[00:00:00] Speaker 01: Case number 23-3064, United States of America versus Lloyd Casimiro Cruz Jr. [00:00:06] Speaker 01: at balance. [00:00:07] Speaker 01: Mr. Roots for the balance. [00:00:09] Speaker 01: Mr. Lieberman for the appellate. [00:00:11] Speaker 03: Good morning, counsel. [00:00:12] Speaker 03: Mr. Roots, please proceed when you're ready. [00:00:14] Speaker 01: Good morning. [00:00:15] Speaker 03: Thank you, your honor. [00:00:17] Speaker 01: May it please this honorable court. [00:00:18] Speaker 01: My name is Roger Roots and I represent the appellant in this matter, Mr. Lloyd Cruz. [00:00:25] Speaker 01: Mr Cruz is of course one of the January six defendants and he is here today to challenge what we believe is the largest search warrant in [00:00:38] Speaker 01: American history, perhaps world history, in terms of its scope and its scale. [00:00:44] Speaker 01: I should say this was a set of search warrants. [00:00:47] Speaker 01: We argued these were general warrants, but these were the warrants that the FBI and the DC Capitol police used to essentially identify and track every single cell phone inside the US Capitol on January 6, 2021. [00:01:03] Speaker 01: We argue this is a general warrant and that this was the largest warrant in world history. [00:01:09] Speaker 01: And if anyone knows of a larger one in terms of its scope and scale, I'd love to hear about it. [00:01:14] Speaker 01: This warrant did not even identify the specific crimes to attach to suspicious [00:01:20] Speaker 01: specific suspects. [00:01:22] Speaker 01: Certainly didn't name Mr. Cruz at all, didn't identify what crimes he might have been suspected of committing or any other January 6th or for that matter. [00:01:32] Speaker 01: This warrant, unlike any warrant I've ever seen, had a menu of possible crimes, I think 11 possible crimes that the writer of the warrant and ultimately the magistrate that approved it, [00:01:48] Speaker 01: listed as possible crimes that the possessors of the cell phones either committed or witnessed. [00:01:57] Speaker 01: So the scope and scale of this search warrant is absolutely unprecedented in American history. [00:02:06] Speaker 01: And in our briefing, we compare this to the warrants that triggered the creation of the Fourth Amendment. [00:02:13] Speaker 01: And those were the John Wilkes warrant, which was one of the most notorious warrants in world history. [00:02:20] Speaker 01: And that was a warrant in which the King of England and the ministers of the King essentially wrote a warrant that said, go out and find whoever wrote this particular anti-government pamphlet that criticized the King of England. [00:02:34] Speaker 02: Mr. Ruth, I have just a really preliminary question for you, which is, I understand that Mr. Cruz stipulated to certain facts. [00:02:43] Speaker 02: And when he did that, did he, I don't see it in the record, but did he preserve his Fourth Amendment, his right to challenge the Fourth Amendment suppression motions denial? [00:02:55] Speaker 01: Absolutely, yes. [00:02:57] Speaker 01: We made it the major part of our litigation in this case. [00:03:02] Speaker 01: We stipulated Mr. Cruz was there. [00:03:04] Speaker 01: He was at the Capitol, etc. [00:03:06] Speaker 01: But we had discussions with the U.S. [00:03:10] Speaker 01: Attorney's Office. [00:03:11] Speaker 01: We indicated we wanted to challenge this search warrant. [00:03:14] Speaker 01: And, you know, we were not plead guilty, but [00:03:17] Speaker 01: You know, we would stipulate Mr. Cruz, you know, certainly was inside the Capitol and, you know, committed the offense. [00:03:26] Speaker 01: But we argued that the warrant should have been struck down and suppressed, and the case should have gone away even before it got to trial. [00:03:33] Speaker 02: Is there somewhere in the record I can look to see that that was preserved? [00:03:39] Speaker 01: Well, that's a good question. [00:03:40] Speaker 01: I think the stipulation itself, the... Didn't speak to that as I read it. [00:03:48] Speaker 01: I mean, let's put it this way. [00:03:51] Speaker 01: I believe when we were with the option was either pleading guilty, pleading guilty and preserving that issue or having the stipulation. [00:04:01] Speaker 01: So we deliberately preserved that issue. [00:04:03] Speaker 01: Otherwise we would have just, you know, like so many others taken, you know, probably advised a guilty plea. [00:04:11] Speaker 01: And I would say this warrant by any test ever laid out by the Supreme Court, probably any court as far as I know, by any test, this warrant is a general warrant in that it did not accuse a particular individual of committing a particular crime. [00:04:30] Speaker 01: It did not specify particular houses, papers or effects to be searched. [00:04:35] Speaker 02: Well, in that respect, it seems like it's more narrow than perhaps you're characterizing it in the sense that. [00:04:45] Speaker 02: Often there is a warrant, for example, to search a place. [00:04:48] Speaker 02: It doesn't have to identify a person where there's the notion that there's going to be evidence of crime. [00:04:54] Speaker 02: If you think of the location history information here like files, like a giant file room, if the police say to the custodian of a file room, [00:05:08] Speaker 02: We'd like to subpoena. [00:05:13] Speaker 02: Here's a warrant. [00:05:13] Speaker 02: We'd like to subpoena a record that shows whether the defendant, the record in file cabinet 67 that shows that the defendant was present at the scene of the murder in Philadelphia on the night in question, even though walking around without any object [00:05:36] Speaker 02: and looking for whatever crimes might be manifest in that file room might tend to be more like a general warrant. [00:05:44] Speaker 02: When the warrant itself is focusing much more narrowly here on a place and on a finite period of time, how do you square that with your argument that this is effectively an ultra broad warrant or a general warrant? [00:06:01] Speaker 01: Well, I would say that that [00:06:03] Speaker 01: that argument, it would be used by the government to get around the obvious generality of this warrant. [00:06:11] Speaker 01: So these warrants were issued to service providers. [00:06:16] Speaker 01: Google, Verizon, AT&T, et cetera. [00:06:19] Speaker 01: And think of how the government could work around the requirements of the Fourth Amendment just by giving service providers orders to cough up. [00:06:31] Speaker 01: I mean, think about newspaper subscriptions. [00:06:33] Speaker 01: Think about, there are many service providers. [00:06:36] Speaker 02: But here there is certainly probable cause that offenses were committed. [00:06:44] Speaker 02: at the Capitol, including on behalf of everybody for whom the geolocation data was sought, the unauthorized presence in a restricted building on grounds. [00:06:57] Speaker 02: And where there's probable cause to believe that all the people on whom information was sought [00:07:05] Speaker 02: were, in fact, in violation of the law, it seems quite different from what you're describing. [00:07:11] Speaker 02: And I take it that the Fifth Circuit has said, well, we don't look at the object as framed by the warrant. [00:07:18] Speaker 02: We look at the capacity of the entire database. [00:07:21] Speaker 02: But that's why I'm probing the analogy to a giant information warehouse, where subpoenaing a subset of information isn't invalidated by the fact that it's embedded in a much larger [00:07:35] Speaker 02: library of information. [00:07:37] Speaker 02: And so I'm just trying to get a handle on why that seems irrelevant to you, that the warrant was, in fact, quite focused to a limited period of time and a limited space. [00:07:50] Speaker 01: Well, I guess I would actually quibble that everyone who was inside the Capitol during those hours of January 6, 2021, was by definition committing a crime. [00:07:59] Speaker 01: I would quibble with that. [00:08:00] Speaker 01: And in fact, the government, I believe, quibbles with that. [00:08:05] Speaker 01: I believe I've heard that there were 80 journalists who followed the crowd, something like 80 journalists. [00:08:12] Speaker 01: The government has only prosecuted a very small number, maybe five of those, and they tended to be journalists on the right. [00:08:18] Speaker 01: And the journalists on the left were able to do and follow the crowd into the Capitol without prosecution. [00:08:23] Speaker 02: I don't have any reason to think that they weren't also, unless they had authorization to be there, some kind of press credential. [00:08:31] Speaker 02: to go inside, if they were unauthorized at a time when the building and grounds were closed, then it seems like that's at least prima facie evidence that would support public cause, that all of those people were in a restricted building or grounds without authorization to be there. [00:08:47] Speaker 02: But my question is more fundamental. [00:08:52] Speaker 02: Under Carpenter, isn't what we're supposed to look at the scope of what the government is seeking? [00:08:59] Speaker 02: not the scope of all the information in which what they're seeking may be embedded. [00:09:07] Speaker 01: Well, again, I would go back to the idea that these are service providers. [00:09:11] Speaker 01: So we have many service providers, the milkman who delivers milk. [00:09:15] Speaker 01: Can the government get around the limitations of the Fourth Amendment just by ordering the milkman to essentially carry out its search functions? [00:09:27] Speaker 03: But it's not invoking the blanket authority of a service provider and just saying, hey, AT&T, if you have any information about any crime that was committed anywhere, can you help us do it? [00:09:39] Speaker 03: It's actually taking a service provider who has useful information but targeting the service provider's information on a particular point in time at a particular place in a particular time window at which there's probable cause to believe that [00:09:56] Speaker 03: there were a lot of law violations going on. [00:09:59] Speaker 03: And it may be true that not every single person there was violating the law, but the question is whether there's probable cause, and there's probable cause to believe that at that point in time, at that place, in that time window, there was probable cause to believe offenses were being committed, and it's targeted around that factual compass, not everything that that service provider happens to know. [00:10:25] Speaker 01: Yeah, so there's several things here. [00:10:30] Speaker 01: First of all, the government, I think your honors are both focusing on the idea of entry and remaining in a restricted area or just trespassing. [00:10:38] Speaker 01: I think most of us could concede that was a very common offense on January 6th. [00:10:42] Speaker 01: The government actually listed 11 offenses, including murder, including assaults of officers, and not any of that was tied with particularity as required by the Fourth Amendment to any individual [00:10:54] Speaker 01: either named or unnamed. [00:10:55] Speaker 02: Again, why does it matter? [00:10:57] Speaker 02: It's not an arrest warrant. [00:10:58] Speaker 02: It's a search warrant. [00:10:59] Speaker 02: And they had reason to believe, based on the surveillance information, based on testimony of witnesses who had been there, that assaults were committed, that some people did die. [00:11:14] Speaker 02: So there was information about [00:11:17] Speaker 02: I would say most of the offense is listed. [00:11:18] Speaker 02: But even if there wasn't, as long as there's one offense listed as to which the warrant is based on probable cause, does it matter? [00:11:28] Speaker 02: Is there any precedent that we should look at that shows that the including of superfluous offenses would render an otherwise valid warrant defective? [00:11:38] Speaker 01: There is precedent. [00:11:40] Speaker 01: I point to the Yabara versus Illinois case, Supreme Court decision, where cops entered a bar looking for drug dealers and patted down every single person in the bar. [00:11:55] Speaker 01: And of course, they were correct. [00:11:57] Speaker 01: They found a drug dealer in the bar. [00:12:00] Speaker 01: So there was a guilty offender, at least one. [00:12:04] Speaker 02: Patting you down, you have a reasonable expectation of privacy in your, I mean, I'm assuming that the issue there is whether you have a reasonable expectation of privacy in what's under your clothing. [00:12:17] Speaker 02: Here, you don't dispute that Cruz lacked a reasonable expectation of privacy in his presence in the Capitol, which is a government building closed to the public. [00:12:28] Speaker 02: It was under full camera surveillance. [00:12:32] Speaker 02: Lawful entry requires identification and security screening to enter. [00:12:36] Speaker 02: There's no reasonable expectation of privacy when someone is inside the Capitol that they are there. [00:12:42] Speaker 02: Is there? [00:12:44] Speaker 01: Well, I would direct this court to the Supreme Court's ruling in the Jones case. [00:12:48] Speaker 01: Now, the Jones case was that Supreme Court decision where I'm well aware of it. [00:12:52] Speaker 01: Yeah. [00:12:53] Speaker 01: The GPS tracker on cars. [00:12:56] Speaker 01: The government was arguing in that case, hey, we can put a GPS tracker without warrant on any car. [00:13:02] Speaker 01: They're out in the public. [00:13:03] Speaker 01: There's no reasonable right to privacy out in the public. [00:13:05] Speaker 01: Cars are everywhere. [00:13:06] Speaker 01: They're seen by the public. [00:13:08] Speaker 01: And as I recall the story of the oral argument there, one of the Supreme Court justices, I forget which one, asked the Solicitor General, does that mean you could put one on my car without a warrant? [00:13:17] Speaker 01: They said, yes. [00:13:19] Speaker 01: Supreme Court unanimously said, no, this goes beyond the pale. [00:13:22] Speaker 01: This is too much. [00:13:24] Speaker 01: This is the all-seeing eye of the state thinking that it can freely track and monitor all movements. [00:13:31] Speaker 01: Yes, there are movements in the public. [00:13:34] Speaker 01: Mr. Cruz, [00:13:35] Speaker 01: you know, was out in the public, you know, he was outside his house. [00:13:38] Speaker 01: Yes, that's true. [00:13:39] Speaker 01: But at some point, privacy is linked to autonomy. [00:13:43] Speaker 01: And none of us want to live in a world where government just tracks us and is able to just monitor our movements. [00:13:50] Speaker 03: Do you recall the number of days that the tracker was attached to the car in Jones? [00:13:56] Speaker 03: I don't. [00:13:57] Speaker 03: I don't. [00:13:58] Speaker 03: I think it was a good while. [00:13:59] Speaker 03: And that seems different because there, I think part of what concerned the court was that [00:14:05] Speaker 03: If you track somebody's locations over a period of time, then you can get a story about their life. [00:14:09] Speaker 03: And that's the kind of invasion of a privacy that somebody doesn't reasonably expect would occur. [00:14:13] Speaker 03: But here, where it's targeted at a particular point in time, at a particular place, where there's a sense that there's a lot of offenses occurring, that seems different from what was at issue in Jones. [00:14:28] Speaker 01: Yeah. [00:14:28] Speaker 01: And I go back to the carpenter case, the carpenter decision, where I think Justice Roberts [00:14:34] Speaker 01: said that we're entering an age of, quote, near perfect surveillance, where technology is allowing the government to almost get to perfect surveillance, even inside the home, but outside the home completely. [00:14:46] Speaker 01: And I think courts have to set some barriers, some boundaries, some limitations. [00:14:51] Speaker 01: I do see I'm approaching my time limit here. [00:14:55] Speaker 01: I do thank all of you. [00:14:56] Speaker 02: And this is picking up on the Chief Judge's [00:15:01] Speaker 02: question about Jones. [00:15:03] Speaker 02: In Carpenter and footnote three, the court says it's sufficient for our purposes today to hold that accessing seven days of cell site location information constitutes a Fourth Amendment search. [00:15:17] Speaker 02: And that really dovetails with the logic of the opinion, which talks about the entirety of a person's physical movements, whereas [00:15:30] Speaker 02: If this is just one place, it's a little bit like the distinction between one video surveillance camera on the side of a Best Buy store. [00:15:44] Speaker 02: And then the police want to look at that when they're investigating a robbery of the store versus in the fourth circuit case where they had helicopter surveillance [00:15:57] Speaker 02: 24-7. [00:15:58] Speaker 02: They could see everybody's movement over a long period of time. [00:16:01] Speaker 02: And that's just a poor circuit case. [00:16:03] Speaker 02: It's not binding on us. [00:16:04] Speaker 02: It's not the Supreme Court. [00:16:05] Speaker 02: But it's, I think, trying to pick up on a distinction that one reading of Carpenter supports, which is that when it tips over into this kind of long-term day-to-day life surveillance, both Jones and Carpenter [00:16:25] Speaker 02: say that at least is a search and we don't really know short of that and I wonder if you have any for us and you know why is this not more like the camera on the side of the Best Buy than it is well the government the government had access to camera surveillance cameras hundreds and so this went way beyond that this doesn't that undermine your clients reasonable expectation of privacy well I think [00:16:53] Speaker 01: When a person has a cell phone on him, he doesn't surrender all of his privacy just because he happens to possess a cell phone and go around the world. [00:17:02] Speaker 03: It's almost a ubiquitous... As to the item that was being determined, which is were they at a particular place, isn't it the same privacy interest that's implicated by a video camera? [00:17:13] Speaker 01: I would argue it's not. [00:17:16] Speaker 01: I would argue it's not, because video surveillance cameras, of course, are everywhere. [00:17:23] Speaker 01: But cell phone is such an identifying tracking mechanism that it really is a workaround for the government to do its real work. [00:17:33] Speaker 01: Of course, the government has many ways to accomplish the same exact [00:17:37] Speaker 01: Attempts to identify every person many many different ways. [00:17:41] Speaker 01: And of course, they've used these ways in January six investigations. [00:17:44] Speaker 02: So just for an implication of your position, if there's a robbery at a Best Buy and there's a surveillance camera, but it turns out the surveillance camera was defunct. [00:17:55] Speaker 02: And the police, and it was at 2 in the morning, and the police ask Google or AT&T just for, you know, from 1.30 in the morning to 2.30 in the morning, can you tell us who was in that location? [00:18:13] Speaker 02: Is that a general warrant under your theory? [00:18:17] Speaker 02: Is that impermissible? [00:18:19] Speaker 01: I actually think that's similar to the carpenter facts and the facts of the Smith case, which recently came down from, I think, the Fifth Circuit. [00:18:29] Speaker 01: That's similar. [00:18:29] Speaker 01: So I think courts have, well, Smith was struck down. [00:18:32] Speaker 01: That warrant was struck down. [00:18:35] Speaker 01: Yeah, that would be closer to particularity and specificity, much closer than this warrant, which by any definition. [00:18:43] Speaker 02: Why is that? [00:18:44] Speaker 02: It seems quite similar, except for the number of people. [00:18:47] Speaker 01: Well, the government often cites the Zercher case versus Stanford Daily, similar. [00:18:53] Speaker 01: So they were [00:18:55] Speaker 01: The investigators in those cases are looking for specific crimes, they're looking for specific suspects that committed those crimes. [00:19:03] Speaker 01: Not just a blanket calendar or a menu of possible crimes and to find every single person who was at a protest and of course, [00:19:12] Speaker 01: I would argue there's not even a First Amendment aspect to this case where these people were at a political riot, a political rally, a political protest demonstration. [00:19:22] Speaker 01: So this is very terrifying when you think about the implications if this were to be upheld. [00:19:29] Speaker 01: And I thank you so much. [00:19:31] Speaker 03: My colleagues, I have additional questions at this time. [00:19:33] Speaker 03: We'll give you a little time for rebuttal. [00:19:34] Speaker 03: Thank you. [00:19:35] Speaker 03: Thank you. [00:19:41] Speaker 04: Mr. Lieberman. [00:19:42] Speaker 04: Good morning may please the court Dave Lieberman for the United States with me at table is assistant United States attorney Andrew Tessman. [00:19:50] Speaker 04: I'll pick up where Mr. Roots left off with his predictable site my citation to the searcher case which says that search warrants are directed at places not persons. [00:20:01] Speaker 04: that then dovetails with the two Fourth Amendment requirements, probable cause in particular. [00:20:07] Speaker 04: Both of them are amply satisfied in this case. [00:20:11] Speaker 04: I'll take them each in turn. [00:20:13] Speaker 04: The court's questions have [00:20:16] Speaker 04: correctly internalized our view on probable cause. [00:20:19] Speaker 04: The warrant affidavits articulated ample probable cause that a number of crimes were being committed in the confines of the Capitol building on the afternoon of January 6, and a fair probability that the targets of the warrant, Google and AT&T, would contain evidence, would have held evidence, records. [00:20:38] Speaker 04: of those crimes. [00:20:40] Speaker 04: That's probable cause. [00:20:42] Speaker 04: Do not need to name or identify individual suspects. [00:20:45] Speaker 04: That's the Zurcher case. [00:20:48] Speaker 04: The probable cause here also does not have anything to do with the Abara case. [00:20:54] Speaker 04: Judge Pillard's question focused on the distinction that we understand Abara to reach. [00:20:59] Speaker 04: Abara is about searches, pat downs of individuals. [00:21:03] Speaker 04: A search warrant to search a place does not authorize pat downs of everybody in the place, absent individualized suspicion. [00:21:11] Speaker 04: That's not about the facts here, because there was no pat down. [00:21:15] Speaker 04: We were searching for records. [00:21:17] Speaker 04: Particularity. [00:21:19] Speaker 04: Both of these warrants identified in detail the places to be searched, the premises of AT&T and Google, and the precise records that the government was authorized to seize. [00:21:33] Speaker 04: That meets the particularity requirement. [00:21:35] Speaker 04: That explains why this is not like the Wilkes warrant that Mr. Routes has referenced in his briefs, where that warrant cited offenses and effectively gave law enforcement individuals to search whomever they want and seize whatever we want. [00:21:50] Speaker 04: We view these warrants as effectively using subpoena-like procedures. [00:21:56] Speaker 04: And that goes to an exchange that Mr. Routes was having with Judge Pillard. [00:22:02] Speaker 04: Subpoenas are issued. [00:22:03] Speaker 04: every day around this country in litigation. [00:22:06] Speaker 04: And they are often directed at record custodians or companies with large databases and said, please provide us with responsive information. [00:22:16] Speaker 04: The target is going to have us to search a large data set often to identify responsive records. [00:22:23] Speaker 04: But no court that I'm aware of, at least not until the Smith case has ever [00:22:29] Speaker 04: questioned the constitutionality of those subpoena-like procedures under the Fourth Amendment. [00:22:34] Speaker 04: And I think the reason goes to a member of this court referenced Carpenter, page 313 of Carpenter. [00:22:41] Speaker 04: Carpenter, the search in Carpenter occurred when the government accessed the information. [00:22:47] Speaker 02: Why not when Google searched through its information as the agent, effectively, as the agent of the government? [00:22:58] Speaker 04: We disagree that any target of a subpoena, or in this case, a search warrant using target-like subpoenas, is treated as an agent of whoever is issuing the subpoena. [00:23:07] Speaker 04: I found no case law supporting that proposition. [00:23:12] Speaker 04: And I think Carpenter tells us, because the search in Carpenter would have been roughly analogous to the search at issue here, service provider searching large databases to come up with responsive information. [00:23:23] Speaker 04: And the Supreme Court says at page 313, the relevant Fourth Amendment search there [00:23:27] Speaker 04: occurs when the government accesses the information. [00:23:30] Speaker 04: The internal searching by the target of a subpoena, in this case Google and AT&T, occurs before it delivers a much smaller data set to the government. [00:23:40] Speaker 04: So everything that happens before that time point in our view, it's not a Fourth Amendment search, and by definition cannot be a general rummaging under the Fourth Amendment. [00:23:49] Speaker 02: If we don't reach [00:23:56] Speaker 02: the third party doctrine because of the complexities about the voluntariness or not of activating, for example, in the Google context location history tracking. [00:24:10] Speaker 02: Is there any relevance or reason to reach reasonable expectation privacy? [00:24:17] Speaker 04: The government would be fine if the court wants to just assume that Mr. Cruz had reasonable expectation of privacy and then resolve this case by saying that there was probable cause and there was particularity. [00:24:29] Speaker 04: If the court wants to bypass some of the litigation, that's now pending in the Fourth and Fifth Circuits. [00:24:35] Speaker 02: I guess the challenge to me is it seems obvious that he had no reasonable expectation of privacy in his presence [00:24:46] Speaker 02: during the time the warrant specifies in the Capitol, at a time when it's close to the public, and there's no claim that he's authorized to be there. [00:24:57] Speaker 02: But one implication of that would be that no warrant at all is required. [00:25:02] Speaker 02: Just go ask Google for the information. [00:25:06] Speaker 02: But there's some difficulty there because [00:25:13] Speaker 02: He hasn't given, because the government doesn't have a reason to think he lacks an expectation of privacy in other records of his movement. [00:25:25] Speaker 02: And it's the warrant in this case that brings to the surface the narrowness and the discipline on the request. [00:25:35] Speaker 02: I guess the government's position would be, well, if he really didn't have a reasonable expectation of privacy in where he was, the government, without a warrant, can just ask Google, can you tell us who's there during these parameters? [00:25:47] Speaker 02: And we don't want to know people who we have reasons to think we're not. [00:25:51] Speaker 02: We don't have probable cause to think we're involved in any offense, like people who are authorized to be there, so we're going to do this multi-stage back and forth, but without a warrant. [00:26:00] Speaker 02: And that would be the implication if there's no [00:26:05] Speaker 02: expectation of privacy in the location. [00:26:07] Speaker 04: That's correct. [00:26:07] Speaker 04: And that is one of the arguments that we have raised in one of the three bases with the district court address below. [00:26:13] Speaker 04: No reasonable expectation of privacy. [00:26:15] Speaker 04: Therefore, there was no search and no warrant needed. [00:26:19] Speaker 04: And we've pressed that here. [00:26:21] Speaker 04: I think we have persuasive arguments given the short term. [00:26:24] Speaker 04: The nature of the monitoring, this court said in Brennan, short-term monitoring of a person's movement in public places, accords with expectations of privacy that our society has long recognized as reasonable. [00:26:36] Speaker 04: There was reference to the Fifth Circuit's contrary decision in Smith. [00:26:41] Speaker 04: We think Smith got it wrong. [00:26:42] Speaker 04: But even under the Smith framework, assuming that it's correct, which asks, was there a potential that the disclosure of this fact would [00:26:50] Speaker 04: reveal some intimate window into the individual's life, that even if that's the framework, which we disagree with, that doesn't help Mr. Cruz here for some of the reasons that were discussed with Mr. Roots. [00:27:00] Speaker 04: It's the Capitol building. [00:27:02] Speaker 04: It was secured on that day. [00:27:04] Speaker 04: It's secured all every day. [00:27:05] Speaker 04: And visitors, this is the court, this court's decision, and I see visitors have to go through security screening. [00:27:11] Speaker 04: They have to supply a reason to be there. [00:27:14] Speaker 02: Smith differently. [00:27:14] Speaker 02: I actually think Smith goes much further, because it says the results of the geofence warrant may be narrowly tailored. [00:27:21] Speaker 02: It doesn't adhere to what you pointed out in Carpenter, that the relevant search is when the government accesses the information. [00:27:27] Speaker 02: In Smith, they basically are saying it's the search within the location history that is not sufficiently tailored. [00:27:37] Speaker 02: And so it's unclear to me how you could even [00:27:43] Speaker 02: use a defense warrant at all. [00:27:45] Speaker 02: And that's why I think Smith says no defense warrants are categorically impermissible. [00:27:51] Speaker 02: And I think if they were sitting where we are today, they would say the same thing about this one. [00:27:57] Speaker 04: I think that that's right. [00:27:59] Speaker 04: I think they would apply the good faith exception for the reasons that they said in Smith. [00:28:02] Speaker 04: But I think your honor was reading from [00:28:04] Speaker 04: the particularity analysis in the Fifth Circuit's decision about why the search there was akin to general rummaging. [00:28:11] Speaker 04: And I would like to respond to that with at least three doctrinal points. [00:28:15] Speaker 04: Number one, the idea that Google is searching the many accounts, 500, I think it was 500 million location histories, that was what the Fifth Circuit said was the problem. [00:28:29] Speaker 04: And I don't think that can be squared with, again, page 313 of Carpenter, which has the relevant [00:28:34] Speaker 04: Fourth Amendment search, when we're talking with large data providers like this, is when the government receives the information. [00:28:41] Speaker 04: So the Fifth Circuit started its particularity analysis too soon. [00:28:46] Speaker 04: The second point is the subpoena point that I made earlier, and Judge Contreras fleshed this out in his Ryan opinion, is that if the Fifth Circuit's analysis in Smith is correct on particularity, then subpoenas, common subpoenas issued to [00:29:03] Speaker 04: record custodians that have large records are themselves are going to present Fourth Amendment problems. [00:29:07] Speaker 04: And again, I was not aware of any court or any appellate authority saying that's a Fourth Amendment problem until Smith. [00:29:14] Speaker 04: The third point that I wanted to reference is that when we obtained the step one [00:29:22] Speaker 04: data from Google. [00:29:23] Speaker 04: After it had done those initial search and come up with a much smaller list, it was anonymized. [00:29:27] Speaker 04: And I think that's relevant under this court's decision in Brennan. [00:29:30] Speaker 04: If the government is just getting anonymized data that can't be tracked back to individual subscribers, that doesn't impair Fourth Amendment privacy interests, at least not until the point that we connect the anonymized data to subscribers. [00:29:45] Speaker 04: And so that's another reason why I think the Fifth Circuit Smith analysis and Smith is unpersuasive. [00:29:51] Speaker 02: I just wanted to make sure that I asked you the same question that I asked Mr. Roots, which is, was this issue preserved? [00:29:57] Speaker 02: I just wasn't able to see it. [00:29:59] Speaker 04: We viewed it as preserved. [00:30:00] Speaker 04: So what happened below is we had the suppression hearing an hour before trial was supposed to start. [00:30:06] Speaker 04: The district court denied suppression. [00:30:07] Speaker 04: And then we proceeded with agreement to effectively stipulate bench trial. [00:30:13] Speaker 04: And then the district court found Mr. Cruz guilty of the two misdemeanors. [00:30:19] Speaker 04: In a case where a defendant goes to trial, he hasn't waived anything. [00:30:22] Speaker 04: He can still raise. [00:30:24] Speaker 02: Except that he stipulates to the fact that he was present within the Capitol. [00:30:29] Speaker 02: And that is the fact that's at issue on the geofence warrant. [00:30:32] Speaker 02: So to me, he preserves other bases of appeal. [00:30:38] Speaker 02: And the judge so said. [00:30:40] Speaker 02: But it struck me that there was nothing with respect to that stipulation, which [00:30:48] Speaker 02: to me seems to obviate the issue that we have before us. [00:30:50] Speaker 04: Yeah, we understand the issue to be preserved. [00:30:53] Speaker 04: Mr. Rutz will clarify if I'm correct. [00:30:55] Speaker 04: I think before the district court suppression hearing, there was no dispute that Mr. Cruz had entered the Capitol building. [00:31:01] Speaker 04: He was simply saying that the government discovered him by virtue of an invalid Fourth Amendment warrant, and that would then lead to suppression of our evidence identifying him in the Capitol. [00:31:15] Speaker 04: So we understand that to be preserved. [00:31:18] Speaker 04: Just a couple more points, two more, a couple more prudential points on Smith, because again, on the particularity analysis, again, the Fifth Circuit found problematic that Google was searching in that initial query. [00:31:33] Speaker 04: We don't even think of it as a search. [00:31:34] Speaker 04: We'll call it an initial query, 5 million records. [00:31:38] Speaker 04: The size of that turned just on the fortuity of how Google stored its records. [00:31:43] Speaker 04: You can easily imagine a service provider storing its data in more compartmentalized fashion, such that that initial query would be a lot smaller. [00:31:51] Speaker 04: The only reason that the Fifth Circuit had that 500 million numbers, because that's how Google organized it. [00:31:58] Speaker 03: Can I just ask you a fact pattern? [00:32:00] Speaker 03: Yes. [00:32:01] Speaker 03: Did I interrupt? [00:32:03] Speaker 03: Oh, just a fact pattern. [00:32:05] Speaker 03: If there's a crime that occurs at a particular point in time, at a particular place, let's say 2 a.m. [00:32:10] Speaker 03: at a store, and the government, they know that someone did it. [00:32:16] Speaker 03: They even have security cameras footage that shows that the person who did it, but they don't know who they are. [00:32:21] Speaker 03: They don't know anything about them at all. [00:32:23] Speaker 03: And what they can do is they know that there's 100 people that were in the vicinity of that location in a time window of a half hour. [00:32:33] Speaker 03: And so they just want to figure out, who are those 100 people? [00:32:34] Speaker 03: And then we can start looking at those 100 people. [00:32:36] Speaker 03: And then we can try to run in the field to figure out who that one person was. [00:32:39] Speaker 03: And if they say, OK, well, one way we can figure out who those 100 people are is we can engage in a, we can have a geofence, basically, that figures that out. [00:32:47] Speaker 03: How do you walk through that analysis? [00:32:50] Speaker 03: So that's perfectly permissible to narrow the field to the 100. [00:32:54] Speaker 03: And then you have to know who they are, because it can't be anonymized, because you have to be able to investigate those 100 people individually. [00:33:01] Speaker 04: Yeah, so I think in those 100 people in that small space, my argument to this court would be we have probable cause for the reasons that you articulated. [00:33:09] Speaker 04: And we have particularity because we definite in terms of the warrant as to what's being searched. [00:33:15] Speaker 04: And we have an alignment between probable cause and the breadth of the warrant because I would argue that those 100 people in that small space fall into one of two categories. [00:33:23] Speaker 04: Number one, either the likely perpetrator of the crimes or number two, percipient witnesses. [00:33:30] Speaker 04: Percipate witnesses are evidence, just like records are evidence. [00:33:33] Speaker 04: And so we can use a search warrant to try to find them as well. [00:33:36] Speaker 03: But let's suppose that they can't be witnesses because there's no reason to think people that just happen to be passing by a particular place and they just walk through. [00:33:45] Speaker 03: It's like the Las Vegas Strip. [00:33:46] Speaker 03: You're not actually stopping and observing anything. [00:33:49] Speaker 03: It's really about figuring out who that one person is. [00:33:52] Speaker 04: Yeah, so I think some of it would depend on, in the particularity category, the types of narrowing efforts that the government specified in the warrant that it would do, particularly before it got these individual subscriber data. [00:34:07] Speaker 04: But in that small enough data set, I think I would still happily defend that as supported by probable cause in particularity. [00:34:15] Speaker 04: Just to close up a button down the point that I was making as to the Google records being so large, because that's the way Google stores its information. [00:34:22] Speaker 04: The different service provider did it differently. [00:34:26] Speaker 04: Smith suggested it would have come out differently if that initial query is much smaller. [00:34:30] Speaker 04: The Supreme Court in Smith said that. [00:34:34] Speaker 04: Fourth Amendment protections are not supposed to turn upon these internal record-keeping practices. [00:34:41] Speaker 04: And so I don't think that that's a viable basis on which the Fifth Circuit pegged its particularity analysis, the manner in how Google stored its records. [00:34:51] Speaker 02: What if it's a neighborhood meeting in someone's home, and there are 40 people in attendance and five family members in the house? [00:35:03] Speaker 02: and some valuable gets stolen. [00:35:07] Speaker 02: Can the government, let's say it's a religious or political meeting, can the government use a defense warrant and get the identities of all those people? [00:35:23] Speaker 04: I don't know that we would have the technology as that granular, but I'm going to assume for the sake of the question that it is. [00:35:29] Speaker 04: I think the answer is yes, if it is sufficiently particular, [00:35:34] Speaker 04: based on the probable cause showing and the types of safeguards and narrowing that is put into the warrant like there was here to actually try to make a good faith effort to reduce the amount of subscriber information that the government ultimately accesses, then yes, I would defend that warrant if it was sufficiently tailored. [00:35:57] Speaker 04: But I don't know that. [00:36:00] Speaker 04: I think this is a much more straightforward case, given both the size of the probable cause. [00:36:05] Speaker 04: In many respects, the sweep of the warrant is perfect to the probable cause showing, because for the reasons that some of the court's questions to Mr. Roots previewed, we think that everybody in the Capitol building whose location information was identified, we had probable cause to believe that they were committing crimes on the afternoon of January 6. [00:36:25] Speaker 04: The worst case scenario is, [00:36:28] Speaker 04: Maybe they were a percipient witness. [00:36:31] Speaker 04: Some of them may have been identified too. [00:36:32] Speaker 04: But that's a fair basis for the government to seek evidence. [00:36:37] Speaker 04: I think our citation to Lidster proves that point. [00:36:40] Speaker 04: So obviously, there's good faith in the other Fourth Amendment carpenter questions. [00:36:47] Speaker 04: I'm happy to rest in my brief unless members of the court have any additional questions. [00:36:52] Speaker 04: The government asks that the court affirm. [00:36:53] Speaker 03: Thank you, counsel. [00:36:56] Speaker 03: Mr. Ritz, we'll give you two minutes for a rebuttal. [00:36:59] Speaker 01: Thank you so much. [00:37:01] Speaker 01: Just a couple of points that were just brought up. [00:37:04] Speaker 01: The government brings up this distinction between subpoenas and warrants. [00:37:10] Speaker 01: This issue I've seen in Fourth Amendment case law has come up from time to time. [00:37:15] Speaker 01: I guess my understanding is the government is arguing, hey, we could have used a subpoena and this would have been just fine because subpoenaed Google. [00:37:21] Speaker 01: could have subpoenaed the same information. [00:37:24] Speaker 01: I guess that's their argument. [00:37:27] Speaker 01: But they used a search warrant, which is a criminal order in a criminal matter. [00:37:36] Speaker 01: And by using a search warrant, they are bound by the constrictions of the Fourth Amendment. [00:37:44] Speaker 01: Of course, a subpoena might take months, six months, a year. [00:37:47] Speaker 01: We all know they can take months. [00:37:50] Speaker 01: Here is the power of law enforcement with the full punch of a search warrant to get this information. [00:37:58] Speaker 01: And I just don't think that that's a good way to look at this. [00:38:03] Speaker 01: It's possible they could have got the same information from a subpoena. [00:38:06] Speaker 01: But they use a search warrant, and the Fourth Amendment very carefully limits search warrants. [00:38:16] Speaker 01: The question of whether it was preserved with the stipulations that we had down below. [00:38:20] Speaker 01: I'm satisfied it is. [00:38:25] Speaker 02: You and the government both agree. [00:38:27] Speaker 01: OK. [00:38:28] Speaker 01: And this sort of ties in with something the chief judge asked, which was about a question, maybe hypothetical, about [00:38:39] Speaker 01: a crime where there were 100 people around the criminal, could law enforcement ask and go and use regular shoe leather? [00:38:48] Speaker 01: Of course they can. [00:38:50] Speaker 01: And that's very similar to the facts of the John Wilkes case in 1762, where the king's ministers [00:38:57] Speaker 01: issued a warrant saying, go find whoever wrote this pamphlet. [00:39:01] Speaker 01: And they knocked on the door of 40 different printers. [00:39:04] Speaker 01: And everyone, they used shoe leather saying, did you write this pamphlet? [00:39:08] Speaker 01: Did you publish this pamphlet? [00:39:09] Speaker 01: Did your print shop publish this? [00:39:11] Speaker 01: Do you know who did? [00:39:12] Speaker 01: Until they eliminated every print shop in London and finally found the printer. [00:39:20] Speaker 01: That was held to be so outrageous. [00:39:23] Speaker 01: And that was when they warrant. [00:39:24] Speaker 01: in history that it led the founding fathers, the framers of the constitution to explicitly limit and eliminate that. [00:39:35] Speaker 01: And I would just finish up by pointing to some of the cases we pointed out in the brief about these cases where the police will go and if they have probable cause to search for a crime in one apartment of an apartment complex, [00:39:53] Speaker 01: It they want would be over brought in a general want to search the entire apartment complex. [00:40:00] Speaker 01: I also direct the court to the diary decision us Supreme Court where they had probable cause to search a car with 3 people. [00:40:07] Speaker 01: And they were looking for people who were violating, I guess, lottery ration tickets or something. [00:40:13] Speaker 01: But they held that out of the three, one was completely innocent. [00:40:17] Speaker 01: So even in that case, the US Supreme Court said, no, you can't search three guys to get to one criminal. [00:40:26] Speaker 01: And here in the January 6 context, they searched 1,000 cell phones. [00:40:31] Speaker 01: And they didn't even have probable cause until they went and knocked on the door of each individual and asked him, [00:40:37] Speaker 01: so that they could obtain probable cause to accuse him of a crime. [00:40:42] Speaker 01: Thank you so much. [00:40:43] Speaker 03: Thank you, counsel. [00:40:43] Speaker 03: Thank you to both counsel will take this case under submission.