August 1, 2016 Orin Kerr
In a decision issued today in United States v. Caraballo, the U.S. Court of Appeals for the Second Circuit (per Judge Guido Calabresi) held that police did not violate the Fourth Amendment when they “pinged” a suspect’s cellphone because exigent circumstances existed. I find the outcome plausible on its facts, but the analysis strikes me as pretty unusual. Here are the details:
Frank Caraballo was a known drug dealer who was under investigation by narcotics officers. A woman who was an associate of his was found slain in an apparent execution-style killing. There was some reason to suspect that Caraballo was behind the killing. Two months earlier, the woman had told the police that she sold drugs with Caraballo and that he would “kill her” if he knew she was speaking to them. The police knew Caraballo’s cellphone number, so they asked the carrier, Sprint, to “ping” the phone. Pinging a phone sends a request for information to the GPS on the phone. The GPS returns the location within a range of 8 to 46 meters. As I read the opinion, the officers made the request four to five hours after the woman’s body was discovered.
Sprint had the officers fill out an exigency request form, presumably to satisfy 18 U.S.C. 2702(c)(4), which allows the disclosure of non-content information about a cellphone account “to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency[.]” The officers said that the reason for the emergency was “[m]ale with phones is suspect in possible homicide.”
Sprint pinged the phone 15 times until police confirmed that Caraballo’s car was at a local McDonald’s. That led to Caraballo’s arrest, at which point he made incriminating statements. Caraballo moved to suppress the statements as fruit of an unlawful search of his phone when police “pinged” it. The government responded that the pinging was not a search; if it was a search, it was a reasonable search based on exigent circumstances; and if it was an unreasonable search, the good-faith exception to the exclusionary rule applied.
The court’s opinion notes the uncertainty of whether a search occurred at all. The opinion bypasses this question by assuming that a search occurred and ruling only that any search was reasonable because it was justified by exigent circumstances. As some readers know, exigent circumstances are usually based on a pressing emergency. The basic idea is that if the government has to act quickly, because the evidence would be gone or the public harmed by the delay in getting a warrant, then the government can conduct a warrantless search or seizure as long as it is reasonable under the totality of the circumstances.