evidence Obtained As a Result of the Warrantless Use of a
                        Cell-Site Simulator

   The State “acknowledges that cell phones are ‘effects’ under the Fourth
Amendment, and that a person has a subjective expectation of privacy in
the location signals emitted from his or her cell phone.” It argues the CSLI
Order and the simultaneously issued Trap and Trace Order satisfied the
warrant requirement. Those orders did not authorize the use of a cell-site
simulator.

   A pen register and trap and trace device, according to the Defendant’s
expert, has a specific, but limited, use. See Smith v. Maryland, 442 U.S.
735, 741 (1979). The Trap and Trace Order here did not include a finding
of probable cause and did not authorize location tracking.

    The CSLI Order authorized the acquisition of location information. But
it was directed to records “monitored and maintained by the provider,” and
included location data “received by said electronic communication
provider” or “available from the said electronic communication provider.”
It required the “electronic communication provider” to “disclose” the data
or make it available “through reasonable means.”

    The CSLI Order required the service provider to disclose information in
its possession to the Broward Sherriff’s Office. It did not authorize action
by the State. Thus, the CSLI Order did not permit the use of a cell-site
simulator. Lambis, 197 F. Supp. 3d at 611 (“The fact that the DEA had
obtained a warrant for CSLI from the target cell phone does not change
the equation.”); see also People v. Smith, No. 1–14–1814, 2017 WL
6722818, at *18 (Ill. App. Ct. Dec. 27, 2017); People v. Gordon, 68 N.Y.S.3d
306, 311 (N.Y. Sup. Ct. 2017); State v. Andrews, 134 A.3d 324, 327 (Md.
Ct. Spec. App. 2016).

   The CSLI Order did not authorize the State to act independently. But
the sergeant and the Defendant’s expert testified that the information
maintained by the service provider could not identify the exact location of
the Defendant’s phone. So the State resorted to other means.

   In other words, the CSLI Order authorized indirect government
surveillance. But the State could not obtain the information it required
through the authorized means. So the State conducted direct government
surveillance by using a cell-site simulator. And it did so without a warrant.
Based on controlling Supreme Court authority, the court correctly
suppressed the evidence obtained as a result of the State’s warrantless
actions.

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                               Conclusion

    We affirm the order finding probable cause existed for issuing the CSLI
Order, but suppressing evidence discovered as a result of the State’s use
of a cell-site simulator.

   Affirmed.

WARNER and DAMOORGIAN, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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