California appellate court admits text messages despite lack of probable cause through independent discovery doctrine and affirms Carpenter violation for CSLI due to harmless error.

In this gang murder case that was captured by not clear surveillance video, law enforcement developed cell-site location information and text message evidence from the defendant’s phone. Based on information gathered from cell phone towers, defendant’s cell phone at the time of the murders could have been located either at the scene of the killings or at defendant’s residence. Phone records showed that calls were made and received on defendant’s cell phone shortly after the shooting.

Defendant moved to suppress the cell phone evidence prior to trial, including call records, cellular tower location information, and text messages. This was the main issue on appeal.

After discussing some general principles of Fourth Amendment jurisprudence, including passages from Carpenter and Riley, the appellate court asked the following question:

What happens when a magistrate judge approves a search warrant even though the affidavit in support of the search warrant objectively lacked probable cause?

The Court, in an unpublished ruling, went right to Leon and the good faith exception. The Court first notes that the affiant stated only that he has received information from at least four independent sources, all indicating that the suspect who shot the victims was a male black with the defendant’s name, his street name, and database information that he is a local gang member in the area. The affiant never identified any of the sources nor did he provide any information concerning their reliability, credibility, or independence. This warrant, with only this information, led to the text messages.

The trial court found good faith because the court could not believe that law enforcement can be expected to understand the nuances that are presented as to what is sufficient. The trial court further concluded that the challenged evidence independently would have been discovered after court process started with a subpoena.

The appellate court, after a lengthy discussion of mostly California state precedent, disagreed with the trial court on the issue of good faith and held that this affidavit was so lacking it did not meet standards for a warrant or for good faith reliance.

The appellate court however affirmed on the basis of inevitable discovery of the messages after a lengthy, detailed discussion of the investigation and the known facts.

The court also found that the admission of the cell phone location information was harmless error under the circumstances given the limited information it offered in the case.

The case is People v. Johnson, 2018 Cal. App. Unpub. LEXIS 8168,
2018 WL 6304094 (CA Ct. App. 2nd Dist.), December 3, 2018.

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