CA2: Child prostitution exigency for warrantless cell phone ping

Defendant’s phone was pinged at the request of law enforcement to find him after they developed strong reason to believe he took a 16 year old girl from Maryland to NYC to work her as a prostitute. This type of “injury” to a person is exigent enough for law enforcement to certify to the cell phone provider that they need to ping to phone because of ongoing injury. United States v. Gilliam, 2016 U.S. App. LEXIS 21448 (2d Cir. Dec. 1, 2016):

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, 189 L. Ed. 2d 430 (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 with the District Court that exigent circumstances justified GPS tracking of 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 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 225, 234 (2d Cir. 2009), abrogated on other grounds by Johnson v. United States, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015); United States v. Curtis, 481 F.3d 836, 838-39, 375 U.S. App. D.C. 340 (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 risk of contracting a sexually transmitted disease.” United States v. Carter, 266 F.3d 1089, 1091 (9th Cir. 2001) (internal 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 U.S. Dist. LEXIS 3888, 2015 WL 164075, *4-5 (D. Conn. Jan. 13, 2015); United States v. Williams, No. 12-CR-6152G(MWP), 2015 U.S. Dist. LEXIS 12547, 2015 WL 429087, at *12-13 (W.D.N.Y. Feb. 2, 2015), report and recommendation adopted, No. 12-CR-6152(FPG), 2015 U.S. Dist. LEXIS 70262, 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 Heid acted reasonably in obtaining Gilliam’s cell phone location information without a warrant.