Police developed defendant as a suspect in a string of five armed robberies in a month, and they sought and obtained an exigent circumstances cell phone ping order of defendant’s phone. His argument is that there were no exigent circumstances because nothing was happening at the moment. The court credits the police belief that exigency existed because it was only a matter of time until a sixth armed robbery occurred and a victim could get shot because he or she was uncooperative. Alternatively, the court applies the good faith exception to the exigency ping request. State v. Isaac, 2017 La. App. LEXIS 2039 (La.App. 5 Cir. Oct. 25, 2017)
The issue in this case turns on whether the circumstances known to law enforcement and presented to Sprint/Nextel were within the category of “exigent circumstances” that permit warrantless searches. “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), cert. denied, 555 U.S. 1061, 129 S.Ct. 664, 172 L.Ed.2d 638 (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) (en banc), cert. denied, 498 U.S. 1119, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991) (citations omitted).
At the time the exigent circumstances request was made to Sprint/Nextel, three armed robberies, involving five victims, in Jefferson Parish had been committed at various businesses over the span of less than one month. The perpetrators of the crimes were armed with firearms, and as Captain Russo testified, it was only a matter of time before a gun accidentally discharged or a victim was shot because he was uncooperative. Video surveillance evidenced the violent nature of the armed robberies, depicting armed gunmen entering the businesses and forcing the victims to the ground, face down, with a gun pointed to the back of their heads. The police believed Defendant was involved in these armed robberies and had information he “might become violent towards police and flee the area.”
Because of the frequency and volatile nature of the violent crimes that had been committed, exigent circumstances justified GPS tracking of Defendant’s phone to determine his location in order to effectuate his arrest, pursuant to a validly issued arrest warrant, in order to protect the public against additional crimes. Additionally, Sprint/Nextel’s disclosure of the GPS tracking information was authorized by the SCA and the use of the real-time GPS location of Defendant’s cell phone was no more expansive than necessary to address the exigency that existed. (See United States v. Takai, 943 F.Supp.2d 1315 (D. Utah 2013), where the court found exigent circumstances sufficient to obtain GPS “pinging” data from the service provider to locate the defendant under the SCA without a warrant, where the defendant was a suspect in several armed robberies and officers believed the defendant was armed and dangerous and that another armed robbery might be imminently forthcoming).
Further, in addition to exigent circumstances, the police had a good faith, reasonable belief that applicable law authorized the obtaining of Defendant’s cell phone records in the circumstances of this case. In Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), the Supreme Court concluded that its holding in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), “that the Fourth Amendment exclusionary rule does not apply to evidence obtained by police officers who acted in objectively reasonable reliance upon a search warrant issued by a neutral magistrate, but where the warrant was ultimately found to be unsupported by probable cause,” should be extended to instances in which “officers act in objectively reasonable reliance upon a statute authorizing warrantless administrative searches, but where the statute is ultimately found to violate the Fourth Amendment.” Krull, 480 U.S. at 342. Thus, even though the SCA has not been ruled unconstitutional and Defendant does not challenge its constitutionality, suppression in the instant matter is not a viable remedy. See United States v. Takai, supra (ruling that based upon the emergency provisions of the SCA, “even if the court were required to find that [law enforcement] acquired the CSLI [cell site location information] in violation of the defendant’s Fourth Amendment rights, the Leon good faith exception, as further applied by Illinois v. Krull, 480 U.S. 340, 349, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), would remove suppression as an available remedy”).