CA5: GFE applies to Texas DPS officers accessing E911 data to locate his phone with a court order (third opinion in case)

The good faith exception applies to Texas DPS officers accessing E911 data to locate his phone with a court order. [This is the third opinion in the case, and rehearing en banc was denied on a 7-8 vote.] United States v. Wallace, 2018 U.S. App. LEXIS 7005 (5th Cir. Mar. 20, 2018) (prior opinions, 866 F.3d 605, 2017 U.S. App. LEXIS 8914 (5th Cir. May 22, 2017), substituted opinion 2017 U.S. App. LEXIS 14311 (5th Cir. Aug. 3, 2017) (prior post here)):

Even if accessing Wallace’s cell phone’s E911 data did constitute a Fourth Amendment search here, DPS’s actions are covered by the good-faith exception to the exclusionary rule. “[T]he exclusionary rule is a judicially fashioned remedy whose focus is not on restoring the victim to his rightful position but on deterring police officers from knowingly violating the Constitution.” United States v. Allen, 625 F.3d 830, 836 (5th Cir. 2010). As such, courts have carved out exceptions for police conduct “pursued in complete good faith” because the rule’s “deterrence rationale loses much of its force” in such circumstances. United States v. Leon, 468 U.S. 897, 919, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (quoting Michigan v. Tucker, 417 U.S. 433, 447, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974)). In particular, the Supreme Court has held that the exclusionary rule does not apply when police officers “act[ed] in objectively reasonable reliance upon a statute” even if “the statute is ultimately found to violate the Fourth Amendment.” Illinois v. Krull, 480 U.S. 340, 342, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).

The plain language of 18 U.S.C. § 2703(c) states that the government may obtain “a court order” requiring a cellular telephone company to turn over “record[s] or other information” related to its “customer[s].” The officers (with the help of an assistant district attorney) interpreted this language to mean that they could obtain a court order granting them access to Wallace’s E911 data. Wallace does not challenge the officers’ interpretation, and so the question of whether the SCA actually covers the data is not before us. We assume without deciding that it does.

We decide whether the officers acted in objectively reasonable reliance upon the SCA. This inquiry hinges upon whether the officers “had knowledge, or [could] properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Leon, 468 U.S. at 919. There is no evidence that the officers acted in bad faith or adopted an objectively unreasonable interpretation of the SCA’s scope. The officers, after consulting the assistant district attorney, obtained a court order granting them access to Wallace’s E911 data. Although we do not hold that the SCA necessarily covers the real-time data at issue here, nothing in the text of the statute suggests that “other information” does not encompass E911 data. Given the “strong presumption of constitutionality due to an Act of Congress,” United States v. Watson, 423 U.S. 411, 416, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976), and the absence of controlling caselaw that prohibits the government from obtaining E911 data under the SCA, see United States v. Espudo, 954 F. Supp. 2d 1029, 1044 (S.D. Cal. 2013), it was reasonable for the officers to rely on the text of the statute. The district court did not err by denying Wallace’s motion to suppress.