First Circuit Holds Precise Location Information Warrants Are Not Subject to Federal Tracking Device Statute

In this appeal from convictions for conspiracy to possess and possession with intent to distribute heroin and cocaine base, the defense here during Motions to Suppress made a creative argument that precise location warrants need to satisfy the terms and conditions of the tracking devices statute (18 U.S.C.S. § 3117) instead of the Stored Communications Act. (18 U.S.C.S. § 2701 et seq.). By failing to meet those requirements of the tracking devices statute, the Government failed in asking for the warrant to satisfy the venue requirements of Federal Rule of Criminal Procedure 41(b).

The First Circuit noted that this investigation started through the actions of cooperating witnesses which gave the Government information regarding people involved (including the defendant) as well as places where activity took place. This led federal agents to request warrants for precise location information from the cell service provider for the phones in questions.

The First Circuit went through the detailed definition of a tracking device as set forth in 18 U.S.C.S. § 3117 and rejected this argument, holding that cell phones are not tracking devices for the purposes of this section, that the Stored Communications Act properly applied, and that Federal Rule of Criminal Procedure 41(b) does not apply to warrants under the Stored Communications Act.

The Court then rejected the defense argument that Carpenter decided that cell phones were tracking devices that required the protections of § 3117 and Rule 41.

The First Circuit also held alternatively that agents could rely on these warrants in good faith.

The case is United States v. Ackies, 918 F.3d 190, 2019 U.S. App. LEXIS 7384 1st Cir. (March 13, 2019).

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