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PATC Legal E-Newsletter

August 2016

By Jim Chapman, Attorney, Public Agency Training Council

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In United States v. Caraballo, ___ F.3d ___, 2016 WL 4073248 (2d Cir. Aug. 1, 2016), the United States Court of Appeals for the Second Circuit held that the circumstances involved in the case justified the officers’ warrantless identification of the GPS coordinates of the Defendant’s cell phone.  The relevant facts of the case are as follows.

At approximately 10:45 a.m., on July 29, 2011, Vermont State Police officers responded to a report of a woman’s body near the town limits of Brattleboro, Vermont.  This area was “off the beaten path” in a wooded area approximately 30 yards from the road.  When the officers arrived, they found the woman’s body.  She had a gunshot wound to the back of the head and was on the ground in a kneeling position with her hands clasped in front of her.  Based on the body’s position, it was apparent that the woman had not committed suicide.  Moreover, the lack of a blood trail indicated that she had been shot there.  The officers inferred that the homicide had taken place that morning based on a report from a nearby construction crew of a gunshot-like sound earlier in the morning.  As a result, the officers suspected that the woman was a victim of a homicide and that her assailant could still be armed.

The officers later identified the woman as Melissa Barratt.  Barratt had recently come to the attention of Vermont State Police when she was arrested in Brattleboro for selling drugs on May 31, 2011.  At the time, Barratt had told her arresting officers that she was “extremely nervous and afraid of Frank Caraballo,” with whom she worked dealing drugs.  In particular, she stated that “if he knew that she was talking to [the officer], he would hurt her, kill her.”  This, she indicated, was not an idle threat, as she knew Caraballo to have access to multiple firearms, and to have committed assault or even homicide on previous occasions.  Though the arresting officers sought to have Barratt cooperate with them in an investigation of Caraballo, she refused, largely out of fear that she would “basically be killed” if she did so. 

The investigating officers knew that, after Barratt’s arrest, Brattleboro police had conducted an investigation of Caraballo’s drug operation.  Through June and July, police completed at least three controlled buys of narcotics from Caraballo, and these sales required the participation of multiple undercover agents and confidential informants.  Through these sales, the police knew two phone numbers that Caraballo had used in connection with his operation.  They were similarly aware that Caraballo had no residence in Vermont but instead traveled to and from Massachusetts and stayed in hotels.

In sum, the officers found themselves in a difficult position.  They had found a woman who was the subject of a “coldblooded execution.”  Their primary suspect was a man whom the victim had told them not only had a significant propensity for violence but also possessed a number of firearms.  In addition, the investigation of Caraballo had separately indicated that he had taken over the drug operation of his brother and was as such “armed and dealing drugs.”

The officers also believed that the local police who had infiltrated Caraballo’s drug operation could be harmed if they came into contact with him.  As one officer testified, referring particularly to agents and informants involved in the investigation of Caraballo’s drug operation: “I was concerned that if there was information leaked before the homicide occurred we did not know what extent that information was. We knew that we had our narcotics officers in deep working with their [confidential informants] investigating Frank Caraballo. And we were concerned that if there was some sort of information leaked we weren’t sure if he was going to be going after any sort of [informants] or narcotic officers at that point.”  Thus, the officers’ belief was that it was necessary to obtain Caraballo’s location or “potentially someone [was] going to get hurt or killed.”

The officers were also concerned for the possible destruction or dissipation of evidence. Consistent with this, one officer testified that “access to the potential assailant shortly after the homicide was likely to yield important and irreplaceable evidence” such as gunshot residue and DNA.  This evidence would likely dissipate or be destroyed if the assailant was not promptly apprehended.

The officers considered various methods for tracking down Caraballo.  These included: (a) having a confidential informant contact him and (b) posting police on major roadways to identify his vehicle as it left the state.  They also thought of obtaining a search warrant, and, pursuant to that warrant, asking Sprint (Caraballo’s cell carrier) to determine the position of the cell phones associated with Caraballo’s drug business.  Sprint could determine the location of those phones through their global positioning system (“GPS”).  The officers, however, viewed the time that it would take to secure this information by search warrant prohibitory.  This was because, in the absence of exigent circumstances, the provider’s slow compliance with the warrant would likely involve a huge delay of getting the information.

Cell phones like Caraballo’s can be located in two ways.  First, cell phones create a record of their location based on the cell towers near them (called “cell-site” location data or information). Cell phones automatically generate this data when turned on; having phones in constant communication with the network enables calls to be routed appropriately.  This process can generate a historical log of a phone’s movements, though only with limited precision (here, with a margin for error of about 5,000 meters).  Second, the position of a cell phone can be determined based on its GPS location, which is generated by triangulating the cell phone’s position by reference to three or more network satellites.  By contrast with cell-site data, this information is generated only at the specific command of a Sprint operator—an action called “pinging”—and is quite precise (here, within a range of 8 to 46 meters).  If fewer than three satellites are in contact with a phone at the time of a request, however, the ping produces only the phone’s less precise, cell-tower location. 

The investigating officers believed that applicable law permitted them to request a warrantless search of a phone’s GPS location “if there was an emergency involving a threat of serious bodily injury or death.”  Concluding that this was “a legitimate emergency,” the officers decided to request that Sprint locate Caraballo’s phones through their GPS without securing a warrant.  This approach was endorsed by the county’s state attorney who agreed that such a search “was appropriate and it was probably the best action to take.”

The officers then contacted Sprint which had them fill out a standard form to request the relevant GPS data.  This form was submitted at 3:20 pm, and it explained the exigency by stating that a “[m]ale with phones is suspect in possible homicide.”  Sprint’s practice was to provide location information as soon as possible whenever law enforcement submitted such an emergency request form.  Accordingly, Sprint accepted the form and agreed to help the officers locate Caraballo’s phones.  As agreed, the officers would call Sprint to initiate each search, or “ping,” of the location of Caraballo’s phone.  The results of each “ping” would then be immediately conveyed back to them by a Sprint representative.

Sprint’s attempts to ping Caraballo’s phones began at 3:43 pm.  Although one of Caraballo’s phones was unresponsive, a ping of another phone hit at 4:03 pm, revealing that this phone was in the Brattleboro area.  The officers had Sprint continue to ping this phone—thirteen times in all, with nine providing GPS coordinates and four providing cell-site location information. Through this process they determined that the phone was being transported north on Interstate 91 and had ceased moving at the town center of Springfield, Vermont.  The officers then notified local police about Caraballo, and after local police observed Caraballo’s car at a nearby McDonald’s, the officers pinged his phone two final times, at 5:11 pm and 5:20 pm, to confirm this identification.

From that point on, the officers relied on visual surveillance to track Caraballo.  Believing that they had sufficient probable cause to arrest Caraballo for the earlier-mentioned narcotics offenses, police stopped his car and arrested him.  Upon arrest, Caraballo made a number of statements to police that the Government would subsequently offer at trial.

Prior to trial on an indictment that included charged based upon the death of Barratt, Caraballo moved to suppress the evidence recovered following his arrest.  Caraballo contended that the pinging of his cell phone constituted a warrantless search under the Fourth Amendment.  The District Court denied Caraballo’s motion to suppress.  Caraballo proceeded to trial, was convicted, and appealed.

In affirming the District Court’s denial of Caraballo’s motion to suppress the evidence that the officers obtained while pinging his cell phone, the Second Circuit explained that “the warrant requirement of the Fourth Amendment must yield in those situations in which exigent circumstances require law enforcement officers to act without delay.” United States v. Moreno, 701 F.3d 64, 72-73 (2d Cir. 2012).  In such circumstances, “the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 460 (2011).

Here, the Second Circuit avoided the thornier issue addressed by the District Court (and other circuit courts that have considered the issue) as to whether Caraballo had a subjective expectation of privacy in his phone given the terms of Sprint’s service agreement and whether society is prepared to accept such searches as reasonable.   Instead, the Second Circuit agreed with the District Court’s conclusion that pinging Caraballo’s phone was justified based upon exigent circumstances. 

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, 117-18 (2d Cir. 2008).  In addressing this question, courts are to be 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.  Moreover, the Second Circuit has 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.

Exigent-circumstances determinations typically consider the factors listed in Dorman v. United States, 435 F.2d Cir. 385 (D.C. Cir. 1970), 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.  Such factors, however, are illustrative, not exhaustive as the determination is an objective one that turns on an examination of the totality of the circumstances of each individual case.  In making an exigency determination, courts must consider the degree to which the officers, in conducting the search, intruded on a defendant’s privacy interests.  Searches that are conducted without any concern for applicable law, that infringe on clearly established privacy interests, or that are broader than necessary to address an exigency are more likely to be harmful as a constitutional matter.  And, those searches that are constitutionally more harmful are, necessarily, less reasonable.

In Caraballo, the Second Circuit agreed that exigent circumstances existed for pinging Caraballo’s phone.  The officers reasonably believed that Caraballo posed an imminent threat to law enforcement officers, particularly the undercover agents and confidential informants involved in the investigation of Caraballo.  Barratt’s killing was brutal, and the officers reasonably believed that Caraballo was heavily armed.  Caraballo was the prime suspect in Barratt’s murder, and the officers reasonably believed that Caraballo would kill again.  Finally, the officers did not have a reasonable opportunity to secure a search warrant, and the degree of the intrusion into Caraballo’s privacy in pinging his cell phone was minimal.  Accordingly, the Second Circuit affirmed the denial of Caraballo’s motion to suppress the evidence gained as the result of pinging his cell phone.

Law enforcement officers should be aware that, in some federal circuits, the courts have held that a defendant/suspect has no expectation of privacy in his cell phone.  In those that have not yet addressed the issue, officers may still be allowed, within the bounds of the United States Constitution, to ping a defendant’s cell phone if exigent circumstances exist and justify the search.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.







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