E.D.Wis.: Cert grant alone in Carpenter didn’t nullify GFE as to CSLI

The fact that SCOTUS had granted cert in Carpenter when the CSLI was obtained under a § 2703 order and not a search warrant doesn’t make government reliance on existing precedent unreasonable or show a lack good faith. United States v. Clayborne, 2019 U.S. Dist. LEXIS 205997 (E.D. Wis. Nov. 27, 2019):

The defendant’s argument boils down to an assertion that when lower federal courts disagree about a statute’s constitutionality, and the Supreme Court has accepted certiorari on the question, the government cannot in good faith rely on that statute. That is not and cannot be the law. Until the Supreme Court strikes down a statute, all parties—the government included—have a good-faith basis for relying on that statute. Exclusion of evidence is not “required when law enforcement agents act in good-faith reliance upon a statute or ordinance that is subsequently held to be unconstitutional. Nor is exclusion required when law enforcement agents act in good-faith reliance upon a statute or ordinance that is subsequently held to be unconstitutional. United States v. Peltier, 422 U.S. 531, 95 S. Ct. 2313, 45 L. Ed. 2d 374 … (1977), Michigan v. DeFillippo, 443 U.S. 31, 99 S. Ct. 2627, 61 L. Ed. 2d 343 … (1979).” Illinois v. Gates, 462 U.S. 213, 256, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). The defendant’s argument that government lawyers are not entitled to exercise that same reliance has no support in the law or in the chronology of this case.

In August 2016, there was no reason for the prosecutors to believe that §2703(d) was constitutionally infirm. …