Full opinion text
PRETRIAL ORDER NO. 3 DENYING MOTIONS TO SUPPRESS PHYLLIS J. HAMILTON, United States District Judge On August 2, 2017, the court held a hearing on the motions of defendant Pur-vis Lamar Ellis to suppress evidence, obtained from use.of Stingrays on behalf of all defendants; to suppress evidence seized from Apartment 212 on behalf of all defendants; and to sever. The court DENIED Ellis’s motion to sever for the reasons stated on the record. Doc. no, 306. Having considered the relevant, legal authority, the papers, argument of counsel, and the evidence in the record, the court DENIES the motions to suppress, doc. nos. 304, 307, for the reasons stated at the hearing and set forth below. I. Motion to Suppress Evidence Obtained from Use of Cell Site Simulators Ellis moves on behalf of all defendants to suppress any and all evidence obtained or derived from the use of cell site simulators (“CSS”), generally referred to as Stingrays. Doc. no. 304. As described in the Department of Justice Policy Guidance (“DOJ Policy”) cited by Ellis, a CSS functions by transmitting as á cell tower, such that cell phones in its proximity transmit signals to the CSS, which the cell phones identify as the most attractive cell tower in the area. Doc. no. 304 at 3-6 (citing United States v. Patrick, 842 F.3d 640, 542-43 (7th Cir. 2016) (quoting DOJ Policy, Sept. 3, 2015), reh’g and reh’g en banc denied (May 9, 2017)). “When used to locate a known cellular device, a cell-site simulator initially receives the unique identifying number from multiple devices in the vicinity of the simulator. Once the cell-site simulator identifies the specific cellular device for which it is looking, it will obtain the signaling information relating only to that particular phone.” Id. (internal marks omitted). See also doc. no. 321, Ex. G ¶ 6 and Ex. I ¶ 6. As supported by the record, Ellis has shown that the Oakland Police Department (“OPD”) and the Federal Bureau of Investigation (“FBI”) each used a Stingray to locate Ellis’s cell phone starting in the early morning hours of, January 22, 2013, following the shooting of an OPD officer the evening of January 21, 2013. Ellis contends that the use of these Stingrays amounted to a warrantless search requiring suppression of any. evidence obtained or derived from the Stingrays, and/or an evidentiary hearing. Ellis further contends that the use of the Stingrays likely intercepted communication’s in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. A. Fourth Amendment Search 1. Legal Standard The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable-searches and seizures, shall-not be violated.” United States v. Jones, 565 U.S. 400, 404, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)-. The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. Simmons v. United States, 390 U.S. 377, 389-390, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The Supreme Court recognizes two tests to determine whether a “search” within the meaning of the Fourth Amendment occurred. Jones, 565 U.S. at 411, 132 S.Ct. 945, The first is the “classic” common-law trespass test, as applied by the Court in Jones, 565 U.S. at 404-05, 132 S.Ct. 945. Under that property-based approach, government actions amount to a search when “[they] physically occupy private property for the purpose of obtaining information” without consent. Id. The Court explained that before Justice Harlan’s concurrence in Katz articulated the “reasonable expectation of privacy” standard, “for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates.” Jones, 565 U.S. at 406, 132 S.Ct. 945. The Court in Jones held that attachment of a Global Positioning System (GPS) tracking device to a vehicle, and the subsequent use of that device to monitor the vehicle’s movements on public streets, was a search within the meaning of the Fourth Amendment, reasoning that “[t]he Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at 404-05, 132 S.Ct. 945 (citation omitted). Second, under the reasonable expectation of privacy test, the Fourth Amendment protects against an unreasonable search of an area in which (1) a person exhibits actual, subjective expectation of privacy, and (2) the expectation is one that society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Under Katz, the capacity to claim Fourth Amendment protection does not strictly depend on a property right in the invaded place, but whether the person asserting the claim has a- legitimate expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citing Katz, 389 U.S. at 353, 88 S.Ct. 507). 2. Use of Stingray Constitutes a Search Ellis asserts several grounds for determining that the use of the Stingray to locate his cell phone in real time amounted to a Fourth Amendment search requiring issuance of a warrant: that the Stingray intruded into the constitutionally protected area of a private residence and that the Stingray violated Ellis’s privacy interests both in the use and location of his cell phone and in his public movements. In his reply, Ellis raises the argument that the government is bound by its concession in other cases that the use of a Stingray amounts to a search. Doc.- no. 324 at 2-3. However, the court finds that these concessions were limited for the purposes of each particular case, and do not amount to a binding admission by the government. See Patrick, 842 F.3d at 544, 545 (where the government conceded that use óf a cell site simulator is a search for purposes of that litigation, the court noted that questions about whether use of a simulator amounts to a search “have yet to be addressed by any United States court of appeals,” reserving the issue). a. Standing As a threshold matter, the government contends that only Ellis has standing to challenge the use of a Stingray to locate his cell phone, and that no other defendant has standing to bring a motion to suppress. To the extent that Ellis challenges the potential collection of signals from phones used by non-parties, the government correctly points out that Ellis lacks standing to invoke the privacy rights of anyone else whose cell phone may have been located by the Stingrays. In light of the record showing that two Stingrays were used to locate Ellis’s cell phone, and no other defendant’s cell phone, Ellis alone has standing to bring the instant motion to suppress evidence obtained through use of Stingrays. See Rakas, 439 U.S. at 133-34, 99 S.Ct. 421 (“Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.”) (citation and marks omitted). b. Intrusion on Private Residence Starting with the Jones trespassory approach, Ellis argues that the government’s use of the Stingrays to monitor and track his phone was a search under the Fourth Amendment because the Stingrays emitted signals that penetrated the walls of private dwellings that were not open to visual surveillance. Doc. no. 304 at 15 (citing United States v. Karo, 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) and Kyllo v. United States, 533 U.S. 27, 29, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)). In Karo, the Court held that the warrantless “monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence.” In Kyllo, the Court held that use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a “search” within the meaning of the Fourth Amendment, reasoning that “obtaining by. sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ [] constitutes a search—at least where (as here) the technology in question is not in general public use.” 533 U.S. at 34, 121 S.Ct. 2038 (quoting Silverman v. United States, 365 U.S. 505, 512, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)). Ellis argues that because a Stingray emits signals that penetrate the walls of constitutionally protected spaces, it amounts to trespass and constitutes a search under Silverman, 365 U.S. at 511-12, 81 S.Ct. 679 (holding that attaching a spike mike to a heating duct of a home was a search, reasoning that technical trespass is not necessary for Fourth Amendment violation but “actual intrusion into a constitutionally protected area” is sufficient) and Jones, 565 U.S. at 410, 132 S.Ct. 945 (holding that warrantless installation of GPS device to vehicle encroached on a protected area in violation of Fourth Amendment). The government responds that Ellis lacks standing to assert any protected interest in the apartment where he was located because he was in someone' else’s home when the Stingray located his cell phone, not his own residence which was known to be Apartment 212. Opp. at 6. If Ellis had been in someone else’s private residence at the time his cell phone was located by the Stingray,- he could not strictly assert a violation of any property-based or privacy-related interest in that residence. See Kyllo, 533 U.S. at 34-35, 121 S.Ct. 2038 and Karo, 468 U.S. at 714, 104 S.Ct. 3296. Ellis argues that there is no evidence in the record to support the government’s position that-Ellis was not in his own home when his cell phone location was detected at a specific apartment. The record indicates that Ellis and other occupants of Apartment 112 were escorted out of the building at around 10:52 am, but it is not clear from the record where Ellis was located when the Stingray tracked his cell phone location. The evidence in the record only suggests that the Stingray, in conjunction with “a cell site simulator augmentation device,” located Ellis’s cell phone at a particular location that' is not identified in the declarations. See doc. no. 321, Ex. I (declaration of unnamed FBI Special Agent whose, identifying information was redacted to protect his identity, see doc. no. 244 (8/8/16 transcript) at 15-16; previously submitted in this case as doc. no. 225-1). The record is therefore insufficient to determine whether Ellis had any protectable interest in the residence where his cell phone was located. It is unnecessary to decide this issue of Ellis’s standing to claim Fourth Amendment protection for the private residence, however, because Ellis does have standing to challenge the use of the Stingray to locate his cell phone based on a reasonable expectation of privacy in one’s real-time cell phone location, as discussed below. c. Reasonable Expectation of Privacy in Real-Time Location of Cell Phones Under the Katz test, Ellis has demonstrated that the use of the Stingray devices amounted to a search in violation of a reasonable expectation of privacy in the real-time location of his cell phone. The Ninth Circuit has not decided the question presented here whether use of cell site simulators to locate cell phones in real time amounts to a search, nor the issue whether there is a reasonable expectation of privacy in one’s cell phone location. In Patrick, the first circuit court opinion to address the use of Stingrays, the Seventh Circuit noted that the issue remains unsettled as to whether the use of cell site simulators amounts to a search, by analogy' to GPS locators which are treated as searches when police enter private property to install them under Jones, and which may impinge on expectations of privacy when used-for long-term monitoring. Patrick, 842 F.3d at 543-44 (citing Jones, 565 U.S. at 413-31, 132 S.Ct. 945 (concurring opinions of Sotomayor and Alito, JJ.)). The court in Patrick also discussed the competing view that the use of cell site simulators is more like the use of a pen register, which is not a search because it reveals the making of a call and the number called but not the call’s communicative content, or the use of a beeper, which is not a search because it reveals a suspect’s location but nothing else. Id. (citing Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983)). Patrick did not, however; decide this question because the government “conceded for the purpose of this litigation that use- of a cell-site simulator is a search.” Id. at 544. ■In the absence of controlling authority, Ellis suggests that Riley v. California, — U.S. — , 134 S.Ct. 2473, 2489-90, 189 L.Ed.2d 430 (2014), should be extended to recognize a protected privacy interest in the use and location of cell phones. The Court in Riley held that a warrant is generally- required to search the information on a cell phone, recognizing the privacy interests in the kinds of data stored on or accessed through modern cell phones, but did not go so far as to hold that the Fourth Amendment protects the use or location of a cell phone in real time; The storage capacity of- cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type' of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on .a-phone. Finally,-there is an element of pervasiveness that characterizes cell phones but not physical records. ... According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones .most of the time, with 12% admitting that they even use their phones in the shower.... [I]t is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of .their lives—from the mundane to. the intimate.... Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different....Data on a cell phone can also reveal where a person has been_ Riley, 134 S.Ct. at 2489-90 (footnote and citations omitted). Though this discussion is instructive, Riley did not recognize a protected privacy interest in one’s cell phone use or location. On a related issue, several judges in this district have recognized a right to privacy in historical cell site location information (“CSLI”) that is collected by cellular service providers, CSLI is generated by the radio signals emanated by a cell phone to the closest cell tower in the cellular service network, as described more fully by Judge Koh in In re Application for Telephone Information Needed for a Criminal Investigation, 119 F.Supp.3d 1011, 1013-15 (N.D. Cal. 2015), No. 15-xr-90304 HRL (LHK), doc. no. 30, appeal dismissed (Feb. 5, 2016). “The resulting CSLI includes the precise location of the cell tower and cell site serving the subject cell phone during each voice call, text, message or data connection,” and may be generated even without the user’s interaction with the cell phone. Id. at 1014 (citations omitted). Judge Illston addressed the privacy interests in such information in United States v. Cooper, 2015 WL 881578 (N.D. Cal., Mar. 2, 2015), No. 13-cr-693 SI, doc. no. 117. There, the defendant moved to suppress evidence obtained from collecting historical and prospective, or real-time, cell site location information without a warrant. Judge Illston recognized that cell phone users have a reasonable expectation of privacy in their physical location as conveyed by historical CSLI that is protected by the Fourth Amendment. Id., at *6-11 (citing United States v. Davis, 764 F.3d 1205, 1215 (11th Cir.), vacated, 573 Fed.Appx. 925 (11th Cir. 2014), and reheard en banc in part, 785 F.3d 498 (11th Cir. 2015)). Judge Illston did not reach the Fourth Amendment issue with respect to prospective CSLI, but held, as further discussed below at pp. 1148-49, that by .application of the Communications Assistance of Law Enforcement Act (“CALEA”), 47 U.S.C. § 1002(a)(2), the pen register statute did not authorize aceess to call-identifying information from telecommunications carriers that may disclose the subscriber’s physical location, and that a showing of probable cause was required to obtain prospective cell site data. Id. at *3-6. Although the government had not obtained a warrant, the court denied the'motions to suppress upon finding that the agents relied in good faith on the magistrate judge’s order authorizing a pen register. Id. at *11-12. Judge Koh also held that cell phone users have a reasonable expectation of privacy in historical CSLI, requiring a warrant to obtain such information absent case-specific exceptions. In re Appl. for Tel. Info., 119 F.Supp.3d at 1025-26. There, the government submitted an application to Magistrate Judge Lloyd for an order authorizing it to obtain both historical and prospective CSLI for target cell phones pursuant to the Stored Communications Act (“SCA”), 18 U.S.C. § 2703(d), which sets forth a “specific and articulable facts” standard that requires a lesser showing than probable cause. Following Cooper, Magistrate Judge Lloyd denied the application and required the government to obtain a search warrant to obtain cell site information, whether historical or prospective. No. 15-xr-90304 HRL (LHK), doc. no. 2. The government. appealed Magistrate Judge Lloyd’s denial with respect to the application for historical CSLI. In affirming that decision, Judge Koh articulated several Fourth Amendment' principles based on Supreme Court precedent: (1) an individual’s expectation of privacy is at its pinnacle when government surveillance intrudes on the home; (2) long-term electronic surveillance by the government implicates an individual’s expectation of privacy; and (3) location data generated by cell phones, which are ubiquitous in this day and age, can reveal a wealth of private information about an individual. In re Appl. for Tel. Info., 119 F.Supp.3d at 1022. Applying those principles to the government’s application for historical CSLI, Judge Koh determined that the information sought’ by the government was arguably more invasive of an individual’s expectation of privacy than the GPS device attached to the defendant’s car in Jones, noting that when the government uses CSLI data to obtain information about one’s location and movements, (1) “an individual will invariably enter constitutionally protected areas, such as private residences” and (2) the government would “get more information, more data points, on the cell phone via historical CSLI” compared to GPS tracking of a car, because cell phones typically accompany the user wherever she goes. Id. at 1023 (internal marks omitted). Applying the Katz test, Judge Koh considered evidence demonstrating that individuals have a subjective expectation- of privacy in the historical CSLI associated with their cell phones, and determined that society is prepared to recognize that expectation as objectively reasonable, citing state court decisions recognizing a reasonable expectation of privacy in CSLI. Id. at 1024-26. Upon determining that the third party doctrine did not defeat that reasonable expectation of privacy, and that no exception to the warrant requirement was applicable, Judge Koh held that the Fourth Amendment requires the government to secure a warrant-to obtain historical CSLI. Id. at 1040. In United States v. Williams, et al., 2016 WL 492934 (N.D. Cal. Feb. 9, 2016), No. 13-cr-764 WHO, doc. no. 874, Judge Orrick followed In re Application for Telephone Information and Cooper to recognize a reasonable expectation of privacy in one’s historical CSLI, requiring probable cause to obtain the historical CSLI from the four moving defendants’ cell phones. Having determined that the government submitted several applications pursuant to the SCA under the lower “specific and articulable facts” standard rather than the probable cause standard, Judge Orrick held that the good faith reliance exception applied and denied the motions to suppress. 2016 WL 492934 at *2. On the specific issue presented here whether using a Stingray to locate a cell phone amounts to a search, the district court for the Southern District of New York held that the DEA’s use of a CSS to locate a defendant’s apartment “was an unreasonable search because the ‘pings’ from [the defendant’s] cell phone to the nearest cell site were not readily available ‘to anyone who wanted to look’ without the use of a cell-site simulator.” United States v. Lambis, 197 F.Supp.3d 606, 610 (S.D.N.Y. 2016) (quoting Knotts, 460 U.S. at 281, 103 S.Ct. 1081), appeal withdrawn (Mar. 13, 2017). The court in Lambis rejected the government’s contention that there was no reasonable expectation of privacy under the third party doctrine, reasoning that the location information detected by a cell-site simulator is “neither initiated by the user nor sent to a third party,” unlike pen register information that is conveyed to a telephone company or cellular provider. 197 F.Supp.3d at 614-15. See also State v. Andrews, 227 Md.App. 350, 393, 134 A.3d 324 (2016) (holding that people have a reasonable expectation of privacy in real-time cell phone location information, and requiring a search warrant to use a CSS); State v. Tate, 357 Wis.2d 172, 849 N.W.2d 798 (2014) (assuming, without deciding, that use of a Stingray amounted to a Fourth Amendment search requiring a warrant, and holding that the pen register order was sufficiently particularized and based on probable cause). The government relies on recent circuit court decisions that tracking cell' site location information from phone companies is not a search because there is no reasonable expectation of privacy in information shared with cellular service providers under the third party doctrine. United States v. Graham, 824 F.3d 421, 435-38 (4th Cir. 2016) (en banc), pets. for cert. filed sub nom Graham v. United States, No. 16-6308 (Sept. 26, 2016) and Jordan v. United States, No. 16-6694 (Oct. 27, 2016); United States v. Carpenter, 819 F.3d 880, 888 (6th Cir. 2016), cert, granted sub nom Carpenter v. United States, — U.S. —, 137 S.Ct. 2211, 198 L.Ed.2d 657 (2017). Distinguishing these cases, the court in Lambis reasoned that unlike CSLI obtained by the wireless carriers, CSS technology has “an additional layer of involuntariness” that renders the third party doctrine inapplicable: Unlike CSLI, the “pings” picked up by the cell-site simulator are not transmitted in the normal course of, the phone’s operation. Rather, “cell, site simulators actively locate phones by forcing them to repeatedly transmit their unique identifying electronic serial numbers, and then calculating the signal strength until the target phone is pinpointed.” Lambis, 197 F.Supp.3d at 615 (quoting Andrews, 227 Md.App. at 359 n.4, 134 A.3d 324). The court in Lambis also determined that unlike pen register information or CSLI, “a cell-site simulator does not involve a third party.” Id. at 616. “With the cell-site simulator, the Government cuts out the middleman and obtains the information directly.” Id. See also Patrick, 842 F.3d at 543 (noting that by using CSS technology, “law-enforcement officials get the same sort of information that a phone company could provide using its'own facilities, and they get it in real time rather than waiting for the phone company to turn over data”). For the reasons articulated in Lambis, the circuit court decisions applying the third party doctrine to historical CSLI are inapposite. The court adopts Judge Koh’s reasoning in In re Application for Telephone Information, 119 F.Supp.3d at 1026, to-hold that cell phone users have an expectation of privacy in their cell phone location in real time and that society is prepared to recognize that expectation as reasonable. While Judge Koh limited her analysis to' the privacy interest in historical CSLI, the court determines that cell phone users have an even stronger privacy interest in-real time location information associated with their cell phones, which act as á close proxy to one’s actual physical location because most cell phone users keep their phones on their person or within reach, as the Supreme Court recognized in Riley. In light of the persuasive authority of Lam- bis, and the reasoning of ray learned colleagues on this court recognizing a privacy interest in historical cell site location information, the court holds that Ellis had a reasonable expectation of privacy in his real-time cell phone location, and that use of the Stingray devices to locate his cell phone amounted to a search requiring a warrant, absent an exception'to the warrant requiremerit. d. Privacy Interest in One’s Public Movements Ellis further argues that because a Stingray can track an individual’s location by locating his cell, phone with an accuracy of about two meters, its use infringed upon his reasonable expectation of privacy in one’s public movements, as considered by Justice Sotomayor in her concuiring opinion in Jones: “GPS monitoring generates a. precise, comprehensive record of a person’s public movements that reflects a wealth'of detail about her familial, political, • professional, religious, and sexual associa-tions_I would take these- attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum. of one’s public movements.” Doc. no. 304 at 16 (citing Jones, 565 U.S. at 415-16, 132 S.Ct. 9, 45. (Sotomayor, J., concurring)). The Court in Jones did not. reach the question whether the Fourth Amendment protects a privacy interest in one’s;public movements, and even Justice Sotomayor did not attempt to ,-resolve these “difficult questions” because “the Government’s physical intrusion on Jones’ Jeep supplies, a narrower basis for decision.” Id. at 418, 132 S.Ct. 945. Accordingly, Ellis fails to establish that a reasonable, expectation of privacy in one’s public movements that is protected under the Fourth Amendment has been recognized by any court. B. Pen Register Procedures The government argues that even if use of the Stingray devices amounted to a search, the search was reasonable because it was. conducted pursuant to the emergency provisions of the pen register statute, in combination with provisions of the Stored Communications Act. The government further argues that a warrant was not required to conduct the search pursuant to the exception for exigent circumstances, and that the exceptions to. the exclusionary rule for good faith reliance and/or inevitable discovery are also applicable. The pen register statute and the SCA set forth different standards to authorize different methods of electronic surveillance. The provisions for authorizing a pen register and/or a trap and trace.device under Title III of the Electronic Communications Privacy Act of 1986 (“ECPA”), codified as amended at 18 U.S.C. §§ 3121-3127 (referred to throughout as the “pen register, statute”), require a government attorney merely to “certify” the relevance of the information likely to be obtained, without requiring a factual basis for the certification. 18 U.S.C. §§ 3122 and 3123 (requiring the court to enter “an ex parte order authorizing the installation and use of a pen register or trap and trace device anywhere within the United States,, if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to-an ongoing criminal investigation”). The SCA, enacted under Title II of the ECPA, as amended, provides that the- government may require a provider of electronic communication service or remote computing service to disclose a subscriber’s records, without the contents of communications, by obtaining either (A) a warrant, or (B) a court order upon a showing of “specific and articulable facts showing.. .reasonable grounds to believe that.. .the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. §§ 2703(c)(1) and (d). The “specific and articulable facts” standard under the SCA requires a higher showing than the certification required by the pen register statute, but does not require probable cause. Under the emergency provisions of the pen register statute, a law enforcement officer who reasonably determines that an emergency situation exists may have a pen register or trap and trace device installed without a prior court order only if an order approving the installation or use is issued within forty-eight hours after the installation has occurred, or begins to occur. 18 U.S.C. § 3125. The provision for “Emergency Pen Register And Trap And Trace Device Installation” narrowly defines a covered “emergency” to involve specific circumstances, two of which the government asserts authorized the use of the emergency provisions here: (A) immediate danger of death or serious bodily injury to any person; and (B) conspiratorial activities characteristic of organized crime. 18 U.S.C. §§ 3125(a)(1)(A) and (B). The officers’ sworn statements, including affidavits filed under seal in this case, establish that the OPD had reason to believe that there was an emergency where (A) the immediate safety of officers and/or public citizens was at risk and (B) the emergency involved the conspiratorial activities of organized crime, based on information that Ellis was a known member of a gang who was involved in an attempted murder at a bus stop on January 20, who was near the shooting of a police officer earlier that evening on January 21, and who was believed to be in possession of guns. It is undisputed that the OPD and FBI did not seek issuance of a search warrant to operate the Stingray devices, but only obtained an order authorizing pen register and/or trap and trace devices (the “pen register order”). Here, the state court judge issued an order pursuant to both the SCA and the pen register statute. (“18 United States Code Section 2703(c)(d), 3122, 3123”) requiring the service providers to provide the FBI and the OPD with pen registers “to register numbers dialed or pulsed[,] to record the date and time[,] to record the length of time[,] and to ré-ceive cell site and/or location sites,” as well as trap and trace devices, ’for the target phone number which the - application demonstrated was used by Ellis. Doc. no. 321, Ex. F. The court-order also required .the wireless carriers to provide, “on an ongoing and/or real-time basis, the location of cell site/sector (physical address) at call origination (for outbound calls), call termination (for incoming calls), and, during the progress of a call, the direction and strength of a signal” for the target phone. The government does not contend that the order authorizing the use of pen register and/or -trap and trace devices here , was supported by a finding of probable cause. The pen.register order does not make a probable cause finding, but only a finding of “specific and articulable facts establishing reasonable grounds to believe the listed records are relevant and material to an ongoing criminal investigation” pursuant to the SCA, 18- U.S.C. §§ 2703(c)(1)(B) and (d). Doc. no. 321, Ex. F. Ellis contends that the pen- register order was not sufficient to authorize the use of the Stingray devices, which required a warrant. As an initial matter, Ellis challenges the government’s-factual assertion that the Stingrays were configured as pen registers and/or trap and trace devices, doc. no. 321 at 9 and Exs. G-J, given that Stingrays also have the-capability of intercepting the content of communications, not just information about numbers dialed in or dialed, out. Doc. no. 324 at 3. See, 18 U.S.C. § 3127(3) and (4) (defining pen register as a device which “records or decodes dialing, routing, addressing, or signaling information” transmitted by the target phone on outgoing calls, and a trap and trace as a device which captures information from incoming calls made to the target phone, but not contents of any communication). Although . Ellis seeks supporting evidence about how the specific Stingray devices were configured and the capabilities of each device, the sworn, affidavits of the OPD and FBI agents are sufficient to establish that the Stingrays used here were configured as pen registers and/or trap and trace devices and were not capable of capturing any content. Doc. no. 321 at 9 and Exs. G-J. There is no evidence in the record suggesting that the Stingrays captured the content of any communications, and an evidentiary, hearing to determine the mechanical details about the Stingray devices is not warranted. Ellis further argues that even if the government had obtained a search warrant authorizing the use of the Stingrays, the warrant would be invalid for lack of particularity because a cell site simulator is capable of collecting information from anyone’s phone that was within range. Doc. no. 304 at 19. He suggests that the FBI and OPD used the Stingrays to monitor potentially hundreds of individuals’ phone calls. Id. at 22. This is a purely speculative argument given the sworn affidavits of the Stingray operators stating that the devices were configured to look for the phone number that belonged to Ellis. Doc. no. 321, Exs. G ¶ 8 (OPD officer) and I ¶ 10 (FBI agent). There is no evidence to suggest that Stingrays were set up to sweep all cell phones in the area, and such- a configuration would be inconsistent with the purpose for using the Stingrays, which was to find Ellis by locating his cell phone. The government contends that since the Stingray devices used in this case were configured in compliance with the pen register statute, then the provisions of the pen register statute, including the “emergency” provisions, govern their operation. Doc. no. 321 at 9 (citing 18 U.S.C. § 3125). The government does not address the key issue in dispute, namely, whether the provisions of the pen register statute and the SCA provide the appropriate standard for using a CSS to locate a cell phone in real-time. The court follows Judge Illston’s determination in Cooper, 2015 WL 881578, that the provisions of the pen register statute and the SCA do not authorize the use of a CSS to disclose real-time information about a cell phone user’s physical location, and that such location monitoring must be authorized by a showing of probable cause. In Cooper, the government collected both historical .and prospective CSLI from Metro PCS pursuant to orders authorizing pen register, trap and trace, and cell site data, without the use of Stingrays or similar devices, and the defendant challenged the failure to show probable cause to obtain cell site data. With respect to obtaining prospective CSLI, the government argued in Cooper that it was not required to show probable cause but only needed to satisfy the provisions of the pen register statute, 18 U.S.C. § 3123, and the SCA, 18 U.S.C. § 2703(d). With respect to real time CSLI, Judge Illston held that under the CALEA, which amended the ECPA, the government is prohibited from relying solely on the provisions of the pen register statute to obtain cell site data that discloses the physical location of the subscriber. Cooper, 2015 WL 881578 at *3 (citing 47 U.S.C. § 1002(a)(2)(B) (“with regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices [ ], such call-identifying information shall not include any information that may disclose the physical location of the subscriber)). Judge Illston noted that the CALEA did not explicitly establish a standard for obtaining cell site data, and applied the “default” probable cause standard of Rule 41 of the Federal Rules of Criminal Procedure. Id. (citations omitted). See Fed. R. Crim. P. 41(d)(1) (“After receiving an affidavit or other information, a magistrate judge—or if authorized by Rule 41(b), a judge of a state court of record— must issue the warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device.”). Judge Illston rejected the government’s 'hybrid theory that combining the SCA with the pen register statute to obtain prospective cell site data would comply with the CALEA, reasoning that Congress intended that the SCA “was to be used as a means to obtain data which has already been stored at the time the government seeks to obtain it,” as opposed to real-time data. Cooper, 2015 WL 881578 at *4-5 (emphasis added). Here, the government has provided declarations stating that the OPD and FBI configured the Stingray devices to locate the target cell phone, not broadly tracking all cell phone signals in the apartment building, making the Stingray use here similar to use of a beeper that was tracked inside a home, as in Karo, 468 U.S. at 715, 104 S.Ct. 3296 (“the monitoring indicated that the beeper was inside the house, a fact that could not have been visually verified”). Given the undisputed fact that the Stingray devices were configured to locate Ellis’s cell phone, the' court adopts Judge Riston’s reasoning in Cooper to hold that by application of 47 U.S.C. § 1002(a)(2), the pen register statute in combination with the SCA does not authorize obtaining cell phone location information through pen register or trap and trace devices, and that a warrant supported by a showing of probable cause is required to use a-Stingray to locate a cell phone. The court further holds that the “specific and articu-lable facts” standard under the SCA does not govern the use of a Stingray on the separate ground that the SCA authorizes the disclosure of communications or records kept by third party service providers, not direct surveillance of cell phone location by the government. The government raises a cursory argument that the search of Ellis’s cell phone location information was a valid probation search, contending that the more intrusive search of the contents of his cell phone was valid under the four-way search condition of his probation. Doc. no. 321 at 16 (citing 10/29/15 Order, hereby designated “Pretrial Order No. 2,” at 19). The government cites no authority for this proposition, given that the privacy interest in one’s cell phone location, which could be á proxy for one’s personal location, is more akin to the privacy interests against GPS tracking or GPS monitoring, which was not a condition of Ellis’s probation. Accordingly, the warrantless searches were unreasonable, unless the exigent eir-curristances exception to the warrant requirement applies. If the court finds that no exception to the warrant requirement applies, the government seeks an exception from the exclusionary rule for good faith reliance or inevitable discovery. C. Exception to Warrant Requirement for Exigent Circumstances The government argues that if a warrant was required to use a Stingray to locate a cell phone, the warrantless searches here were reasonable due to exigent circumstances which relieved law enforcement of the warrant requirement. Doc. no. 321 at 10 (citing Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) and Murdock v. Stout, 54 F.3d 1437, 1441 (9th Cir. 1995), abrogated on other grounds by United States v. Ramirez, 523 U.S. 65, 69-70, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998)). The government identifies several factors known to law enforcement to demonstrate exigent circumstances at the time the OPD and FBI deployed the Stingrays: i. Ellis was identified by an eyewitness as the get-away driver in an attempted murder on January 20,2013; . ii. The same eyewitness identified the ' license plate number of the car Ellis was driving, and that car was located in the rear lot of the apartment building where Ellis lived; ,iii. The next day, an Oakland police officer investigating the get-away car was attacked, beaten, and shot while Ellis stood in the driveway of , the apartments; ,iv. Ellis was in the driveway when the , assault occurred; v. The guns stolen from the officer were in Ellis’s room; vi. In the days immediately preceding the shooting, Ellis was in possession of a large number of firearms; vii. Ellis was a known member of .a gang with a violent history; and viii. Ellis lived at the 1759 Seminary Apartment complex, but officers did not know his location. Doc. no. 321 at 8. Having reviewed the affidavits in the record, including the unre-dacted search warrant affidavits and pen register application filed ex parte under seal, the court determines that these circumstances were known to OPD officers by the early morning of January 22, 2013, when the first Stingray was deployed. See doc. no. 321, Ex. M (under seal). Ellis disputes the government’s factual assertions (iii) and-(iv) suggesting that he was involved in the, assault and shooting of the OPD officer. Doc. no. 324 at 2. Officer Saunders’ redacted pen register application indicates, however, that B.O.T., known to be Ellis, was “in the driveway when the shooting happened.” Doc. no. 304, Ex. I. Under the exigency exception to the warrant'requirement, officers may make a warrantless search if: (1) they have probable cause to believe that the item or place to be searched contains evidence of a crime, and (2) they are facing exigent circumstances that require immediate police action. United States v. Camou, 773 F.3d 932, 940 (9th Cir. 2014). Exigent circumstances are defined as “ ‘those circumstances that would cause a reasonable person to believe that entry [or search].. .was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law. enforcement efforts.’” Id. (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc), overruled on other grounds by Estate of Merchant v. Comm’r, 947 F.2d 1390, 1392-93 (9th Cir. 1991)). “To be reasonable, a search under this exception must be limited in scope so that it is ‘strictly circumscribed by the exigencies which justify its initiation.’ ” Id. (quoting Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). Ellis disputes that any exigencies justified use of the Stingrays without a warrant sometime after 2:11 aim., where earlier that evening, by 8:45 p.m., Ellis and other suspects had already been determined to be in the apartment building which had been surrounded by the SWAT team “to contain any suspects.” Doc. no. 324, Ex. C. Ellis also points out that the officers had time to apply for and obtain three separate search warrants late at night and into the morning, particularly the warrant to search Apartments 108, 110 and 112, which Judge Horner issued at 1:05 am, indicating that the situation did not prevent the OPD and FBI from seeking court authorization to use the Stingrays. Doc. no. 324 at 7; doc. no. 321, Ex. B (search warrant). Because the OPD and FBI proceeded on the premise that the Stingrays were subject to the emergency provisions of the pen register statute, rather than a warrant requirement, the government contends that the officers followed the statutory procedures by securing an order authorizing use of the Stingray devices within 48 hours of using the device. Doc. no. 321 at 9-10 (citing 18 U.S.C. § 3125). The order was issued on January 22, 2013, the same day the Stingrays were used, although the exact time the order was issued is not known.- The government argues that exigent circumstances excused the requirement to obtain a warrant to locate Ellis’s cell phone, but Ellis responds that he was not known to have assaulted or-directly threatened violence against the victim in either of the shootings. The record demonstrates, however, that Ellis was a known suspect involved as a getaway driver in the January 20 shooting and was near the January 21 shooting in the driveway. Though Ellis was not known to be the shooter, he was believed to be a suspect in possession of firearms. The need to prevent escape, by a suspect presented exigent circumstances here. McConney, 728 F.2d at 1199. Although Ellis was not involved in an armed standoff situation, the timeline of events and the facts presented in the unredacted pen register application demonstrate that law enforcement officers on the scene believed that any unnecessary delay in finding Ellis, would endanger their lives or the safety of others and/or that speed was essential to prevent his escape. See Fisher v. City of San Jose, 558 F.3d 1069, 1075 (9th Gir. 2009) (en banc) (where exigent circumstances justified seizure of the suspect who was seen pointing a rifle at police officers, loading his rifles, and arranging them strategically throughout his. apartment to repel any entry -by the police, police were not required to obtain an arrest warrant to take the suspect into full physical custody over twelve hours later). The declarations and documents in support of the government’s opposition, doc. no. 321, indicate the following sequence of events on the night of January 21 to January 22,2013, as cited below. 9:00 pm At about 9:00 pm, the Stingray operator for the OPD arrived at the scene, and helped deploy the SWAT robots soon after arriving. Ex. G ¶ 10.' 10:41 pm Police held a perimeter on the apartment building at 1759 Seminary, and continued to search nearby houses, roofs, yards and a creek. 8/17/15 Order at 9. 11:15 pm OPD prepared an Exigent Circumstance Request to Me--troPCS asking for call detail records, cell -sites and pen register information for Ellis’s cell phone number. Ex. A. 11:55 pm Officers end the yard search and focus on 1759. Seminary. 8/17/15 Order at 9. 1:05 am Judge Horner signed the warrant authorizing- the search of Apartments 108, 110, and 212. Ex. B. 1:47 am OPD starts making announcements for “everyone to stay away frm windows,” and preparing to send bean bags into Apartment 212, Doc. no. 304, Ex. M (CAD reports). 2:11 am OPD Officer Saunders faxed a Pen Worksheet for Ellis’s number to Metro PCS, asking to “start pen register if phone is active and being used,” implying that the pen register had not yet. been provided. Ex. C. Sometime after that request was faxed, OPD obtained the pen register information and deployed the Stingray. Ex. G ¶¶ 11,12 (indicating the OPD Stingray operator did not begin operating the Stingray until after OPD obtained the pen register information from the telephone provider, and began operating the Stingray sometime after midnight in the early hours). 3:41 am OPD searched Apartment 212, finding both handguns taken from Officer K. plus a third pistol, and keys to' the white Dodge Avenger getaway car from the January 20 daytime shooting. 8/17/15 Order at 10. 7:00 am At approximately 7:00 am, the FBI Stingray operator was notified that OPD requested assistance from the FBI in the use of its cell site simulator. Ex. I ¶ 8. 7:30 am The FBI sent MetroPCS an Exigent Circumstances Request for pen register information on Ellis’s phone. Ex. D; Ex. I ¶ 9. 9:00 am The FBI Stingray operator arrived at the scene. Ex. I ¶ 10. 10:00 am OPD powered off its Stingray and purged the data, and the FBI began operating its Stingray. Ex. G ¶ 13, 15; Ex. I ¶ 10. The FBI Stingray was operated for about one hour before Ellis’s phone was located. Ex. I ¶ 10. 10:52 am Apartment 112 was cleared, and Ellis and the other occupants were escorted out. Ex. L (radio purge excerpt) Ellis suggests that OPD had sufficient time to obtain a warrant to deploy the Stingrays as demonstrated by the issuance of the search warrant for Apartments 108, 110 and 212 in the early hours of January 22. To explain why a warrant or pen register order was not obtained before deploying the Stingrays, the government has demonstrated that OPD proceeded under the emergency pen register procedures and that OPD otherwise would have needed to wait until normal business hours to submit a pen register order to MetroPCS. Doc. no. 321, Ex. K. Indeed, it is worth noting that the factual basis for demonstrating probable cause for issuance of the warrant authorizing the search of Ellis’s apartment would have likely been found to support probable cause for the OPD to use the Stingray device to locate Ellis by locating his cell phone, if a separate warrant had been sought, based on the showing of a fair probability that evidence of a crime would be found. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See doc. no. 307, Ex. E (search warrant affidavit sworn at 1:05 a.m. on 1/22/2013). Ellis also suggests that there was no exigency requiring a warrantless search to prevent flight and to prevent harm to the officers and others because OPD knew that Ellis was somewhere inside the apartment building, rather than outside where police had conducted a search of nearby houses and yards. However, OPD obtained a warrant to search Ellis’s residence, Apartment 212, and he was not there, leaving the entire building to remain under siege all night as OPD continued to look for Ellis. Under these circumstances, the use of the Stingray by OPD to locate Ellis’s cell phone was justified by exigent circumstances, based on risk of flight and the belief that Ellis was in possession of firearms. The FBI’s use of the second Stingray device was a continuation of the OPD’s initial search for Ellis’s cell phone location. See Fisher, 558 F.3d at 1077-78 (“officers were not required to periodically reassess whether the exigency persisted throughout the standoff because the standoff was ‘no more than an actual continuation’ of the actual seizure” and the exigent circumstances did not materially change) (citing Michigan v. Tyler, 436 U.S. 499, 511, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (warrantless entry into burning building to extinguish fire and conduct search to determine its cause was justified by exigency, and warrantless post-fire search four hours later, despite the absence of exigent circumstances, was upheld as a. continuation of the initial search); United States v. Echegoyen, 799 F.2d 1271, 1280 (9th Cir. 1986) (where exigent circumstances .justified initial warrantless entry, subsequent entry by narcotics officers to inspect the premises for a possible fire hazard was merely a continuation of the initial lawful entry because both were done to alleviate the exigent circumstances)). Cf. Michigan v. Clifford, 464 U.S. 287, 296, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984) (post-fire search for evidence of arson “was not a continuation of an earlier search” where the homeowners made a reasonable effort to secure their fire-damaged home after the blaze was extinguished and the fire and police units left the scene about six hours earlier,' distinguishing Tyler). Accordingly, the court determines that a warrant was not required to deploy the Stingrays to locate Ellis’s cell phone under the exigent circumstances that existed the morning of January 22, 2013. Ellis’s motion to suppress evidence obtained from use of the Stingrays is therefore DENIED. Notwithstanding this determination, the court proceeds to consider the exceptions to the exclusionary rule for good faith reliance and/or inevitable discovery asserted by the government as separate grounds for denying the motion to suppress. D. Exceptions to Exclusionary Rule 1. Good Faith Reliance The government argues that even if a warrant had been required to authorize the use of the Stingrays, the OPD officers and FBI agents reasonably relied in good faith on the pen register order, issued under the emergency procedures of the pen register statute, 18 U.S.C. § 3125, to use the Stingrays to locate Ellis’s cell phone. The “good faith” exception to the exclusionary rule established by United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), is satisfied if an officer acts “in objectively reasonable reliance” on a defective warrant. See United States v. Underwood, 725 F.3d 1076, 1084 (9th Cir. 2013). “To determine whether the officer acted in objectively reasonable reliance, ‘all of the circumstances— including whether the warrant application had previously been rejected by a different magistrate—may be considered.’ ” Id. (citing Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405; Messerschmidt v. Millender, 565 U.S. 535, 132 S.Ct. 1235, 1249-50, 182 L.Ed.2d 47 (2012)). The burden of demonstrating good faith rests with the government. Id. The Court in Leon identified four situations that per se fail to satisfy the good faith exception: (1) where the affiant recklessly or knowingly placed false information in the affidavit that misled the issuing judge; (2) where the judge “wholly abandon[s] his [or her] judicial role”; (3) where the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable” (in other words, a.“bare bones” affidavit); and (4) where the warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Underwood, 725 F.3d at 1085 (citing Leon, 468 U.S. at 922-23, 104 S.Ct. 3405) (internal quotation marks omitted). “In these situations, ‘the officer will have no reasonable grounds for believing that the warrant was properly issued.’ ” Id. (quoting Leon, 468 U.S. at 922-23, 104 S.Ct. 3405). Ellis argues that any good faith reliance argument is foreclosed by the factthat Officer Saunders’s application failed to disclose to the issuing judge that the OPD and FBI planned to use the Stingray devices, rather than more traditional pen register and trap and trace methods. Ellis points-out that the pen register application does not, on its face, seek authorization to use a Stingray. Doc. no. 824 at 4-5. Under Ninth Circuit authority, however, the particular means of executing a warrant need not be specifically authorized, though it is subject to judicial review for reasonableness if challenged. United States v. Chen, 979 F.2d 714, 720 (9th Cir. 1992) (following Dalia v. United States, 441 U.S. 238, 258-59, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979) (“It would extend the Warrant Clause to the extreme, to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more, than one way, the court must set forth precisely the procedures to be followed by the executing officers.”)). In Dalia, the Court held that the Fourth Amendment requires that search warrants must be issued by neutral, disinterested magistrates; that those seeking the warrant must demonstrate to the magistrate their probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense; and that warrants must particularly describe the things to be seized, as well as the place to be searched, but do not require “a specification of the precise manner in which they are to be executed.” Dalia, 441 U.S. at 255, 257, 99 S.Ct. 1682 (citations and internal marks omitted). See Patrick, 842 F.3d at 544 (“neither constitutional text nor precedent suggests that ‘search warrants also must include a specification of the precise manner in which they are to be executed’ ”) (citing Richards v. Wisconsin, 620 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) and Dalia, 441 U.S. at 256, 99 S.Ct. 1682). In light of this authority, it was reasonable for Officer Saunders not to disclose the particular manner of execution in his application for a pen register order authorizing location information for Ellis’s cell phone, including cell site/sector location and “direction and strength of a signal” for-his telephone number. Ellis also challenges the pen register order on .the ground that the order authorizing use of the devices for a period of 3Ó days from the date of the order could not have authorized -the use of any device before' the order was signed on January 22, 2013, but the government has explained that, the statutory provisions for emergency .pen register applications permit such post hoc authorization. 18 U.S.C. § 3125. Ellis further challenges the pen register order because the government has failed to produce the original, but the lack of an original does,not warrant suppression in light of other evidence in the record demonstrating that the pen register order was issued by Judge Horner. Here, there are no indicia of bad faith where, the Stingray operators have attested that the OPD and FBI configured the. Stingrays as'pen registers,-without capturing any content of communications, and sought authorization under the pen register statute in combination with the SCA. The government points out that under then-existing FBI policy, a warrant was not required before using a cell site simulator, See doc. no. 304 Ex. B (FBI Electronic Surveillance Manual at 41), The excerpt of a manual cited by Ellis further, instructed that cell site simulators were covered by the definition of a pen register in 18 U.S.C. § 3127(3) as amended by the USA Patriot Act of 2001, Pub.L. 107-56, October 26, 2001, 115 Stat. 272. Doc. no. 304, Ex. O (USABook). That DOJ policy has since been amended, effective September 3, 2015, to require a warrant to operate a CSS. See Lambis, 197 F.Supp.3d at 611. At the time the CSS technology was used in this case, there was no controlling authority as to whether its use constituted a search requiring issuance of a warrant. In this district, Judge Illston’s unpublished decision in Cooper, 2015 WL 881578, requiring a showing óf probable' cause to obtain prospective cell site location information, was not issued until two' 'years after the Stingrays were used in this ease in January 2013. On the other hand, there is out-of-district authority indicating that prior to 2013, the government applied for tracking warrants within this district, supported by a showing of probable cause, to use mobile tracking devices that acted like cell site simulators. In Rigmaiden, the government obtained a tracking warrant in this district issued in 2008 by then-Magistrate Judge Seeborg to use a mobile tracking device which functioned as a cell site simulator to locate the defendant’s aircard. United States v. Rigmaiden (“Rigmaiden I”), 844 F.Supp.2d 982, 995 (D. Ariz. 2012) (“The mobile tracking device mimicked a Verizon Wireless cell tower and sent signals to, and received signals from,- the aircard.”). The government conceded there, for purposes of the defendant’s requests for discovery related to his suppression motions, that the aircard tracking operation was a Fourth Amendment search and seizure and that the government would rely on -the Rule 41 tracking warrant, application, and affidavit