United States District Court, D. Connecticut
RULING ON MOTION TO SUPPRESS
JANET
BOND ARTERTON, U.S.D.J.
Defendant
Harry Blake moves to suppress all cell site location
information for phone No. 203-726-1581, which was obtained by
law enforcement in this case. (Mot. Suppress [Doc. # 384].)
Defendant contends that this evidence was obtained in
violation of Mr. Blake's rights under the Fourth
Amendment to the U.S. Constitution.
The
government obtained cell site location information
("CSLI") for this No. on two occasions-first, on
June 29, 2015, when the government filed an application with
this Court pursuant to 18 U.S.C. § 2703, the Stored
Communications Act, for the period of March 9, 2015 through
October 15, 2015, and second, on June 30, 2016, via an order
of the Connecticut Superior Court, for such CSLI for the
period of July 25 through July 27, 2015, meaning, as
Defendant notes, that "at the time of the state
application, the government already had in its possession the
same information" from the earlier, federal application.
On June
22, 2018, the U.S. Supreme Court held in Carpenter v.
U.S. that because "an individual maintains a
legitimate expectation of privacy in the record of his
physical movements as captured through CSLI[, ]" the
location information obtained from the defendant's
wireless carriers "was the product of a search."
138 S.Ct. 2206, 2217 (2018). "Having found that the
acquisition of Carpenter's CSLI was a search," the
Supreme Court "also conclude[d] that the Government must
generally obtain a warrant supported by probable cause before
acquiring such records [, ]" and that the showing made
by the government to obtain a court order under the Stored
Communications Act "falls well short of the probable
cause required for a warrant." Id. at 2221.
Defendant
Blake contends that his case "raises precisely the same
issue" and for that reason, Defendant maintains that
"the Supreme Court's finding in Carpenter compels
suppression of this evidence ...." (Mem. Supp. Mot
Suppress [Doc. # 385] at 2.) In response, the Government
argues that the motion to suppress should be denied without a
hearing because, in its application under the Stored
Communication Act, the Government "undertook a
statutorily sanctioned process, which has only recently been
invalidated by the Carpenter decision" and that in
acquiring this data, the Government "permissibly relied
in good faith" on this "vehicle [] for acquisition
of the subject cell site information." (Gov.'s Resp.
to Mot. Suppress [Doc. # 386] at 2.)
As the
Government notes, Defendant "does not dispute that the
government showing was sufficient to support the Court's
granting of the relief sought" under the statutory
framework. (Id. at 3.) And the Government argues
that in using this process, "the government acted in
good faith on a facially valid statutory scheme created by
Congress for the express purpose for which the government
sought to use it." (Id.)
As the
Supreme Court has held, "when the police act with an
objectively 'reasonable good-faith belief that their
conduct is lawful," the" 'deterrence rationale
[of suppression] loses much of its force' and exclusion
cannot 'pay its way.'" Davis v. United
States, 564 U.S. 229, 238 (2011) (citations omitted).
This "good-faith exception" has been expressly
extended to "searches conducted in reasonable reliance
on subsequently invalidated statutes." Id. at
239 (citing Illinois v. Krull, 480 U.S. 340 (1987)).
As the Supreme Court held in Krull, "[u]nless a
statute is clearly unconstitutional, an officer cannot be
expected to question the judgment of the legislature that
passed the law." 480 U.S. at 349-50.
Since
Carpenter was decided, the Court is aware of five other
district courts-in the Third, Sixth, Seventh, and Ninth
Circuits-to have addressed this precise question, as well as
the Court of Appeals for the Fourth Circuit. Every one of
these courts, writing in the seven weeks since Carpenter was
decided, has declined to suppress evidence arising out of a
pre-Carpenter, routine acquisition of cell site
location information pursuant to the Stored Communications
Act. See United States v. Chavez, 894 F.3d 593, 608
(4th Cir. 2018) ("investigators . .. reasonably relied
on court orders and the Stored Communications Act in
obtaining the cell site records [, ]" accordingly,
"the good-faith exception to the exclusionary rule
applies"); United States v. Darmon Vonta Shaw,
No. CR 5:17-26-KKC, 2018 WL 3721363, at *1 (E.D. Ky. Aug. 3,
2018) (same); United States v. Rojas-Reyes, No.
116CR00123TWPDML, 2018 WL 3439092, at *4 (S.D. Ind. July 17,
2018) (same); United States v. Kevin Coles, No.
1:16-CR-212, 2018 WL 3659934, at *2 n.3 (M.D. Pa. Aug. 2,
2018) (same); United States v. James Deshawn
Williams, No. 217CR20758VARDRG, 2018 WL 3659585, at *3
(E.D. Mich. Aug. 2, 2018) (same); United States v.
Chavez, No. 15-CR-00285-LHK, 2018 WL 3145706, at *5-6
(N.D. Cal. June 26, 2018) (in case involving 2011 court
order, the good-faith exception likely applies given the
absence of binding authority requiring probable cause prior
to Carpenter).
ORDER
Conversely,
the Court is not aware of any cases reaching the opposite
result. Defendant does not acknowledge or address this
adverse authority but argues in his reply, citing
Krull, that the good-faith exception does not apply
to reliance upon a statute whose "provisions are such
that a reasonable officer should have known that the statute
was unconstitutional." (Reply to Gov.'s Resp. to
Mot. Suppress [Doc. # 387] at 3 (citing 480 U.S. at 355).)
Defendant contends that Carpenter "did not come
out of the blue" and that a reasonable officer should
have seen the writing on the wall after the Supreme
Court's decisions in Kyllo v. U.S., 533 U.S. 27,
34 (2001) (holding that the use of a thermal imager to detect
heat radiating from home was a search), U.S. v.
Jones, 565 U.S. 400 (2012) (holding that installation of
a GPS device on a target's vehicle constituted a search),
and Riley v. California, 134 S.Ct. 2473 (2014)
(holding that police must generally obtain a warrant before
searching the contents of a phone).
While
Defendant's citations of Kyllo and
Riley do not appear applicable to the question at
hand, Jones did involve relevant issues and
discussion of when and whether GPS monitoring might
constitute a search. While the Jones majority
opinion focused on the physical trespass in its Fourth
Amendment analysis, five justices also agreed that even in
the absence of a physical trespass," 'longer term
GPS monitoring in investigations of most offenses impinges on
expectations of privacy.'" 565 U.S. 400, 415
(Sotomayor, J., concurring (quoting Alito, J. dissenting)).
Justice Sotomayor-who provided the fifth vote for the
majority opinion-effectively concurred in aspects of both the
majority opinion-holding that the installation of a GPS
tracker was a search because of the physical trespass-and in
the dissent, arguing that the Fourth Amendment would be
implicated in the case of long-term GPS monitoring even
absent a physical trespass. But no language in
Jones-not in the main opinion, or Justice
Sotomayor's concurrence, or the part of Justice
Alito's dissent in which Justice Sotomayor joined and
provided a fifth vote for-made clear before
Carpenter that non-trespassory GPS monitoring would
be treated as a "search" for Fourth Amendment
purposes going forward. Justice Sotomayor clearly suggested
that she joined the dissent in thinking that the Court should
eventually reach that result, but she expressly declined to
reach the issue in Jones, noting that
"[r]esolution of these difficult questions in this case
is unnecessary, however, because the Government's
physical intrusion on Jones' Jeep supplies a narrower
basis for decision." 565 U.S. at 418 (Sotomayor, J.,
concurring). Accordingly, Defendant's effort to ground
his suppression motion here on this basis is unavailing.
Finally, Defendant concedes that at the time the government
applied for the federal Order in this case, no Court of
Appeals had yet held that accessing cell site location
information constituted a search under the Fourth Amendment,
and relies primarily upon district court decisions around the
country that suggested before Carpenter that this
type of application required a showing of probable cause. The
court finds the Defendant's reference to these several
district court decisions unconvincing with respect to the
suppression sought in the context of this case. Because
Defendant has not shown that a reasonable officer would have
understood prior to Carpenter that a showing of
probable cause was required to acquire historical CSLI, the
Government here reasonably relied in good faith on the Stored
Communications Act, and Defendant's Motion to Suppress is
DENIED.
Because
the Court finds that suppression is not warranted with
respect to the fruits of the federal court Order at issue
here, the Court declines to reach the issue of the state
court order, ...