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State v. Copes

Court of Appeals of Maryland

July 28, 2017

State of Maryland
v.
Robert L. Copes, Jr.

          Argument: April 3, 2017

         Circuit Court for Baltimore City Case 114090005

          Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.

          OPINION

          McDonald, J.

         Advances in personal technology, like the cell phone, empower individual users but may also threaten personal privacy. When police make use of the features of that technology to solve crime, courts and lawyers sometimes struggle to devise ground rules that respect constitutional privacy protections. This case involves an example of the law's effort to keep apace.

         Detectives investigating the gruesome murder of a young homeless woman in Baltimore City determined that a cell phone associated with her - but not found with her body - was still in active use. Hoping to find the phone - and the murderer - they applied to the Circuit Court for authorization to use, among other techniques, a "cellular tracking device" to locate the phone. They presented a sworn application to the Circuit Court that summarized the investigation of the murder, information concerning the missing phone, and their purpose in attempting to find it, as well as a draft order that tracked the application in pertinent respects. They did so under an established procedure - approved by the State's Attorney and the Police Department's lawyer - that had been adapted from a statute for police use of devices that record the numbers of incoming and outgoing calls concerning a target phone. The court issued the order, finding that "probable cause exists" upon the basis of the application.

         The detectives then employed a device known as a cell site simulator - basically, an undercover cell tower - which led them to the apartment of Respondent Robert L. Copes, where they found the phone, Mr. Copes, and evidence linking him to the victim and the murder.

         After charges were filed, Mr. Copes asked the Circuit Court to suppress the evidence obtained as a result of the use of the cell site simulator. Despite finding that the detectives acted "in good faith" and had done "fine work, " the Circuit Court felt constrained by a recent decision of the Court of Special Appeals.[1] It granted the motion on the ground that the use of the cell site simulator to locate the phone was a search for purposes of the Fourth Amendment and that the court order did not function as a search warrant.

         We hold that the evidence need not be suppressed. Regardless of whether use of a cell site simulator is a search for purposes of the Fourth Amendment or whether the court order authorizing its use fell short of a search warrant, the detectives in this case acted in "objectively reasonable good faith."

         I Background

         A. Cell Site Simulators and Judicial Authorization for Location Tracking

         1. Cell Phones and Location Tracking

         The ubiquitous cell phone has become a necessity of modern life. It facilitates mobility and access to information, not to mention mobile access to information. It has also spawned much attention in the application of the constitutional protections of personal privacy. Much of that attention concerns the information contained on a cell phone, particularly a "smart phone" that may contain or access a library of private information.[2]Of equal concern is the ability of the cell phone to transmit information about its location - and the location of the individual who possesses it.

         A cell phone's identification of its location is one of its essential virtues. A cell phone must be found by a service provider for it to be used as a phone. The location tracking feature of a cell phone is commonly used by those with a cell phone to navigate, [3]to locate an errant cell phone, [4] to find friends or family with cell phones in the vicinity, [5]and to summon help to the location of the cell phone in an emergency.[6]

         Law enforcement has sought to enlist this feature of cell phones to prevent and investigate crime. This case involved the use of two techniques that depend on a cell phone's indication of its location: cell site location information obtained from a service provider and a device known generically as a cell site simulator.

         Cell Site Location Information ("CSLI")

         When a cell phone sends or receives a call or text message, it attempts to connect with the service provider's closest cell tower.[7] If one knows which cell towers a cell phone has connected to (or is connecting to) and the physical location of those towers, one can approximate the geographical location of that cell phone. This information is often referred to as "cell site location information" or "CSLI." Information concerning which towers a cell phone has connected to in the past is sometimes referred to as "historical CSLI." Information concerning which towers a cell phone is currently connecting to is sometimes referred to as "real-time CSLI."[8]

         Cell Site Simulators

         A cell site simulator works as its name suggests - it pretends to be a cell tower on the network of the target phone's service provider.[9] It takes advantage of the fact that a cell phone - when turned on -constantly seeks out nearby cell towers, even if the user is not making a call.[10] Furnished with identifying information concerning the target phone, the cell site simulator searches for that phone. When the cell site simulator is close enough, the target phone will connect to it as though it were a cell tower.[11]

         Law enforcement officers using a cell site simulator may employ two devices in tandem: one stationed in a vehicle, the other carried by hand. The vehicular device, when it makes a connection with the target phone, points the user in the direction of the target phone. The handheld device, when taken in that direction, informs the user whether the target phone is getting closer or farther away. The combination of the two devices can produce a fairly accurate estimate of the target phone's location.[12]

         2. Orders Authorizing Location Tracking under the Pen Register Statute

         At the time of the investigation in this case, no statute specifically addressed the use of a cell site simulator or other device to track a cell phone's location.[13] Apparently, many law enforcement agencies, including the Baltimore City Police Department and the United States Department of Justice, [14] obtained judicial authorization to use a cell site simulator by following the established procedures for obtaining authorization to use a pen register or trap and trace device. As we shall see, some modifications and enhancements were made to a standard pen register application and order to customize those documents to a cell site simulator. We take a short detour to describe the Maryland Pen Register Statute, Maryland Code, Courts & Judicial Proceedings Article ("CJ"), §10-4B-01 et seq.

         In simple terms, a pen register records the numbers dialed out from a given phone, and a trap and trace device records the numbers that dial into that phone. See CJ §10-4B-01(c), (d) (definitions of "pen register" and "trap and trace device"). When information from both devices is aggregated, a log of all incoming and outgoing calls can be created for the period that the devices are active. These devices do not capture the content of communications. The Fourth Amendment does not require law enforcement officers to obtain a search warrant in order to use a pen register or trap and trace device. Smith v. Maryland, 442 U.S. 735 (1979).[15] Nevertheless, the General Assembly, by enacting the Pen Register Statute, [16] has required law enforcement officers to obtain judicial approval before using a pen register or a trap and trace device in an investigation.[17]

         To obtain an order under the Pen Register Statute, a law enforcement officer must make application under oath to a "court of competent jurisdiction in the State." CJ §10-4B-03(a). The application must identify the officer and agency conducting the investigation, and must state that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency. CJ §10-4B-03(b). Unlike an application for a search warrant, the application to use a pen register or trap and trace device need not demonstrate probable cause that a crime has been committed or that the evidence relating to that crime will be acquired through use of the device. If the application is approved, the order must identify the individual, if known, whose phone number is being surveilled and the individual who is the subject of the criminal investigation. CJ §10-4B-04(b). The order may authorize use of the device for a maximum of 60 days. CJ §10-4B-04(c). The statute also requires a phone service provider to whom an order is presented to furnish the officer with "all information, facilities, and technical assistance necessary to accomplish the installation" of the device "unobtrusively and with a minimum of interference" to the phone's service. CJ §10-4B-05(a)-(b).

         3. CP §1-203.1

         In 2014, the General Assembly enacted a statute to provide a specific judicial procedure to authorize law enforcement use of location tracking through cell phones. Chapter 191, Laws of Maryland 2014, codified at Maryland Code, Criminal Procedure Article ("CP"), §1-203.1. That statute provides for the District Court or a circuit court to authorize law enforcement officers "to obtain location information from an electronic device" in defined circumstances if the officers present a sworn application with a showing of probable cause, as specified in the statute. The statute became effective October 1, 2014, a few months after the events in this case. Since that time, law enforcement efforts to obtain judicial authorization for use of a cell site simulator presumably have been made pursuant to CP §1-203.1, as opposed to the format based on the Pen Register Statute. No appellate court has yet construed this statute or opined on its constitutionality.

         B. The Investigation of the Murder of Ina Jenkins

         The following information was elicited in testimony at the pretrial motions hearing in this case. For purposes of deciding the issues before us, it appears to be largely undisputed.

         1. The Homicide

         On February 4, 2014, a burned body was found in the rear yard of 4013 Penhurst Avenue, a vacant home in northwest Baltimore. Police found a black backpack containing a plastic bottle with some gasoline in a crawl space of the house about 10 to 15 feet from the body. Detective Bryan Kershaw of the homicide unit of the Baltimore City Police Department was assigned as lead investigator.

         2. The Investigation

         Identification and Autopsy

         Fingerprint evidence identified the body as that of Ina Jenkins, a 34-year old homeless woman. The State Medical Examiner performed an autopsy and determined that Ms. Jenkins' death was a homicide by blunt force trauma and that her body had been burned after she died. Based on evidence gathered from the crime scene and elsewhere, Detective Kershaw suspected that Ms. Jenkins had been murdered at a nearby location and that her body had been bound, carried on foot to the yard of the vacant home, and set on fire sometime on January 20 or 21, 2014 - approximately two weeks before her body was discovered.

         Videos of Ms. Jenkins with an Unidentified Man

         Detective Kershaw learned that Ms. Jenkins frequently spent her days at My Sister's Place, a resource center for women and children in need run by Catholic Charities in downtown Baltimore, and at the Enoch Pratt Free Library across the street. She often spent her nights at what was called a "code blue" shelter.[18] Detective Kershaw obtained records of recent expenditures Ms. Jenkins had made with her Independence Card - a debit card for food stamps and other cash benefits - and obtained surveillance videos from those merchants. Videos from two different merchants showed Ms. Jenkins and an unidentified man shopping a few days before her death. In both videos, the man was wearing, in Detective Kershaw's words, a "very distinct" blue and yellow coat. Detective Kershaw also obtained records of books Ms. Jenkins had recently borrowed from the library.

         Canvassing the Neighborhood of the Murder

         During the week beginning Monday, February 10, 2014, detectives canvassed the Penhurst Avenue neighborhood during the day and night to find potential witnesses to the murder. Still photos from the surveillance videos were given to officers on patrol in the area in the hope that an officer might encounter and recognize Ms. Jenkins' unidentified companion - or, perhaps, his "very distinct" coat.

         During these canvasses, Detective Kershaw knocked on various doors in the neighborhood, including the doors to apartments 1-E and 1-W on the first floor of 4014 Penhurst Avenue, an apartment building directly across the street from the vacant home with the yard where Ms. Jenkins' body was found. On February 12, 2014, Detective Kershaw met with the tenant in apartment 1-W. That tenant advised Detective Kershaw that, although the second floor apartment in the building was vacant, apartment 1-E was occupied. There was no response when Detective Kershaw knocked on the door to apartment 1-E that day.

         Telephones used by Ms. Jenkins

         Detective Kershaw also interviewed Ms. Jenkins' mother, who provided several telephone numbers associated with her daughter. In a letter, Ms. Jenkins had provided her mother with a phone number ending in -8138. More recently, on January 19, 2014, a day or two before the murder, Ms. Jenkins had called her mother from another phone number, ending in -4686, according to the caller ID log in her mother's telephone. Neither phone had been found with Ms. Jenkins' body. The detectives decided to try to locate the phones in the hope that they would advance the investigation.

         Court Order under the Pen Register Statute

         On February 11, 2014, one of the detectives applied to the Circuit Court for Baltimore City for court orders related to the -8138 and -4686 numbers.[19] We shall focus on the order pertaining to the -4686 number, as that is the particular order that led to the discovery and apprehension of Mr. Copes and that is at issue in this case.

         The sworn application was submitted under the Pen Register Statute. The application asked the court to authorize the "installation and use of a device known as a Pen Register/Trap & Trace and Cellular Tracking Device to include cell site information." In "support of probable cause for the interception of real-time cell site information, " the detective provided a brief summary of the discovery of Ms. Jenkins' body and the results of the autopsy, reported that certain cell phone numbers were associated with Ms. Jenkins but that the phones associated with those numbers were not found with her body, and concluded that the phones were taken by the "unknown suspect(s) and were likely being used "until service is terminated or the phone becomes non-functional." The detective further asserted in the application that "records will assist in possibly identifying and locating the unknown suspect(s)" and that "the information likely to be obtained concerning the aforesaid individual's location will be obtained by learning the numbers, locations, and subscribers of the telephone number(s) being dialed or pulsed from or to the aforesaid telephone and that such information is relevant to the ongoing criminal investigation being conducted by [the Police Department]."

         The application asked for an order directing cell phone service providers to provide necessary technical information to the police and asked the court for authorization to, among other things, "employ surreptitious duplication of facilities, technical devices or equipment to accomplish the use of a … Cellular Tracking Device, unobtrusively and with a minimum of interference to the subscriber of the … telephone, and … initiate a signal to determine the location of the subject's mobile device on the service provider's network or with such other reference points as may be reasonably available, Global Position system Tracing and Tracking, Mobile Locator tools, R.T.T. (Real Time Tracking Tool), …Precision Locations and any and all locations …"

         The Circuit Court issued the order the same day. In the order, the court found "that probable cause exists and that the applicant has certified that the information likely to be obtained . . . is relevant to an ongoing criminal investigation." The order authorized the installation and use of a "Pen Register/Trap & Trace and Cellular Tracking Device to include cell site information" for 60 days within the jurisdiction of the court, and also authorized the Police Department to obtain information about the cell phones from the pertinent service provider. Most pertinent to this case, the order authorized the detectives to "employ … [a] Cellular Tracking Device [and] initiate a signal to determine the location of the subject's mobile device on the service provider's network or with such other reference points as may be reasonably available, Global Position System Tracing and Tracking, Mobile Locator tools, R.T.T. (Real Time Tracking Tool)…." with the same conditions and qualifications as requested in the application. In addition, the service provider was directed to "initiate a signal to determine the location of the subject's mobile device on the service provider's network or with such other reference points as may be reasonably available and at such intervals and times as directed by the law enforcement agent/agencies serving this order."

         Calling the Cell Phone

         The detectives determined from the service provider - in this case Verizon - that the -4686 phone was a prepaid phone without an annual contract and that therefore there was no subscriber information available for that phone. Detective Kershaw called the -4686 number daily, without success until February 18, 2014, when a male voice answered the phone. Detective Kershaw hung up without speaking to the individual and immediately contacted Detective John Haley of the Police Department's Advanced Technical Team.

         Obtaining CSLI for the Cell Phone

         Pursuant to the court order, Detective Haley obtained from Verizon a list of calls and text messages sent or received by the -4686 phone. That list, which began with records starting around 7:30 p.m. that day, was created by Verizon and was updated in real time. In addition to noting the calls and text messages, the list also included CSLI - information concerning which cell towers the phone was connected to for each call and text message, as well as which area or "sector" of each tower's coverage the cell phone was using.

         The list of calls and text messages made by the -4686 phone indicated that the phone was using two cell towers in Baltimore, one located at 2500 West Belvedere Avenue and the other at 4110 Menlo Drive. Combining that information with information about which sector of each tower's coverage the phone was using, Detective Haley and the Advanced Technical Team were able to trace the -4686 phone to the Penhurst Avenue neighborhood, where Ms. Jenkins' body had been found.

         Using the Cell Site Simulator

         After analyzing the CSLI and determining that the -4686 phone was in the Penhurst Avenue neighborhood, Detective Haley and the team, under directions from Detective Kershaw, drove a cell site simulator to that area. The cell site simulator consisted of two devices, one stationed in the Advanced Technical Team's police vehicle and a handheld device. The detectives punched into the cell site simulator the -4686 phone's identifying numbers, which they had obtained from Verizon pursuant to the court order. Detective Haley and the team then used the devices to narrow down the cell phone's location.

         Using the vehicular device, Detective Haley and the Advanced Technical Team were able to make signal contact with the -4686 phone. The team then contacted Detective Kershaw, who came to the scene.[20] After his arrival, the detectives again used the cell site simulator - both the vehicular and the handheld devices - to track the -4686 cell phone. The devices indicated that the phone was at 4014 Penhurst Avenue - the apartment building across the street from the yard where Ms. Jenkins' body had been found and where Detective Kershaw had already questioned the residents other than the occupant of apartment 1-E.[21]

         Meeting Mr. Copes

         At approximately 11:30 pm, Detective Kershaw knocked on the door to apartment 1-E, as he had earlier in the week. This time, the door was answered by Mr. Copes, clad in a t-shirt and boxer shorts. Detective Kershaw immediately recognized Mr. Copes as the man who had been accompanying Ms. Jenkins in the surveillance videos. He showed Mr. Copes a photo of Ms. Jenkins and explained that the Police Department was investigating her death. Mr. Copes said that he knew Ms. Jenkins from the "code blue" shelter.

         Mr. Copes indicated that he wished to get dressed and the two men went into the apartment. As he entered, Detective Kershaw observed hanging on a vacuum cleaner a "very distinct" blue and yellow coat that was similar to the coat worn by the man with Ms. Jenkins in the surveillance videos. Once inside the apartment Detective Kershaw also observed several bottles of cleaning agents, a portion of the floor where the carpet had been ripped up, and bleach spots on the remaining carpet.

         After some further conversation with the detectives at the apartment, Mr. Copes agreed to go to the police station. At the station, Mr. Copes was given Miranda warnings and spoke further with the police.[22]

         Search Warrants

         Early the next morning, February 19, 2014, Detective Kershaw applied to the District Court sitting in Baltimore City for a warrant to search Mr. Copes' apartment as well as a warrant to obtain a sample of Mr. Copes' DNA. Among the items retrieved during the search of the apartment were swabs of suspected blood that were later matched to Ms. Jenkins through DNA testing.

         Some weeks later, upon reviewing the photos of Mr. Copes' apartment taken during the execution of the February 19, 2014 warrant, Detective Kershaw noticed a book sitting on Mr. Copes' desk in one of the photos. The title - Spelling the Easy Way - matched a library book that Ms. Jenkins had checked out of the Enoch Pratt Free Library shortly before her death. On April 7, 2014, Detective Kershaw applied for and obtained another search warrant for Mr. Copes' apartment. During the execution of this second warrant, the library book was retrieved from Mr. Copes' apartment.

         C. Legal Proceedings

         1. Charges

         On March 31, 2014, Mr. Copes was indicted by a grand jury in Baltimore City and charged with first-degree murder and with wearing and carrying a dangerous weapon in violation of Maryland Code, Criminal Law Article, §4-101.

         2. Motion to Suppress

         Mr. Copes moved to suppress all evidence recovered from his apartment as well as his statements to police. He asserted that the Police Department's use of a cell site simulator was a warrantless and unreasonable search in violation of the Fourth Amendment and that the evidence gathered as a result of the use of that device, including his identity and his statements to police, was the fruit of that illegal search.

         The Circuit Court conducted a hearing on Mr. Copes' motion on April 25, 2016. At the hearing, Detective Haley and Detective Kershaw testified in detail about the techniques used by the Advanced Technical Team to track the -4686 cell phone to 4014 Penhurst Avenue. Both detectives also testified about the protocols followed in applying for the court order before the cell site simulator was used.

         According to the detectives, the form of the application had been drafted and approved by the State's Attorney's Office and the Police Department's legal department, had been used since 2007, and was not revised until late 2014, after the investigation in this case. Detective Kershaw testified that he was not aware of any "issues" with the application, which had been used and approved "many, many times." In his experience, up through the time he applied for the orders at issue in this case, the application had, in fact, never been denied, nor had there "ever been any reservation expressed by [any judge of the Circuit Court for Baltimore City] as it relates to . . . the validity of those orders" obtained via the application.

         Both detectives testified that they believed that the orders in this case authorized them to use the cell site simulator to locate the -4686 phone. Detective Haley said that he assumed that, if the judge to whom the application and draft order was presented had not thought them to be sufficient, the judge would not have signed the order. Although another detective had applied for the order in this case, Detective Haley testified that, had he been the one submitting the applications, he would have answered any of the judge's questions. Detective Haley conceded that, at that time, there was a nondisclosure agreement between the Police Department and the FBI that ostensibly prevented disclosure of certain information about the cell site simulator.

         Mr. Copes also testified briefly at the hearing to establish his standing to seek suppression of the evidence obtained through the cell site simulator. He stated that he was the owner of the -4686 phone. On cross-examination, he stated that he had let a "dear friend" named Ina use the phone.

         3. Circuit Court Ruling

         The Circuit Court granted Mr. Copes' motion to suppress. The court explained its reasoning in an oral opinion that relied heavily on the then-recent decision of the Court of Special Appeals in State v. Andrews, 227 Md.App. 350 (2016), that had affirmed a circuit court decision suppressing evidence derived from use of a cell site simulator.[23] The Circuit Court stated its belief that "these police officers acted in good faith" and noted some distinctions from the facts in Andrews - in Andrews the police used the device to find the known cell phone of a known suspect while in this case the suspect was unknown and the police believed the phone belonged to the victim. Nevertheless, the court felt bound to follow the decision in Andrews.

         The Circuit Court also considered whether the police would have inevitably discovered Mr. Copes without use of the cell site simulator, and opined that "this case is a much closer call than Andrews." However, it reasoned that, even if the detectives had eventually found Mr. Copes at 4014 Penhurst Avenue, it might have been at a later time when the incriminating evidence in the apartment was gone. The court also rejected an argument that the pen register and other CSLI data (apart from the use of the cell site simulator) would have independently led the detectives to Mr. Copes, noting that the CSLI data "didn't pinpoint this particular location."

         The court reiterated its finding that "these officers operated in good faith, " but held that the use of the cell site simulator without a warrant was an unconstitutional search. As a result, it held that evidence derived from that search - all evidence seized from Mr. Copes' apartment as well as his statements to police - should be suppressed as fruit of an illegal search. The State appealed.

         4. Appeal to Court of Special Appeals

         In an unpublished opinion issued October 25, 2016, the Court of Special Appeals affirmed the Circuit Court ruling. Citing its previous decision in Andrews, the intermediate appellate court held that the use of the cell site simulator was a Fourth Amendment search and that the order based on the Pen Register Statute was not a constitutionally-sufficient authorization for that search. It also rejected the State's arguments as to why the exclusionary rule should not be applied. It held that the discovery of Mr. Copes - and the evidence in his apartment - was not inevitable or sufficiently attenuated from the use of the cell site simulator to avoid application of the exclusionary rule.[24] Similarly, it rejected the State's argument that the police officers believed, in good faith, that the order authorized the use of the cell site simulator, because, when applying for the order, they "did not provide clearly what technology [they] sought to use, nor the manner in which the technology operated."

         The State petitioned this Court for a writ of certiorari, which we granted.

         II Discussion

         A. Standard of Review

         In reviewing a trial court's decision to grant or deny a motion to suppress evidence based on a constitutional violation, we generally accept any fact findings made by the trial court unless they are clearly erroneous. The ultimate question as to whether there was a constitutional violation is a legal question on which we accord no special deference to the trial court. See Sinclair v. State, 444 Md. 16, 27 (2015). Similarly, the application of the exclusionary rule - and whether there is an applicable exception to that rule in the particular case - is a question of law that we decide without deference to the lower court. Marshall v. State, 415 Md. 399, 408 (2010); see also McDonald v. State, 347 Md. 452, 470 n.10 (1997) (ultimate question whether good faith exception to exclusionary rule applies is a legal issue).

         B. Whether Evidence Obtained by Use of a Cell Site Simulator Should be Suppressed

         The State presents one question for review: Did the lower courts err in excluding the evidence? The facial simplicity of this single question belies its multi-layered complexity. It can be broken down into three parts:

(1) Search - Was use of the cell site simulator in this case a search for purposes of the Fourth Amendment?
(2) Warrant - If use of the cell site simulator was a search, did the court order obtained by the police serve the function of a warrant for purposes of the Fourth Amendment?
(3) Exception to Suppression - If the court order was not equivalent to a warrant, is there an applicable exception to the warrant requirement or to the exclusionary rule that allows for admission of the evidence at trial?

         We shall not answer the first two questions. With respect to the first question, the State has conceded, for purposes of this case, that the use of the cell site simulator constituted a search. There is no reason to deviate from the usual rule against providing an advisory opinion in order to give a definitive answer to that question, particularly when the issue concerns a rapidly changing technology and shifting legal landscape.

         The State does ask us to answer the second question as to the sufficiency of the court order as a warrant for purposes of the Fourth Amendment. This, however, is a close question - and one that is not likely to recur, at least with respect to the format of this particular order. As noted earlier, the General Assembly enacted a statute three years ago that specifically addresses court orders authorizing law enforcement use of devices such as cell site simulators. Presumably any orders issued in the interim have been based on that statute. In any event, it is not necessary to answer this question to resolve this case.

         We will answer the third question. In particular, we will decide whether the good faith exception to the exclusionary rule applies in these circumstances, even if one considers use of the cell site simulator to locate a cell phone to be a search and the court order in this case inadequate as a warrant. In doing so, we will discuss factors bearing on each of the first two questions, as they affect the assessment of whether the good faith exception applies here. For the reasons set forth below, we conclude that it does.[25]

         1. The Exclusionary Rule and the Good Faith Exception

         The Fourth Amendment to the United States Constitution states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."[26] To vindicate this guarantee and deter violations by law enforcement, the Supreme Court has developed the "exclusionary rule." Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment is ordinarily excluded from the criminal trial of a defendant whose rights were violated by an illegal search or seizure. Weeks v. United States, 232 U.S. 383 (1914) (establishing the exclusionary rule in federal courts); Mapp v. Ohio, 367 U.S. 643 (1961) (extending exclusionary rule to state courts).

         The exclusionary rule is not itself an individual right; therefore, suppression of evidence "is not an automatic consequence of a Fourth Amendment violation." Herring v. United States, 555 U.S. 135, 137, 141 (2009). The Supreme Court has cautioned that suppression "has always been our last resort, not our first impulse." Hudson v. Michigan, 547 U.S. 586, 591 (2006). The rule's sole purpose is to deter future Fourth Amendment violations by law enforcement. United States v. Leon, 468 U.S. 897, 916 (1984). It is to be applied only when this "deterrent effect [is] substantial and outweigh[s] any harm to the justice system." Herring, 555 U.S. at 147; see also United States v. Calandra, 414 U.S. 338, 348 (1974). Because the rule imposes a "costly toll upon truth-seeking and law enforcement objectives, " those arguing for its application face a "high obstacle." Pennsylvania Bd. Of Probation and Parole v. Scott, 524 U.S. 357, 364 (1998) (internal quotations and citations omitted).

         The exclusionary rule is not applied when law enforcement officials engage in "objectively reasonable law enforcement activity, " even if that activity is later found to be a violation of the Fourth Amendment. Leon, 468 U.S. at 919. This exception to the exclusionary rule is also known as the "good faith exception" because it depends on whether law enforcement officers acted in good faith. Davis v. United States, 564 U.S. 229, 238 (2011). For example, the Supreme Court has held the good faith exception applicable when law enforcement officers (1) conducted a search pursuant to a facially valid search warrant that was later found to lack probable cause, [27] (2) conducted a search pursuant to a statute authorizing warrantless administrative searches that was later held to be unconstitutional, [28] (3) made an arrest pursuant to a warrant listed in a judicially-maintained database that was later revealed to be inaccurate because the warrant had been quashed, [29] (4) made an arrest pursuant to a warrant listed in a law enforcement-maintained database that was later revealed to be inaccurate because the warrant had been recalled, [30]and (5) conducted a search in reliance on binding appellate precedent that was later overruled.[31] This Court has applied the good faith exception in similar circumstances.[32]

         The Supreme Court has described four situations in which the good faith exception would not be applied: (1) the magistrate is misled by information in the application for the warrant that the officer knew was false or would have known was false, except for a reckless disregard for the truth; (2) the magistrate wholly abandons a detached and neutral role; (3) the affidavit is so lacking in probable cause so to render official belief in its existence entirely unreasonable; (4) the warrant is so facially deficient, by failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid.[33]

         Relevant to the application of the good faith exception here - and whether the suppression of evidence under the exclusionary rule would deter future unlawful conduct by investigators - is the extent to which it should have been clear to the detectives in this case (1) that the courts would determine that use of a location tracking device like the cell site simulator was a search and (2) that a court order in the format similar to that used for pen registers and trap and trace orders would be inadequate to authorize use of the device.

         2. Location Tracking and Fourth Amendment Searches

         Two basic principles governing application of the Fourth Amendment are that it "protects people, not places"[34] and that a "Fourth Amendment search occurs [only] when the government violates a subjective expectation of privacy that society recognizes as reasonable."[35] The Supreme Court has reached varying conclusions about the application of these principles to the use of location tracking devices, and has recently agreed to consider such an issue related to cell phones. A number of lower courts have discussed the Fourth Amendment implications of location tracking by means of CSLI and cell site simulators.

         a. Real-Time Location Tracking Not Involving Cell Phones

         Beepers - to the home v. in the home

         In a pair of cases from the 1980s involving then-contemporary technology, the Court reached different conclusions on whether the clandestine use of a radio transmitter - a "beeper" - by law enforcement officers to track a suspect or contraband in the suspect's control constituted a search for purposes of the Fourth Amendment. The difference appeared to turn on whether the device tracked movement in a public place or within a private dwelling.

         In one case, [36] law enforcement officers installed a beeper in a container of chemicals purchased by the suspect and then tracked the container as the suspect transported it via automobile to the area around a cabin where he operated a drug laboratory. The Court held that the use of the beeper was not a Fourth Amendment search. The Court observed that, by travelling over the public streets, the suspect "voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, " and that the beeper was not used to reveal information as to the movement of the container within the cabin. The Court concluded that the suspect had no reasonable expectation of privacy in the container's movements.[37]

         In the other case, [38] law enforcement officers installed a beeper in a container of chemicals purchased by the suspect and again tracked the container, this time into - and not just to the area around - a home. Unlike the previous case, where the beeper "told the authorities nothing about the interior of [the] cabin, " the Court noted that the tracking in the second case indicated that the beeper was inside the suspect's house, "a fact that could not have been visually verified."[39] Because individuals have privacy interests in their homes, the Court concluded that this tracking was a Fourth Amendment search.[40]

         GPS trackers - trespass v. reasonableness

         Nearly 30 years later, the Court considered law enforcement use of a Global Positioning System (GPS) device to track a suspect for an extended period of time. In that case, [41] law enforcement officers attached a GPS device to the suspect's automobile and tracked the vehicle's movements for 28 days. The Court unanimously agreed that these actions constituted a Fourth Amendment search, but the justices differed on the rationale for this conclusion. A majority of five justices attributed the violation to the fact that the officers had committed a common law trespass when they installed the device on the car.[42]The majority opinion declined to delve into the "thorny problems" that might be posed if the tracking involved only the transmission of electronic signals, but noted that such a case would be subject to a reasonableness analysis.[43] The other four justices would have resolved the case by applying a reasonableness test under which short-term monitoring of movements on a public street by means of a GPS device would be reasonable as in "accord with expectations of privacy that our society has recognized as reasonable" while longer term monitoring would violate those expectations.[44] Two concurring opinions in Jones predicted that advances in personal technology would enhance location tracking capabilities, affect expectations of privacy, and raise additional questions under the Fourth Amendment.[45]

         b. Retrospective Location Tracking via Cell Phone - Historical CSLI

         As described earlier in this opinion, the location of a cell phone can be approximated by analyzing service provider records of the cell towers with which the phone connected to make and receive calls and text messages. Appellate courts have reached different conclusions as to whether the warrantless collection of historical CSLI implicates the Fourth Amendment. The United States Supreme Court recently agreed to consider whether a search warrant is required for law enforcement officers to obtain historical CSLI from a service provider. United States v. Carpenter, ___ U.S. ___, 2017 WL 2407484 (June 5, 2017).

         Most courts have concluded that law enforcement access to historical CSLI is not a search for purposes of the Fourth Amendment. They have cited the "third party doctrine, " which the Supreme Court elucidated in concluding that law enforcement officers do not conduct a search for purposes of the Fourth Amendment when they request a telephone company to install a pen register[46] or obtain a depositor's bank records from a financial institution.[47] For example, in United States v. Graham, 824 F.3d 421, 427 (2016) (en banc), the Fourth Circuit concluded that an individual does not have a reasonable expectation of privacy in a cell phone's historical CSLI. The Fourth Circuit reasoned that, because a cell phone user voluntarily shares that information with third parties - i.e., cell phone service providers - whenever the cell phone user makes a call or sends a text message, the user cannot reasonably expect it to remain private. 824 F.3d at 427-28. Accordingly, the collection of such data by law enforcement officers is not a Fourth Amendment search.

         Many other federal appellate courts have come to the same conclusion as the Fourth Circuit in Graham based on the same reasoning. See, e.g., United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), cert granted, ___ U.S. ___, 2017 WL 2407484 (June 5, 2017); United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc); In re application of the United States for historical cell site data, 724 F.3d 600 (5th Cir. 2013); see Graham, 824 F.3d at 428-29 & nn.6-7 (collecting cases); see also Zanders v. Indiana, 73 N.E.3d 178 (Ind. 2017).

         The Third Circuit, however, has reached a different conclusion, and rejected application of the third party doctrine to historical CSLI. In re Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304, 317 (3rd Cir. 2010). In that case, the court reasoned that a cell phone user does not share location information with a service provider "in any meaningful way." Nevertheless, that court held that federal law enforcement officers need not demonstrate probable cause - the standard for obtaining a search warrant - in order to obtain historical CSLI. Rather, the officer need only make a showing required by the federal Stored Communications Act - that is, "specific and articulable facts showing that there are reasonable grounds to believe that [the historical CSLI is] relevant and material to an ongoing investigation." Id. at 315 (citing 18 U.S.C. ...


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