D.Utah: Cell phone pinging to locate violent felon with PC was with exigent circumstances

Emergency cell phone pinging to locate defendant by officers investigating a shooting did not violate the Stored Communications Act or the Fourth Amendment. Historical cell site location data treated different than emergency disclosure of present location. United States v. Takai, 943 F. Supp. 2d 1315 (D. Utah. 2013):

Nevertheless, the SCA specifically allows a service provider to disclose customer records “to a governmental 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). This provision of the SCA must cover CSLI to the same extent that the SCA applies to CSLI in the context of Section 2703(d) because Section 2702(a)(3) employs the same language, “a record or other information pertaining to a subscriber to or customer of such service.” See Graham, 846 F. Supp. 2d at 396 (noting that it is “well established” that CSLI is included under Section 2703(d)). Defendant acknowledges that Detective Spangenberg requested the GPS pinging data on this basis but argues with reference to Section 2703 cases concerning applications for historical CSLI that a warrant would be required to obtain such information. (Def.’s Mem. Supp. Mot. Suppr. 6 [Dkt. No. 95].) 5 Defendant also recognizes United States v. Gilliam, No.11-cr-1083, 2012 U.S. Dist. LEXIS 130248 (S.D.N.Y., Sept. 12, 2012), a case in which the court specifically considered an emergency situation under Section 2702(c)(4) and found that based on exigent circumstances, officers did not need to obtain a warrant to obtain GPS pinging data from the service provider and use it to locate the suspect. (Id. at 7.)

The court finds to the contrary. Detective Spangenberg had probable cause to believe that Defendant was the individual who committed the Redwood Road robbery and the violent shooting of the clerk in the face at point blank range. …

2. Related Independent Bases Justifying Warrantless Use of GPS Pinging Data

a. Exigent Circumstances Exception

The Government also opposes Defendant’s Motion to Suppress based on the well-established “exigent circumstances” exception to warrantless searches. (Govt.’s Resp. Mot Suppr. 6-8 [Dkt. No. 98].) The Tenth Circuit has consistently applied the “exigent circumstances” exception to the warrant requirement “when the circumstances posed a significant risk to the safety of a police officer or a third party.” United States v. Najar, 451 F.3d 710, 717 (10th Cir. 2006). A two-part test applies: “whether (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable.” The facts outlined in the paragraphs above show that this test is easily met with Detective Spangenberg’s decision to use a Section 2702 application to obtain cellphone GPS pinging data on Defendant quickly from the service provider without a warrant.

b. Good Faith Exception

This issue ultimately pivots on the application of the good faith exception described in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). See United States v. Barajas, 710 F.3d 1102, 2013 U.S. App. LEXIS 4475, at *16 (10th Cir., March 4, 2013) (holding that the good faith exception applied where officers relied in good faith on a wiretapping warrant that included GPS pinging data even though the applications for the warrant did not specifically request such cellphone GPS pinging data). That is, even if the court were required to find that Detective Spangenberg acquired the CSLI 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. Under Leon, evidence obtained by law enforcement officers in objective good faith reliance on a facially valid warrant is admissible even if the search warrant is ultimately deemed invalid. 468 U.S. at 926. And under Krull, the exception applies if officers obtain evidence in “objectively reasonable reliance on a statute.” 480 U.S. at 349. In extending Leon this way, the Supreme Court in Krull reasoned that “[t]here is no basis for applying the exclusionary rule to exclude evidence obtained when a law enforcement officer acts in objectively reasonable reliance upon a statute, regardless of whether the statute may be characterized as ‘substantive’ or ‘procedural.'” Id. at 356 n.12; See also United States v. Clarkson, 551 F.3d 1196, 1204 (10th Cir. 2009) (noting that Krull extended the Leon good-faith exception to officers’ good faith reliance on a statute’s regulatory scheme permitting warrantless searches, even where the regulatory scheme was later declared unconstitutional).

Back to blog