D.Minn.: Exigent cell phone ping not barred by Carpenter

An exigent circumstances cell phone ping was not prohibited by Carpenter. United States v. Andrews, 2019 U.S. Dist. LEXIS 26283 (D. Minn. Feb. 20, 2019):

Andrews seeks to suppress the cell-site location information—the “pings” from T-Mobile—the police obtained after submitting an exigent request, contending that they were obtained without a warrant, that the circumstances were not actually exigent, and that Sgt. O’Rourke made false statements in his request. None of these arguments is availing.

First, Andrews argues that the police should have obtained a warrant for the information. The Stored Communications Act, however, authorizes service providers such as T-Mobile to divulge information, including real time cell-site location information, “to a government entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.” 18 U.S.C. § 2702(c)(4); see also United States v. McHenry, 849 F.3d 699, 705-06 (8th Cir. 2017). Andrews’s prior counsel, in a motion that was originally withdrawn, and later in a motion that was never fully briefed or argued, suggests that the exigent ping information must be suppressed under Carpenter v. United States, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018).

Andrews has not elaborated on or further developed this argument. Although the Supreme Court in Carpenter held that the collection of historical cell-site location information is a search requiring a warrant, it expressly stated that its ruling did not address real-time CSLI. Carpenter v. United States, 138 S.Ct. 2206, 2220, 201 L. Ed. 2d 507 (2018). Because Andrews has not fully articulated a constitutional challenge to the exigency provisions of the Stored Communications Act, this Court hesitates to develop one on his behalf. It may simply be noted that the Carpenter decision did not analyze real-time CSLI, and, in fact, expressly held that the decision did not apply to real-time CSLI. Moreover, in its opinion, the Carpenter Court emphasized that it was the insight that can be gleaned by viewing a person’s historical movements holistically that raised Fourth Amendment concerns, a scenario that is not at issue here. Id. at 2218-20.

Andrews also argues that, even if a warrant was not necessary, the exigency exception is not satisfied because the shooting victims’ injuries were not life threatening and the police had no reason to believe anyone else would be hurt. As a matter of reasonableness, the Court disagrees. At the time Sgt. O’Rourke applied the real-time pings, he had a suspect linked to two different shootings with multiple victims. As far as Sgt. O’Rourke knew, the suspect was still armed and dangerous. That the prior victims’ injuries were not life threatening is inconsequential; the shooter had demonstrated a willingness to use deadly force.