United States v. Pembrook

119 F.Supp.3d 577 (2015)

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Nature of the Case

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Facts

Four men attempted to rob a jewelry store in Grand Rapids but, after one was shot by a store owner, they fled without merchandise. Later that same day, three men stole $1,500,000 in Rolex watches from a jewelry store in West Bloomfield. Nathaniel Pembrook, David Briley, Shaeed Calhoun, and Orlando Johnson (Ds) are charged with multiple criminal offenses arising out of these robberies. P believes Ds are responsible from data it obtained-without a warrant-from cellular-phone service providers. The logs from the cell towers close by the two jewelry stores indicate that a phone used by Johnson was in the area of both stores at the time of the two robberies. Other cell-site data shows that Calhoun, Briley, and Pembrook traveled together (at least roughly) from Philadelphia, Pennsylvania, to Wisconsin, to the location of the two robberies, and then back to Philadelphia. For a cellular phone to receive a call, send a text message, or download a webpage, it must communicate with a cellular tower. A cellular phone automatically searches for a signal from nearby towers and 'once the phone locates a tower, it submits a unique identifier-its 'registration' information-to the tower so that any outgoing and incoming calls can be routed through the correct tower.' Although a cell phone often registers with its closest tower, 'a variety of factors including physical obstructions and topography can determine which tower services a particular phone.' Cellular service providers keep track of cell-phone communications with their towers and courts refer to these logs as 'cell-site data' or 'cell-site location information.' P avers that the cell-site data at issue in this case only corresponds to active cellphone use, for example, receiving a call or sending a text. Cell-site data might also include the 'sector' of a tower to which the phone connected. For example, a tower's 360-degree coverage area might be partitioned into three 120 degree sectors. This cell-site data permits investigators to determine the location of a cell phone at a particular time. With a map and data from different towers a person can plot where a person has been or traveled with relative certainty. P obtained cell-site the data at issue without obtaining a warrant upon a showing of probable cause. From the data, P could determine Calhoun's approximate location between April 15 and May 30, 2014, a six-week period, and Johnson's approximate location for an eight-week period. P intends to call Christopher Hess, a special agent with the FBI, to testify about his analysis of the cell-site data obtained during P's investigation. Pursuant to Federal Rule of Criminal Procedure 16, P sent Ds' counsel a letter summarizing Hess' testimony. Ds moved to exclude P’s cell-site data expert, Christopher Hess, from testifying at trial or, in the alternative, to limit his testimony, or, in further alternative, for additional discovery relating to Hess' testimony. In part, D says that Hess' opinion is based on the 'theory of granulization' - a theory untested by the scientific community. Hess' testimony relies on an untested theory from a single case: United States v. Evans, 892 F. Supp. 2d 949 (N.D. Ill. 2012).