N.D.Cal.: Guilt by association here clearly wasn’t enough for a cell phone and CSLI search warrant, and GFE doesn’t apply

The cell phone and CSLI warrant were truly lacking in probable cause as to defendant. There was but a passing reference to him in an effort to show guilt by association, and that clearly was not a sufficient showing of PC. Moreover, the good faith exception cannot apply here because the affidavit was so lacking in probable cause that it can’t be relied upon. United States v. Williams, 2016 U.S. Dist. LEXIS 16442 (N.D.Cal. Feb. 9, 2016):

The affidavit submitted in support of the Sprint warrant plainly failed to provide a substantial basis for concluding that there was probable cause to search A. Gilton’s cell phone records. The affidavit hardly mentions A. Gilton. It states only that the girlfriend lived with him in Los Angeles, and that his number was one of those in the girlfriend’s cell phone. These passing, innocuous references to A. Gilton constitute the only information about him in the affidavit. The affidavit does not even assert, or provide a substantial basis for inferring, that A. Gilton was in the San Francisco area at the time of the shooting. The girlfriend told the police that she “used her brother’s cell phone charger to charge her phone,” but there is no indication that she was referring to A. Gilton’s charger as opposed to her younger brother’s, who, according to the affidavit, was then living at the parents’ home.

The government contends that the facts stated in the affidavit were sufficient to establish probable cause because they showed that the girlfriend met Sneed while living with A. Gilton in Los Angeles. Opp. at 12. The government further emphasizes that the totality of the circumstances reflected in the affidavit “pointed to the murder being a family-based attack.” Id. I am not convinced. While the affidavit indicates that the girlfriend was living with A. Gilton when she met Sneed, there is no indication that A. Gilton was in San Francisco at the time of the shooting, that he had any connection to the parents’ home nearby to where the shooting took place, or that he had communicated with family members (or anyone else) about the girlfriend’s relationship with Sneed. And, even assuming that the government is correct that the facts stated in the affidavit supported a reasonable inference of a “family-based attack,” those facts pointed to one particular family member being involved in the attack: B. Gilton, not A. Gilton.

The government argues that in United States v. Foster, 711 F.2d 871 (9th Cir. 1983), the Ninth Circuit upheld a warrant “based on similar inferences” as those the government relies on here. Opp. at 12. That is not an accurate characterization of Foster. The affidavit in that case disclosed that a codefendant “headed a major heroin distribution ring,” that narcotics had been viewed at the codefendant’s residence on several occasions, and that the defendant was a lieutenant in the codefendant’s distribution ring. 711 F.2d at 878-79. The affidavit also detailed multiple narcotics sales by the defendant and included a narcotic agent’s opinion that, in light of his experience, “he believed that evidence of the defendants’ drug dealings would be found at [their] residences.” Id. at 878. Based on these facts, the Ninth Circuit concluded that the affidavit provided probable cause to search the defendant’s home. Id. at 879.

This case is not like Foster. There is no common link here to a “major heroin distribution ring” or similar entity. The fact that A. Gilton is a member of the Gilton family, in particular with hardly any information in the affidavit regarding the history or activities of that family, is nowhere close to analogous to the defendant in Foster being a lieutenant in a major drug distribution organization. There is nothing in the affidavit indicating that A. Gilton had previously been involved in crimes similar to the one being investigated (or any crimes at all). …