FL4: Use of cell site simulator under CSLI order 4A violation; no GFE because of lack of contrary authority

In 2012, well before Carpenter, the police used a cell site simulator under CSLI order to track defendant. There was no binding authority at the time for the state to rely on. By the time this case reaches appeal, the state courts had already held this situation a violation of the Fourth Amendment. Thus, the court holds the state does not get the benefit of the good faith exception. This is the kind of police conduct the exclusionary rule was designed to deter. State v. Martin, 2019 Fla. App. LEXIS 17962 (Fla. 4th DCA Nov. 27, 2019):

We have since held that the State must establish probable cause and obtain a warrant before using a cell-site simulator. Sylvestre, 254 So. 3d at 992. The use of a cell-site simulator is even more invasive than CSLI, as it allows law enforcement to track an individual’s location in real time without going through the third-party service provider. This presents significant privacy concerns. In Sylvestre, we rejected the same argument the State makes now and held that the CSLI order did not authorize use of a cell-site simulator. Id.

The exclusionary rule’s purpose is to deter future Fourth Amendment violations. Davis, 564 U.S. at 236. Courts must weigh deterrence against the “heavy toll” exclusion exacts on the judicial system. Id. at 237. “For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Id.

The Fourth Amendment violation here is precisely the kind of violation the exclusionary rule seeks to deter. The CSLI data led detectives to a broad search area where the defendant was located. Unable to find the defendant’s exact location, the detectives went outside the scope of the court order and used a cell-site simulator to locate him. The government cannot rely on the absence of binding decisional law in this area to conduct a warrantless search. We therefore affirm the trial court’s ruling on the motion to suppress.