MO: Even if ping order was unlawful, defendant’s flight from police was an intervening act

Defendant was wanted in a double murder, and police got a court approved ping order to locate his phone, and he was in Oklahoma. Defendant saw that he was being followed and led the police on a high speed chase and fled from the car. Even if the ping order was unlawful it’s an issue that does not have to be decided because defendant’s flight was an intervening act that would make the whole thing admissible. State v. Hosier, 2015 Mo. LEXIS 12 (February 3, 2015):

When reviewing the trial court’s decision to overrule a motion to suppress, this Court considers the evidence presented both at the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court’s decision.

. . .

Even if this Court assumes without deciding whether relying on the less stringent standard of § 2703(d) to obtain the ping order violated the Fourth Amendment, the evidence was admissible because it was “purged of the primary taint.” The first factor, temporal proximity, cautions against admitting the evidence as the first attempt at stopping Defendant in Oklahoma took place about two hours after JCPD obtained the ping order.

The next two factors, however, weigh strongly in favor of admitting the evidence. The second factor, the presence of intervening events, was satisfied when Defendant led police on a car chase. See Brown, 422 U.S. at 604. This was an intervening event that gave police reasonable suspicion to stop Defendant. The bulletproof vest, knife, gun and pistol holder police officers found on Defendant’s person and in plain view in his car, in addition to the information they learned from JCPD, gave them probable cause to obtain and execute a search warrant independent of the ping order. See, e.g., United States v. Dawdy, 46 F.3d 1427, 1431 (8th Cir. 1995) (holding “a defendant’s response to even an invalid arrest or Terry stop may constitute independent grounds for arrest” in a case where the defendant fled police on foot after being stopped); United States v. Garcia, 516 F.2d 318, 319 (9th Cir. 1975) (suppression not warranted when defendant fled an illegal traffic stop in his car because the flight was “voluntary conduct” so law enforcement did not exploit the illegal stop); State v. McKeehan, 894 S.W.2d 216 (Mo. App. 1995) (police were justified in stopping defendant when he fled approaching police and led police on a high speed chase).

The third factor in determining if the evidence was purged of its taint is the purpose and flagrancy of the official misconduct. See Brown, 422 U.S. at 604. This factor also favors admissibility. As discussed above, courts are split as to whether police must make a probable cause showing to obtain real-time cell location information under 18 U.S.C. § 2703(d). It is difficult to find fault with law enforcement here because of the unsettled nature of this point of law.