Second Circuit decides another Carpenter case, seemingly expanding the good faith doctrine.

The United States Court of Appeals for the Second Circuit has affirmed a conviction for conspiring with and aiding and abetting a parent to remove her child from the United States to another country in order to obstruct the lawful exercise of parental rights by that parent’s civil union partner in violation of the International Parental Kidnapping Crime Act.

The defendant made a motion to suppress cell site location information garnered from his cell phone records because law enforcement garnered these records without a warrant, using a subpoena issued pursuant to the Stored Communications Act (“SCA”). These records established the defendant’s travel from the State where one parent resided to Canada where the parent and child then took a flight to Central America, where they remain. The District Court denied the motion, relying on third party doctrine cases like Smith and Miller. After the Defendant was convicted and sentenced and during the pendency of this appeal, the Carpenter case came down from the United States Supreme Court.

The Second Circuit invoked the good faith exception, citing Davis v. United States, 564 U.S. 229, 238, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011). “This exception covers searches conducted in objectively reasonable reliance on appellate precedent existing at the time of the search,” citing United States v. Aguiar, 737 F.3d 251, 259 (2d Cir. 2013).

Interestingly, the Second Circuit used the Smith and Miller cases of the third party doctrine to hold that these precedents mean that law enforcement officers acted in good faith. This is in contravention to the majority opinion of Carpenter where the Chief Justice wrote that they were declining to expand the third party doctrine to CSLI.

The Court cited to prior precedent of United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017) to defend this holding, although that case is not one involving CSLI, but rather, a pen register of that defendant’s IP address. The Court also rejected the defense argument that United States v. Jones requires a warrant for prolonged location tracking because Jones was decided the year after the search in this case took place.

Therefore, the Court reasoned, law enforcement acted in good faith and the District Court properly denied the defendant’s motion to suppress the cell location evidence.

The case is United States v. Zodhiates, 2018 U.S. App. LEXIS 23278, 2018 WL 3977030 (2nd Cir.) (August 21).

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