Northern District of Illinois invokes good faith exception.

This brief order arises from a 2255 petition from a pro se unrepresented defendant. Under these circumstances, the District Judge wrote an opinion that, as discussed in other blog posts, expands the good faith exception beyond its current parameters. Now, binding precedent is no longer necessary to conclude law enforcement acted in good faith in conducting a warrantless search.

The 2255 petition raised a number of issues, but the one that’s relevant is one of ineffective assistance of counsel for failing to challenge CSLI evidence. The Government acquired cell site location information using a court order pursuant to the Stored Communications Act.

The Court here assumed without deciding that the Sixth Amendment required counsel to file a motion to suppress the CSLI, and then ruled that the defendant has failed to show that the motion would have been successful due to the good faith exception.

The Court uses a good faith analysis that I believe is flawed under current precedent. The Court starts by relying on the Fourth Circuit’s decision in Chavez (discussed on this blog on August 24 and subsequently) which ruled in the Government’s favor on the issue of good faith.

This reliance on Chavezis flawed because, at the time Carpenter was decided, there was binding precedent in the Fourth Circuit upholding the warrantless retrieval of CSLI where there is none in the Seventh.

The District Court then recognizes this, but then states that because there was a District Court decision, that’s good enough. The Court does so without citing any precedent that a District Court decision is sufficient for the Court to invoke the good faith exception.

Furthermore, the Court cites a Northern District decision of Rosario, which post-dates the search in this case. The idea that the Court can invoke the 2017 decision to rule that the Government acted in good faith before 2017 is implausible. Similarly, all but one of the decisions cited in Rosario all appear to post-date the CSLI search in Lewisby’s case.

The case is United States v. Lewisbey, 2018 U.S. Dist. LEXIS 165566 (N.D. IL) September 26, 2018

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