A Florida state appellate court has made two recent pro-privacy rulings that take into account a landmark Supreme Court case from earlier this year.In Florida v. Sylvestre, the District Court of Appeal of the State of Florida, Fourth District, affirmed a lower court’s granting of a motion to suppress evidence. In doing so, the court found that the warrantless use of a stingray is unconstitutional.
In the second case, Ferrari v. Florida, the Fourth District reversed a lower court ruling that denied the suppression of cell-site location information (CSLI). This data was specifically at issue in the June 2018 Supreme Court decision, Carpenter v. United States.
Carpenter involved a suspect, Timothy Carpenter, who was accused of leading an armed robbery gang that hit Radio Shack and other cell phone stores in Michigan and Ohio in 2010 and 2011. The government was able to warrantlessly obtain 127 days worth of his CSLI from his mobile provider, which detailed precisely where Carpenter had been during that time.The Supreme Court ultimately ruled that when the government seeks to obtain such a large volume of intimate information, it needs to get a warrant first in most cases.
Taken together, these two cases shed light on how some state appellate courts are starting to think about the ramifications of Carpenter.
A stinging rebuke
In Sylvestre, Florida law enforcement arrested a Fort Lauderdale man, Quinton Sylvestre, on murder and robbery charges. Sylvestre was one of three suspects believed to be involved in the 2013 slaying of a Boca Raton bartender, Rafael Rodriguez.Investigators sought and obtained a CSLI order, which required Sylvestre’s cell phone company provider to give up real-time records. But that wasn’t enough to figure out precisely where he was, so authorities got a court order to deploy a cell-site simulator, better known as a stingray.
As Ars has reported for years, stingrays are in use by both local and federal law enforcement agencies nationwide. The devices determine a target phone’s location by spoofing or simulating a cell tower. Mobile phones in range of the stingray then connect to it and exchange data with the device as they would with a real cell tower.
Once deployed, stingrays intercept data from the target phone along with information from other phones within the vicinity—up to and including full calls and text messages. At times, police have falsely claimed that information gathered from a stingray has instead come from a confidential informant.
In Sylvestre, the Fourth District court ruled that a mere court order—showing relevance to an ongoing investigation as opposed to probable cause of a crime—was not good enough.
“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,” Judge Jeffrey T. Kuntz wrote for the three-judge panel.
“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, we can discern no reason why a warrant would not be required for the more invasive use of a cell-site simulator.”
Or, as the judge added in a pithy conclusion: “In other words, ‘Get a warrant.’”
Unless this ruling is taken up by the Florida Supreme Court and successfully appealed, all of the evidence stemming from the location of Sylvestre’s phone inside his own apartment, including three firearms, will be suppressed.
The Ferrari case is equally if not more grizzly. It involves the February 6, 2001 murder of Gus Boulis, a Broward County businessman. As he was driving south along Miami Road from his office one evening, another car suddenly stopped in front of him. A second vehicle, a Jetta, pulled behind the man so that Boulis was suddenly boxed in. Out of nowhere, a third car, a Mustang, pulled up next to Boulis and fired towards him, killing him.
According to court records, Boulis was the owner of SunCruz Casinos, a “fleet of gambling casino boats,” which would sail from Florida to international waters, where they would then invite patrons to gamble. Previously, Florida regulators and federal prosecutors did not take too kindly to this arrangement, and they prosecuted Boulis under violations of shipping law that forbid foreigners from owning American commercial vessels. (Boulis was a Greek citizen.)
Authorities eventually struck a deal with him where Boulis would sell the company, pay a $1 million fine, and never work in gambling again. Boulis then tried to find a buyer for his company, which ended up being Adam Kidan and Jack Abramoff, the now-disgraced Washington lobbyist.
Boulis received $23 million from Kidan, but he was owed $20 million more. Kidan, worried that Boulis might retaliate against him, decided to hire “protection.” This service was performed by Anthony Ferrari, who touted that he was mafia don John Gotti’s nephew.
Eventually, Boulis was killed. Investigators found that the Jetta and the Mustang were registered to one Anthony Ferrari. Ferrari was eventually charged, tried, and convicted of the murder.
“Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.”
As part of the evidence that was used to convict Ferrari back in 2001, investigators obtained CSLI data on his phones. On appeal more recently, Ferrari and his legal team moved to suppress this information.
Prosecutors argued that the evidence stemming from that data should not be suppressed under the “good faith exception to the exclusionary rule”—essentially, a pass if law enforcement had a reasonable assumption that they were following the law as it stood at the time.
The Fourth District did not find this persuasive in its September 5 ruling.
“At that time, no binding decisional law existed determining that CSLI data was not within Fourth Amendment protection and thus exempt from the warrant requirement,” Judge Martha Warnerwrote for a unanimous court. “In fact, CSLI data is never mentioned in reported decisions in that time period. When denying Ferrari’s motion to suppress, the trial court relied on our decision in Mitchell v. State, 25 So. 3d 632, 635 (Fla. 4th DCA 2009), which held that a person has no expectation of privacy in historical CSLI. However, that decision was several years after the search, and even in that opinion, we noted that the case law concerning historical CSLI was unsettled.”
In other words, Florida police seemingly guessed that the law was on their side when they didn’t seek a warrant. The detective got a court order for a pen register instead of inquiring about CSLI data; requesting a pen register is not the same thing as forcing a phone company to hand over CSLI data.
“Reliance on an inapplicable statute does not constitute objective reasonableness,” Judge Warner continued. “The detective was not seeking to install a pen register to record telephone numbers. He was seeking historical data and records from the cellular carriers.”
The judge concluded by quoting directly from the Carpenter decision, which was authored by Chief Justice John Roberts: “Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.”
Ferrari’s conviction was reversed and he will now be tried again. One of his co-conspirators, Anthony “Big Tony” Moscatiello, also was ordered to be re-tried by the Fourth District back in June 2018.