S.D.Cal.: Cell site location data order issued without probable cause still subject to good faith exception

The majority rule is that cell site location data requires probable cause, but the warrant was not issued on that. Nevertheless, the good faith exception saves the tracking order information. United States v. Espudo, 954 F. Supp. 2d 1029 (S.D. Cal. 2013):

In this case, the Government’s reliance on the SCA and the Magistrate Judges’ orders granting the applications was objectively reasonable. First, the Government’s reliance on the SCA was reasonable. Acts of Congress are entitled to a strong presumption of constitutionality. United States v. Watson, 423 U.S. 411, 416, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976). It was reasonable for the Government to apply for cell site location data under the SCA. There is no clear, controlling case explicitly stating that the government may not obtain real-time cell site location data under the SCA. At most, there are only conflicting district court decisions on the subject. See United States v. Jones, 908 F. Supp. 2d 203, 214-15 (D.D.C. 2012) (stating that “reasonable minds may differ as to whether § 2703 permits law enforcement to seek authorization for prospective cell-site information”).

The Government’s reliance on the Magistrate Judges’ orders was also objectively reasonable. The Magistrate Judges approved the Government’s applications. See Leon, 468 U.S. at 921 (“In the ordinary case, an officer cannot be expected to question the magistrate’s … judgment that the form of the warrant is technically sufficient. Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.” (internal quotation omitted)). Furthermore, the Magistrate Judges applied the correct standard under the SCA and found that the government “set forth specific and articulable facts showing that there are reasonable grounds to believe that the subscriber and other information sought, including cell site location information, is relevant and material to an ongoing criminal investigation ….” [Doc. No. 1002, Order for Pen Register at 9.] See United States v. Graham, 846 F. Supp. 2d 384, 406 (D. Md. 2012); United States v. Suarez-Blanca, 2008 U.S. Dist. LEXIS 111622, 2008 WL 4200156, at *12 (N.D. Ga. Apr. 21, 2008).

Finally, Defendants do not raise any of the exceptions to the good faith exception. On independent examination of the exceptions, the Court finds that none of them apply to the present case. Accordingly, even though the Government did not obtain a warrant based on probable cause prior to seeking real-time cell site location data, which this Court finds is required, this evidence is nonetheless admissible under the good faith exception. The Court DENIES Defendants’ motion to suppress cell site location data.