CA8: Def had no standing in sex trafficking victim’s cell phone

Defendant sought to challenge his previously waived search issue by seeking to withdraw his guilty plea. The phone belonged to his sex trafficking victim, so he apparently doesn’t have standing. United States v. McHenry, 2017 U.S. App. LEXIS 3358 (8th Cir. Feb. 24, 2017):

McHenry responds that Edlund’s ineffective assistance in failing to challenge GPS tracking of the black T-Mobile cell phone without a warrant provides fair and just reason for withdrawal of his guilty plea. Edlund’s “performance can serve as the requisite ‘fair and just reason’ for withdrawal only if [McHenry] demonstrates both that his attorney’s performance was deficient and that he was prejudiced by it.” Cruz, 643 F.3d at 642 (quotation omitted). To establish prejudice, a defendant who claims that counsel ineffectively failed to challenge a search or seizure “must prove that the [Fourth Amendment] claim is meritorious.” United States v. Luke, 686 F.3d 600, 605 (8th Cir. 2012) (citations omitted). “To demonstrate a fair and just reason for withdrawal of a plea, appellant must do more than desire to contest the search; he must demonstrate that his position has merit.” United States v. Jones, 479 F.3d 975, 978 (8th Cir. 2007). McHenry cannot meet this rigorous standard.

As the district court recognized, the record raises substantial doubt that McHenry had standing to assert Fourth Amendment rights in a cell phone registered to another subscriber and being used by J.E. at the time of the GPS tracking. See United States v. Stringer, 739 F.3d 391, 396 (8th Cir. 2014). And even if he had standing to raise this claim, there is substantial doubt that McHenry had a reasonable expectation of privacy in cell phone location information voluntarily provided to T-Mobile. See United States v. Skinner, 690 F.3d 772, 777-81 (6th Cir. 2012). But like the district court, we can leave those serious questions unanswered. Sergeant Schmidt and Sergeant Snyder had a good faith belief that exigent circumstances — a known juvenile victim of sex trafficking currently being victimized by one or more traffickers — justified the request that T-Mobile disclose subscriber information and conduct exigent GPS tracking of the cell phone number, as authorized by the Storage Communications Act. See United States v. Gilliam, 842 F.3d 801, 805 (2d Cir. 2016) (“exigent circumstances based on credible information” of child prostitution justified obtaining cell phone location information without a warrant); Caraballo, 831 F.3d at 104-06.

Doesn’t expressly decide standing, but it should have.