United States v. Gilliam , 842 F.3d 801 ( 2016 )

15-387
United States of America v. Gilliam
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2016
Heard: September 29, 2016 Decided: December 1, 2016
Docket Nos. 15-387
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UNITED STATES OF AMERICA,
Appellee,
v.
JABAR GILLIAM, AKA Jamal Gilliam, AKA Jabal
Gilliam, AKA JB,
Defendant-Appellant.
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Before: NEWMAN, WINTER, and CABRANES, Circuit Judges.
Appeal from the January 28, 2015, judgment of the
District Court for the Southern District of New York
(Thomas P. Griesa, District Judge), convicting Jabar
Gilliam after a jury trial of offenses concerning sex
trafficking of a minor and sentencing him to 240 months of
imprisonment. Gilliam contends primarily that the District
Court erred in denying his motion to suppress his cell
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phone’s location information, which had been supplied, at
the Government’s request, by a telecommunications company.
Affirmed.
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.
JON O. NEWMAN, Circuit Judge:
The principal issue on this appeal from a conviction
for sex trafficking involving a minor is whether
information from a global positioning system (“GPS”) can be
obtained and used without a warrant to locate a suspect.
This issue arises on an appeal by Jabar Gilliam from the
January 28, 2015, judgment of the United States District
Court for the Southern District of New York (Thomas P.
Griesa, District Judge). Gilliam was convicted of sex
trafficking offenses after a jury trial and sentenced to
imprisonment for 240 months.
2
We conclude that exigent circumstances justified
obtaining and using GPS location information without a
warrant and therefore affirm.
Background
Offense conduct. The Defendant’s offenses concern sex
trafficking of a minor known as Jasmin. She recounted at
trial the facts concerning Gilliam’s offenses. Gilliam met
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 two occasions he punched her. On one
occasion he had sex with her against her will in a hotel
room and 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
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near the window and then put his legs up beside her so that
Jasmin could not get out of her seat. Gilliam brought
Jasmin to his mother’s apartment in the Bronx, where he had
sex with her against her will. Jasmin worked as a
prostitute for Gilliam in the Bronx, giving him all the
money that she earned.
Locating and arresting Gilliam. 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,” known to her as “Jabar,” who was
later identified as Gilliam. On December 2, the case was
referred to the Maryland State Police, which assigned
Corporal Chris Heid to investigate. Corporal Heid spoke
with Jasmin’s social worker, who expressed concern that
Jasmin was being forced into prostitution by Jabar Gilliam.
The social worker based her concern on conversations with
Jasmin’s biological mother. Heid then spoke with Jasmin’s
biological mother, who confirmed this information. She told
Heid that Gilliam had communicated with her directly and
told her that he was planning to take Jasmin to New York to
work there as a prostitute.
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On that same day, based on this information, Heid
contacted Sprint Corporation (“Sprint”), a
telecommunications company. He 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)”.
Also on December 2, Jasmin placed a phone call to her
biological mother from the Bronx apartment of Gilliam’s
mother. NYPD officers went to that apartment and questioned
Gilliam’s mother. Location information provided by Sprint
indicated that Gilliam’s cell phone was a few blocks away.
Canvassing the neighborhood, two NYPD officers saw Gilliam
and Jasmin on the street and followed them to the third
floor of an apartment building. When an officer confronted
Gilliam, he attempted to flee. A scuffle ensued, after
which Gilliam was arrested.
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Charges, trial, and conviction. A grand jury charged
Gilliam 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
sentenced to imprisonment for 240 months.
Discussion
I. Use of GPS Location Information
The District Court denied Gilliam’s motion challenging
the use of GPS location information to determine where
Gilliam was, information that led to his arrest. The Court
ruled that the Stored Communications Act, 18 U.S.C. §
2702(c)(4), authorized, and exigent circumstances
permitted, Corporal Heid to obtain location information
from Sprint without a warrant.
Section 2702(c)(4) provides:
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
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injury to any person requires disclosure without
delay of information relating to the emergency.
18 U.S.C. § 2702(c)(4) (emphasis added).
The initial statutory issue presented by Sprint’s
disclosure of GPS location information is whether it
was “other information” within the meaning of
subsection 2702(c)(4). Congress intended the phrase
“other information” to cover “information about the
customer’s use of the service.” S. Rep. No. 99-541, at
38 (1986). Several district courts have interpreted the
phrase to include the location of a customer’s cell
phone. See United States v. Graham, 846 F. Supp. 2d
384, 396 (D. Md. 2012) (subsequent history omitted); In
re Application of the United States for an Order
Authorizing the Release of Historical Cell-Site Info.,
809 F. Supp. 2d 113, 125 (E.D.N.Y. 2011); In re
Application of the United States for Prospective Cell
Site Location Info. on a Certain Cellular Telephone,
460 F. Supp. 2d 448, 460-61 (S.D.N.Y. 2006). We agree
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that “other information” includes the location of a
subscriber’s cell phone.1
The second statutory question is whether the
circumstances presented to Sprint showed “an emergency
involving danger of . . . serious physical injury to
any person.” We think it obvious that “involving,” 18
U.S.C. § 2702(c)(4), includes a realistic threat of
such injury, not just a completed injury. That
statutory question also arises in connection with the
constitutional issue presented 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. That issue is whether such a
disclosure and arrest without a warrant violated the
Fourth Amendment.2
1
The cited cases involve interpretation of 18 U.S.C. §
2703, a statute different from, but closely related to, section
2702. Section 2703 concerns mandatory disclosures pursuant to a
warrant. Subsection 2703(c) requires disclosure of “a record or
other information pertaining to a subscriber . . . (not
including the contents of communications) . . . .,” language
identical to the language of subsection 2702(c).
2
“[T]he Government assumes for purposes of this appeal
that cell phone users have a reasonable expectation of
privacy in [location] information under the Fourth
Amendment.” Br. for Appellee 14 n.3 at 15. We make the same
assumption.
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Both the second statutory issue and the Fourth
Amendment issue turn on whether the circumstances known
to law enforcement and presented to Sprint were within
the category of “exigent circumstances” that permit
warrantless searches. See Riley v. California, 134 S.
Ct. 2473, 2487 (2014). “The core question is whether
the facts . . . would lead a reasonable, experienced
officer, to believe that there was an urgent need to .
. . take action.” United States v. Klump, 536 F.3d 113,
117–18 (2d Cir. 2008) (internal citations and quotation
marks omitted). “A district court's determination as to
whether exigent circumstances existed is fact-specific,
and will not be reversed unless clearly erroneous.”
United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.
1990) (in banc) (citations omitted).
We agree with the District Court that exigent
circumstances justified GPS tracking of Gilliam’s cell
phone. The evidence available to law enforcement at the
time of the search for Gilliam’s location was compelling.
Based on Heid’s discussions with Jasmin’s foster mother,
social worker, and biological mother, law enforcement
officers had a substantial basis to believe that Gilliam
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was bringing Jasmin to New York City to require her to work
there as a prostitute. That type of sexual exploitation of
a minor has often been found to pose a significant risk of
serious bodily injury. See, e.g., United States v. Daye,
571 F.3d 225, 234 (2d Cir. 2009), abrogated on other
grounds by Johnson v. United States, 135 S. Ct. 2551
(2015); United States v. Curtis, 481 F.3d 836, 838-39 (D.C.
Cir. 2007). As the Ninth Circuit has observed, prostitution
of a child involves “the risk of assault or physical abuse
by the pimp’s customers or by the pimp himself” and “a
serious potential risk of contracting a sexually
transmitted disease.” United States v. Carter, 266 F.3d
1089, 1091 (9th Cir. 2001) (internal citations and
quotation marks omitted).
Several courts have found that exigent circumstances
justified warrantless entry into premises to avoid risk of
injury to a minor held there. See, e.g., Hunsberger v.
Wood, 570 F.3d 546, 555 (4th Cir. 2009); United States v.
Kenfield, 270 F. App’x 695, 696-97 (9th Cir. 2008); United
States v. Thomas, No. 3:14-CR-00031 (RNC), 2015 WL 164075,
*4-5 (D. Conn. Jan. 13, 2015); United States v. Williams,
No. 12-CR-6152G(MWP), 2015 WL 429087, at *12-13 (W.D.N.Y.
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Feb. 2, 2015), report and recommendation adopted, No. 12-
CR-6152(FPG), 2015 WL 3454430 (W.D.N.Y. May 29, 2015).
Locating on the streets a victim of sexual exploitation
might seem to present a less immediate need for police
action than entering premises where such a victim is being
held, but it is nonetheless sufficient to constitute
exigent circumstances.
Gilliam contends that the time required to obtain a
warrant would not have significantly added to the risk of
injury to Jasmin. That argument calls to mind the plight of
social workers who have to decide whether to face a lawsuit
for quickly removing a child from the home of an abusive
parent or for failing to act in time to prevent the child’s
injury. “If they err in interrupting parental custody, they
may be accused of infringing the parents’ constitutional
rights. If they err in not removing the child, they risk
injury to the child and may be accused of infringing the
child’s rights.” Van Emrik v. Chemung County Dep’t of
Social Services, 911 F.2d 863, 866 (2d Cir. 1990). Faced
with exigent circumstances based on credible information
that Gilliam was engaged in prostituting a missing child
across state lines, Corporal Heid acted reasonably in
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obtaining Gilliam’s cell phone location information without
a warrant.
Congress has “deemed it reasonable to subordinate any
individual privacy interest in cell phone location
information to society’s more compelling interest in
preventing an imminent threat of death or serious bodily
injury,” and has therefore given service providers the
authority to decide whether there existed an “emergency
involving danger of death or serious physical injury to any
person.” United States v. Caraballo, 963 F. Supp. 2d 341,
360 (D. Vt. 2013) (citations omitted), aff'd, 831 F.3d 95
(2d Cir. 2016). Based on Heid’s affirmation, Sprint had a
good faith basis for believing that the disclosure of
Gilliam’s cell phone location was necessary to protect a
missing child from being prostituted and subject to serious
physical injury.
II. Other Claims
Gilliam’s other claims do not require extended
discussion. His arrest was supported by probable cause,
based both on events occurring at the scene of his arrest
and his sex trafficking with respect to Jasmin. There was
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no error in the jury charge, and the evidence fully
supported the jury’s verdict.
Conclusion
The judgment of the District Court is affirmed.
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