D.Mass.: Realtime CSLI on exigency was reasonable under Carpenter

Warrantless realtime CSLI for exigency did not violate Carpenter. Indeed, exigencies are contemplated by Carpenter. [Aside from the fact Carpenter came after all this happened.] Defendant also consented to other seizures. United States v. Saemisch, 2019 U.S. Dist. LEXIS 32706 (D. Mass. Mar. 1, 2019). As to the CSLI:

Carpenter does not provide an answer to the question whether the brief collection of real-time (as distinguished from historical) CSLI for an individual already subject to an arrest warrant implicates the Fourth Amendment. The Court acknowledged that its holding was a “narrow one” and explicitly reserved “express[ing] a view on matters” such as “real-time CSLI.” Id. at 2220. Additionally, the Court indicated that certain case-specific exceptions may support a warrantless search of cell-site records under certain circumstances, including when the “exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Id. at 2222-23 (alteration in original) (quoting Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011) (internal quotation marks omitted). “Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence.” Id. at 2223. “As a result, if law enforcement is confronted with an urgent situation, such fact-specific threats will likely justify the warrantless collection of CSLI.” Id.

This is one such circumstance. The government’s warrantless acquisition of the defendant’s real-time CSLI was reasonable because there were exigent circumstances that supported an objectively reasonable belief that the defendant posed a potentially imminent threat to the safety of identified minor children. In his communications with the CW, the defendant had discussed in coded terms what could reasonably be understood as his prior sexual molestation of children. In particular, he had described some of his past encounters with the children as having occurred during “camping,” and he had disclosed that he was planning to be “camping” with one of the minors during the upcoming weekend. After a magistrate judge had issued a warrant for his arrest for distribution of child pornography, agents had attempted to execute the warrant by going to the defendant’s home. He was not there, and the agents did not know where he was.

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