Opinion
No. CR-18-01695-003-TUC-JAS (EJM)
2022-10-06
UNITED STATES of America, Plaintiff, v. Shawmaine Eustace Ardell MOORE - 003, Samuel Lee Berrelle Rakestraw, III - 004, Michael Anthony Williams - 005, Defendant.
Adam David Rossi, Brian Hopkins, Erica Leigh Seger, Gordon E. Davenport, III, Julie Anna Sottosanti, Assistant US Attorneys, US Attorneys Office, Tucson, AZ, for Plaintiff. Bradley King Roach, Roach Law Firm LLC, Tucson, AZ, Mark A. Paige, Paige Law Firm, Mesa, AZ, for Defendant Shawmaine Eustace Ardell Moore. Anthony Payson, II, Law Office of Anthony Payson II PLLC, Tucson, AZ, for Defendant Samuel Lee Berrelle Rakestraw, III. Ramiro Salazar Flores, Law Office Of Ramiro S. Flores Esq., Tucson, AZ, for Defendant Michael Anthony Williams.
Adam David Rossi, Brian Hopkins, Erica Leigh Seger, Gordon E. Davenport, III, Julie Anna Sottosanti, Assistant US Attorneys, US Attorneys Office, Tucson, AZ, for Plaintiff. Bradley King Roach, Roach Law Firm LLC, Tucson, AZ, Mark A. Paige, Paige Law Firm, Mesa, AZ, for Defendant Shawmaine Eustace Ardell Moore. Anthony Payson, II, Law Office of Anthony Payson II PLLC, Tucson, AZ, for Defendant Samuel Lee Berrelle Rakestraw, III. Ramiro Salazar Flores, Law Office Of Ramiro S. Flores Esq., Tucson, AZ, for Defendant Michael Anthony Williams.
ORDER
James A. Soto, United States District Judge
Pending before the Court is Magistrate Judge Markovich's Report and Recommendation (Doc. 1933), the Government's objection (Doc. 1970), the Defendants' response (Doc. 2040), and the Government's reply (Doc. 2048). Judge Markovich recommends this Court suppress Cell Site Location Information (CSLI) of Defendants Michael Williams, Samuel Rakestraw, and Shawmaine Moore because investigators gathered it in violation of the 4th Amendment of the United States Constitution and the good-faith exception does not apply. For the reasons set forth below, this Court disagrees. Although the CSLI was gathered in violation of the 4th Amendment, the good-faith exception applies. Accordingly, Defendants' Motion to Suppress Cell Phone Records (Doc. 1149) is DENIED.
Because the briefing is adequate and oral argument will not help in resolving this matter, oral argument is denied. See Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 1197, 1200-1201 (9th Cir. 1999).
I. LEGAL STANDARD
As a threshold matter, as to any new evidence, arguments, and issues that were not timely and properly raised before United States Magistrate Markovich, the Court may exercise its discretion to consider those matters waived. United States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000). Assuming that there has been no waiver or that the Court decides not to consider matters waived, the Court has conducted a de novo review as to the Government's objections. See 28 U.S.C. § 636(b)(1)(C). In addition to reviewing the Report and Recommendation and any objections and responsive briefing thereto, the Court's de novo review of the record includes a review of the record and authority before United States Magistrate Judge Markovich which led to the Report and Recommendation in this case.
II. FACTUAL BACKGROUND
In 2015, Tucson Police Detective Vance Padilla petitioned the Pima County Superior Court for orders to obtain CSLI records of the defendants. Judge Casey McGinley granted Detective Padilla's request and issued two orders under 18 U.S.C. § 2703 allowing Padilla to obtain CSLI from Defendants' cell phone service providers.
III. DISCUSSION
A.
The Stored Communications Act (SCA) authorized warrantless access to CSLI of people under criminal investigation. See 18 U.S.C. § 2703(c)(1)(B). Under the SCA, investigators needed only to articulate "facts showing that there [were] reasonable grounds to believe . . . records or other information sought, [was] relevant and material to an ongoing criminal investigation." Id. at (d). That bar being met, a court would issue an order for disclosure of the CSLI. Id. Subsection (d) barred state officials from obtaining an order "if prohibited by the law of such State." Id.
In 2018, the Supreme Court held that warrantless acquisition of CSLI violated the 4th Amendment of the United States Constitution, thus abrogating portions of the SCA. See Carpenter v. U.S., — U.S. —, 138 S.Ct. 2206, 2221, 201 L.Ed.2d 507 (2018) ("an order issued under Section 2703(d) of the [Stored Communications] Act is not a permissible mechanism for accessing historical cell-site records. Before compelling a wireless carrier to turn over a subscriber's CSLI, the Government's obligation is a familiar one—get a warrant"). Thereafter, CSLI gathered under the SCA was still admissible, albeit under the good-faith exception to the 4th Amendment's exclusionary rule. See e.g. U.S. v. Korte, 918 F.3d 750, 759 (9th Cir. 2019).
The exclusionary rule is meant to deter police misconduct rather than correct errors in the legal authorities upon which officers rely when conducting searches. See U.S. v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Thus, when police act in objectively-reasonable good-faith reliance on, for example, a warrant or a statute that later turns out to be defective, the exclusionary rule does not apply and evidence may be admitted. Id. at 914-18, 104 S.Ct. 3405 (allowing evidence gathered under objectively-reasonable reliance on a defective warrant); Illinois v. Krull, 480 U.S. 340, 356-57, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (allowing evidence gathered under objectively-reasonable reliance on defective statute). This is the good-faith exception to the exclusionary rule.
The touchstone of the good-faith-exception analysis is an officer's objectively-reasonable reliance upon some legal authority, be it a statute—as in Krull—or a warrant—as in Leon. Objectively-reasonable reliance is not present when the authority on which officers rely is so obviously defective as to warn any reasonable officer of its invalidity, or when officers mislead a judge in a warrant application. See Krull, 480 U.S. at 359, 107 S.Ct. 1160; Leon, 468 U.S. at 923, 104 S.Ct. 3405. In cases of non-obvious defects and non-deceptive warrant applications, there is little chance that exclusion will deter police misconduct, as the only errors present in those cases are those of legislators or judges.
In Korte, the Ninth Circuit ruled specifically on the admissibility of CSLI gathered before but admitted after Carpenter, holding that it "is admissible—so long as the Government satisfied the SCA's then-lawful requirements." 918 F.3d 750, 759 (9th Cir. 2019). This language indicates one way to show objectively-reasonable good-faith reliance, but should not be read to narrow the cases in which evidence may be admitted under the good-faith exception. Perfect compliance with the strictures of the SCA is not required so long as officers acted under objectively-reasonable reliance on then-legal authority.
This introduces an important distinction: perfect compliance with the SCA is necessary to avoid SCA violations, but is not necessary to avoid suppression. To avoid suppression, officers need only have reasonably relied in good-faith, under an objective standard, on some legal authority which was later deemed invalid. Such authority could be a statute or a warrant—as in Krull and Leon—or an order under the SCA.
B.
Reliance upon an SCA order is analogous to the reliance upon warrants the Supreme Court encouraged in Leon. There, the Supreme Court upheld a search that was based on a warrant later found defective for want of probable cause. Leon, 468 U.S. at 926, 104 S.Ct. 3405. The evidence gathered under the defective warrant was not to be suppressed (1) because suppression would not deter police misconduct, and (2) because police should rely upon a judge's legal determinations. Id. at 913-14, 918, 104 S.Ct. 3405.
The same considerations apply to an order under the SCA. Suppression is an inappropriate remedy for a defective warrant because suppression is meant to curb police misconduct, but a defective warrant is the result of judicial error. Id. at 918, 104 S.Ct. 3405. This is equally true for orders under the SCA. If a judge makes a mistake and grants an order without sufficient legal basis, exclusion cannot deter police misconduct as there is no misconduct to deter. This is precisely the Supreme Court's reasoning in Leon; swapping "order" for "warrant" does not change the analysis.
A judge's determination that probable cause exists and that a warrant is appropriate is afforded "great deference" "[b]ecause a search warrant 'provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer.' " Id. at 913-14, 104 S.Ct. 3405. The same is true of a judge's determination that an officer has articulated "facts showing that there are reasonable grounds to believe that . . . the records sought [under the SCA] are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d). A judge has just as much "detached scrutiny" from the "hurried judgment" of law enforcement whether issuing a search warrant or an order under the SCA.
C.
The SCA required a showing of relevance and materiality that fell short of the 4th Amendment's requirements. So, any evidence obtained under the SCA should be suppressed unless an exception applies. The good-faith exception applies when suppression would not deter police misconduct. When police act under objectively-reasonable reliance on legal authority later determined unconstitutional, exclusion does not deter any police misconduct because there is no police misconduct to deter. Errors in the legal authority upon which police rely are those of legislators (in the case of defective statutes) and judges (for defective warrants and orders). When a statute is so obviously defective that an objectively reasonable officer should notice, or when police misconduct instigated a judicial error, suppression is appropriate but only because there is police misconduct in both those cases.
The question here is whether Detective Padilla engaged in misconduct in obtaining and acting on Judge McGinley's SCA orders. The defects in the SCA were not so obvious as to alert an objectively-reasonable officer of their presence in 2015 (three years prior to Carpenter). The prevailing view had for decades been that officers could gather CSLI under the SCA. This Court does not find that Detective Padilla was unreasonable in relying upon the SCA to gather CSLI in 2015.
The next question is whether Judge McGinley's SCA orders were defective, and whether Detective Padilla, acting under a standard of objective reasonableness, should have noticed any defects in the orders. The SCA bars state authorities from issuing orders under § 2703(b) or (c) when "prohibited by the law of such State." 18 U.S.C. § 2703(d). Three Arizona statutes cited in the R&R plausibly relate to CSLI. In 2020, five years after Judge McGinley issued the SCA orders in this case, the Arizona Supreme Court in State v. Smith seemed to treat A.R.S. § 13-3016 as the Arizona statute governing law enforcement acquisition of CSLI. Section 3016 imposes notice requirements not present in the SCA. Judge Markovich thus concluded that Arizona law prohibited SCA orders in 2015.
The Government argues that § 3016 does not apply to CSLI because the language of that section refers to "communication." Because CSLI does not contain the content of phone calls, merely data surrounding phone calls, it cannot be considered "communication." The Arizona Supreme Court discussed § 3016 in relation to CSLI in Smith only because that is how the parties briefed their cases, not because the Court was taking a stance on whether § 3016 is the law governing CSLI in Arizona, the Government argues.
The Government further argues that even if § 3016 is the Arizona law controlling CSLI, it does not prohibit orders under the SCA. Section 3016 certainly provides law enforcement a more difficult path to CSLI than does the SCA, but this is not a prohibition. An affirmative prohibition would be necessary, argues the Government, to say Arizona law prohibits SCA orders. But this Court need not address either of the Government's contentions to conclude that the good-faith exception applies here; it is enough to conclude that Detective Padilla was objectively reasonable in relying upon Judge McGinley's SCA orders.
D.
The issue here is whether it was objectively reasonable for Detective Padilla to rely on Judge McGinley's § 2703 orders. Judge Markovich correctly determined that § 2703(c), specifically, was the legal basis for Judge McGinley's orders, that subsection (c) orders must abide by the restrictions of subsection (d), and that subsection (d) bars state courts from granting orders when prohibited by state law. But this Court respectfully disagrees with Judge Markovich focusing his analysis on whether a § 2703(c) order is prohibited by Arizona law.
The issue here is not whether Detective Padilla perfectly complied with the strictures of the SCA. Although perfect compliance with the SCA would help the Government's case that Padilla acted in good-faith and objectively-reasonable reliance upon a then-legal statute, it is not necessary. This is because in 2015, when Padilla applied for the orders, whether Arizona law prohibited orders under § 2703 was entirely unclear. What was clear in 2015, was that Judge McGinley had just issued two orders under § 2703 of the SCA. Whether the orders were ultimately defective (as might be indicated by the 2020 Smith decision) does not matter here, because a defective order does not automatically mean suppression. For suppression to be appropriate, Detective Padilla's reliance on those orders must have been unreasonable.
Whether A.R.S. § 13-3016 or one of its neighboring sections applies to CSLI and whether Arizona law needed to affirmatively prohibit SCA orders or merely impose a more difficult standard for obtaining CSLI are both complex legal questions which law enforcement officers could not reasonably answer. The first question, whether any Arizona statute applies to CSLI, was first addressed by the Arizona Supreme Court in 2020, and obliquely at that. The second question, whether Arizona law must affirmatively or indirectly prohibit SCA orders, is still not clearly addressed in any caselaw this Court can identify. It would be unreasonable for this Court to hold Detective Padilla to understand yet-to-occur developments in state and federal caselaw.
Two orders—U.S. v. Evans, 2018 WL 4778041 (E.D.N.C., 2018) and Kolle v. Kyle, 2021 WL 3485868 (S.D. Ohio, 2021)—appear to take a stand on this issue, but both orders are from after 2015, are unpublished, and are from distant outside the Ninth Circuit. Their relevance to this case is minimal.
This becomes clearer when we ask whether in 2015, upon receiving Judge McGinley's orders, a reasonable officer in Detective Padilla's position would have any defensible basis to question the validity of those orders. In 2015, there was no Smith decision indicating that § 3016, with its heightened notice requirements, applied to CSLI. If someone had brought up § 3016 as a reason the orders might be defective, a quick perusal of its language would reveal that it applies to "communication." Judges and attorneys may debate whether the word "communication" in the context of § 3016 applies to CSLI, but one thing is beyond debate: any potential defect in Judge McGinley's orders based on an interpretation of the word "communication" in § 3016 was not so obvious as to alert a reasonable officer of the orders' invalidity. The same reasoning applies when we ask whether the SCA requires affirmative or indirect prohibition of § 2703 orders under state law. The answer to that question is neither obvious to, nor within the province of, an objectively-reasonable detective.
IV. CONCLUSION
Any potential defects in Judge McGinley's orders were not so obvious as to alert a reasonably-objective officer of their presence; so any such defects would be the product of judicial error rather than police misconduct. And because suppression is meant to deter police misconduct, it would be inappropriate in this case. There is nothing in the record to indicate that Detective Padilla, or anyone else involved in the investigation, misled Judge McGinley; again, there is no police misconduct to deter. Finally, any defects in the SCA were not so obvious in 2015 as to alert any reasonable officer of the statute's invalidity. Again, there is no police misconduct to deter.
However this Court analyzes the issue, Detective Padilla's reliance on Judge McGinley's SCA orders was objectively reasonable. There appears to be no misconduct on the part of police such that suppression would be appropriate; as such, the good-faith exception applies. Accordingly, IT IS ORDERED that Judge Markovich's Report and Recommendation (Doc. 1933) is overruled and Defendants' Motion to Suppress Cell Phone Records (Doc. 1149) is DENIED.