FL4: Exigency required finding def’s cell phone to locate a school bus stop shooter

Exigent circumstances in finding a shooter at a school bus stop necessitated the officers pinging the cell phone to locate the shooter. Defense counsel wasn’t ineffective for not challenging the search because it would have failed. Barton v. State, 2018 Fla. App. LEXIS 872 (Fla. 4th DCA Jan. 25, 2018):

In Riley v. California, the U.S. Supreme Court acknowledged “[o]ne well-recognized exception” to the search warrant requirement—an “exigencies of the situation” exception that could include “pursu[ing] a fleeing suspect.” 134 S. Ct. 2473, 2494, 189 L. Ed. 2d 430 (2014) (quoting Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011)).

To determine whether an exigent circumstance exists, we look to the totality of the circumstances and consider various factors, including:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) a reasonable belief that the suspect is armed; (3) probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; and (5) a likelihood that delay could cause the escape of the suspect or the destruction of essential evidence, or jeopardize the safety of officers or the public.

United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir. 1987); accord Herring v. State, 168 So. 3d 240, 243 (Fla. 1st DCA 2015).

In this case, any delay in finding the gunman may have had catastrophic consequences. At the time of the search, police knew the gunman fired several bullets towards fifteen to twenty-five students at a bus stop near an elementary school; a student was seriously injured; the gunman had not been detained; and the gun had not been located. These circumstances dictated a prompt response on the part of the authorities to discover the gunman’s identity. See United States v. Caraballo, 831 F.3d 95, 104 (2d Cir. 2016) (holding that officers’ warrantless pinging of the defendant’s cell phone was justified under the exigent circumstances exception in part because the defendant, who had just brutally killed a victim execution style, was still likely armed and on the loose).