FL4: Violating statute obtaining CSLI in 2001 suppressed, and no GFE

Police obtained defendant’s CSLI in 2001 by subpoena and without a court order contrary to statute. Defendant argued a search warrant was required. Then Carpenter was decided in 2018 requiring a warrant. The state violated the statute requiring a court order, and that’s enough to overcome the good faith exception. Ferrari v. State, 2018 Fla. App. LEXIS 16689 (Fla. 4th DCA Nov. 21, 2018):

The trial court found that section 934.23(1) required a court order or a warrant to obtain electronic communication information, and it was undisputed that a warrant had not been obtained. While the court cited section 934.23(1) in its order denying the motion to suppress, Ferrari cited to section 934.23(4)(b) in his motion. Section 934.23(4)(b), Florida Statutes (2001), provides that information pertaining to a subscriber, not including the contents of an electronic communication, must be obtained by warrant, court order, or consent of the subscriber.

We need not determine which subsection applies, because the officer did not comply with either subsection and did not obtain a warrant or court order. Thus, he was not acting in reasonable reliance on a statute. In addition, the other carrier specifically told the officer that he needed a court order to secure the CSLI data, which order the officer obtained. This was before the officer requested a subpoena for the CSLI from the subject cell phone company. Given both the law enforcement officer’s failure to follow the statute and the officer’s knowledge of the other company’s express objection to producing CSLI without a court order, the state cannot meet the good faith exception.