M.D.Pa.: Exigency permitted warrantless CSLI pings

Only the owner of a cell phone has standing to challenge tracking the phone with a Stingray. Warrantless pings to locate the phone were shown by the government to be based on exigent circumstances. United States v. Baker, 2021 U.S. Dist. LEXIS 182519 (M.D.Pa. Sept. 23, 2021):

The Wilkes-Barre police here believed that Defendants had just violently assaulted and shot a victim. They were also informed by residents of 19 Bradford Street that Defendants had fled with firearms and narcotics, and that residents of the house feared Defendants. In such circumstances, law enforcement officers may reasonably believe that others are in imminent danger and that immediate action is necessary. That two apparent armed drug dealers, having just perpetrated a violent assault, would continue in a similar fashion elsewhere after fleeing the scene is a logical assumption. The gory scene at the house, the statements of residents indicating Defendants’ violent tendencies, and the confusion of a quickly developing situation would reasonably inspire urgency on the part of responding officers. What is more, the nature of the disturbing assault on Elliott indicates a risk of further violence. With apparently little or no provocation, Defendant Martinez beat Elliott so severely with a hammer that medical personnel initially believed he had suffered a gunshot wound. (Doc. 95-1, at 3). After the beating, Feddy went upstairs, then returned downstairs to continue hitting Elliott. (Id.). This sustained, easily-triggered, and brutal assault, more so than a sudden violent response to an adversary’s perceived threat, suggests that Defendants were likely to inflict serious harm on others after fleeing and that they posed an imminent threat to the community. Nor can it be ignored that it was reported to officers that Defendants possessed weapons and that they had already used them on Elliot.

Although more than an hour had passed between the police’s arrival on the scene at the Bradford Street house and their request for an emergency ping on Baker’s cellphone, (Doc. 95-1, at 9), the court finds that this temporal interval does not significantly diminish the urgency of the situation. The affidavit shows that the police did not sit idly in the meantime; rather, they were collecting the information which led to their request. It would be unrealistic to demand that police take action the instant they arrive at the scene or else forgo this exception to the warrant requirement, for officers need at least some time to grasp the situation at hand and to chart a course of action, even in an emergency. Further, shortly before making the warrantless ping request, the police were informed (albeit erroneously) by medical personnel that the victim (Elliott) had been shot, (Id.), a discovery which would only have heightened their sense of risk. Under the totality of the circumstances of this case, the police could reasonably have concluded that the danger presented by the fleeing Defendants had not substantially abated in just one hour.

Regarding Defendant’s contention that the police’s ability to obtain a search warrant for 280 New Hancock Street undermines a claim of exigent circumstances, the court concurs with the government that this argument “misses the point.” (Doc. 128 at 5). To the police, a home search would have been more obviously intrusive than a cell phone ping, a tactic which had not yet been squarely addressed by the courts, and the need for a warrant was more apparent. That the police applied for a warrant to search the house, several hours later and after having collected additional information, does not necessarily indicate that exigent circumstances at the time of the ping request were absent.

The court finds that the government has satisfied its burden of showing that its warrantless ping was justified. As such, the ping was reasonable, and the government’s subsequent search of 280 New Hancock Street based on that ping did not violate the Fourth Amendment. Therefore, “there can be no reasonable dispute that the pinging of Defendant [Baker’s] cell phone was occasioned by an ‘exigent situation'”, and the evidence obtained via that search will not be suppressed. Carballo, 963 F.Supp.2d at 963. Since “the court has specifically found that, in this case, law enforcement and Sprint Nextel acted reasonably and in good faith in relying upon the [Stored Communications Act’s] provisions authorizing cell phone pinging in an exigent situation”, “even if a Fourth Amendment violation could be found, suppression would not be warranted as it would serve no deterrent purpose.” Id. at 965-66 (citations omitted). See also United States v. Takai, 943 F.Supp.2d 1315, 1323 (D. Utah Apr. 30, 2013) (holding that based upon the emergency provisions of the Stored Communication Act, “even if the court were required to find that [law enforcement] acquired the CSLI [cell site location information] in violation of Defendant’s Fourth Amendment rights, the Leon good faith exception, as further applied by Illinois v. Krull, 480 U.S. 340, 349, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), would remove suppression as an available remedy”).