CA2: Govt proved exigency of locating def after a murder for warrantless pinging cell phone

The government proved a legitimate good faith belief that defendant was dangerous and needed to be apprehended immediately after he was linked to a body found in Vermont. Therefore, warrantless pinging of his cell phone to locate him was reasonable. United States v. Caraballo, 2016 U.S. App. LEXIS 13857 (2d Cir. August 1, 2016):

Defendant-appellant Frank Caraballo appeals from the judgment of the District Court for the District of Vermont (Reiss, C.J.), convicting him of a) conspiring to distribute cocaine base, b) possessing a firearm in furtherance of a drug trafficking crime, and c) causing the death of Melissa Barratt. After discovering Barratt’s body and reasonably suspecting Caraballo’s involvement, the investigating officers had Sprint, Caraballo’s cell-service provider, use the GPS software in his phone to locate him remotely—a process called “pinging.” Using this location, the officers tracked down Caraballo and arrested him. Prior to trial, Caraballo moved to suppress his post-arrest statements on the basis that the pinging of his phone was a warrantless “search” under the Fourth Amendment. Because we conclude that the threat to law enforcement justified the search of Caraballo’s cell location, and for the reasons given in an accompanying summary order that deals with the other issues that Caraballo has raised in this appeal, we AFFIRM the judgment of the District Court.

. . .

B. The District Court’s Alternative Grounds

For reasons that will soon be apparent, we begin by discussing briefly the District Court’s alternative grounds for not suppressing the evidence derived from the pinging. The District Court concluded that Caraballo lacked a subjective expectation of privacy in his phone given the terms of Sprint’s service agreement and noted that, in any event, such an expectation “is not one society is prepared to accept as reasonable.” Caraballo, 963 F. Supp. 2d at 363. Other Circuits have considered the reasonableness of such expectations in cases akin to the present one. The Sixth Circuit has found that individuals have no reasonable expectation of privacy in the real-time GPS location of their cell phones. See United States v. Skinner, 690 F.3d 777 (6th Cir. 2012). And various Circuits have considered the question of whether the warrantless collection of historical cell-site information violates the Fourth Amendment. See United States v. Graham, — F.3d —, 2016 WL 3068018, at *4 (4th Cir. May 31, 2016) (en banc) (finding no reasonable expectation of privacy in historical cell-site information); United States v. Carpenter, 819 F.3d 880, 884 (6th Cir. 2016) (same); United States v. Davis, 785 F.3d 513 (11th Cir. 2015) (en banc) (same); In re U.S. for Historical Cell Site Data, 724 F.3d 615 (5th Cir. 2013) (same); see also In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313-17 (3d Cir.). Because we conclude that exigent circumstances justified the officers’ pinging of Caraballo’s phone, we need not today resolve this important and complex Fourth Amendment question.

The District Court also concluded that, even if the officers’ actions violated Caraballo’s rights under the Fourth Amendment, application of the exclusionary rule would be inappropriate because the officers relied in good faith on 18 U.S.C. § 2702(c)(4). See Illinois v. Krull, 480 U.S. 342 (1987) (finding exclusionary rule not applicable where “officers act in objectively reasonable reliance upon a statute authorizing warrantless administrative searches, but where the statute is ultimately found to violate the Fourth Amendment” (emphasis omitted)). Again, because we conclude that exigent circumstances justified the officers’ actions, we do not decide whether the officers justifiably relied on 18 U.S.C. § 2702(c)(4).

As we shall see, however, the fact that both an undecided question of whether an underlying privacy interest existed in this case, and that plausible arguments could be made that here the officers acted in a way that was objectively consistent with the law and therefore that suppression is not justified, properly affect our analysis of whether exigency existed in the case before us.

C. Exigency and Reasonableness

The “core question” in applying the exigent-circumstances doctrine is “whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe that there was an urgent need to render aid or take action.” United States v. Klump, 536 F.3d 113, 118 (2d Cir. 2008) (citation and internal quotation marks omitted). The relevant facts might evidence “the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury.” Riley v. California, 134 S. Ct. 2473, 2494 (2014). In addressing this question, however, we are

“cognizant of the Supreme Court’s admonition that exceptions to the warrant requirement are few in number and carefully delineated and that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.”

Harris v. O’Hare, 770 F.3d 224, 234 (2d Cir. 2014) (internal quotation marks omitted).

Moreover, we have cautioned that “general knowledge, without more, cannot support a finding of exigency” because that inquiry must rely on the particular circumstances that create exigency specific to each case. Id. at 235.

Exigent-circumstances determinations typically consider the factors listed in Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (en banc). These were adopted by our Court in United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990) (en banc), and are:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause … to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.

Moreno, 701 F.3d at 73. Such factors, however, are “illustrative, not exhaustive,” id. (internal quotation marks omitted), as the determination is an “objective one that turns on [an] examination of the totality of the circumstances” of each individual case, MacDonald, 916 F.2d at 769.

Significantly, in making an exigency determination, we have also considered the degree to which the officers, in conducting the search, intruded on a defendant’s privacy interests. Thus, as the Court in Dorman explained, whether the entry was forceful or peaceful can affect our finding: ….