D.N.M.: Emergency justification for real time CSLI dissipated and leads to suppression

Capture of defendant’s real-time CSLI was a search under Carpenter, but the government showed that officers had an emergency justification for getting it at first, but that dissipated. Finally, the good faith exception does not apply here. United States v. Melton, 2022 U.S. Dist. LEXIS 81297 (D.N.M. May 4, 2022):

While the Court is persuaded that an exigent circumstance justified tracking Defendant’s real-time CSLI for an hour or so, from Carrizozo until the vehicle turned east toward Cloudcroft, any exigency ended when the vehicle turned east. For these reasons, the Court concludes no exigent circumstance existed and if one did, the scope of the search was not reasonable under the circumstances. The evidence includes references to the individuals being “armed and dangerous” and that Terrell was wanted in connection to a homicide investigation. However, the testimony elicited indicates the request for CSLI was for the emergency surrounding the report from Mr. Cherry. There is no legal support for an argument that being wanted, or a pending arrest warrant, without additional facts, constitutes an “emergency” or other circumstance to get around the warrant requirement with respect to searching CSLI. For these reasons, the Court concludes the exigent circumstances exception does not apply.

In reaching these conclusions, the Court notes no evidence that law enforcement officials applied for a search warrant, despite the roughly five hours between the first contact with Mr. Cherry and pulling over Defendant in Hope, New Mexico. While the Court does not pass judgment on whether a search warrant would have been granted, officers certainly had enough information available to apply for a search warrant. The familiar standard for issuance of a search warrant is probable cause, but the standard for a warrantless search requires—appropriately—something more. Officers lacked the additional element of exigence in this case.

Having determined that the exigent circumstances exception does not apply, and seeing no further argument under the Fourth Amendment to justify the search of Defendant’s real-time CSLI, the Court concludes the search of Defendant’s real-time CSLI violated Defendant’s Fourth Amendment right to be free from unreasonable searches.

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