CA6: What is sufficient probable cause for a CSLI or tracking warrant?

What is sufficient probable cause for a CSLI or tracking warrant? “After a lengthy investigation, the federal government uncovered substantial evidence that Dwayne Sheckles was a Louisville distributor for a large drug-trafficking ring. Sheckles pleaded guilty but reserved the right to appeal the district court’s refusal to suppress much of this evidence. His appeal raises many Fourth Amendment questions. To name a few: What type of evidence creates probable cause to obtain a warrant for a phone’s location data after Carpenter v. United States, 138 S. Ct. 2206 (2018)? Did a sufficient ‘nexus’ exist between Sheckles’s drug dealing and two apartments to justify search warrants for the apartments? Did officers lawfully stop Sheckles’s vehicle after he left one of these apartments while they were in the process of seeking the warrants? And does a third party’s lack of apparent authority to consent to a search make a difference if officers learn after the search that the party had actual authority to consent? Ultimately, we find no Fourth Amendment violations and thus affirm.” United States v. Sheckles, 2021 U.S. App. LEXIS 12952 (6th Cir. Apr. 30, 2021). No matter what standard of evaluation of probable cause for CSLI is applied, this one complies:

The Fourth Amendment says that “no Warrants shall issue, but upon probable cause[.]” U.S. Const. amend IV. Yet probable cause of what? When the police seek a warrant to search a home for physical items, the caselaw has long answered this question: The police need a probable-cause “nexus” showing a fair probability that the home to be searched will contain the things to be seized. See United States v. Reed, _ F.3d _, 2021 WL 1217871, at *3 (6th Cir. Apr. 1, 2021) (citation omitted); see also Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). Here, however, the officers sought to locate a phone to identify the person using it and investigate the person’s crimes, not to seize anything. What type of “nexus between … cellphone location data and drug trafficking” justifies this different kind of warrant? United States v. Thornton, 822 F. App’x 397, 402 (6th Cir. 2020). Must the affidavit show only a fair probability that the phone’s data “will aid in a particular” investigation and disclose evidence of criminal activity? United States v. Christian, 2017 WL 2274328, at *9 (E.D. Va. May 24, 2017) (quoting Andresen v. Maryland, 427 U.S. 463, 483 (1976)); see Warden v. Hayden, 387 U.S. 294, 307 (1967). Or must it show, say, a fair probability that the phone itself is being used “in connection with criminal activity”? See United States v. Powell, 943 F. Supp. 2d 759, 779 (E.D. Mich. 2013), aff’d on other grounds 847 F.3d 760 (6th Cir. 2017). This nexus issue has added importance after Carpenter.

We need not resolve the issue here. This case’s affidavit would pass muster under any test. The affidavit summarized the 2007 investigation of the Rivas-Lopez brothers, their distribution to Byron Mayes, and the DEA’s large seizure of drugs and money at that time. The affidavit next summarized the Rivas-Lopez brothers’ post-prison drug trafficking in 2016 and the seizure of a large amount of drugs and money from the Louisville stash house. It also noted that Freddy told an undercover DEA agent on June 14, 2017, that he had just spoken with “his Louisville distributor” and that he wanted the agent to deliver ten kilograms of cocaine to the distributor. Freddy later told the agent that the Louisville distributor would pay in cash at a price of $27,000 per kilogram. Using “toll analysis” of Freddy’s phone from June 14, the DEA identified the phone number and phone that this Louisville distributor likely used to speak with Freddy. The prepaid phone had no identifiable customer. The affidavit explained that, in the officer’s experience, drug dealers commonly use that type of phone to remain anonymous.

Considered collectively, this information provided a “substantial basis” for the state judge’s finding that probable cause existed to obtain the phone’s location data. Gates, 462 U.S. at 238 (citation omitted). An undercover agent had learned from Freddy Rivas-Lopez—a known drug trafficker—that Freddy planned to undertake a large deal with “his Louisville distributor.” Unlike with information from a confidential informant, we presume the reliability of information from this government agent. See United States v. Ventresca, 380 U.S. 102, 111 (1965); United States v. Lapsins, 570 F.3d 758, 764 (6th Cir. 2009); 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.5(a) (6th ed), Westlaw (database updated Sept. 2020). The affidavit also explained why the phone likely was used by the Louisville distributor “in connection with” this pending deal: It was the number used when Rivas-Lopez told the undercover agent that he had spoken to his distributor. Powell, 943 F. Supp. 2d at 779. And the phone’s location would likely yield useful evidence of criminal activity, including the distributor’s identity. See Hayden, 387 U.S. at 307. Thus, no matter the nature of the required “nexus” between the phone’s location data and criminal activity, a sufficient nexus existed here. Thornton, 822 F. App’x at 402; see United States v. Gibbs, 547 F. App’x 174, 179 (4th Cir. 2013).

Sheckles’s responses fall short. He first asserts that the affidavit offered no more facts than that “a known drug dealer” (Freddy Rivas-Lopez) “call[ed] another phone.” Appellant’s Br. 33. The affidavit provided much more than that: An undercover agent summarized how Freddy was planning a large drug deal with his Louisville distributor, and Freddy’s phone records showed that the distributor was using this other phone to arrange that crime.

Sheckles next contends that even if probable cause existed when the judge issued the warrant, it “dissipated” days later when officers learned from the undercover agent that the distributor’s cocaine deal with Rivas-Lopez had fallen through. Sheckles correctly notes that, at least for a traditional search warrant of a home, “there must be probable cause at the time the judge issues the warrant and at the time officers execute it[.]” United States v. Archibald, 685 F.3d 553, 560 (6th Cir. 2012). If new information comes to light in the interim (say, the police learn that the home has just been subject to a consent search that uncovered no evidence), this new information could eliminate the probable cause that existed when the judge issued the warrant. See United States v. Bowling, 900 F.2d 926, 932 (6th Cir. 1990).

The caselaw has not addressed how this rule should apply to technologically advanced (and ongoing) searches like the kind at issue with the tracking warrant. See LaFave, supra, § 4.7(a); cf. Orin S. Kerr, Search Warrants in an Era of Digital Evidence, 75 Miss. L.J. 85, 102-04, 115-24 (2005) (computer search); United States v. Nyah, 928 F.3d 694, 699-701 (8th Cir. 2019) (electronic-service-provider data). But the rule would not affect the outcome anyway. Evidence should not be suppressed if probable cause continued to exist despite the new facts. See Bowling, 900 F.2d at 934. Even if the officers needed probable cause for every “ping” of the phone, the new fact (that the deal with Rivas-Lopez had fallen through) did not negate probable cause. The undercover agent noted that this deal would not proceed precisely because the distributor had bought other drugs. So a fair probability remained that the phone pinging would reveal evidence of a crime even after the warrant’s issuance. See United States v. Green, 554 F. App’x 491, 495-96 (6th Cir. 2014); see also United States v. Porter, 774 F. App’x 978, 979 (6th Cir. 2019).

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