Cellular Defense

For years, federal authorities and police officials, in the pursuit of an investigation, have demanded customer location records from cellular carriers. But that all changed when Detroit attorney Harold Z. Gurewitz took a local criminal case all the way to the United States Supreme Court.
Cellular Defense
Illustrations by James Yang

After more than 40 years of practicing criminal law, Harold Z. Gurewitz is a familiar figure in the United States District Court in downtown Detroit, having defended clients ranging from murder suspects and mobsters to high-profile heavyweights like former Mayors Coleman A. Young and Kwame Kilpatrick.

Yet the case that may well be the most significant of his career — one with ramifications for millions of ordinary Americans who use cell phones — began with a little-noticed armed robbery of a Radio Shack store in Detroit in 2010.

Eight years later, the legal fallout from that case is a landmark decision by the United States Supreme Court upholding individual privacy Fourth Amendment rights in an era of ever-changing, pervasive digital technology.

The case also had catastrophic consequences for Gurewitz’s client, Timothy Ivory Carpenter, a 29-year-old Detroiter and petty criminal. Carpenter was the leader of a gang that, from the December robbery of the Radio Shack store and continuing into January 2013, staged a string of seven other holdups, including cell phone stores in Detroit, Highland Park, Eastpointe, Warren, Mich., and Warren, Ohio.

Because a gun was shown each time, Carpenter was hit with a sentence of 116 years in a federal penitentiary following his 2013 conviction. Substantial evidence against him came from cell towers that preserved digital records of his movements through his smartphone.

In a 5-4 vote in June last year, the Supreme Court justices, with a nod to the proliferation of 400 million cell phones in use in the country, ruled that police must now obtain a search warrant to tap into personal smartphone location information recorded by those towers.

Jonathan Weinberg, an associate dean and law professor at Wayne State University in Detroit, says the court’s decision is long overdue. He points out that in recent years, federal, state, and local police have been demanding customer location records more than 200,000 times every year, with each request covering periods of time as long as several months.

“As you go about your everyday life, your mobile phone regularly connects to the nearest cell tower when you make calls, check your email, or look something up on the web— or when an app running in the background makes a connection that you didn’t initiate and, every few minutes, (it) tells the cell tower, ‘Here I am, if you need to find me to send messages or connect calls,’ ” Weinberg explains.

“Your cell phone company has stored in its databases an elaborate record of what cell towers your phone connected to, and when, covering 24 hours a day, 365 days a year. The cell firms retain that information for as long as five years.”

That data can be used to reconstruct where you were — or, rather, where your phone was — anytime in that five-year period. It can pinpoint a physical location within a city or within a couple of miles in a rural area, Weinberg says. “These days, people’s most private information doesn’t reside on pieces of paper locked in an office or home desk drawers; it lives on internet servers operated by private companies,” he says.

Carpenter and the dozen or so members of his gang targeted the stores to steal their inventory of cell phones — an ironic twist, since the first bit of evidence gathered to arrest and convict him came from the cell phone in his pocket.

Police investigating the robberies first turned up one of the gang members, a fast food restaurant worker named Michael Green, who they quickly flipped to tell on his crew. Green started naming names — Nitty, Gangster Crippy, and a bunch of Tims: Big Tim, Little Tim, and Baby Tim, aka Tim Tim. While he was short on full names, Green gave up Little Tim’s cell phone number. It turned out to be more valuable to police than his name.

The phone number led investigators to Carpenter, an unmarried father of three small children who had three previous brushes with the law. Carpenter was unemployed at the time. He had attended Denby High School on the city’s east side, but did not earn a diploma.

In 2005, he was convicted of receiving and concealing stolen property. Three years later he was nailed for attempted tampering with a motor vehicle, and in 2010, just before the spree of cell phone store robberies began, Carpenter was convicted of delivery of less than 50 grams of cocaine.

Carpenter’s phone number also allowed investigators to go to his phone company and, without a warrant, obtain more than four months of cell tower records for his phone number, which allowed police to track his every move.

From those records investigators were able to place him in the vicinity at the time of every one of the store robberies. They were even able to track his movements on the three-hour drive to Warren, Ohio, where one of the Radio Shack robberies took place.

Even before they arrested Carpenter, law enforcement used his cell tower phone records to learn personal information about him that most people would consider to be private. Perhaps surprisingly, despite his penchant for criminal activity, they learned Carpenter was a church-going man. When he skipped going to church on Sunday, his cell tower records told the police where he was. On the nights he slept somewhere other than in his own bed in his home, the police knew that as well.

Little did Carpenter know that during the hours he spent casing each store prior to the robberies, his cell phone in his pocket was pinging digital alerts into the nearest cell tower.

“Those towers record the phone number, the time, identification of the tower by number, and the location of the tower,” says Gurewitz, principal of Gurewitz and Raben, a criminal defense law firm in downtown Detroit.

“With six antennas facing around a 360-degree circumference, a tower can pinpoint the direction from which each signal came. The practice of the government and law enforcement is to ask cell carriers for that kind of information to place people at the scene of a crime, and that’s what they did in this case.”

In Carpenter’s case, the government received 127 days of location information from his cell phone. “They tracked him around from the one robbery in Warren, Ohio, to the ones in the Detroit area,” Gurewitz says. Over those 127 days, the cell tower picked up Carpenter’s cell phone in 12,898 locations.

In each robbery, the modus operandi was the same. Carpenter typically acted as a lookout outside a targeted store. His gang would rush inside, brandish a handgun to frighten customers and workers into not resisting, and escape after ordering employees to fill bags with new cell phones. After each robbery, Carpenter would take the bags of new phones to a fence who paid him $10,000 to $20,000 for the haul.

Local police in the areas where the crimes occurred investigated the robberies. Following the arrests, the case was prosecuted in the U.S. District Court in Detroit, where penalties under federal law have severe ramifications for violent use of a firearm.

As a result, Carpenter’s sentence topped the century mark, as a series of 25-year mandatory-minimum terms were stacked consecutively on top of each other for each conviction.

The government called an FBI agent as their expert witness. During testimony, the agent shared he had collected the data from the cell carrier and plotted the locations on a map. From there, he was able to pinpoint the location of Carpenter’s cell phone at the time of each robbery.

Gurewitz, who was chief of the Economic Crime Unit and an assistant U.S. attorney earlier in his career, says numbers and charts of this magnitude often are powerful evidentiary tools for prosecutors. “In a criminal trial, particularly, the arguments often center on the credibility of witnesses, and it’s difficult to argue against the credibility of documents, so it’s pretty strong evidence, pretty compelling evidence,” he says.

“Our argument at trial, in the Appeals Court and all the way up to the Supreme Court, was that these records kept by the cell carrier create a privacy interest that is protected by the Fourth Amendment of the Constitution. The records should not have been turned over to police without a search warrant approved by a court.” 

Instead, officers used a lower standard under the Federal Stored Communications Act that requires that police need only to have “reasonable grounds” to believe that the records are “relevant and material” to an ongoing criminal investigation to get that information.

U.S. District Judge Sean F. Cox allowed the cell-tower evidence to be used against Carpenter, and sentenced Carpenter after his conviction.

At the time Gurewitz appealed the verdict to the U.S. Sixth Circuit Court of Appeals in Cincinnati, several other appellate courts around the country were dealing with convictions based on the same cell tower issue. “There were two other (federal appellate) circuits where the decisions of those three-member panels were mixed,” Gurewitz says. “These were split decisions, all decided in the government’s favor.”

In those combined cases, Gurewitz says as many as five judges were sympathetic to restricting law enforcement’s access to a person’s cell tower phone records.

As Carpenter’s appeal was pending in Cincinnati, Gurewitz received a phone call from Nathan F. Wessler, an ACLU staff lawyer in New York City who specializes in speech and privacy issues. Wessler had been following the Carpenter case, and offered to join Gurewitz’s defense team.

“We were looking for any opportunity to get this cell tower issue up to the Supreme Court as quickly as possible because we thought it was a ripe issue and one that was begging for authoritative resolution,” Wessler says.

He says the facts in Carpenter’s case, the large amount of data and the sensitivity of it, made a strong argument to illustrate the danger of giving the government the power to easily dig into people’s private lives. “Not only did Wessler write a friend of the court brief, he looked at all the cell phone data in the case and came up with the 12,000-plus pings Carpenter’s cell phone bounced off the towers,” Gurewitz says.

Two local judges on Carpenter’s appellate hearing panel have a unique relationship to each other. Judge Raymond Kethledge previously practiced civil and litigation law in Oakland County, and Senior Judge Ralph B. Guy Jr. had served decades earlier as the U.S. attorney for the Eastern District of Michigan. When he graduated from the University of Michigan Law School, Kethledge served as a clerk under Guy.

At age 90, Guy is still actively hearing cases on a reduced schedule. The third judge was Jane Stranch, from Nashville.

In upholding Carpenter’s conviction, Kethledge and Guy agreed that “cell-site data — like mailing addresses, phone numbers, and IP
addresses — are information that facilitate personal communications rather than part of the content of those communications themselves.”

Relying on the precedent of 1970s-era Supreme Court rulings, they concluded that the government obtained information not from Carpenter, but from the service provider’s business records, which could not be a “search” of the defendant under the Fourth Amendment. As a result, a warrant was not required.

Judge Stranch wrote that she was not convinced that the case could be addressed appropriately with a test primarily used to obtain business records such as credit card purchases — records that do not necessarily reflect personal location. The business records test is ill-suited to address the issues regarding personal location, she said.

With the backing of the top officials of the ACLU Foundation in New York, Wessler helped Gurewitz prepare a petition to the Supreme Court to review the case. The ACLU also recruited Jeffery Fisher, a former University of Michigan law graduate who serves as director of the Supreme Court Litigation Clinic at Stanford Law School, part of Stanford University.

Unlike Wessler, who would be making his first appearance before the Supreme Court, Fisher had successfully argued dozens of cases before the justices.

In shaping their case for the Supreme Court, the lawyers were aware that in recent decisions the court had shown it was sensitive to the intrusion of technology into people’s lives. In one case, they ruled against law enforcement when officers attached a GPS device to a person’s car and tracked his movements for 28 days without a warrant.

In another case, in 2014, the justices ruled that a warrant was needed to search someone’s cell phone.

“Modern cell phones are not just another technological convenience,” Chief Justice John G. Roberts Jr. wrote for the court. “They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”

Carpenter’s case received a big boost and legal firepower as several of the country’s largest and most influential technology companies joined the defense. Their 44-page amicus, or friend of the court brief, was written by Seth P. Waxman, a former solicitor general of the United States, on behalf of companies such as Apple, Microsoft, Google, Twitter, Box, Cisco Systems Inc., and Airbnb, who all store information in the cloud.

While they took no position on seeking relief for Carpenter, Gurewitz says the companies wanted to express their interest in the protection of information created through technology.

The Gurewitz team also received another important endorsement two days before their appearance in the Supreme Court in the form of an op-ed column in The Washington Post on Nov. 26, 2017, entitled, “The Supreme Court Precedent is Outdated.”

What was remarkable about the column was that the author, 83-year-old Stephen H. Sachs, was a former Maryland attorney general who prosecuted and won a 1979 case, Smith v Maryland, in which telephone company records, obtained without a search warrant, were used to convict Smith.

“(That) new world is defined by the rapid increase in sophisticated  — and invasive  —technology. It is also defined by a relentless and pervasive assault on privacy.” —Stephen H. Sachs

Sachs wrote that he believed his case was correctly decided under the law at the time, but that standard has long since outlived its suitability as a precedent for warrantless searches and seizures.

“When the Supreme Court decided Smith, in the pre-dawn of the digital age, we didn’t know about the internet, smartphones, cloud computing, Facebook, or Twitter,” Sachs wrote. “No one involved in the case could foresee the digital revolution that was to come. That new world is defined by the rapid increase in sophisticated — and invasive — technology. It is also defined by a relentless and pervasive assault on privacy.”

He urged the Supreme Court to use the Carpenter case to develop a modern Fourth Amendment doctrine that would recognize the legitimate claims of law enforcement but set objective boundaries for gathering unlimited amounts of digital data on individuals.

The Gurewitz team was further buoyed when Chief Justice Roberts informed them when they showed up in the courtroom that the justices had agreed to extend their allotted one hour for arguments by an additional 20 minutes. “He said, ‘We don’t think there is going to be a lack of questions in this case,’ and there wasn’t,” Gurewitz recalls.

Wessler says the sheer volume of the information gathered on Carpenter by the cell towers — 127 days of recordings producing 12,000-plus locations — made an impression on the justices. “We saw the Supreme Court in its opinion talk about the thousands of location points and all the privacies of life they can reveal, and thus the need for a strong warrant protection,” he says.

“One of the things I really tried to convey to the court during the argument, and we focused on it in the brief, was that any decision the court issued had to take into account not only the state of technology in 2010 and 2011, when the records were (created) in Mr. Carpenter’s case, but also the state of technology today and into the future,” Wessler says.

“We need a rule that’s going to protect us from ever more precise and voluminous location tracking, and the court took heed and made clear
in their opinion that they were considering how to protect Americans against these kinds of privacy incursions, not only today, but well into the future.”

While ruling in favor of Carpenter, Roberts said there could be occasions when the warrantless release of cell tower records would be appropriate in emergency situations such as bomb threats, active shootings, and child abductions. The new ruling also does not cover other surveillance techniques such as security cameras, nor does it affect collection techniques used in foreign affairs and national security.

As for Carpenter, he remains in prison. He’s now 34 years old and six years into his lifetime prison sentence.

At trial, Gurewitz pointed out that Carpenter’s co-defendants, who pled guilty and cut deals with the government to testify against him, were sentenced to terms ranging from 12 months to 40 years. Green, who gave police Carpenter’s cell phone number, received 39 years due to the fact he carried the .38 caliber handgun into the stores. With Carpenter’s prior record, his federal sentencing guideline called for a sentence of 135 to 168 months without the mandatory-minimum provisions under which he was sentenced.

“The sentences he received are grossly disproportionate and excessive under the Eighth Amendment (cruel and unusual punishment),” Gurewitz says. “Although weapons were utilized, jeopardizing the safety of employees and others, the danger never came to pass since the weapons were never discharged.”

Following the ruling by the Supreme Court, the case was sent back to the Sixth Circuit as it related to Carpenter’s conviction. To date, the appellate court has yet to schedule a review of the case. “Mr. Carpenter obviously not only wants his name to be associated with the most important Fourth Amendment decision in a generation, he also wants some relief for himself. So that’s what we’ll be addressing at the next stage, whenever it happens,” Wessler says.

The appellate court’s options, Gurewitz says, include deciding if the cell tower information can be used in any future proceeding, or if it can’t be used at all. If the judges rule the cell phone evidence can’t be used, government prosecutors would have to decide if they want to retry Carpenter without that evidence.

Another possibility, the lawyers say, is that the appeals court could send the case back to Judge Cox in the U.S. District Court in Detroit to make a ruling.

Either court also could decide that the “good faith” exception — that the police acted in good faith, relying on prior law when they obtained the records — means the evidence will stand. Or they could find that the case fits the “harmless error” rule (no harm, no foul) and again affirm Carpenter’s conviction.

Another avenue is the recent prison reform First Step Act. Gurewitz says it contains some provisions for relief from mandatory consecutive gun sentences of the kind Carpenter received. The law may not be retroactive, however, to the time of his crimes and conviction.

“This case is a good example, of how hard it is sometimes to do justice. We win a terrific new constitutional rule, yet we must continue to fight for justice for Timothy Ivory Carpenter,” Gurewitz says.

Infamous Intrigue

Harold Z. Gurewitz
Harold Z. Gurewitz

In the nearly half a century since he earned his law degree from Wayne State University Law School, Harold Z. Gurewitz has rarely strayed from the United States District Court building on West Lafayette Boulevard in downtown Detroit.

From his first job with the U.S. Department of Housing and Urban Development to prosecuting white-collar crime as an assistant U.S. attorney and defending an array of clients including a mob boss, murderers, and Detroit mayors, he’s been a fixture in the seven-floor courthouse.

Two years into his HUD career, he quit after his bosses in Washington, D.C., shrugged off a report he had painstakingly compiled exposing dubious real estate practices in Detroit. “I wrote a letter to the U.S. Attorney’s Office and said, ‘I think you could use my services for these cases.’ Ralph Guy, the U.S. attorney at the time, responded to my letter and hired me in 1973.”

From there, Gurewitz burnished his reputation by defending high-powered and notorious clients. In the 1980s, former Detroit Mayor Coleman A. Young was embroiled in federal investigations into city sludge hauling contracts and a corrupt chief of police. An almost daily barrage of critical newspaper stories dogged the mayor’s every move.

Gurewitz and another former U.S. Attorney’s Office colleague, Peter J. Kelley, kept Young clear of trouble for six years, even as some of his mayoral appointees were convicted of a variety of schemes.

Gurewitz recalls those tumultuous days — Young sitting across from his lawyers, behind a desk in a small office in the Manoogian Mansion, constantly playing solitaire even as he was in deep discussion of legal intricacies with his lawyers. “His mind was always going,” Gurewitz says, still in awe of Young’s ability to fully engage with them while playing card games at the same time.

Gurewitz’s work with another Detroit mayor, Kwame Kilpatrick, didn’t come with the same cache. He was a fill-in for Kilpatrick’s lawyer, chosen by U.S. District Court Judge Nancy Edmunds to cross-examine a witness with whom Kilpatrick’s lawyer had a conflict.

Near the end of the trial, Kilpatrick fired the previous lawyer. “I was just sitting there in the back of the courtroom that day when the judge said, ‘Mr. Gurewitz, I’m appointing you.’ So I represented Kilpatrick for sentencing, and then through his appeals that went on for a couple of years,” Gurewitz says.

He believes the 28-year prison sentence Kilpatrick received, matching the longest sentence for public corruption ever meted out in the country, was overly excessive.

Among the more notorious clients on Gurewitz’s resume are the late Detroit Mafia mob boss Anthony (Tony) Zerilli and Milton David (Butch) Jones — the latter was the founder and leader of Young Boys Inc., a heroin drug gang that used kids to peddle drugs while terrorizing the city in the 1970s and early 1980s. Zerilli was convicted and sent to prison for five years for skimming $6 million from the Frontier Hotel and Casino in Las Vegas.

Gurewitz was partially successful defending Jones, who was facing the death penalty in federal court. Even though Michigan doesn’t have a death penalty, it can be brought in federal cases. To avoid the death penalty, Gurewitz arranged a plea deal with a long prison sentence for Jones before trial.

The lawyer says working on federal death penalty cases had the most significant impact on his career. “I was really humbled by the responsibility of defending a person’s life, irrespective of what the charges were,” he says.

Two cases stick out. The first, in 1999, involved Efraim Garcia, charged with being a member of a street gang in southwest Detroit called Cash Flow Posse. “I was successful in obtaining a dismissal of the case before trial, and my argument was essentially that this was a state crime, and the court should reject an attempt by the government to federalize local murders to make them subject to the death penalty,” Gurewitz says.

The second, which involved a man charged with killing an armored car guard, was the first federal death penalty case to go to trial in Michigan since the 1930s. Such trials require lawyers with previous death penalty experience, so Gurewitz recruited a lawyer and his team from Indiana.

“My client was found guilty, but we got a separate verdict from each juror because it must be unanimous. As I recall, the verdict was 20-2 for (sparing his) life,” he says. 

— Norm Sinclair