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December 6, 2016
  United States of America v. Gilliam
Headline: Second Circuit Affirms That in "Exigent Circumstances," GPS Information Information Can Be Obtained and Used Without a Warrant to Locate a Suspect

Area of Law: Criminal Procedure

Issue Presented: Whether, in exigent circumstances, information from a global positioning system in a phone can be obtained and used without a warrant to locate a suspect.

Brief Summary: Jabar Gilliam appealed from a judgment of the United States District Court for the Southern District of New York, convicting him after a jury trial of offenses concerning sex trafficking of a minor and sentencing him to 240 months of imprisonment. Gilliam had been employing a minor to work for him as a prostitute in Maryland, and then brought her to the Bronx for her to continue working as a prostitute there. The authorities were informed that she was missing from home and eventually discovered Gilliam's identity. They believed and had testimony indicating that he had taken her with the intention to force her into prostitution. Authorities then contacted Sprint Corporation ("Sprint"), a telecommunications company and requested Global Positioning System ("GPS") location information for Gilliam's cellphone, stating that the request was due to an exigent situation involving immediate danger of death or serious bodily injury to a person. Sprint complied with this request and Gilliam was found, arrested and convicted. Gilliam's primary contention in this appeal was that the district court had erred in denying his motion to suppress his cell phone's location information. The Second Circuit held that the District court did not err, based on both statutory and constitutional interpretation. The first statutory question was whether the language "other information" in 18 U.S.C. § 2702(c)(4), allowed for the disclosure of GPS location information. The court held in the affirmative. The second statutory question and the constitutional question hinged on whether the circumstances presented to Sprint could qualify as an exigent circumstance that would permit a warrantless search. Again, the Second Circuit held in the affirmative and finding that exigent circumstances were demonstrated because the evidence available to law enforcement at the time of the search for Gilliam's location was compelling and involved danger of serious physical injury to the minor. Thus, the Second Circuit affirmed the judgment of the District Court.

Extended Summary: Jabar Gilliam appeals from a January 28, 2015, judgment of the District Court for the Southern District of New York, convicting him after a jury trial of offenses concerning sex trafficking of a minor and sentencing him to 240 months of imprisonment.

Gilliam met the minor, a girl known as Jasmin in Maryland in late October or early November 2011. She was sixteen at the time, but told Gilliam that she was seventeen. Gilliam asked Jasmin to work for him as a prostitute after she told him she was working for another pimp. Gilliam told Jasmin that he was going to take her to New York, where she could work for him.

Jasmin worked for Gilliam as a prostitute in Maryland in November 2011. On November 30, Gilliam brought Jasmin to New York City after threatening to require her fifteen-year-old sister to work as a prostitute for him if Jasmin refused to go. Gilliam purchased Jasmin's bus ticket for the trip, and on the ride to New York City, Gilliam told Jasmin to sit near the window and then made sure she couldn't get out of her seat by putting his legs up beside her. Jasmin worked as a prostitute for Gilliam in the Bronx, giving him all the money that she earned.

On November 30, Jasmin's foster mother reported to the Sheriff's Office in Frederick County, Maryland, that Jasmin was missing from home. The foster mother told authorities that Jasmin had mentioned a "boyfriend," who was known to her as "Jabar," and who was later identified as Gilliam. On December 2, the case was referred to the Maryland State Police, and Corporal Chris Heid was assigned to investigate.

Corporal Heid spoke with Jasmin's social worker, who expressed concern that Jasmin was being forced into prostitution by Jabar Gilliam. This concern was based of conversations with Jasmin's biological mother. Heid then spoke to Jasmin's biological mother, who affirmed this information and stated that Gilliam had communicated with her directly and told her that he was planning to take Jasmin to New York so that she could work there as a prostitute.

After this conversation and based on the information he had received, Heid contacted Sprint and told Sprint that he was "investigating a missing child who is . . . being prostituted," and requested GPS location information for Gilliam's cell phone. Heid said that he was making the request because of "an exigent situation involving . . . immediate danger of death or serious bodily injury to a [] person." Sprint complied with Heid's request and began providing real-time GPS location information to the Maryland State Police, which passed the information on to the FBI and the New York City Police Department ("NYPD)."

On December 2, Jasmin placed a phone call to her biological mother from the Bronx apartment of Gilliam's mother. NYPD officers were dispatched to that apartment and questioned Gilliam's mother. After which location information provided by Sprint indicated that Gilliam's cell phone was a few blocks away. NYPD officers subsequently canvassed the neighborhood and saw Gilliam and Jasmin on the street. The officers then confronted Gilliam, he attempted to flee, and was arrested. Gilliam was charged in Count One with sex trafficking of a minor by force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a), (b)(1), and (b)(2), and in Count Two with transporting a minor in interstate commerce for purposes of prostitution in violation of 18 U.S.C. § 2423(a). Gilliam was convicted on both counts after a jury trial and by judgment, dated January 28, 2015, sentenced to imprisonment for 240 months.

Gilliam appealed the judgment. Gilliam's primary contention in this appeal was that the District Court had erred in denying his motion to suppress his cell phone's location information, which had been supplied, at the Government's request, by a Sprint. The Second Circuit held that the District court did not err.

In coming to this decision the Second Circuit focused on two statutory questions and a constitutional question. The first question was whether the language "other information" in 18 U.S.C. § 2702(c)(4), allowed for the disclosure of GPS location information. The section states that: A provider . . . may divulge a record or other information pertaining to a subscriber . . . (not including the contents of communications covered by [other subsections]) - . . .
(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.
In determining whether "other information" included GPS location information the Second Circuit looked at the legislative history of 18 U.S.C. § 2702(c)(4) and persuasive authority from district courts. The legislative history of the subsection states that Congress intended "other information" to cover "information about the customer's use of the service." Additionally, district courts under 18 U.S.C. § 2703, a statute different from, albeit, similarly written and closely related to, section 2702, had found that "other information" did include GPS location information. Thus, the Second Circuit similarly held that "other information" did include GPS information from a phone.

The second question was whether the circumstances presented to Sprint showed "an emergency involving danger of . . . serious physical injury to any person." This question also tied into a constitutional question, concerning whether Gilliam's Forth Amendment rights were violated by Sprint's disclosure at the request of a law enforcement officer and the use of that information to locate and arrest Gilliam without a warrant. Both the second statutory question and the Fourth Amendment issue turned on whether the circumstances known to law enforcement and presented to Sprint were within the category of "exigent circumstances" that permit warrantless searches. The Second Circuit found that the District Court did not err in finding that exigent circumstances did exist because the evidence available to law enforcement at the time of the search for Gilliam's location was compelling. They based this on Heid's discussions with Jasmin's foster mother, social worker, and biological mother, which demonstrated that law enforcement had a substantial basis to believe that Gilliam was bringing Jasmin to New York City to require her to work there as a prostitute. This kind of sexual exploitation of a minor has often been found to pose a significant risk of serious bodily injury and thus could be seen as an exigent circumstance.

To read the full decision, please visit:
http://www.ca2.uscourts.gov/de...9a50e0d4b122/2/hilite/ (could not get hyperlink to work for me)

Panel: Circuit Judges Newman, Winter, Cabranes

Argument Date: 9/29/2016

Date of Issued Opinion: 12/1/2016

Docket Numbers: 15-387

Decided: Affirmed.

Case Alert Author: Brian Bendy

Counsel: Robert A. Culp, Law Office of Robert A. Culp, Garrison, NY, for Appellant; Kristy J. Greenberg, Asst. U.S. Atty., New York, NY (Preet Bharara, U.S. Atty., Adam S. Hickey, Asst. U.S. Atty., New York, NY, on the brief), for Appellee.

Author of Opinion: Judge Newman

Circuit: Second Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 12/06/2016 08:26 AM     2nd Circuit  

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