Ninth Circuit reverses District Court’s finding that law enforcement officers did not act in good faith. Judge McKeown dissents in an opinion worth reading

In this case, law enforcement obtained a warrant for the Defendant’s historical cell site location information back in 2012. The defendant moved to suppress, and the District Court found that the warrant application was so lacking in probable cause, the District Court found that law enforcement could not rely on the warrant in good faith and suppressed the CSLI.

A majority of a Ninth Circuit panel reversed, agreeing that the search warrant was deficient but disagreeing with the District Court’s good faith analysis. The affidavit’s “scant and innocuous references” to the defendant did not establish a “fair probability” that evidence of the crime would be found in the location data. There was no basis in the affidavit to support the inference that the Defendant was upset with the victim, that he had motive to commit the crime, and, importantly, that he was in town on the night of the murder.

While the Court agreed with the District Court with respect to the lack of probable cause, the majority here found that the deficiencies in probable cause discussed were “not so stark as to render official belief in the existence of probable cause ‘entirely unreasonable.'”

The majority looked to the fact that the application occurred quickly two days after the murder), the application was lengthy, and it laid out their suspicions about family members. They therefore thought that a reasonable officer could rely on the warrant despite its deficiencies.

The court also looked to the fact that, as of 2012, no Circuit Court had held that the Fourth Amendment was applicable to CSLI data, citing a string of post-2012 cases: United States v. Thompson, 866 F.3d 1149 (10th Cir. 2017), vacated 138 S. Ct. 2706, 201 L. Ed. 2d 1093 (2018); United States v. Stimler, 864 F.3d 253 (3d Cir. 2017), vacated in part by United States v. Goldstein, 902 F.3d 411 (3d Cir. 2018); United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc), abrogated by Carpenter, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018); United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), rev’d 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018); United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc), abrogated by Carpenter, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018); In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013), abrogated by Carpenter, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018).

The Ninth Circuit therefore concluded that the prevailing belief in 2012 was that CSLI data was not protected by the Fourth Amendment.

Judge McKeown dissented, agreeing with the District Court that the warrant affidavit for the CSLI so thoroughly lacked probable cause that it was objectively unreasonable for the officer to have relied on it. She found that the the affidavit’s only statement vaguely implicating the defendant was a suggestion that a defendant family member may have been involved in the murder. She found “(c)onspicuously absent was any statement by the officer that he believed that (defendant’s) CSLI would lead to information about the (victim’s) shooting.

She also found Carpenter to be completely irrelevant to the good faith inquiry here. She found that there was no relevant change in law permitting the application of the good faith exception. She noted that the best the Government (and the majority) can claim is a lack of clarity since no appellate precedent has been overruled. She accused the majority of watering down the good faith exception.

The case is United States v. Elmore, 917 F.3d 1068 2019 U.S. App. LEXIS 6507 9th Cir. (March 4, 2019).

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