The Court of Appeals of Florida, Fourth District ordered reversal and remand in a murder case, holding that the trial court erred by denying defendant’s motion to suppress because the State acquired his historical cell phone location information without a warrant issued on probable cause in violation of the Fourth Amendment They further decided that the good faith exception did not apply because the State was not relying on binding precedent or clearly applicable rules in obtaining the data.
This opinion is worth reading in full, as it is one of the first, if not the first opinion to deny allowing the prosecution to use the evidence based on the good faith exception.
The State presented evidence that the defendant owned many different types of cell phones, including Nextel phones that could be used like walkie-talkies. One cooperating witness testified that the defendant used at least four different cell phones. A special agent for the Secret Service and a member of the FBI violent crimes task force testified regarding telephone calls made from the defendant’s cell phones at trial. The State had secured CSLI data on two of Ferrari’s phones, which showed their location on the night of the murder. The State obtained the records from one company through subpoena and the other company refused to provide records without a court order. For that company, the detective seeking the records provided an affidavit pursuant to Florida law which allows for the installation of a pen register or trap and trace device. The court issued an order requiring production of the CSLI data.
After finding that the acquisition of the CSLI data violated the Fourth Amendment based on Carpenter, the Court then turned to the State’s good faith argument, and they shredded it.
They first start their analysis by stating that at the time of the search, “no binding decisional law existed determining that CSLI data was not within Fourth Amendment protection and thus exempt from the warrant requirement.” When the trial court relied on appellate precedent to deny the Motion to Suppress that held that a person had no expectation of privacy in historical CSLI, they relied on a case that was decided several years after the search. As a result, the detective had no case law on which to rely in his decision not to secure a warrant for the historical CSLI. Instead, the detective relied on a section for installation of a pen register, which does not cover CSLI data.
They held that reliance on an inapplicable statute does not constitute objective reasonableness. The Court also noted that that the United States Supreme Court did not state that officers acted in good faith in the Carpenter case. “Indeed, the message of the Supreme Court is unmistakable to law enforcement: ‘Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.'”
For these reasons (and another issue outside of the scope of this blog), the Appellate Court reversed and remanded.
The case is Ferrari v. State, 2018 Fla. App. LEXIS 12672, 2018 WL 4212142 (Florida Ct. App.) (September 5).