Motion to Suppress

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7^th Circuit Court of Appeals

Case Name: USA v. Wayne Hill

Case No.: 14-2019

Officials: WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.

Focus: Motion to Suppress

Cell-site analysis evidence from cellular phone properly admitted in bank robbery case.

“No federal court of appeals has yet said authoritatively that historical cell-site analysis is admissible to prove the location of a cell phone user. The Sixth Circuit gave the technique an unfavorable appraisal recently in United States v. Reynolds, 626 F. App’x 610, 616–17 (6th Cir. 2015) (nonprecedential). Because the government there used historical cellsite analysis to prove that certain people were not in a certain area at a particular time, the court did not need to rule on the technique’s reliability for proving where a person was at a given time. The court noted, however, that claims of successful use by law enforcement personnel were “precisely the sort of ‘ipse dixit of the expert’ testimony that should raise a gatekeeper’s suspicion,” were it “not subject to independent peer review,” and “fail[ed] to establish an error rate with which to assess reliability because there was no information on how many times the technique was employed unsuccessfully.” Id. at 616 (quoting Kumho Tire, 526 U.S. at 157). The Fifth Circuit, in contrast, has affirmed the admission of historical cell-site analysis under Rule 702 to prove an individual’s location. See United States v. Schaffer, 439 F. App’x 344, 347 (5th Cir. 2011) (nonprecedential). But the Sixth Circuit singled out Schaffer for criticism in Reynolds. 626 F. App’x at 616–17. And even the Fifth Circuit only remarked that “[t]estimony established that the field is neither untested nor unestablished.” 439 F. App’x at 347. This is hardly a ringing endorsement.”

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.