No Search Warrant Required To Search Cell Phone If There Are Exigent Circumstances

Law tracks technology. A recent case, involving the Vermont State Police allowed the police to track a person suspected of murdering someone, without obtaining a search warrant, based upon exigent circumstances by pinging the suspect’s cell phone.cell-phone

In the Vermont case, officers of the Vermont State Police 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 a woman’s body.  She had a gunshot wound to the back of the head and she was on the ground in a kneeling position with her hands clasped in front of her.  Not suicide, it had the making of a gangland murder.

The officers identified the woman as Melissa Barratt who had recently come to the attention of Vermont State Police when she was arrested in Brattleboro for selling drugs.  At the time, Barratt told her arresting officers that she was “extremely nervous and afraid of Frank Caraballo,” with whom she worked dealing drugs.  In particular, she stated, “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 cooperated.  The officers at the scene subsequently learned that Barratt had continued to work for Caraballo after her release.

Moreover, 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 recent controlled buys of narcotics” with Caraballo, and that these sales required the participation of multiple undercover agents and confidential informants.   Considering the need to protect the safety of undercover officers and informants the officers concluded that it was essential to locate Caraballo as soon as possible; therefore, the officers did not apply for a search warrant but instead contacted Sprint to request that Sprint locate Caraballo by using its GPS system to ping the GPS software in his phone to locate him remotely—a process called “pinging.”  After Caraballo was located, arrested (all within 90 minutes) and charged with a number of crimes Caraballo filed a motion to suppress all evidence  because there was no search warrant, which he alleged violated his Fourth Amendment right to be free from unreasonable searches and seizures. The federal district court overruled the motion to suppress and Caraballo appealed to the Second Circuit Court of Appeals, which upheld the district court’s decision.

The Second Circuit in its opinion, noted that there is a well-established body of case law “that individuals have no reasonable expectation of privacy in the real-time GPS location of their cell phones.”  Despite the fact that there is no reasonable expectation of privacy the Second Circuit resolved the matter on the grounds that the request to Sprint fell within the exception to the Fourth Amendment 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.”

In this case the officers had specific reasons to think that Caraballo would commit acts of violence against undercover agents and confidential informants.  Barratt’s statement that Caraballo would “kill her” if she were speaking to police took on an immediate importance because it suggested that the investigation had been discovered.  The threat that Caraballo might take action against others involved in the investigation satisfied the requirements for exigent circumstances.  United States of America v. Caraballo, (Second Circuit, 12–3839 and 14–203, 08/01/16)

You may want to consider sharing this case with local law enforcement officials since it  illustrates a way to respond quickly to an emergency situation.

Howard Wright© 2017

 

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