This, as far as I am aware, is the 7th Circuit’s first foray into the post-Carpenter world. This means something personally and professionally to me, as this Circuit is my “home Circuit.”
In the end, while shooting down the Carpenter claim, the opinion does not say much as it only addresses what constitutes good cause under the Federal Rules of Criminal Procedure for failure to make a motion to suppress of CSLI in this appeal. Ineffective assistance of counsel is not addressed. I am going to guess, without looking deeply into it, that that’s because appellate counsel is the same person as trial counsel so the issue was being saved for post-conviction relief.
In this kidnapping case, federal law enforcement officers received cell site location information that was used against the defendant at trial. The defense on appeal argued, like we have seen on this blog before, that the district court should have excluded cell-site location information although no motion to suppress (or objection at trial) was raised.
The Seventh Circuit started its analysis with the federal rules of criminal procedure. Under one subsection of Rule 12, the defendant must make Fourth Amendment Motions to Suppress before trial. Under another subsection, a court may consider untimely motions if the defendant can show good cause. “In this case, Thomas never moved to suppress the evidence, never attempted to show good cause for this failure in the district court, and did not object to admission of the evidence at trial.” The Seventh Circuit noted that this put them in the position to decide a “somewhat roundabout question: whether the district court would have abused its discretion if it had concluded that (defendant) lacked good cause.”
The Seventh Circuit decided that the answer was no. They noted that the rule stated in Carpenter remained uncertain throughout defendant’s trial and appeal as the Supreme Court granted certiorari and later reversed Carpenter. The uncertainty of the legal argument did not qualify as good cause under Rule 12 for failing to raise the issue.
The case is United States v. Thomas, 2018 U.S. App. LEXIS 20824, 897 F.3d 807 (7th Cir.) (July 26).