United States of America v. Gilliam

Filing

OPINION, affirming the judgment of the district court, by JON, RKW, JAC, FILED.[1917486] [15-387]

Case 15-387, Document 115, 12/01/2016, 1917486, Page1 of 13

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
- - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA,
Appellee,
v.
JABAR GILLIAM, AKA Jamal Gilliam, AKA Jabal
Gilliam, AKA JB,
Defendant-Appellant.
- - - - - - - - - - - - - - - - - - - - - Before:

NEWMAN, WINTER, and CABRANES, Circuit Judges.

Appeal
District

from

Court

(Thomas

P.

Gilliam

after

the
for

January
the

Griesa,
a

jury

28,

Southern

District
trial

2015,

District

Judge),
of

judgment
of

New

convicting

offenses

of

the
York

Jabar

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

1

Case 15-387, Document 115, 12/01/2016, 1917486, Page2 of 13

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

Case 15-387, Document 115, 12/01/2016, 1917486, Page3 of 13

We

conclude

obtaining

and

that

using

exigent

GPS

circumstances

location

information

justified
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
3

Case 15-387, Document 115, 12/01/2016, 1917486, Page4 of 13

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

Corporal

Chris

with

Jasmin’s

the

Maryland

Heid
social

to

State

Police,

investigate.

worker,

who

which

Corporal

expressed

assigned

Heid

concern

spoke
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.
4

Case 15-387, Document 115, 12/01/2016, 1917486, Page5 of 13

On

that

same

contacted

day,

based

Sprint

this

Corporation

telecommunications

company.

“investigating

missing

a

on

He

Heid

(“Sprint”),

told

child

information,

Sprint
is

who

that
.

.

a

he
.

was

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

providing

complied

real-time

with

GPS

Heid’s

location

request

information

and
to

began
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.

which Gilliam was arrested.
5

A

scuffle

ensued,

after

Case 15-387, Document 115, 12/01/2016, 1917486, Page6 of 13

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

2702(c)(4),
permitted,

the

Stored

Communications

authorized,
Corporal

Heid

and
to

Act,

exigent

obtain

18

U.S.C.

circumstances

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
6

§

Case 15-387, Document 115, 12/01/2016, 1917486, Page7 of 13

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

subsection
“other

information”
2702(c)(4).

information”

to

within

Congress
cover

the

meaning

intended

the

“information

of

phrase

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

7

Case 15-387, Document 115, 12/01/2016, 1917486, Page8 of 13

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

without

information
a

to

locate

warrant.

That

issue

and
is

arrest
whether

Gilliam
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.
8

Case 15-387, Document 115, 12/01/2016, 1917486, Page9 of 13

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

circumstances

with

the

justified

District

GPS

tracking

Court
of

that

exigent

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
9

Case 15-387, Document 115, 12/01/2016, 1917486, Page10 of 13

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

grounds

225,

by

234

Johnson

(2d

Cir.

2009),

v.

United

abrogated

States,

135

S.

on

other

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

transmitted
1089,

1091

risk

disease.”
(9th

of

United

Cir.

contracting
States

2001)

v.

a

Carter,

(internal

sexually
266

F.3d

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.
10

Case 15-387, Document 115, 12/01/2016, 1917486, Page11 of 13

Feb. 2, 2015), report and recommendation adopted, No. 12CR-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
11

Heid

acted

reasonably

in

Case 15-387, Document 115, 12/01/2016, 1917486, Page12 of 13

obtaining Gilliam’s cell phone location information without
a warrant.
Congress has “deemed it reasonable to subordinate any
individual

privacy

information

to

interest

society’s

in

more

cell

phone

compelling

location

interest

in

preventing an imminent threat of death or serious bodily
injury,”

and

authority

to

has

therefore

decide

given

providers

there

whether

service
existed

an

the

“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
discussion.

His

other
arrest

claims
was

do

not

supported

require
by

extended

probable

cause,

based both on events occurring at the scene of his arrest
and his sex trafficking with respect to Jasmin. There was

12

Case 15-387, Document 115, 12/01/2016, 1917486, Page13 of 13

no

error

in

the

jury

charge,

and

the

evidence

supported the jury’s verdict.
Conclusion
The judgment of the District Court is affirmed.

13

fully