15-387
United States of America v. Gilliam




                                UNITED STATES COURT OF APPEALS

                                        FOR THE SECOND CIRCUIT

                                             August Term 2016

Heard:           September 29, 2016                          Decided: December 1, 2016

                                            Docket Nos. 15-387

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UNITED STATES OF AMERICA,
         Appellee,

                              v.

JABAR GILLIAM, AKA Jamal Gilliam, AKA Jabal
Gilliam, AKA JB,
         Defendant-Appellant.
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Before:            NEWMAN, WINTER, and CABRANES, Circuit Judges.

          Appeal           from        the    January       28,    2015,     judgment   of    the

District             Court            for    the   Southern        District     of   New     York

(Thomas             P.        Griesa,         District       Judge),       convicting      Jabar

Gilliam            after          a    jury    trial        of    offenses    concerning      sex

trafficking of a minor and sentencing him to 240 months of

imprisonment. Gilliam contends primarily that the District

Court erred in denying his motion to suppress his cell




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phone’s location information, which had been supplied, at

the Government’s request, by a telecommunications company.

      Affirmed.


                             Robert A. Culp, Law Office of Robert
                                  A. Culp, Garrison, NY, for
                                  Appellant.

                             Kristy J. Greenberg, Asst. U.S.
                                  Atty., New York, NY (Preet
                                  Bharara, U.S. Atty., Adam S.
                                  Hickey, Asst. U.S. Atty., New
                                  York, NY, on the brief), for
                                  Appellee.


JON O. NEWMAN, Circuit Judge:

      The principal issue on this appeal from a conviction

for    sex     trafficking     involving    a     minor   is   whether

information from a global positioning system (“GPS”) can be

obtained and used without a warrant to locate a suspect.

This issue arises on an appeal by Jabar Gilliam from the

January 28, 2015, judgment of the United States District

Court for the Southern District of New York (Thomas P.

Griesa,      District   Judge).   Gilliam   was    convicted   of   sex

trafficking offenses after a jury trial and sentenced to

imprisonment for 240 months.




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       We   conclude      that     exigent     circumstances      justified

obtaining    and   using     GPS    location      information     without    a

warrant and therefore affirm.


                                 Background


       Offense conduct. The Defendant’s offenses concern sex

trafficking of a minor known as Jasmin. She recounted at

trial the facts concerning Gilliam’s offenses. Gilliam met

Jasmin in Maryland in late October or early November 2011.

She was sixteen at the time, but told Gilliam that she was

seventeen.      Gilliam    asked    Jasmin     to   work    for   him   as   a

prostitute after she told him she was working for another

pimp. Gilliam told Jasmin that he was going to take her to

New York, where she could work for him.

       Jasmin worked for Gilliam as a prostitute in Maryland

in November 2011. On two occasions he punched her. On one

occasion he had sex with her against her will in a hotel

room and on November 30, Gilliam brought Jasmin to New York

City    after    threatening       to   require     her    fifteen-year-old

sister to work as a prostitute for him if Jasmin refused to

go. Gilliam purchased Jasmin’s bus ticket for the trip, and

on the ride to New York City, Gilliam told Jasmin to sit


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near the window and then put his legs up beside her so that

Jasmin    could      not    get   out   of      her    seat.    Gilliam     brought

Jasmin to his mother’s apartment in the Bronx, where he had

sex    with    her     against      her        will.    Jasmin     worked     as    a

prostitute for Gilliam in the Bronx, giving him all the

money that she earned.

       Locating       and    arresting         Gilliam.     On     November        30,

Jasmin’s foster mother reported to the Sheriff’s Office in

Frederick County, Maryland, that Jasmin was missing from

home. The foster mother told authorities that Jasmin had

mentioned a “boyfriend,” known to her as “Jabar,” who was

later identified as Gilliam. On December 2, the case was

referred      to   the      Maryland      State       Police,    which    assigned

Corporal      Chris    Heid    to   investigate.         Corporal    Heid     spoke

with    Jasmin’s      social      worker,      who     expressed   concern     that

Jasmin was being forced into prostitution by Jabar Gilliam.

The social worker based her concern on conversations with

Jasmin’s biological mother. Heid then spoke with Jasmin’s

biological mother, who confirmed this information. She told

Heid that Gilliam had communicated with her directly and

told her that he was planning to take Jasmin to New York to

work there as a prostitute.


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    On     that   same     day,     based     on       this     information,            Heid

contacted          Sprint           Corporation                 (“Sprint”),                a

telecommunications         company.      He    told          Sprint     that       he    was

“investigating       a    missing       child          who     is   .    .     .    being

prostituted,” and requested GPS location information for

Gilliam’s cell phone. Heid said that he was making the

request because of “an exigent situation involving . . .

immediate danger of death or serious bodily injury to a[]

person.”    Sprint       complied      with    Heid’s          request       and    began

providing     real-time       GPS       location             information       to        the

Maryland State Police, which passed the information on to

the FBI and the New York City Police Department (“NYPD)”.

    Also on December 2, Jasmin placed a phone call to her

biological    mother      from    the    Bronx         apartment        of   Gilliam’s

mother. NYPD officers went to that apartment and questioned

Gilliam’s mother. Location information provided by Sprint

indicated that Gilliam’s cell phone was a few blocks away.

Canvassing the neighborhood, two NYPD officers saw Gilliam

and Jasmin on the street and followed them to the third

floor of an apartment building. When an officer confronted

Gilliam,    he    attempted       to   flee.       A    scuffle       ensued,       after

which Gilliam was arrested.


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      Charges, trial, and conviction. A grand jury charged

Gilliam in Count One with sex trafficking of a minor by

force, fraud, or coercion in violation of 18 U.S.C. §§

1591(a),     (b)(1),        and    (b)(2),        and     in     Count     Two     with

transporting a minor in interstate commerce for purposes of

prostitution in violation of 18 U.S.C. § 2423(a). Gilliam

was   convicted        on   both     counts       after    a     jury      trial   and

sentenced to imprisonment for 240 months.

                                   Discussion

      I. Use of GPS Location Information

      The District Court denied Gilliam’s motion challenging

the   use   of    GPS   location      information          to    determine       where

Gilliam was, information that led to his arrest. The Court

ruled   that     the    Stored     Communications              Act,   18    U.S.C.   §

2702(c)(4),        authorized,             and      exigent           circumstances

permitted,       Corporal     Heid    to        obtain    location       information

from Sprint without a warrant.

      Section 2702(c)(4) provides:

      A provider . . . may divulge a record or other
      information pertaining to a subscriber . . . (not
      including the contents of communications covered
      by [other subsections]) –
           . . .
           (4) to a governmental entity, if the provider,
      in   good   faith,  believes   that  an   emergency
      involving danger of death or serious physical
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      injury to any person requires disclosure without
      delay of information relating to the emergency.

18 U.S.C. § 2702(c)(4) (emphasis added).

      The initial statutory issue presented by Sprint’s

disclosure of GPS location information is whether it

was    “other        information”        within    the     meaning        of

subsection      2702(c)(4).        Congress     intended     the    phrase

“other      information”     to    cover      “information     about     the

customer’s use of the service.” S. Rep. No. 99-541, at

38 (1986). Several district courts have interpreted the

phrase to include the location of a customer’s cell

phone. See United States v. Graham, 846 F. Supp. 2d

384, 396 (D. Md. 2012) (subsequent history omitted); In

re    Application      of    the   United      States    for   an    Order

Authorizing the Release of Historical Cell-Site Info.,

809    F.    Supp.    2d    113,   125     (E.D.N.Y.     2011);     In    re

Application of the United States for Prospective Cell

Site Location Info. on a Certain                  Cellular Telephone,

460 F. Supp. 2d 448, 460-61 (S.D.N.Y. 2006). We agree




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that “other information” includes the location of a

subscriber’s cell phone.1

                The               second                      statutory          question       is    whether     the

circumstances presented to Sprint showed “an emergency

involving danger of . . . serious physical injury to

any person.” We think it obvious that “involving,” 18

U.S.C. § 2702(c)(4), includes a realistic threat of

such                  injury,                          not           just    a        completed      injury.    That

statutory question also arises in connection with the

constitutional issue presented by Sprint’s disclosure

at the request of a law enforcement officer and the use

of            that                 information                         to    locate       and     arrest   Gilliam

without                        a          warrant.                    That   issue        is    whether    such     a

disclosure and arrest without a warrant violated the

Fourth Amendment.2

																																																																		
	
                1
       The cited cases involve interpretation of 18 U.S.C. §
2703, a statute different from, but closely related to, section
2702. Section 2703 concerns mandatory disclosures pursuant to a
warrant. Subsection 2703(c) requires disclosure of “a record or
other information pertaining to a subscriber . . . (not
including the contents of communications) . . . .,” language
identical to the language of subsection 2702(c).

	               2	
      “[T]he Government assumes for purposes of this appeal
that cell phone users have a reasonable expectation of
privacy   in  [location]   information  under   the  Fourth
Amendment.” Br. for Appellee 14 n.3 at 15. We make the same
assumption.	

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      Both    the    second      statutory       issue    and     the   Fourth

Amendment issue turn on whether the circumstances known

to law enforcement and presented to Sprint were within

the   category       of    “exigent    circumstances”           that    permit

warrantless searches. See Riley v. California, 134 S.

Ct. 2473, 2487 (2014). “The core question is whether

the facts . . . would lead a reasonable, experienced

officer, to believe that there was an urgent need to .

. . take action.” United States v. Klump, 536 F.3d 113,

117–18 (2d Cir. 2008) (internal citations and quotation

marks omitted). “A district court's determination as to

whether exigent circumstances existed is fact-specific,

and will not be reversed unless clearly erroneous.”

United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.

1990) (in banc) (citations omitted).

      We     agree        with   the   District           Court    that     exigent

circumstances        justified      GPS        tracking    of     Gilliam’s      cell

phone. The evidence available to law enforcement at the

time of the search for Gilliam’s location was compelling.

Based on Heid’s discussions with Jasmin’s foster mother,

social     worker,        and    biological       mother,       law     enforcement

officers had a substantial basis to believe that Gilliam


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was bringing Jasmin to New York City to require her to work

there as a prostitute. That type of sexual exploitation of

a minor has often been found to pose a significant risk of

serious bodily injury. See, e.g., United States v. Daye,

571   F.3d   225,   234     (2d     Cir.     2009),    abrogated       on    other

grounds    by    Johnson    v.    United      States,      135    S.   Ct.   2551

(2015); United States v. Curtis, 481 F.3d 836, 838-39 (D.C.

Cir. 2007). As the Ninth Circuit has observed, prostitution

of a child involves “the risk of assault or physical abuse

by the pimp’s customers or by the pimp himself” and “a

serious      potential       risk     of      contracting          a   sexually

transmitted      disease.”    United        States    v.   Carter,     266    F.3d

1089,     1091    (9th     Cir.     2001)     (internal          citations    and

quotation marks omitted).

      Several courts have found that exigent circumstances

justified warrantless entry into premises to avoid risk of

injury to a minor held there.                 See, e.g., Hunsberger v.

Wood, 570 F.3d 546, 555 (4th Cir. 2009); United States v.

Kenfield, 270 F. App’x 695, 696-97 (9th Cir. 2008); United

States v. Thomas, No. 3:14-CR-00031 (RNC), 2015 WL 164075,

*4-5 (D. Conn. Jan. 13, 2015); United States v. Williams,

No. 12-CR-6152G(MWP), 2015 WL 429087, at *12-13 (W.D.N.Y.


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Feb. 2, 2015), report and recommendation adopted, No. 12-

CR-6152(FPG),        2015   WL    3454430       (W.D.N.Y.      May   29,   2015).

Locating on the streets a victim of sexual exploitation

might seem to present a less immediate need for police

action than entering premises where such a victim is being

held,     but   it    is    nonetheless         sufficient      to   constitute

exigent circumstances.

    Gilliam contends that the time required to obtain a

warrant would not have significantly added to the risk of

injury to Jasmin. That argument calls to mind the plight of

social workers who have to decide whether to face a lawsuit

for quickly removing a child from the home of an abusive

parent or for failing to act in time to prevent the child’s

injury. “If they err in interrupting parental custody, they

may be accused of infringing the parents’ constitutional

rights. If they err in not removing the child, they risk

injury to the child and may be accused of infringing the

child’s    rights.”        Van   Emrik     v.    Chemung    County    Dep’t   of

Social Services, 911 F.2d 863, 866 (2d Cir. 1990). Faced

with exigent circumstances based on credible information

that Gilliam was engaged in prostituting a missing child

across    state      lines,      Corporal       Heid   acted    reasonably    in


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obtaining Gilliam’s cell phone location information without

a warrant.

       Congress has “deemed it reasonable to subordinate any

individual      privacy        interest        in     cell       phone     location

information       to    society’s       more        compelling      interest     in

preventing an imminent threat of death or serious bodily

injury,”    and    has    therefore        given     service      providers     the

authority    to    decide      whether     there      existed      an    “emergency

involving danger of death or serious physical injury to any

person.” United States v. Caraballo, 963 F. Supp. 2d 341,

360 (D. Vt. 2013) (citations omitted), aff'd, 831 F.3d 95

(2d Cir. 2016). Based on Heid’s affirmation, Sprint had a

good    faith     basis   for    believing          that   the    disclosure    of

Gilliam’s cell phone location was necessary to protect a

missing child from being prostituted and subject to serious

physical injury.

       II. Other Claims

       Gilliam’s       other     claims        do    not     require       extended

discussion.     His     arrest    was     supported        by    probable   cause,

based both on events occurring at the scene of his arrest

and his sex trafficking with respect to Jasmin. There was




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no   error   in   the   jury   charge,   and   the   evidence   fully

supported the jury’s verdict.

                               Conclusion

     The judgment of the District Court is affirmed.




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