NE: GFE applied to CSLI obtained two years before Carpenter

Defendant’s CSLI was obtained two years before Carpenter with an order under the Stored Communications Act to connect him to a murder. Carpenter was decided while on appeal. The court follows every other case on the issue and applies the good faith exception to the CSLI. In addition, he wasn’t prejudiced by application of the good faith exception on appeal because it seems highly unlikely and even less than speculative he could make a record that relying on existing law would somehow be reckless. State v. Brown, 302 Neb. 53, 2019 Neb. LEXIS 10 (Jan. 18, 2019):

Finally, we note that Brown’s only argument against the application of the exclusionary rule is misplaced. Brown contends that the State should not be able to argue for the first time on appeal that an exception to the exclusionary rule applies. Brown argues that he may have been able to introduce factual evidence that would indicate law enforcement officers did not act reasonably in this case and that thus, the exclusionary rule should apply. Brown claims he did not place such evidence into the record at the district court because the State did not assert there that the exclusionary rule should not apply even if Brown’s Fourth Amendment rights were violated. But, in fact, the State did make such an assertion in the district court. The State primarily argued that there was no Fourth Amendment violation, but counsel for the State also argued at a hearing on Brown’s motion to suppress that even if the Fourth Amendment were violated, the exclusionary rule should not apply, because the officers acted in good faith. While it is not clear to us what evidence Brown could have offered to negate the applicability of Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987), under these circumstances, Brown cannot point us to any such evidence, nor can he claim that he lacked the opportunity to present it to the district court.

For these reasons, we find that even though the acquisition of CSLI violated Brown’s Fourth Amendment rights, the district court did not err by denying Brown’s motion to suppress.

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