In a case decided days after the Carpenter decision, the United States District Court for the Northern District of California, San Jose Division (June 26, 2018) invoked the application of the good faith doctrine to defeat one of the first post-Carpenter claims. This case and others where the good faith exception are invoked require careful watching.
In this gangs prosecution case, the police received a search warrant to enable a search that revealed incriminating information. The relevant challenge to the warrant (not the only one, but the one that is relevant here) is that probable cause is lacking because the search warrant affidavit improperly relies on an electronic communication court order.
The Court faulted the defense for not challenging the electronic communication court order but instead the search warrant because it relied upon the electronic communication court order. The Court points out that it would have been helpful to have evidence regarding the procurement and execution of the electronic communication court order, and the content of the order. The Court held that the record is incomplete.
The Court believes it still has enough information to conclude that the officers reasonably relied on the search warrant in good faith, citing United States Supreme Court cases of Calandra (414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974)), Leon (468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)), Davis (564 U.S. 229, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011)), and Herring (555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009)).
The Court rules that it has no idea if Carpenter is implicated in this case because of the incomplete record, but also ruled that good faith applied because of the lack of binding case law on the officers from the Ninth Circuit or U.S. Supreme Court that would have controlled at the time of the search.
The Court invoked the U.S. Supreme Court cases of Illinois v. Krull (480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)) (that seems to hold that if a statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to the statute being held unconstitutional will not deter future Fourth Amendment violations as well as Davis.
It seems to me that there are 2 arguments to defeat good faith based on Krull that are not addressed in this opinion.
The first argument is to limit Krull to its facts which focused on the constitutionality of a law that authorized certain administrative searches that the officer was performing. Administrative searches are a recognized exception to the warrant requirement, so an officer could in good faith assume that when the legislature creates a new administrative search provision that he/she might take advantage of it.
Carpenter and its progeny are not administrative searches. There is no recognized exception to the warrant requirement that CSLI fits squarely into. The legislature cannot just do away with the Fourth Amendment so that officers can rely on legislative fiat to allow them to do whatever they want until a court steps in.
If a legislative body passed a law that allowed the police to ransack a judge’s home or his mail or his phone without a warrant, would this pass muster re: good faith because the police can always act more quickly to strip someone’s rights than a court can act to undo that police action.
The Krull opinion discussed legislative schemes that the Court had previously upheld that a detective could fairly rely on.
The lack of precedent on CSLI is a completely different matter.
That brings me to the second argument, mentioned previously in this blog and worth repeating. This opinion subsumes that Carpenter established a new rule carving out CSLI from the Stored Communications Act and instead requiring a warrant.
Our Chief Justice on the other hand in drafting the majority opinion did not characterize this as a new rule, but a rejection of a law enforcement request to expand the third party doctrine to CSLI. It seems then that the police are not acting in good faith, so the argument goes, but are the bad actors who attempted to convince the courts to expand current third party doctrine by engaging in unconstitutional searches……. and lost.
It’s the detectives then who assumed the risk of seeking such an expansion to an exception to the warrant requirement.
There will be more on this in future installments when more courts decide the good faith exception. Any suggestions for additional arguments or tweaking of this one is most welcome at email@example.com.
The case is United States v. Chavez, 2018 U.S. Dist. LEXIS 4721 (N.D. Cal.)