Tag: Federal Criminal Defense

The Fourth Amendment, just like the regulations of a driverless car, does not end with the advent of new technology.  Here the use of a cell-site simulator to track down a criminal suspect without a warrant has led to the suppression of a large amount of narcotics seized from a New York City apartment. Logistically, this meant that the scales utilized and narcotics that were likely being sold by the defendant and are suppressed and cannot be used against the defendant at a criminal trial because this New York City tenant was subject to a Fourth Amendment violation by Drug Enforcement Administration Agents:

The Fourth Amendment guarantees that all people shall be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV. “[T]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable.” New Jersey v. T.L.O., 469 U.S. 325, 337 (1985). “[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001). Barring a few narrow exceptions, “warrantless searches ‘are per se unreasonable under the Fourth Amendment.'” City of Ontario v. Quon, 560 U.S. 746, 760 (2010) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). The home has special significance under the Fourth Amendment. “‘At the very core’ of the Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'” Kyllo, 533 U.S. at 31 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).

Although technology changes the law evolves to catch up with it. Here, a case nearly half a century old, is invoked by the Southern District of New York to suppress this cell-site simulator: Kyllo v. United StatesKyllo dealt with the production of marijuana, the growing of marijuana, and the use of thermal imaging to detect the grow house. Although widely available now (try a Google search), at the time thermal imaging was only available to the government and allowed them to have “through-the-wall surveillance,” a violation of one’s Fourth Amendment Rights. At the time it was break-through technology. Like Kyllo, “the DEA’s use of the cell-site simulator to locate [Defendant’s] apartment was an unreasonable search because the ‘pings’ from [Defendant’s] cell phone to the nearest cell site were not readily available ‘to anyone who wanted to look’ without the use of a cell-site simulator.” (citing United States v. Knotts, 460 U.S. 276, 281 (1983); State v. Andrews, 227 Md. App. 350, *23 (Md. Ct. Spec. App. 2016)). The advent of such technology, as in Kyllo, does not allow the government to skirt the Fourth Amendment rights of the Defendant:

The use of a cell-site simulator constitutes a Fourth Amendment search within the contemplation of Kyllo. Absent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device. Perhaps recognizing this, the Department of Justice changed its internal policies, and now requires government agents to obtain a warrant before utilizing a cellsite simulator. See Office of the Deputy Attorney General, Justice Department Announces Enhanced Policy for Use of Cell-Site Simulators, 2015 WL 5159600 (Sept. 3, 2015); Deputy Assistant Attorney General Richard Downing Testifies Before House Oversight and Government Reform Committee at Hearing on Geolocation Technology and Privacy, 2016 WL 806338 (Mar. 2, 2016) (“The Department recognizes that the collection of precise location information in real time implicates different privacy interests than less precise information generated by a provider for its business purposes.”).



In this case “[i]t is…undisputed that the remaining eleven months that the motion was pending were not excluded. Accordingly, the Act’s 70‐day indictment‐to‐trial period (commonly referred to as the “speedy trial clock”) was exceeded by approximately nine months.” Bert, at P. 8. “Accordingly, neither party contests that a violation of the Speedy Trial Act occurred. Nor do they question the statute’s unambiguous mandate that the court was required to dismiss the indictment upon Bert’s motion. The only question before us, therefore, is whether the district court abused its discretion in permitting Bert’s reprosecution by dismissing the indictment without prejudice.” P. 8-9.


“The Speedy Trial Act mandates that a criminal defendant must be brought to trial within 70 days of the filing of the indictment or the defendant’s initial appearance, whichever occurs later. See 18 U.S.C. § 3161(c)(1). If that deadline is not met, the Act provides that the indictment “shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2). The Act excludes delays due to certain enumerated events from the 70‐day indictment‐to‐trial period. See 18 U.S.C. § 3161(h).” P. 7

“It is well established that “Congress did not intend any particular type of dismissal to serve as the presumptive remedy for a Speedy Trial Act violation.” United States v. Taylor, 487 U.S. 326, 334 (1988); accord United States v. Caparella, 716 F.2d 976, 980 (2d Cir. 1983). Rather, “[t]he determination of whether to dismiss an indictment with or without prejudice is committed to the discretion of the district court.” United States v. Wilson, 11 F.3d 346, 352 (2d Cir. 1993).” P. 9. In making this consideration the Court should consider “the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.” United States v. Bert, 13-2328-cr, at * 10 (Sept. 10, 2015)(quoting 18 U.S.C. § 3162(a)(2)).

The Supreme Court instructed that, in the absence of prejudice or significant delay, courts should only preclude reprosecution of a serious crime upon a showing of “something more than an isolated unwitting violation,” such as a finding of “bad faith” or a “pattern of neglect.” Taylor, 487 U.S. at 339. But where the delay is indisputably  grave and not a result of the defendant’s own conduct, Taylor, 487 U.S. at 343, dismissal with prejudice may be appropriate without such a finding, see United States v. Russo, 741 F.2d 1264, 1268 (11th Cir. 1984) (“[W]here the violation is substantial, a negligent failure to comply with the Act will not suffice to justify retrial.”). As the Supreme Court has explained in the context of a Sixth Amendment speedy trial challenge, “[a]lthough negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.” Doggett v. United States, 505 U.S. 647, 657 (1992). “‘The Act controls the conduct of the parties and the court itself during criminal pretrial proceedings. Not only must the court police the behavior of the prosecutor and the defense counsel, it must also police itself.’” Stayton, 791 F.2d at 20 (quoting Pringle, 751 F.2d at 429).

Procedural History:


The District Court committed error in that “first, that the absence of bad faith, intentional delay, or some other form of heightened scienter is dispositive of this statutory factor; second, that a delay attributable to the court and not to the government tips this factor in favor of dismissal without prejudice. Both of these premises are contrary to governing precedent.” P. 16-17. The Second Circuit held that “[a] rule that limited the sanction of dismissal with prejudice exclusively to cases involving bad faith would contravene the well‐established principle that “[t]he Speedy Trial Act does not indicate a preference as between dismissals with and dismissals without prejudice.” Giambrone, 920 F.2d at 180 (citing Taylor, 487 U.S. at 334).” P. 18. Indeed, “District courts must hold themselves accountable for ensuring their own compliance with the Speedy Trial Act’s requirements. A district court may not merely assume responsibility for a speedy trial violation, deny an improper motive, and weigh this statutory factor in favor of dismissal without prejudice without offering further explanation.” Bert, at P. 19. In “the seriousness of the violation was ‘slighted’ and not ‘properly considered,’ Taylor, 487 U.S. at 337, and we proceed to a fuller examination.” P. 14. “Bert’s speedy trial clock had been expired for 266 days (almost 9 months). It is beyond cavil that this delay—which amounts to almost nine times the period of time automatically excluded for the resolution of such motions, see 18 U.S.C. § 3161(h)(1)(H), and almost four times the length of the speedy trial clock itself, see 18 U.S.C. § 3161(c)(1)—is serious” Bert, at P. 14

Conclusion: “Given the extended administrative neglect by the court and the government in allowing the case to stagnate for almost a year while Bert was incarcerated, we conclude that the government’s interest in administering justice by prosecuting Bert’s firearms offenses is outweighed by the impact that permitting reprosecution would have on the administration of justice and of the Speedy Trial Act.” P. 31

Dissent by Hon. Dennis Jacobs

Finding that “The only issue presented is whether the district court had discretion to dismiss this case under the Speedy Trial Act (as it did) without prejudice,” Judge Jacobs would have joined the majority. “The delay was occasioned by a one‐year interval in which the district court considered a suppression motion that was complicated, ramified, and virtually outcome‐determinative.”

Judge Jacobs cites several principles of which militate against dismissal with prejudice:

(1) As between dismissal with prejudice and without, “neither remedy [is to be] given priority,” United States v. Taylor, 487 U.S. 326, 335 (1988);

(2) “[d]ismissal without prejudice is not a toothless sanction,” id. at 342; and

(3) “dismissal of a criminal indictment is a drastic remedy which should not be lightly considered,” United States v. Fox, 788 F.2d 905, 909 (2d Cir. 1986).

Judge Jacobs states that “I agree with the majority that the Act serves important ends and must be enforced, and that it is integral to the administration of justice. But the majority implicitly assumes that the Act is disserved or impaired unless dismissal is with prejudice; and that assumption violates the background principles that dismissal without prejudice is not toothless, that the Act embodies no preference as to whether dismissal should be with prejudice or without, and that the choice is confided to the discretion of the district court.” In sum, he does not agree with the remedy the Second Circuit chose because “the delay [of the District Court] was an isolated instance; there was no bad faith or pattern of delay or misconduct by the prosecutors, or by the judge, or by the court as a whole; and, under the circumstances, no incentive for abuse can be identified, let alone be said to arise…” and, accordingly, he felt that the District Court’s judgment should be affirmed.

The case is United States v. Bert, 13-2328-cr (Sept. 10, 2015).