U.S.D.C. for E.D. Mich. invokes good faith exception despite absence of controlling case law

The United States District Court for the Eastern District of Michigan, Southern Division issued a decision essentially ordering that suppression of CSLI is not an appropriate remedy where there’s a violation of the Fourth Amendment.

This issue is before the District Court in the context of a motion for a new trial where the Defendant is making allegations of ineffective assistance of his trial counsel for failure to make a motion to suppress cell site location information.

The District Court back in May denied the defendant’s motion for a new trial, concluding that the defendant could not show prejudice from the failure to make the motion based on a Sixth Circuit decision called United States v. Pembrook (876 F.3d 812, 822-24 (6th. Cir. 2017)). Per the District Court’s reading of Pembrook, suppression is not the appropriate remedy for the Fourth Amendment violation.

After Carpenter was decided, this defendant moved for reconsideration. The Court denied the motion, ruling that Carpenter changed nothing.

Pembrook is a good faith case that decides (in a cell tower case) that since there was no court precedent against law enforcement at the time they made their request against Pembrook, therefore they must have acted in good faith, invoking Davis. This seems to be a troubling expansion of the good faith doctrine where law enforcement can rely on the lack of “bad precedent” instead of the reliance of actual precedent that ratified this type of search.

This seems ripe for a challenge to me.

The case is United States v. Scott, 2018 U.S. Dist. LEXIS 113218 (July 9).

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