W.D. Wis.: Maybe first application of Herring; no basis for stop so search was suppressed

Officers lacked reasonable suspicion using a trap-and-trace order to tail a cellphone like it was a beeper a day after a robbery. There was only a hunch as to defendant. Herring would not be applied to salvage this search because it was all tenuous. United States v. Thomas, 2009 U.S. Dist. LEXIS 4389 (W.D. Wis. January 20, 2009):

In any event, the deputies obtained a trap-and-trace order from the state court that allowed them to attempt to locate the telephone and its holder. The day after the robbery, using technology that either is prosaically old school (the court’s view) or “voodoo” (defense counsel’s view), a caravan of law enforcement officers led by a DCI tech agent chased the telephone northeast up Highway 151 to Fond du Lac. Using the target telephone essentially as a “beeper,” the tech agent was able to pinpoint its location to a pump island at a gas station. Considering that the agent completely circled the pump to verify his readings, there can be little doubt that he had the right location.

. . .

Even so, it would not have been unreasonable at this juncture to initiate a police-citizen encounter to explore a bit further. The deputies were in warm pursuit of armed bank robbers and had a strong hunch/weak reason to suspect that the men at the gas station were associated with the bank robbers. Returning to the two-variable calculus employed by the Seventh Circuit for Terry stops, an approach commensurate to the weakness of the evidence perhaps could have been deemed reasonable. But the deputies, for their own safety, initiated a highly intrusive full felony stop of the two cars. Under Tilmon, this is not necessarily a constitutionally unreasonable approach, but there are sufficient factual differences here to question the appropriateness of the tactics used. This was not hot pursuit from the robbed bank during which the suspects undoubtedly still would have been armed, hypervigilant and potentially trigger-happy. The bank robbery had occurred over 24 hours earlier and 75 miles southwest, and there was no actual evidence that any of the four men in these two cars had participated in the robbery or that they currently were armed. The evidence linking these four men to a crime was that one of these men possessed a cell phone that had called two of the suspected robbers (and a third party) 17 times in the two days prior to the robbery.

. . .

But there’s a final consideration: notwithstanding the overzealousness of the deputies, is this a case in which it would be unreasonable to apply the exclusionary rule? “Paradigm shift” is a trite and often meaningless phrase, but it might be an apt description of the Supreme Court’s recent curtailment of the exclusionary rule as illustrated by Herring v. United States and Hudson v. Michigan, 547 U.S. 586 (2006). Here’s the new rule:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the judicial system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.

Herring, 2009 WL 77886 at *7.

The parameters of this new iteration will be determined over time, and perhaps this case will be part of the vanguard. After all, how can you fault tenacious police work that results in the capture of a suspected armed bank robber, even if this capture is the result of some guesses and gut feelings? What sort of police behavior would be deterred by telling the deputies that they cannot use the evidence that they seized from Thomas at the gas station?

But this entire phase of the investigation was based on a miscommunication of a material fact between the investigating detectives and the misstatement of that material fact to the state court in support of the trap-and-trace application. There is no evidence that this was deliberate and I don’t doubt that the detectives were putting forth best efforts in good faith in a fast-evolving investigation involving a gang of armed bank robbers. But switching Wilson’s statement from “It was not Liggons’s phone” to “it was Liggons’s phone” in the trap-and-trace application flipped a critical fact in favor of the government. It also led to the detectives significantly overplaying their hand when they stopped, arrested and searched Thomas in the absence of probable cause or even reasonable suspicion.