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Can you find me now? “Exigent circumstances” permit warrantless “pings” of cell phone GPS location

In United States v. Caraballo, 12-3839-cr (L) (August 1, 2016) (Calabresi, Lynch, Lohier), the Court held that “exigent circumstances”—here, suspicion of involvement in a recent murder and potential danger to law enforcement—justified a warrantless “pinging” of defendant’s cell phone to determine his location.  The Court accordingly affirmed the district court’s denial of defendant’s motion to suppress statements he made after police located him through a series of “pings” executed by his cell phone carrier.

The Court declined to formally resolve the two “alternative” grounds for denial reached by the district court: (1) that the real-time “pinging” of a cell phone was not a Fourth Amendment search because defendant did not have a reasonable expectation of privacy in his cell phone location (as the Sixth Circuit held in United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012)); and (2) that to the extent the “pinging” constituted a Fourth Amendment search, and exigent circumstances did not obviate the need for a warrant, the exclusionary rule would not apply since the officers relied in good faith on a statute that purported to authorize the search.

Nevertheless, in resolving the question of “exigency,” the Court assessed the “degree” of the privacy intrusion at issue based whether the defendant had a “core” privacy interest in his cell phone location, and whether the officers acted in good faith.  Neither of these two factors is traditionally considered when determining whether exigent circumstances exist.  Exigent circumstances findings are based in most cases on the risk of destruction of evidence or harm to the public.  See Riley v. California, 134 S. Ct. 2473, 2494 (2014). 

Here, the Court held that the “greater the invasion of privacy … and the clearer the restrictions on police behavior in the absence of exigency, the more stringent the requirements that the search be urgently undertaken in order for the exigency exception to apply.”  The Court concluded that Caraballo had a “dubious” expectation of privacy in his cell phone location, and that the officers reasonably believed that in an emergency they could “ping” a phone without a warrant.  Both factors weighed in favor of the exigency exception.

In short, while the “urgency” circumstances presented here satisfied the exigency standard for pinging Caraballo’s cell phone location without a warrant (assuming one was required), these same “urgency” circumstances might not have allowed a warrantless search of Caraballo’s home (given the historical protections accorded to the home).

Factual Background

The search for Caraballo began after Vermont State Police discovered the body of a woman who had been recently shot in the back of the head, and identified her as Melissa Barratt, an associate in Caraballo’s drug dealing operation.  Barratt had been arrested a few months earlier for selling drugs, and at the time told her arresting officers that she was extremely afraid of Caraballo and believed that he would kill her if she agreed to cooperate.  Following Barratt’s arrest, Vermont police conducted an investigation of Caraballo’s drug operation, which included controlled buys carried out by undercover agents and confidential informants.  In this capacity, they acquired multiple cell phone numbers used by Caraballo.

Vermont police believed that Caraballo was involved in Barratt’s murder, armed, and posed a threat to law enforcement—especially if he had learned of Barratt’s discussions with police.  The officers considered various options for locating Caraballo, including obtaining a search warrant for his cell phone location, but believed those options would take too long under the circumstances.  Instead, they went directly to Caraballo’s cell phone provider (Sprint) to request GPS “pings” of Caraballo’s phones, believing that the law permitted them to do so under “emergency circumstances.”  After working with Sprint to execute a series of GPS “pings,” the police located and arrested Caraballo.  Caraballo made a series of statements to the police at the time of his arrest.

Caraballo was charged in two separate indictments.  One indictment was based solely on Caraballo’s cocaine distribution activities, and Caraballo pleaded guilty to these charges.  A second indictment included additional drug charges and also alleged a violation of 18 U.S.C. § 924(j)(1), a capital crime that involves the causing of a person’s death by using a firearm.  Caraballo moved to suppress the Government’s use of post-arrest evidence in his trial on the latter indictment.  The district court denied the motion on the three alternative grounds set out above.  Caraballo was convicted on multiple counts, and sentenced to forty years’ imprisonment.

Caraballo’s Fourth Amendment Appeal

Caraballo appealed his conviction on several grounds, most of which the Court addressed in a separate summary order available here.  The Court’s precedential opinion focuses on Caraballo’s Fourth Amendment appeal.

The Court affirmed the district court on the basis that “exigent circumstances” justified the warrantless GPS “pinging” of Caraballo’s phone—assuming, but expressly not deciding, that such “pinging” constituted a Fourth Amendment “search.”  It explained that “exigency analysis incorporates both principles of objectively proper officer behavior and the degree of privacy invasion involved.” 

With respect to the source of exigency and the conduct of law enforcement, the Court considered the potential risk to undercover officers and confidential informants most compelling.  The Government also argued that the warrantless search was justified by the “imminent destruction or dissipation of evidence”—the Court stated that it had “some doubt” concerning that theory, but did not resolve it.

Applying the six-factor test set out in Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (en banc) and adopted by the Second Circuit in United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990) (en banc), the Court emphasized the “brutal” nature of the murder of which Caraballo was the primary suspect, and that the officers believed they had “probable cause” to arrest Caraballo on drug charges—albeit not for the murder.  The Court also concluded that the officers reasonably believed that alternative methods of finding Caraballo, including by first obtaining a warrant for the cell phone “pings,” would take too long given the imminent risk to others posed by Caraballo.

Next, looking to the “degree of privacy invasion involved,” the Court held that “any expectation of privacy that Caraballo had in his cell-phone location was dubious at best.”  It also observed that the officers “showed due regard for applicable law in conducting their search” since both they and the county’s state attorney, whose advice they solicited, believed it was authorized in this situation.  The Court considered this “degree of privacy invasion” factor based on the sixth factor in Dorman and MacDonald (both cases about entry to a home), which addresses whether an entry is “forceful” or “peaceful.”

Based on the sum of these factors, the Court concluded that the “urgent” circumstances presented in this case justified a warrantless “pinging” of Caraballo’s cell phone.

The Court’s discussion of Caraballo’s “dubious” privacy interest appears to place the Court steps away from joining the Sixth Circuit in holding that there is no privacy interest in an individual’s cell phone location.  On the other hand, the Court observed that the “pinging” of Caraballo’s phone occurred before the Supreme Court’s decision in United States v. Jones, 132 S. Ct. 945 (2012), in which it suppressed evidence that was gathered by placing a GPS tracking device on defendant’s car without a warrant.  The Court also stated that it while the officers reasonably believed from past experience that it would have taken too long for Sprint to complete its ordinary warrant compliance process, the “preferable approach in this case may have been for the officers to secure a warrant and then insist on Sprint applying its emergency process.”  This too suggests that the Court believes that a warrant is still necessary for this type of search. 

The Court’s avoidance of the underlying issue in Caraballo is reminiscent of how the Court handled another recent constitutional criminal procedure cases.  See, e.g., United States v. Ganias, (2d Cir. May 27, 2016) (en banc) (declining to decide whether government may execute search warrant on retained ESI, and instead ruling based on the good faith exception).  Caraballo’s avoidance of the underlying privacy issue leaves uncertainty about what is permitted with respect to the use of GPS ping technology.  If the use of this technology was novel or unlikely to be used again, leaving the issue open might make sense, as unusual facts can make bad law.  But it seems as if the legal questions concerning the use of GPS ping technology and cell site locator data will become more common in the future due to the persistent ubiquity of cellphones.

This uncertainty does not necessarily serve either the government or the defense bar.  Law enforcement typically benefits from the setting of bright line rules so that police officers and federal agents can know in advance whether their action is constitutional.  Caraballo leaves police officers and federal agents uncertain as to whether a search or statement following a warrantless ping will be sustained or suppressed.  The fact-specific nature of the Court’s opinion may lead agents to obtain warrants in many cases even though the Court seemed to question whether there is any privacy interest implicated here at all.  For defendants, if there is a constitutional right at issue here—as there was in Jones—the Court’s ruling on exigency grounds avoids recognizing this important right and leaves the issue open for the next case, whenever that case may come along. 

-By Jason Vitullo and Harry Sandick