W.D. Missouri finds good faith exception applies despite no binding precedent in Circuit.

In this case, the District Court is reviewing de novo the Magistrate’s Report and Recommendations denying a motion to suppress. The Government used the Stored Communications Act to obtain cell site location information in a convenience store robbery investigation. The Defendants were then charged in Hobbs Act violations.

The Court, ratifying the recommendations of the Magistrate Judge, went right to the good faith exception, citing the most important U.S. Supreme Court cases, Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011); U.S. v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).

The Court rejected the Defendants’ arguments that the exclusionary rule does not apply, including an argument frequently made here on this blog by yours truly.

The Court cites a long string of the various federal courts that have held that the good faith exception applies. These cases can all be found with my discussions on them in this blog (United States v. Zodhiates, 901 F.3d 137, (2d Cir. 2018); United States v. Joyner, 899 F.3d 1199 (11th Cir. 2018); United States v. Chavez, 894 F.3d 593, 608 (4th Cir. 2018), cert. denied, 139 S. Ct. 278, 202 L. Ed. 2d 184 (2018); United States v. Reed, 2018 U.S. Dist. LEXIS 181342, 2018 WL 5269991, (D. Minn. Oct. 23, 2018); United States v. Remus, 2018 U.S. Dist. LEXIS 179405, 2018 WL 4976725, (D. Neb. Sept. 27, 2018); United States v. Williams, 2018 U.S. Dist. LEXIS 129639, 2018 WL 3659585, (E.D. Mich. Aug. 2, 2018).

One Defendant argued, as this author has (for cases where there is no binding Circuit precedent at the time Carpenter was decided) that “Carpenter is not new law, but a rejection of the expansion of the third-party doctrine in United States v. Miller[,] 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976) and Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979).”

The Court’s answer is disappointing, and subject to challenge. She holds that “the SCA permitted the warrantless disclosure of CSLI held by third parties. 18 U.S.C. § 2703 (d). The investigators complied with the SCA in obtaining the orders for CSLI and did so under the reasonable belief that a warrant was not required. No clearly established law or judicial precedent required a search warrant to obtain the CSLI. Further, Defendants present no evidence that the investigators’ reliance on the statute was objectively unreasonable.”

According to that logic, Congress can pass a pass a new law tomorrow holding that your email can be searched with a SCA order, and since there is no binding U.S. Supreme Court precedent or Circuit precedent (save the 6th Circuit) that says that’s a Fourth Amendment violation, then the good faith exception will save the unconstitutional search.

Gorsuch’s concurring opinion is an interesting rebuttal to the District Court here: “Smith and Miller teach that the police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did.”

The case is United States v. Taylor, 2019 U.S. Dist. LEXIS 12773, 2019 WL 339450 (W.D. MO) January 28, 2019.

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