FL1: Failure to show exigency or get SW for realtime CSLI required suppression

Defendant had a reasonable expectation of privacy as to his realtime cell phone location information, and the failure of the police to get a search warrant or show exigent circumstances requires suppression. Herring v. State, 2015 Fla. App. LEXIS 7750 (Fla. 1st DCA May 22, 2015) (see Treatise § 42.23 n. 3 & 3.2):

B. Expectation of privacy in real-time cellphone location data

The Appellant argues that he had a reasonable expectation of privacy in his real-time cellphone location data. The Florida Supreme Court in Tracey v. State recently held that “regardless of Tracey’s location on public roads, the use of his cell site location information emanating from his cell phone in order to track him in real time was a search within the purview of the Fourth Amendment for which probable cause was required.” 152 So. 3d 504, 525-26 (Fla. 2014). As such, the Appellant is correct that he has a reasonable expectation of privacy in his real-time cellphone location data.

The circumstances at issue here occurred prior to the Tracey ruling, and the State argues that the good faith exception applies. However, in Tracey, the court held that because there was “no warrant, court order, or binding appellate precedent authorizing real time cell site location tracking,” the good faith exception was not applicable. Id. at 526. As such, here, because there is no warrant, court order, or binding appellate precedent providing that one does not have a reasonable expectation of privacy in real-time cellphone location data, the good faith exception does not apply.

C. Exigent circumstances

The trial court found that there were exigent circumstances that relieved law enforcement of its duty to obtain a warrant. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment subject to only a few exceptions. See Katz v. United States, 389 U.S. 347, 357 (1967). One of these exceptions is for exigent circumstances. Lee v. State, 856 So. 2d 1133, 1136 (Fla. 1st DCA 2003). There is no exhaustive list of what constitutes exigent circumstances, but this Court has identified the following factors as indicators of exigency:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) a reasonable belief that the suspect is armed; (3) probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; and (5) a likelihood that delay could cause the escape of the suspect or the destruction of essential evidence, or jeopardize the safety of officers or the public.

Id. at 1136-37 (citing to United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir.), cert. denied, 481 U.S. 1072 (1987)).

Here, the suspect was to be charged with murder and attempted murder. Law enforcement officers had a reasonable belief that the suspect was armed because they did not recover a firearm from the scene of the shooting. The officers also feared that a delay in the capture of the suspect could jeopardize the safety of law enforcement or the public. As such, there were various factors here that indicated exigent circumstances.

However, when determining whether sufficient exigent circumstances exist, courts examine the totality of the circumstances. Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006) (citing to Zeigler v. State, 402 So. 2d 365, 371 (Fla. 1981)). One such circumstance that courts look to is whether law enforcement had the time to secure a warrant. Lee, 856 So. 2d at 1136 (“Some set of facts must exist that precludes taking the time to secure a warrant.”). “[I]f time to get a warrant exists, the enforcement agency must use that time to obtain the warrant.” Hornblower v. State, 351 So. 2d 716, 718 (Fla. 1977).

Based on the record before us, it appears that the State failed to present testimony to establish that officers could not have obtained a warrant during the 2.5 hour period at issue. Further, there was no testimony that the officers made an attempt to obtain a warrant or that they considered making such an attempt. Accordingly, under the facts presented, the totality of the circumstances does not demonstrate exigent circumstances to overcome the warrant requirement.