State v. Malveaux
State v. Malveaux
Opinion of the Court
The State of Louisiana has filed the instant application for supervisory writs from the trial court's granting of a motion to suppress evidence, including cell phone GPS location data and statements of Defendant and his co-defendants. For the reasons herein, we grant the writ, make it peremptory, and remand to the trial court for further proceedings consistent herewith.
FACTS AND PROCEDURAL HISTORY
Defendant, Jeffrey Malveaux, Jr., was charged by a Bill of Information with being an accessory after the fact to attempted second degree murder, in violation of La.R.S. 14:25, La.R.S. 14:27, and *83La.R.S. 14:30.1. On June 14, 2017, Defendant filed a "Motion to Suppress Evidence as a Result of an Illegal Search and Seizure." The purpose of the motion was to suppress, for use as evidence, certain cell phone GPS location data for the location of a cell phone belonging to a female subject, Ashley Seaux. Said location data was secured without a warrant. The motion further seeks to suppress the inculpatory statements of Defendant as "fruit" of the alleged unconstitutional search, and also the statements of co-defendants as obtained in violation of Defendant's confrontation rights.
At the hearing on the motion to suppress, the State called Deputy Kim Talley of the St. Martin Parish Sheriff's Department to testify. Ms. Talley was a detective with the St. Martinville City Police on May 20, 2016, the date of the crime involved herein. On that date, she participated in the investigation into the shooting of a male victim, Mike Zeno. Deputy Talley testified that Mr. Zeno and a female occupant of the car he was driving arrived at the police station and reported the shooting. Detective Talley attended to the female first, who had been hit with shattered glass, while other officers assisted Mr. Zeno, who had been shot in the abdominal area. Mr. Zeno told Detective Talley and other officers that he came to a stop behind another car at the intersection of LaSalle and Port Streets in St. Martinville when a male exited from the left rear passenger compartment of the car, walked back toward Mr. Zeno's car armed with a gun, and fired two shots at Mr. Zeno through the car's window. The shooter then returned to the car he was riding in, and it pulled away. Mr. Zeno told the officers that the car involved was a maroon Honda Accord and that he knew the owner of the car to be Ashley Seaux. Deputy Talley stated that she knew Ms. Seaux personally as she is the mother of a child whose father is Deputy Talley's husband's best friend. Deputy Talley called the cell phone of Ms. Seaux, who initially answered, but upon learning whom was calling, Ms. Seaux abruptly stated that she could not talk. Deputy Talley then sent Ms. Seaux a text message inquiring into her whereabouts. Receiving no reply, Deputy Talley texted Ms. Seaux again, telling her that she was not in any trouble and that Deputy Talley just needed to know where she was. Deputy Talley finally received a reply, detailed in her testimony per the following colloquy:
Q. Okay. And what is it that she is telling you in these text messages?
A. She is telling me, "Kim, I'm scared for my life." I responded with, "Please talk to me. Where are you at?" She responds. "At this time I am around people. I will get killed." I didn't understand that statement. So she responds, "No. Help me, please. Please help me."
Detective Troy LeBlanc of the St. Martinville Police Department also testified. He went to the scene of the shooting and was able to locate a video recording of the incident from a gas station adjacent to the corner where it occurred. The recording showed a male exit the maroon Honda from the rear driver's side and proceed to shoot Mr. Zeno. Police were able to identify the maroon Honda as belonging to Ms. Seaux. Detective LeBlanc then went to the home of Ms. Seaux's aunt, Ms. Johnson. According to Detective LeBlanc, Ms. Johnson called Ms. Seaux while in his presence and had a momentary conversation. He then attempted to call Ms. Seaux himself *84but got no answer. After reviewing the text messages received by Deputy Talley from Ms. Seaux, he and Detective Cody Dodge contacted AT & T, the cell service provider, to attempt to access the GPS location data for Ms. Seaux's phone via an exigent circumstances request for the GPS data as authorized by
The trial court held hearings on Defendant's motion to suppress on August 24, 2017 and September 5, 2017. The court held that use of information regarding a third party's GPS location obtained from a cell phone service provider violated the third party's Fourth Amendment rights. Pursuant to this ruling, the court suppressed the location data and statements by Defendant and co-defendants obtained thereafter. In its initial ruling at the end of the hearing held on August 24, 2017, the court stated:
BY THE COURT:
First off, with regard to the right of privacy, Mr. Register accurately quoted Section 5 of Article I of the Louisiana Constitution which says, "Any person adversely affected by a search or seizure conducted in violation of this section shall have standing to raise its illegality in the appropriate court."
If someone else's 4th Amendment Rights are violated and it affects Mr. Malveaux, even though his 4th Amendment Rights were not violated, he can assert their 4th Amendment Rights.
Secondly, with regards to exigent circumstances, I am going to take judicial notice of the fact that in the 16th Judicial District Court and the St. Martin Parish-the St. Martinville Police Department, they can obtain electronic warrants which can be done in a matter of minutes. It takes them longer to talk to AT & T than it does to obtain an electronic search warrant.
With regard to expectation of privacy, there are certain records that the phone company has and there is no expectation of privacy because it is held by a third party. But somebody's physical location, or the physical location of their phone, is not a record maintained by AT & T, or the cell phone provider. They had to take action to find, to locate that cell phone. I am not aware of any particular case regarding that. However, attaching a GPS locator to somebody's vehicle and to track it is a violation of their right to privacy as to where they have traveled. So I would think in the same way, a GPS locator of the telephone violates the same right to privacy. For those reasons, I find that the action of obtaining a GPS location of the cell phone through AT & T was a violation of Miss Seaux's 4th Amendment Rights, which can be asserted by Mr. Malveaux.
After the conclusion of the September 5, 2017 hearing, the trial court ruled:
BY THE COURT:
With regards to the statements of the possible codefendants, those will be suppressed because it violates the defendant's right of confrontation. As the Court had previously ruled, the phone company located the telephone and notif[ied] the Police Department-they located the phone at the Police Department's request and notifying the Police Department of the phone's location was a violation of the owner's 4th Amendment right to reasonable search and seizure. In fact, the Court finds there was *85in fact a search without a warrant and the Court, again, took judicial notice that the St. Martinville Police Department and the 16th Judicial District Court has an electronic warrant system. And therefore, there is no exigent circumstance because the time it takes them to get a warrant is probably less than the time it took them to get AT & T to undergo the operation. According to the Louisiana Constitution, the defendant can object to a violation of someone else's 4th Amendment rights, or their state rights against an illegal search and seizure. Therefore, as a result of that information, they were able to arrest the defendant and obtain a statement from him. I find that that would be considered "the fruit of the poisonous tree" and therefore, his statement is suppressed.
The State now seeks review, assigning as a single and general error in brief that the trial court erred in granting the motion to suppress. However, it divides the assignment into three sub-arguments. The State argues the trial court erred by granting Defendant's motion to suppress because Defendant had "no legitimate expectation of privacy in data logs stored by third parties and voluntarily disclosed to law enforcement by those third parties." The State further contends the trial court erred in finding "that the exigent circumstances did not vitiate the warrant requirement." The State notes that police officers reasonably believed that a woman who was potentially involved in the offense was in imminent physical danger. Finally, the State argues that even if the trial court did not err regarding the two points just noted, it erred by suppressing the co-defendants' statements on the basis that police had violated Defendant's confrontation rights.
We review a trial court's ruling on a motion to suppress using the "abuse of discretion" standard. State v. Williams ,
The Louisiana and Federal constitutions prohibit unreasonable searches and seizures. U.S. CONSTITUTION ANN. art. IV; LA. CONST. ANN. art. I, § 5. A search warrant may issue only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. LA. CONST. ANN. art. I, § 5 ; LA.CODE CRIM. PROC. ANN. art. 162. Probable cause sufficient to issue a search warrant "exists when the facts and circumstances within the affiant's knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched." State v. Johnson ,408 So.2d 1280 , 1283 (La. 1982) ; LA CODE CRIM. PROC. ANN. art. 162. The task for a reviewing court is simply to insure that under the totality of the circumstances the magistrate had a "substantial basis" for concluding probable cause existed. Illinois v. Gates ,462 U.S. 213 , 236,103 S.Ct. 2317 , 2331,76 L.Ed.2d 527 (1983). Determination of probable cause does not rest on the officer's subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action. State v. Kalie , 96-2650 (La.9/19/97),699 So.2d 879 , 880. A warrantless search is per se unreasonable unless it falls within certain limited, well-delineated exceptions to the warrant requirement.
*86Schneckloth v. Bustamonte ,412 U.S. 218 ,93 S.Ct. 2041 ,36 L.Ed.2d 854 (1973) ; State v. Hernandez ,410 So.2d 1381 (La. 1982) ; State v. Zito ,406 So.2d 167 (La. 1981). Warrants therefore are generally required to search an individual's home or person, "unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." State v. White ,399 So.2d 172 , 175 (La. 1981). The trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. State v. Vessell ,450 So.2d 938 , 943 (La. 1984).
State v. Lee , 05-2098, pp. 14-15 (La. 1/16/08),
Although the State addressed as the second sub-issue in its argument that the trial court erred in finding the exigent circumstances exception to the search warrant requirement did not apply to the GPS location data of the cell phone, we will address it first here as we find that the relevant facts in the present case support the existence of exigent circumstances.
At the suppression hearing, Deputy Kim Talley testified she was able to identify the vehicle involved in the shooting incident as belonging to Ms. Seaux, who she personally knew. The deputy then called Ms. Seaux's cell phone, as described in the following colloquy:
Q. Did you ask her if the vehicle was involved in a shooting in the city limits of St. Martinville?
A. No, ma'am.
Q. Did you ask her if she knew anything about a shooting that occurred involving her vehicle?
A. No, ma'am.
Q. Did you ask her if she was in the car within the city limits?
A. No, ma'am. I didn't have a chance to.
Q. What did you ask her?
A. I asked her if she was okay. I said, "Where are you?" This was on the phone. This was through the phone. She said, "Who is this?" I said, "This is Kim." She knows who I work for her [sic] and it is not the first time I have dealt with her. She said, "I can't talk," and she hung up the phone.
Q. Now is that the only conversation that you had with her?
A. That was it.
Q. That was a verbal conversation?
A. Verbal. Yes, ma'am.
Q. Okay. Did you have any kind of conversation with her via text message?
A. Yes, ma'am.
Q. Okay. Can you tell us the nature of the texts?
A. I texted her because she could not speak, so I texted her. I asked her where she was. No answer. I asked her again, "Tell me where you are." No answer. I said, "Ashley, you are not in any trouble. I need to talk to you." She responds with, "Kim, I'm scared for my life. I don't want to die."
Detective Troy LeBlanc testified that because Ms. Seaux was "in fear," officers contacted AT & T to obtain the GPS location of her cell phone. Detective LeBlanc explained the circumstance to AT & T and expressed his belief that Ms. Seaux was in danger, and the phone company agreed to provide the information without a subpoena or a warrant.
In argument, Defendant's counsel implied that Ms. Seaux should have been Mirandized before Deputy Talley asked her any questions and that Deputy Talley *87created the exigent circumstances by initiating contact with Ms. Seaux.
In determining whether the exigent circumstances exception to the warrant requirement applies here, we note that police officers cannot use exigent circumstances they create themselves to avoid constitutional warrant requirements. State v. Fournette ,
In a case involving a very similar fact situation, the U.S. Court of Appeal for the Second Circuit in United States v. Gilliam ,
The initial statutory issue presented by Sprint's disclosure of GPS location information is whether it was "other information" within the meaning of subsection 2702(c)(4). Congress intended the phrase "other information" to cover "information about the customer's use of the service." S. Rep. No. 99-541, at 38 (1986). Several district courts have interpreted the phrase to include the location of a customer's cell phone. See United States v. Graham ,846 F.Supp.2d 384 , 396 (D. Md. 2012) (subsequent history omitted); In re Application of the United States for an Order Authorizing the Release of Historical Cell-Site Info. ,809 F.Supp.2d 113 , 125 (E.D.N.Y. 2011) ; In re Application of the United States for Prospective Cell Site Location Info. on a Certain Cellular Telephone ,460 F.Supp.2d 448 , 460-61 (S.D.N.Y. 2006). We agree that "other information" includes the location of a subscriber's cell phone.
The second statutory question is whether the circumstances presented to Sprint showed "an emergency involving danger of ... serious physical injury to any person." We think it obvious that "involving,"18 U.S.C. § 2702 (c)(4), includes a realistic threat of such injury, not just a completed injury. That statutory question also arises in connection with the constitutional issue presented by Sprint's disclosure at the request of a law enforcement officer and the use of that information to locate and arrest Gilliam without a warrant. That issue is whether such a disclosure and arrest without a warrant violated the Fourth Amendment.
Both the second statutory issue and the Fourth Amendment issue turn on whether the circumstances known to law enforcement and presented to Sprint were within the category of "exigent circumstances" that permit warrantless searches. See Riley v. California , --- U.S. ----,134 S.Ct. 2473 , 2487,189 L.Ed.2d 430 (2014). "The core question is whether the facts ... would lead a reasonable, experienced officer, to believe that there was an urgent need to ... take action." United States v. Klump ,536 F.3d 113 , 117-18 (2d Cir. 2008) (internal citations and quotation marks omitted). "A district court's determination as to whether exigent circumstances existed is fact-specific, and will not be reversed unless clearly erroneous." United States v. MacDonald ,916 F.2d 766 , 769 (2d Cir. 1990) (in banc) (citations omitted).
....
Congress has "deemed it reasonable to subordinate any individual privacy interest in cell phone location information to society's more compelling interest in preventing an imminent threat of death or serious bodily injury," and has therefore given service providers the authority to decide whether there existed an "emergency involving danger of death or serious physical injury to any person." United States v. Caraballo ,963 F.Supp.2d 341 , 360 (D. Vt. 2013) (citations *89omitted), aff'd ,831 F.3d 95 (2d Cir. 2016). Based on [law enforcement's] affirmation, Sprint had a good faith basis for believing that the disclosure of Gilliam's cell phone location was necessary to protect a missing child from being prostituted and subject to serious physical injury.
Gilliam ,
The Gilliam court concluded that faced with exigent circumstances based on credible information that the defendant was engaged in prostituting a missing child across state lines, the officer involved acted reasonably in obtaining the defendant's cell phone location information without a warrant. The court rejected the defendant's argument that the limited amount of time that it would have taken to secure a warrant would not have added significantly to any potential harm the victim may have faced. Likewise, we conclude that the detectives here acted reasonably in obtaining Ms. Seaux's cell phone location information without a warrant, and AT & T rightly provided the information given the clear exigencies of the situation. The trial court was clearly wrong in finding otherwise. The trial court's assertion that the electronic warrant capabilities within the jurisdiction would not have added any significant time to the process has no bearing on whether exigent circumstances existed so as to trigger the application of
In U.S. v. Takai ,
The court finds to the contrary. Detective Spangenberg had probable cause to believe that Defendant was the individual who committed the Redwood Road robbery and the violent shooting of the clerk in the face at point blank range. Detective Merino, a gang unit detective familiar with Defendant, his family, and the general gang scene and affiliations in the area, had reviewed video footage of both the California Ave. beer run theft and the subsequent Redwood Road robbery/shooting and had positively identified Defendant as the prime suspect. Detective Spangenberg had independent experience with the gangs with which Defendant was believed to be associated and was also aware that the "beer run robbery" was one of the signature crimes known to be committed by such gangs. Based on the violence of the Redwood Road robbery, combined with his awareness of the "beer run robberies," it was entirely reasonable for Detective Spangenberg to conclude that given the two convenience store incidents that had already occurred, another might be imminently forthcoming. Also, he had been informed by knowledgeable gang unit detectives *90that Defendant was known to be violent and believed to be currently armed and dangerous. Under these emergency circumstances, Detective Spangenberg's application pursuant to18 U.S.C. § 2702 was a reasonable way to proceed to obtain the suspect's cellphone GPS pinging data as quickly as possible, hopefully to help officers who were in the process of staking out Defendant's known hangouts.
Interestingly, the State in Takai also opposed the motion to suppress both on a traditional application of the exigent circumstances exception to the warrant requirement and on the good faith exception to the exclusionary rule, as does the State in the instant case. In finding both to be equally viable, the Takai court stated as follows:
a. Exigent Circumstances Exception
The Government also opposes Defendant's Motion to Suppress based on the well-established "exigent circumstances" exception to warrantless searches. (Govt.'s Resp. Mot Suppr. 6-8 [Dkt. No. 98].) The Tenth Circuit has consistently applied the "exigent circumstances" exception to the warrant requirement "when the circumstances posed a significant risk to the safety of a police officer or a third party." United States v. Najar ,451 F.3d 710 , 717 (10th Cir. 2006). A two-part test applies: "whether (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable." The facts outlined in the paragraphs above show that this test is easily met with Detective Spangenberg's decision to use a Section 2702 application to obtain cellphone GPS pinging data on Defendant quickly from the service provider without a warrant.
b. Good Faith Exception
This issue ultimately pivots on the application of the good faith exception described in United States v. Leon ,468 U.S. 897 ,104 S.Ct. 3405 ,82 L.Ed.2d 677 (1984). See United States v. Barajas ,710 F.3d 1102 , 1109 (10th Cir. 2013) (holding that the good faith exception applied where officers relied in good faith on a wiretapping warrant that included GPS pinging data even though the applications for the warrant did not specifically request such cellphone GPS pinging data). That is, even if the court were required to find that Detective Spangenberg acquired the [Cell Site Location Information] in violation of Defendant's Fourth Amendment rights, the Leon good faith exception, as further applied by Illinois v. Krull ,480 U.S. 340 , 349,107 S.Ct. 1160 ,94 L.Ed.2d 364 (1987), would remove suppression as an available remedy. Under Leon , evidence obtained by law enforcement officers in objective good faith reliance on a facially valid warrant is admissible even if the search warrant is ultimately deemed invalid.468 U.S. at 926 ,104 S.Ct. 3405 . And under Krull , the exception applies if officers obtain evidence in "objectively reasonable reliance on a statute."480 U.S. at 349 ,107 S.Ct. 1160 . In extending Leon this way, the Supreme Court in Krull reasoned that "[t]here is no basis for applying the exclusionary rule to exclude evidence obtained when a law enforcement officer acts in objectively reasonable reliance upon a statute, regardless of whether the statute may be characterized as 'substantive' or 'procedural.' "Id. at 356 n. 12,107 S.Ct. 1160 ; See also United States v. Clarkson ,551 F.3d 1196 , 1204 (10th Cir. 2009) (noting that Krull extended the Leon good-faith exception *91to officers' good faith reliance on a statute's regulatory scheme permitting warrantless searches, even where the regulatory scheme was later declared unconstitutional).
Here, as in Graham , Defendant has not challenged the constitutionality of the SCA.846 F.Supp.2d at 405 . Nothing would suggest that either the SCA or, more specifically, Section 2702(c)(4), were enacted by a legislature that had "wholly abandoned its responsibility to enact constitutional laws." Krull ,480 U.S. at 356 ,107 S.Ct. 1160 . Even if Defendant were arguing that the SCA were unconstitutional as applied, which he does not appear to be doing, "other courts have concluded that suppression is inappropriate" where officers have acted in good faith reliance on its provisions. Graham ,846 F.Supp.2d at 406 (citing cases). This court therefore agrees with Graham that it is "objectively reasonable for law enforcement to rely on the Stored Communications Act" in obtaining CSLI, as Detective Spangenberg did in reliance on the emergency provision of Section 2702 under these circumstances.Id.
Id. at 1323-24.
In State v. Isaac ,
The issue in this case turns on whether the circumstances known to law enforcement and presented to Sprint/Nextel were within the category of "exigent circumstances" that permit warrantless searches. "The core question is whether the facts ... would lead a reasonable, experienced officer, to believe that there was an urgent need to ... take action." United States v. Klump ,536 F.3d 113 , 117-18 (2d Cir. 2008), cert. denied ,555 U.S. 1061 ,129 S.Ct. 664 ,172 L.Ed.2d 638 (2008) (internal citations and quotation marks omitted). "A district court's determination as to whether exigent circumstances existed is fact-specific, and will not be reversed unless clearly erroneous." United States v. MacDonald ,916 F.2d 766 , 769 (2d Cir. 1990) (en banc ), cert. denied ,498 U.S. 1119 ,111 S.Ct. 1071 ,112 L.Ed.2d 1177 (1991) (citations omitted).
....
Because of the frequency and volatile nature of the violent crimes that had been committed, exigent circumstances justified GPS tracking of Defendant's phone to determine his location in order to effectuate his arrest, pursuant to a validly issued arrest warrant, in order to *92protect the public against additional crimes. Additionally, Sprint/Nextel's disclosure of the GPS tracking information was authorized by the SCA and the use of the real-time GPS location of Defendant's cell phone was no more expansive than necessary to address the exigency that existed.
Id. at 1041
Additionally, the Isaac court held that the "good faith" exception to the application of the exclusionary rule applied as well.
Further, in addition to exigent circumstances, the police had a good faith, reasonable belief that applicable law authorized the obtaining of Defendant's cell phone records in the circumstances of this case. In Illinois v. Krull ,480 U.S. 340 ,107 S.Ct. 1160 ,94 L.Ed.2d 364 (1987), the Supreme Court concluded that its holding in United States v. Leon ,468 U.S. 897 ,104 S.Ct. 3405 ,82 L.Ed.2d 677 (1984), "that the Fourth Amendment exclusionary rule does not apply to evidence obtained by police officers who acted in objectively reasonable reliance upon a search warrant issued by a neutral magistrate, but where the warrant was ultimately found to be unsupported by probable cause," should be extended to instances in which "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." Krull ,480 U.S. at 342 ,107 S.Ct. 1160 . Thus, even though the SCA has not been ruled unconstitutional and Defendant does not challenge its constitutionality, suppression in the instant matter is not a viable remedy. See United States v. Takai , supra (ruling that based upon the emergency provisions of the SCA, "even if the court were required to find that [law enforcement] acquired the CSLI [cell site location information] in violation of the defendant's Fourth Amendment rights, the Leon good faith exception, as further applied by Illinois v. Krull ,480 U.S. 340 , 349,107 S.Ct. 1160 ,94 L.Ed.2d 364 (1987), would remove suppression as an available remedy").
Accordingly, we find the trial court properly denied Defendant's motion to suppress based on exigent circumstances, the SCA, and the officers' reasonable good faith reliance on applicable law.
Id. at 1041-42 (footnote omitted).
The case at hand presents an even clearer showing of exigent circumstances. The officers involved, Deputy Talley as well as Detectives LeBlanc and Dodge, had more than sufficient evidence on which to justify a reasonable belief that Ms. Seaux's life may have been in jeopardy or that the perpetration of another violent crime was imminent. Further, the officers were acting on a good faith reliance of the Stored Communications Act provisions of
The trial court also ruled that as Defendant was not present when the codefendants made their statements, his right to confrontation was violated. The State notes that the right to confrontation does not attach until trial. The supreme court has explained: "[T]he United States Supreme Court has specifically rejected confrontation clause claims in pre-trial proceedings. Similarly, although *93La. Const. art. I, § 13 recognizes the right of a defendant to confront his accuser, the confrontation that this article secures is confrontation at the trial, not prior thereto." State v. Harris , 08-2117, p. 1 (La. 12/19/08),
DISPOSITION
For the reasons set forth herein, we grant the writ and make it peremptory. Therefore, the trial court's rulings at the hearings held on August 24 and September 5, 2017, are vacated, and the case is remanded for further proceedings in accordance with this ruling.
WRIT GRANTED, JUDGMENTS/RULINGS REVERSED, MOTION TO SUPPRESS DENIED.
The substance of the purported inculpatory statements made by Defendant and his codefendants is not made clear by the State's writ application to this court. However, the substance of the statements is not relevant to our analysis of the trial court's ruling.
See Miranda v. Arizona,
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