M.D.Fla.: Reliance on a state court tracking order years ago was entitled to good faith

Under the Stored Communications Act, one must still prove standing as an “aggrieved person.” A state court cell phone tracking order is entitled to good faith exception deference, particularly since it was issued prior to any cases on the subject. United States v. Harris, 2016 U.S. Dist. LEXIS 102732 (M.D.Fla. July 31, 2016):

Defendants claim that they are “aggrieved parties” under the SCA and thus have standing to seek the exclusion of the realtime location evidence from the illegal searches. However, such conclusion does not follow and is unsupported by the law. Pursuant to the SCA, an “aggrieved person” is “a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” 18 U.S.C. § 2510(11). Here, neither Defendant demonstrates that they were a party to such intercepted communication. They can claim that they were the target of the inception, but that alone is not enough to show standing under the Fourth Amendment.

“Under the SCA, a victim of improper data collection has several remedies available, but suppression of evidence is not one of them. See 18 U.S.C. §§ 2707, 2708, 2712.” United States v. Madison, No. 13-14541, 2016 U.S. App. LEXIS 3039, 2016 WL 692106 at *1 (11th Cir. Feb. 22, 2016) (citing United States v Thompson, 936 F.2d 1249, 1251(11th Cir. 1991) for the proposition that “unless the statute at issue provides for exclusion, we do not apply the exclusionary rule to non-constitutional violations of law”). Here, Defendants seek to exclude evidence seized in an illegal search. That remedy is not found in the SCA, but rather in the Fourth Amendment. To prevail on such remedy, a defendant must demonstrate both his standing and an illegal search, consistent with the Fourth Amendment law.

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At the hearing, the Government argued that the Leon good-faith exception would apply in these circumstances. That is, the Government argued that despite the lack of warrant and showing of probable cause, the officers here acted in good faith upon orders issued by the state court in accordance with the established standard. Thus, they claim the exclusion of evidence in the circumstances is unwarranted.

In response to this argument, Defendant Harris’s counsel urged that these officers knew full well that tracking devices required a warrant and they acted with intentional bad faith to bypass the warrant requirement by using the pen/trap applications as a vehicle for court approval for conducting illegal searches.

As discussed above, the objectively ascertainable question is whether a reasonably well trained officer would have known that the search was illegal despite the state judges’ authorization. Based on the record before the Court, I am obliged to conclude the officers would not have known that the seizures of realtime location information in this fashion pursuant to pen/trap authorizations were illegal. At the time of these applications, neither the Florida Supreme Court nor the United States Supreme Court had explicitly spoken on this issue. Indeed, the U.S. Supreme Court still has not weighed in on this type of tracking.

According to Detective Petta’s testimony at the July 21 hearing, the realtime authorizations were obtained in the usual way and in accordance with the established practice in that circuit at that time. While Defendants argue to the contrary, they offer no contrary evidence, and I am obliged to find the detective’s testimony supports a finding of good faith.

Furthermore, none of the exceptions to the Leon good faith doctrine apply here. First, there is no indication that the factual allegations in the application are false or demonstrate reckless disregard for the truth. Second, there is no indication that state court judges abandoned their detached and neutral role. Third, the Government was not dishonest or reckless in preparing its application. Law enforcement could hold an objectively reasonable belief that the orders were valid because case law arguably supported the Government’s position at the time that it sought the order. Cf. United States v. Brunette, 256 F.3d 14, 19-20 (1st Cir. 2001) (finding reliance on a warrant was objectionably reasonable where the state of the law was uncertain). And finally, applying the standard that the officers apparently believed was sufficient, the applications were not so facially deficient that they could not reasonably presume it to be valid.

As such, assuming arguendo that all three of these Defendants here establish standing, the Leon good faith exception applies and dictates that their motions to suppress be denied.