NY. District Court, following Zodhiates decision, invokes good faith exception to defeat Carpenter claim.

In this case, the defendant went to trial and was found guilty of a number of criminal counts stemming from a series of robberies. The trial and post-trial motions took place before Carpenter was decided. After Carpenter, the defendant moved for reconsideration of the denial of the Defendant’s Rule 33 Motion for a New Trial, arguing that trial counsel provided ineffective assistance of counsel for failing mot move to suppress the Defendant’s CSLI.

In this case, an AUSA applied for authorization through the Stored Communications Act to obtain cell tower data from a specific tower for phone numbers. This is sometimes known as a “tower dump.” The AUSA received a spreadsheet of phone numbers that hit off of a specific tower for a certain date in question.

This led to the request for another order to obtain CSLI for multiple telephone numbers, including the Defendant’s. For this, the District Court judge decided that the Government acted in good faith. Relying on the Second Circuit 2018 decision of Zodhiates (previously featured on this blog on September 15), the Court ruled that at the time of the search, the third-party doctrine allowed law enforcement officers to use subpoenas to obtain cell phone records.

I personally feel that Zodhiates is flawed because, at the time Carpenter was decided, there was no binding Second Circuit precedent permitting warrantless CSLI searches. The District Court also stated that “(u)nless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written.”

The Defendant’s Motion for Reconsideration of the Motion for a New Trial was therefore denied.

The case is United States v. Williams, 2018 U.S. Dist. LEXIS 165813 (Dist. Ct. E.D. NY), (September 26)