7th Circuit finds good faith applies despite the lack of any binding Circuit precedent.

In what is to me a highly problematic opinion, the 7th Circuit Court of Appeals has found good faith in what appears to be a significant expansion beyond what courts have previously held constitutes good faith under the case law.

The defendant was on trial for the robbery of multiple cell-phone stores in suburban Chicago. He was tried and convicted on charges of robbery, aiding in the brandishing of a firearm during a crime of violence, conspiracy, and for being a felon in possession of a firearm.

The government obtained historical CSLI for the defendant’s cell phone for a span of 314 days. The data placed him in the vicinity of four of the five stores at the time each was robbed. The Government used the Stored Communications Act to obtain the CSLI.

The 7th Circuit decided that the good faith exception applies for reasons that bear scrutiny and challenge. The Court starts with the statement that “evidence obtained in good-faith reliance on a statute later declared unconstitutional need not be excluded.” The Court relies on the U.S. Supreme Court case of Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987) and Circuit Court cases of United States v. Pembrook, 876 F.3d 812, 823 (6th Cir. 2017), vacated on other grounds by Johnson v. United States, 138 S. Ct. 2676 (2018); United States v. Graham, 796 F.3d 332, 363 (4th Cir. 2015), reversed on other grounds by United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc); and United States v. Davis, 785 F.3d 498, 511, 518 n.20 (11th Cir. 2015).

The problem to me with the Court’s reliance on Krull is that in Krull, at the time of the search the U.S. Supreme Court expressly approved of the search and later overruled that precedent. The Krull Court held that the officer can rely on established controlling precedent to do a search that is in later precedent found to violate the Fourth Amendment.

Here, until Carpenter was decided last June, there was no controlling U.S. Supreme Court precedent. The Court also essentially holds that Carpenter establishes a “new rule” which is a point to me of significant contention. Is it that the Carpenter decision established a new rule, or is it the Government who was asking for a new rule expanding the third party doctrine to CSLI? The language of the Roberts opinion clearly suggests the latter, and the fact that the third party doctrine is undisturbed in relation to traditional bank records, phone records, and other more traditional third-party records is evidence in support of that position.

The Circuit precedent for which this panel relies is also problematic. When Carpenter was decided, five Circuits had weighed in on this issue: the Fourth, Fifth, Sixth, Tenth, and Eleventh. Relying on Circuit precedent as the Seventh does out of the Fourth, Sixth, and Eleventh seems to me to destroy the traditional rule that controlling precedent from the U.S. Supreme Court or that Circuit is what insulates officers regarding the scope of the good faith exception.

The Seventh Circuit also comes very close to stating that the passage of the Stored Communications Act itself is enough for officers to act in good faith. This, to me, is ripe for review not just because this seems to be a huge expansion of the good faith exception, but it glosses over a political reality. That reality is that legislators frequently pass statutes that are unconstitutional. Frequently, this happens because members of the Executive Branch (law enforcement and prosecutors) go before the Legislative Branch stating that they need more tools to combat crime so that the Executive and Legislative Branches are not “soft on crime.”

This has led to an explosion of statutes that have created new criminal statutes, expanded current criminal statutes, and restricted defendant’s constitutional rights. I haven’t looked at the legislative history behind the Stored Communications Act, but the idea that the Executive and the Legislative Branches did not know or appreciate they were attempting to circumvent the Fourth Amendment requirements of a warrant is implausible.

The Seventh Circuit end its opinion with language that gives me pause. “Not all constitutional injuries have a remedy.” That’s not what I learned in law school. If you don’t have a remedy to address a violation of a Constitutional right, then you don’t have a right in the first place.

You just have a piece of paper with words that signify nothing.

The case is United States v. Curtis, 2018 U.S. App. LEXIS 24028, 2018 WL 4042631 (7th Cir.) (August 24).

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