Petition for Writ of Certiorari — Rex Hammond, Petitioner v. United States

Supreme Court briefNov 17, 2021

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No.

In the Supreme Court of the United States

REX HAMMOND,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

EUGENE R. FIDELL

Yale Law School

Supreme Court Clinic

127 Wall Street

New Haven, CT 06511

(203) 432-4992

MICHAEL B. KIMBERLY

Counsel of Record

PAUL W. HUGHES

ETHAN H. TOWNSEND

McDermott

Will & Emery LLP

500 North Capitol St. NW

Washington, DC 20001

(202) 756-8000

mkimberly@mwe.com

Counsel for Petitioner

QUESTIONS PRESENTED

1. In Carpenter v. United States, 138 S. Ct. 2206

(2018), the Court held that the government’s use of an

individual’s historical “cell site location information”

(CSLI) to determine his past movements over a

lengthy period of time constitutes a search within the

meaning of the Fourth Amendment, requiring a warrant. But the Court expressly left open the question

whether a government agent’s use of “real-time CSLI”

to track a person in real time likewise constitutes a

search. Id. at 2220. The question reserved in Carpenter—over which lower courts are divided—is the first

question presented here:

Whether a government agent’s direction to a wireless carrier to send a signal to a person’s phone, so

that the phone reveals the person’s precise location

and movements in real time is a search within the

meaning of the Fourth Amendment.

2. In Illinois v. Krull, 480 U.S. 340 (1987), the

Court held that the good faith exception to the exclusionary rule prevents exclusion when officers have

acted “in objectively reasonable reliance on a statute”

that was subsequently found unconstitutional. Id. at

349. But the Court “decline[d] the State’s invitation to

recognize an exception for an officer who erroneously,

but in good faith, believes he is acting within the scope

of a statute.” Id. at 360 n.17. The question reserved in

Krull—over which lower courts again are divided—is

the second question presented here:

Whether a government agent’s good faith but objectively incorrect reading of a statute prevents the exclusion of constitutionally tainted evidence in a criminal trial.

TABLE OF CONTENTS

Questions presented .................................................... i

Table of authorities ................................................... iii

Opinions below ............................................................1

Jurisdiction ..................................................................1

Constitutional and statutory provisions ....................1

Introduction .................................................................1

Statement ....................................................................2

A. Legal and technological background................2

B. Factual and procedural background ................4

Reasons for granting the petition ...............................8

A. There is a 3-3 split on the first question..........9

B. There is a 5-4 split on the second question ... 12

C. The questions are exceptionally

important and analytically connected ........... 18

D. The decision below is wrong. .......................... 20

Conclusion ................................................................. 23

iii

TABLE OF AUTHORITIES

Cases

In re Application for an Order Authorizing

the Installation & Use of a Pen Register &

Directing the Disclosure of Telecomms.

Records for the Cellular Phone Assigned

the No. [Sealed],

439 F. Supp. 2d 456 (D. Md. 2006) ...................... 22

In re Application for Pen Reg. & Trap/Trace

Device with Cell Site Location Auth.,

396 F. Supp. 2d 747 (S.D. Tex. 2005) ............ 22, 23

In re Application of U.S. for an Order

Authorizing Disclosure of Location Info. of

a Specified Wireless Tel. (Maryland RealTime Order),

849 F. Supp. 2d 526 (D. Md. 2011) ........................ 4

In re Application of the U.S. for an Order

Authorizing the Installation and Use of a

Pen Register Device, a Trap and Trace

Device, & for Geographic Location Info.,

497 F. Supp. 2d 301 (D.P.R. 2007) ...................... 22

Camara v. Municipal Court of City and

County of San Francisco,

387 U.S. 523 (1967) ................................................ 1

Carpenter v. United States,

138 S. Ct. 2206 (2018) .................................. passim

Commonwealth v. Almonor,

120 N.E.3d 1183 (Mass. 2019) ............................... 3

Commonwealth v. Pacheco,

227 A.3d 358 (Pa. Super. Ct. 2020) ................... 3, 4

Horton v. California,

496 U.S. 128 (1990) .............................................. 16

Illinois v. Krull,

480 U.S. 340 (1987) ...................................... passim

Cases—continued

Illinois v. McArthur,

531 U.S. 326 (2001) .............................................. 16

Johnson v. United States,

333 U.S. 10 (1948) ................................................ 13

Jones v. United States,

168 A.3d 703 (D.C. 2017) ............................. passim

Oliver v. United States,

466 U.S. 170 (1984) ................................................ 9

People v. Madison,

520 N.E.2d 374 (Ill. 1988) ........................ 16, 17, 22

Riley v. California,

134 S. Ct. 2473 (2014) .......................................... 19

Sims v. State,

569 S.W.3d 634 (Tex. 2019) ................................. 11

State v. Brown,

202 A.3d 1003 (Conn. 2019) ........................... 10, 11

State v. Muhammad,

451 P.3d 1060 (Wash. 2019) ................................ 10

Tracey v. State,

152 So. 3d 504 (Fla. 2014) ........................... passim

United States v. Banks,

884 F.3d 998 (10th Cir. 2018) .............................. 11

United States v. Carabello,

831 F.3d 95 (2d Cir. 2016) ................................... 17

United States v. Green,

981 F.3d 945 (11th Cir. 2020) .............................. 17

United States v. Karo,

468 U.S. 705 (1984) ................................................ 3

United States v. Knotts,

460 U.S. 276 (1983) ...................................... passim

United States v. Jones,

565 U.S 400 (2012) ........................................ 10, 18

Cases—continued

United States v. Riley,

858 F.3d 1012 (6th Cir. 2017) .......................... 3, 11

United States v. Song Ja Cha,

597 F.3d 995 (9th Cir. 2010) ......................... 16, 22

United States v. Wallace,

885 F.3d 315 (5th Cir. 2018) ...................... 5, 12, 23

United States v. Wallace,

885 F.3d 806 (2018).................................. 14, 15, 17

United States v. Warshak,

631 F.3d 266 (2010)........................................ 13, 14

Other Authorities

18 U.S.C. 2702(c)(4) ......................................... 5, 14, 19

AT&T US, Inc., Transparency Reports

(2020-2021) ........................................................... 18

The Brennan Center, The Fourth Amendment in the Digital Age, (March 18, 2021) ............ 3

Verizon Wireless, Transparency Report

for the Second Half of 2020 .................................. 19

U.S. Dep’t of Defense, Global Positioning System

Standard Positioning Service Performance

Standard V (4th ed. Sept. 2008) ............................ 3

Petitioner Rex Hammond respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the Seventh Circuit (App., infra,

2a-48a) is reported at 996 F.3d 374.

The district court’s opinion (App., infra, 49a-60a)

is unpublished but is available in the Westlaw database at 2018 WL 5292223.

JURISDICTION

The court of appeals entered its judgment on April

26, 2021 and denied rehearing en banc on August 19,

2021. This Court’s jurisdiction is invoked under 28

U.S.C. 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The relevant constitutional and statutory provisions are set out in the appendix at 63a-65a.

INTRODUCTION

Technological interrogation of an individual’s private property to reveal the person’s precise, real-time

location constitutes a search under the Fourth

Amendment. The Seventh Circuit’s contrary decision

in this case stands as an open invitation to government agents to compel a person’s cell phone to reveal

its precise location without a warrant, disclosing intimate details of the user’s whereabouts indefinitely,

without even requiring government agents to get up

from their desks. That invitation cannot be squared

with the “basic purpose” of the Fourth Amendment,

which is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Municipal Court of City and

County of San Francisco, 387 U.S. 523, 528 (1967).

Making matters worse, the Seventh Circuit held further that the exclusionary rule need not apply even if

a warrantless search took place, because the officer

believed in good faith—but objectively wrongly—that

he was complying with statutory scheme that purportedly authorized the real-time tracking. That holding

ignores the reasoning underlying the good-faith exception recognized in Illinois v. Krull, 480 U.S. 340,

349 (1987).

Both issues have deeply divided federal appellate

courts and state courts of last resort. And the two

questions are closely linked and typically arise together. Resolution of both questions is critical to shoring up the alarming erosion of Fourth Amendment

protections in our increasingly technological age.

Without this Court’s review, pervasive government

surveillance, made possible through small pieces of

plastic and metal carried in nearly every American’s

pocket, will overrun the Fourth Amendment altogether. The time for review is now.

STATEMENT

A. Legal and technological background

1. The Framers understood the Fourth Amendment to “secure the privacies of life against arbitrary

power,” and to “place obstacles in the way of a too permeating police surveillance.” Carpenter v. United

States, 138 S. Ct. 2206, 2214 (2018). Modern surveillance technology, the Court has said, may not be used

to eviscerate “that degree of privacy against government that existed when the Fourth Amendment was

adopted.” Ibid. (quotations and citation omitted). Accordingly, the Court has ruled that following someone’s movements using modern technology “falls

within the ambit of the Fourth Amendment when it

reveals information that could not have been obtained

through visual surveillance.” United States v. Karo,

468 U.S. 705, 707 (1984).

2. This case involves real-time cellphone tracking,

which gives government agents access to precise, ongoing geolocation data. This information is “detailed,

encyclopedic,” and “provides an intimate window into

a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations.” Carpenter,

138 S. Ct. at 2216-17 (cleaned up).

There are two methods for real-time cellphone

tracking—CSLI and GPS—but there is no constitutionally significant difference between them.

In either case, the carrier determines the realtime location of a phone by “pinging” it (that is, by

sending to the phone a digital signal bearing an instruction). See Commonwealth v. Pacheco, 227 A.3d

358, 363 (Pa. Super. Ct. 2020), appeal granted, 2020

WL 4332936 (Pa. July 28, 2020). The signal activates

the phone to determine its location. Ibid. If the phone

has GPS functionality, as most phones do, the phone

company uses the GPS chip to determine the geolocation coordinates of the phone. See United States v. Riley, 858 F.3d 1012, 1014 n.1 (6th Cir. 2017). “[T]oday,

virtually all cell phones contain a GPS receiver,

thereby giving police the capability to ping the cell

phones of hundreds of millions of people.” Commonwealth v. Almonor, 120 N.E.3d 1183, 1193 n.12 (Mass.

2019). Accord The Fourth Amendment in the Digital

Age, The Brennan Center (March 18, 2021).

Newer GPS receivers can identify the phone’s location within 10 feet; they also have a vertical accuracy of fifteen feet. See U.S. Dep’t of Defense, Global

Positioning System Standard Positioning Service Performance Standard V (4th ed. Sept. 2008; GPS Accu-

racy, GPS.gov, perma.cc/TD87-9F8Q). This is accurate enough to locate a cell phone within a residence,

including the floor it is on. See In re Application of

U.S. for an Order Authorizing Disclosure of Location

Info. of a Specified Wireless Tel. (Maryland RealTime Order), 849 F. Supp. 2d 526, 540–41 (D. Md.

2011).

If GPS data is not available, the phone’s location

may instead be determined using cellphone tower triangulation. Pacheco, 227 A.2d at 363. The carrier initiates a communication with the phone, which responds by transmitting its location (accurate within

about 30 yards) back to the carrier. Ibid. This is “real

time” CSLI tracking.

In either case (GPS or CSLI), when a phone is

“pinged,” the cell phone user does not have to do anything to reveal their precise location. Users need not

move the phone, call or text, or even press a button for

the carrier (and thus the government) to know exactly

where they are—whether they be in the bedroom,

bathroom, street, office, park, or school. Furthermore,

the pinging is conducted secretly, without revealing

anything to the cell phone user. Real-time cell phone

pinging thus allows the state to surreptitiously track

the movements of any individual with a cell phone (essentially all Americans) with a voyeuristic level of precision, and without ever leaving the precinct.

B. Factual and procedural background

1. This case arises from a series of robberies committed over a three-week period in October 2017.

App., infra, 3a-5a. On the day after one robbery—a

Saturday—a task force comprising several state and

federal law enforcement agents, including a Kalamazoo police detective Cory Ghiringhelli, concluded that

Rex Hammond was a suspect and obtained Hammond’s cell phone number. App., infra, 5a. Rather

than locate and arrest Hammond using ordinary police work, Ghiringhelli took the rest of the weekend

off. App., infra, 6a. The four other agents similarly did

nothing to locate Hammond. Only Ghiringhelli, days

later on the following Monday afternoon, finally

looked up Hammond’s phone number, traced it to

AT&T, and made an “exigency request” under 18

U.S.C. § 2702(c)(4) for both Hammond’s historical cell

site location information for the prior two weeks and

for ongoing, real-time “ping” results to track his location in real time. App., infra, 6a. In response, AT&T

sent Hammond’s location data to Ghiringhelli approximately every 15 minutes, showing the location of the

cell phone 15 minutes earlier. App., infra, 51a. 1

Ghiringhelli provided the location information to

other officers with instructions to locate, but not arrest, Hammond. App., infra, 22a-23a. Agents began

searching for Hammond. App., infra, 5a. Throughout

the duration, the real-time ping located Hammond at

various places, including a hotel room in South Bend,

Indiana (where the ping became stationary for a time)

and within his vehicle on the road. Dist. Ct. Dkt. 39,

at 5. In the early hours of the following day, and after

Hammond made multiple stops that evening, officers

located Hammond in Indiana and pulled him over for

speeding. After conferring with a state prosecutor,

they determined they had probable cause to arrest

him and took him into custody. Id. at 7, 9; Dist. Ct.

Dkt. 93 at 6.

The court of appeals characterized the cellphone tracking in

this case as real-time CSLI tracking. App., infra, 6a. It may in

fact have been GPS tracking, which is how AT&T ordinarily

“pings” a phone. See United States v. Wallace, 885 F.3d 315 (5th

Cir. 2018). We accept the court’s characterization of the technology as issue here, as there is no constitutionally meaningful distinction between the two technologies.

2. A grand jury indicted Hammond on eight

charges. Dist. Ct. Dkt. 1. In later proceedings, Hammond moved to suppress the cell phone location information that the government had received from AT&T

without a warrant, asserting that collection of both

the historical and real-time geolocation data was a

search requiring a warrant. In its response, the government conceded that, under Carpenter, it was “clear

that the government should have obtained a search

warrant for historical data and violated the Fourth

Amendment by not doing so.” Dist. Ct. Dkt. 39, at 11.

The government also “accept[ed] for the sake of argument” that it should have sought a warrant for the

real-time location information. Id. at 11 n.1.

The district court denied Hammond’s motion.

App., infra, 60a. The court did not reach the constitutional question on the ground that “if Mr. Hammond’s

phone data was collected in a good-faith reliance on

the Stored Communications Act, the evidence needn’t

be suppressed.” Id at 54a.

At trial, the government introduced the evidence

found in Hammond’s car, evidence that the district

court later called “considerable” in connecting Hammond “to the robberies.” App., infra, 19a. A jury convicted Hammond. App., infra, 9a.

3. The Seventh Circuit affirmed. It held, in relevant part, that the government’s real-time cellphone

tracking was not a “search” under the Fourth Amendment. The court reasoned that agents had tracked

Hammond only for “a matter of hours while the suspect travelled on public roadways.” App., infra, 27a.

In coming to that conclusion, the court relied exclusively on the 1983 case of United States v. Knotts, 460

U.S. 276 (1983), which involved the use a policeplaced beeper in a drum of chloroform.

The court did not rely on the reasoning in Jones

seemingly because the Court in Jones “grounded its

analysis in common law trespass doctrine and emphasized that the government physically occupied private

property for the purpose of obtaining information”

when it attached a GPS unit to a suspect’s car. App.,

infra, 19a-20a. (alteration incorporated). In describing

Carpenter, the court quoted this Court’s language that

“an individual maintains a legitimate expectation of

privacy in the record of his physical movements as

captured through CSLI.” App., infra, 27a. But because

“Carpenter disclaimed providing any answer to the

question before us,” the panel reasoned, the question

was simply “whether the facts of this case are more

similar to Carpenter or to Knotts.” App., infra, 21a22a. In the court’s view, under Carpenter, where the

government has not used real-time location information “to peer into the intricacies of [someone’s] private life,” there is no search under the Fourth Amendment. App., infra, 22a.

Reasoning that “law enforcement only followed

Hammond on public roads, for the duration of one car

trip,” the court found no search. App., infra, 23a. In

the Seventh Circuit’s view, society “is fully aware that

officers may follow and track a suspect’s movements

for several hours.” App., infra, 24a. Accordingly, pinging Hammond’s cell phone to locate him is “not inconsistent with society’s expectations of privacy from law

enforcement’s prying eyes.” Ibid.

Real-time pinging does not involve “stored” information. Nonetheless, the Seventh Circuit held in the

alternative that Ghiringhelli had relied in good faith

on the Stored Communications Act (SCA) when obtaining Hammond’s CSLI and real-time location data.

The court’s decision rested on the lower court’s factual

finding that Ghiringhelli believed in good faith that “a

federal statute allowed him to act as he did.” App., infra, 29a. In other words, Ghiringhelli’s “good faith”

was based on his (mistaken) interpretation of what

the statute permitted him to do. Concluding that good

faith but mistaken reliance on a statute is permissible, the court below did not address whether the SCA

in fact authorized Ghiringhelli’s actions.

REASONS FOR GRANTING THE PETITION

This case cries out for further review. The first

question presented implicates a deep split on the

question whether real-time cellphone tracking is a

search within the meaning of the Fourth Amendment.

The importance of that question is self-evident: If the

decision below is allowed to stand, government agents

will be able to convert private cellphones into government tracking devices, giving them near omniscience

as to the location of the vast majority of Americans at

any time. The Fourth Amendment is an essential bulwark against that dystopian outcome.

The second question presented—which arises in

every real-time cellphone search case in which officers

do not obtain a warrant—likewise implicates a split of

authority. And it also is enormously important: If the

exclusionary rule turns only on the good faith beliefs

of officers concerning the meaning of statutes, and not

on the actual meaning of statutes, there will be a powerful incentive for government agencies to leave law

enforcement agents in the dark on the meaning of

statutes like the Stored Communications Act (which,

on its face, does not authorize the government to require the collection of new data not already stored). As

a tool to discourage government misconduct, the exclusionary rule should not excuse objectively incorrect

reliance on federal statutes. Further review is therefore in order.

A. There is a 3-3 split on the first question

The Seventh Circuit’s resolution of the first question presented conflicts with holdings of the courts of

last resort in Florida, Washington, and Connecticut.

In line with the Seventh Circuit are the Sixth Circuit

and the Texas Court of Criminal Appeals. This entrenched 3-3 split warrants review.

Florida. In Tracey v. State, 152 So. 3d 504 (Fla.

2014), the Florida Supreme Court has held that tracking an individual’s movements using real-time CSLI

constitutes a search for Fourth Amendment purposes.

There, the defendant’s cellphone carrier provided police with real-time CSLI, which they used to track him

on his drive to a house where they believed drugs were

stored. Id. at 506-08. The court held that the defendant had a reasonable expectation of privacy in his cellphone location signals. Id. at 525.

The court so held in spite of the limited duration

and public location of the tracking. Id. at 520, 526. Citing this Court’s opinion in Oliver v. United States, 466

U.S. 170 (1984), the court concluded that “the length

of time the cell phone is monitored is not a workable

analysis” for balancing law enforcement needs with

privacy interests: the resulting framework would be

too ad-hoc to clearly define the boundaries of Fourth

Amendment rights. Id. at 520-21. The court similarly

held the fact that the tracking took place on public

roads to be irrelevant. Police were not simply following Tracey’s vehicle, as in Knotts. Instead, as in the

case below, they had to use the CSLI information to

locate him in the first place. Id. at 525. Moreover, the

court found that the public/private distinction makes

little sense in the context of CSLI tracking: cell phone

pinging can traverse the public/private line quickly,

and without warning. Id. at 524. That is the opposite

of the Seventh Circuit’s reasoning below.

Washington. In State v. Muhammad, 451 P.3d

1060 (Wash. 2019), The Washington Supreme Court

similarly held that pinging a suspect’s phone using

CSLI constituted a warrantless search. Police there

had briefly suspended in-person surveillance of the

defendant’s home, during which time he left. Having

lost him, they pinged his phone without a warrant to

determine his location. Id. at 1067. The court applied

Carpenter to real-time CSLI and held that even an

“isolated cell phone ping” implicates the Fourth

Amendment. Id. at 1071-72.

According to the court, “‘[e]ven short-term monitoring’ can generate a ‘comprehensive record of a person’s public movements that reflects a wealth of [personal information.]” Id. at 1072 (alteration in original)

(quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring)). Therefore, the duration of monitoring or

number of pings “is [an] arbitrary [line to draw] and

unrelated to a reasonable expectation of privacy.” Id.

at 1073. Although the court there ultimately allowed

the fruits of the unconstitutional search into the record on exigency grounds, it expressly rejected the Seventh Circuit’s interpretation of the Fourth Amendment in this case. There can be no question that the

outcome here would have been different if the case

had arisen in the state courts of Washington.

Connecticut. In State v. Brown, 202 A.3d 1003

(Conn. 2019), the Connecticut Supreme Court held

that an ex parte order to obtain prospective CSLI by

pinging a burglary suspect’s phone “every ten minutes

from midnight on November 23, 2010 until 7 a.m. on

November 25, 2010” had been obtained illegally under

a Connecticut statute akin to the SCA. Id. at 1008,

1009. The court held that, because the violation “implicated important fourth amendment interests,” the

appropriate remedy was exclusion of the evidence obtained via the illegal order. Id. at 1014. In sharp contrast with the Seventh Circuit, the Connecticut Supreme Court explained that “[t]he concerns expressed

by the court in Carpenter regarding historical CSLI

apply with equal force to prospective CSLI.” Id. at

1018. Because the Connecticut Supreme Court found

that the logic of Carpenter should be extended to realtime CSLI, without placing any particular limits on

the duration or location of the tracking, the court affirmed the suppression of Brown’s CSLI obtained from

the ex parte order. Ibid. 2

In contrast with the decisions just described, the

Sixth Circuit and the Texas Court of Criminal Appeals have held that real-time cellphone tracking is

not a search. See United States v. Riley, 858 F.3d

1012, 1018 (6th Cir. 2017) (holding that “seven hours

of GPS location data to determine an individual's location (or a cell phone’s location), so long as the tracking does not reveal movements within the home (or

hotel room), does not cross the sacred threshold of the

home, and thus cannot amount to a Fourth Amendment search”) (emphasis omitted); Sims v. State, 569

S.W.3d 634, 645 (Tex. 2019) (holding that a suspect

does not “have a legitimate expectation of privacy in

his physical movements or his location as reflected in

Although, the District of Columbia Court of Appeals has not

directly addressed the issue of real-time monitoring via GPS or

CSLI, it has held that tracking a cell phone using a cell-site simulator—an artificial method of creating CSLI—is a search. See

Jones v. United States, 168 A.3d 703 (D.C. 2017). It is very likely

that, in light of Jones, the D.C. Court of Appeals would side with

the courts on this side of the split. Cf. United States v. Banks,

884 F.3d 998, 1013 (10th Cir. 2018) (“declin[ing] to address”

“whether tracking a cell-phone’s real-time location is a search

under the Fourth Amendment”).

the less than three hours of real-time CSLI records accessed by police by pinging his phone less than five

times”).

The holdings of the Seventh Circuit, Sixth Circuit,

and Texas Court of Criminal Appeals cannot be

squared with the decisions of the high courts of Florida, Washington, and Connecticut. For the benefit of

police officers who must conform their conduct to constitutional rules, of the courts that must administer

those rules, and of citizens whose liberty is protected

by them, this Court should grant review of this important constitutional issue.

B. There is a 5-4 split on the second question

Every time a police officer obtains a suspect’s realtime cellphone tracking data without a warrant, he

will have relied mistakenly on the SCA, which authorizes officers to demand historical (stored) CSLI from

wireless carriers, but not to command wireless carriers to collect new data that they do not already have.

See, e.g., United States v. Wallace, 885 F.3d 315, 317

(5th Cir. 2018) (Dennis, J., dissenting from denial of

rehearing en banc) (explaining that “real-time collection of GPS tracking information is not authorized by

[the SCA]” because “GPS coordinates that have not

yet been created and would not be created absent the

Government’s intervention cannot be called ‘records’

or ‘stored’ communications under any commonsense

understanding of those terms”).

The question thus arises in every such case

whether an officer’s reliance on a good faith but objectively wrong reading of the SCA permits entry at trial

of the evidence thereby obtained. There is a deep split

on that question as well.

In Krull, this Court held that the good faith exception to the exclusionary rule prevented exclusion

where officers had acted “in objectively reasonable reliance on a statute” that was subsequently found unconstitutional. 480 U.S. at 349. The Court reasoned

that in such cases, exclusion would “not deter future

Fourth Amendment violations by an officer who has

simply fulfilled his responsibility to enforce the statute as written.” Id. at 350. But the Court acknowledged that the outcome “might well be different when

police officers act outside the scope of a statute, albeit

in good faith.” Id at 360 n.17. “In that context, the relevant actors are not legislators or magistrates,” but

the police officers themselves. Ibid. (quoting Johnson

v. United States, 333 U.S. 10, 14 (1948)).

1. Applying Krull, the Sixth, Fifth, and Ninth Circuits and the Illinois Supreme Court have all held

that an officer’s subjective, good-faith belief that his

actions are legally authorized is not alone sufficient to

invoke the good faith exception.

Sixth Circuit. The Sixth Circuit addressed this

question in United States v. Warshak, 631 F.3d 266

(2010), where it assessed whether law enforcement’s

reliance on the SCA triggered the good faith exception, permitting the government to submit emails

seized in violation of the Fourth Amendment at trial.

Id. at 289-92 (6th Cir. 2010). The government passed

an initial requirement for good faith: the SCA was not

“so conspicuously unconstitutional as to preclude

good-faith reliance.” Id. at 289. The court nonetheless

held that “the good-faith reliance inquiry does not end

with the facial validity of the statute at issue.” Ibid.

Instead, it held, a court must also determine whether

the government acted “‘outside the scope of the statute’ on which it purported to rely.” Ibid. (quoting

Krull, 480 U.S. at 360 n.17).

The Sixth Circuit tied this second inquiry closely

to the overarching purpose of exclusion: deterrence of

officer misconduct. Ibid. As it explained,

an officer’s failure to adhere to the boundaries

of a given statute should preclude him from

relying upon it in the face of a constitutional

challenge [because o]nce the officer steps outside the scope of an unconstitutional statute,

the mistake is no longer the legislature's, but

the officer’s. * * * * Therefore, use of the exclusionary rule is once again efficacious in deterring officers from engaging in conduct that violates the Constitution.

Ibid. (citing Krull, 480 U.S. at 360 n.17).

Thus, the Sixth Circuit’s test requires that law enforcement not only subjectively believe that a facially

valid law authorized its actions but also stay within

that law’s objective boundaries. Ibid. Holding that the

officers in Warshak had done so, the court applied the

good faith exception. Id. at 292. But applying Warshak

here would have produced a different result, both because the SCA does not authorize the government to

order wireless carriers to collect new information that

they not already have, and because there was no exigency within the meaning of Section 2702(c)(4).

Fifth Circuit. The Fifth Circuit has also addressed the accuracy of law enforcement’s legal interpretations in its application of the good faith test. In

United States v. Wallace, 885 F.3d 806 (2018), it assessed a defendant’s challenge to a warrantless search

of his real-time cell location data under the SCA. The

court ultimately held that the good faith exception applied. Id. at 810–11. In its assessment, however, the

court explicitly noted that “[t]he holding of Krull does

not extend to scenarios in which an officer ‘erroneously, but in good faith, believes he is acting within

the scope of a statute.’” Id. at 811 n.3 (quoting Krull,

480 U.S. at 360 n.17).

Because the defendant did not challenge the accuracy of the officers’ interpretation of the SCA, the

court assumed for the purposes of its decision that

they had acted within its boundaries. Krull 480 U.S.

at 810-811. But the court was clear that its application

of the good faith exception depended on that assumption. Id. at 811 n.3 (“Our assumption today that the

officers acted within the scope of the statute keeps us

within the confines of Krull.”). Thus, like the Sixth

Circuit, the Fifth Circuit’s good faith inquiry accounts

for the actual “the scope of [the] statute”—not just law

enforcement’s subjective understanding of it. Ibid.

Florida. In Tracey, the officers relied on a state

analogue to the federal SCA. After holding that the

officers’ search of the defendant’s real-time location

data violated the Fourth Amendment, the court there

concluded:

We further hold that under the circumstances

of this case in which there was no warrant,

court order, or binding appellate precedent

authorizing real time cell site location tracking upon which the officers could have reasonably relied, the “good faith” exception to the

exclusionary rule for “objectively reasonable

law enforcement activity” * * * is not applicable. Thus, Tracey’s motion to suppress the evidence should have been granted

152 So. 3d at 526. (citation omitted). That is the exact

opposite conclusion at the Seventh Circuit in this case,

on both questions presented.

Two other courts—the Ninth Circuit and Illinois

Supreme Court—have addressed the second question

presented in other legal contexts. Their decisions indicate that they would have applied the exclusionary

rule in this real-time tracking case.

Ninth Circuit. The Ninth Circuit too has assessed

the accuracy of law enforcement’s legal interpretations when assessing whether to apply the good faith

exception—and it has affirmatively declined to apply

the exception where officers have relied on a mistake

of law. See United States v. Song Ja Cha, 597 F.3d

995 (9th Cir. 2010).

In Song Ja Cha, the government argued that the

good faith exception should apply to a warrantless

26.5-hour seizure of the defendant’s home and business. Id. at 999. The court held that the warrantless

seizure was unreasonably long under Illinois v. McArthur, 531 U.S. 326 (2001), and upheld the trial court’s

suppression ruling on that basis. Song Ja Cha, 597

F.3d at 1000. The court explicitly observed that “the

officers [had] made a mistake of law—they did not realize that a seizure must last ‘no longer than reasonably necessary for the police, acting with diligence, to

obtain the warrant.’” Id. at 1005 (citing McArthur, 531

U.S. at 332). And—most relevant here—the court held

that the officers’ mistake of law did not trigger the

good faith exception. Ibid. The court thus held that the

good faith exception could not apply. Ibid.

Illinois Supreme Court. Finally, the Illinois Supreme Court has firmly rejected the idea that the good

faith exception can apply where law enforcement has

relied on its own erroneous interpretation of relevant

law. In People v. Madison, 520 N.E.2d 374 (Ill. 1988), 3

the state argued that law enforcement’s good faith belief that a statute authorized a warrantless seizure of

Abrogated on unrelated grounds as recognized in Horton v. California, 496 U.S. 128 (1990).

the defendant’s documents should trigger the good

faith exception. Id. at 380. As the Court pointed out,

however, the statute in question explicitly required a

warrant. Ibid. And, the Court observed,

[under] Krull, the officer's good faith alone is

not sufficient to validate the search and seizure; the officer must also be acting on the authority of a seemingly valid warrant or statute. Here, * * * * [t]he officers were acting in

defiance of, not reliance on, the language of a

statute.

Ibid. Thus, the officer could not rely on the good faith

exception to avoid suppression. Ibid.

2. In contrast, the Eleventh Circuit has held that

“the good-faith exception to the exclusionary rule applies” when an officer relies in good faith the SCA to

obtain “real-time tracking data.” United States v.

Green, 981 F.3d 945, 957-958 (11th Cir. 2020), cert.

denied, 141 S. Ct. 2690 (2021). The Fifth Circuit has

held the same. See United States v. Wallace, 885 F.3d

806, 810–11 (5th Cir. 2018) (holding that officers’ good

faith reliance on the SCA defeated the exclusionary

rule, without deciding whether the SCA actually permits real-time tracking). And for its part, the Second

Circuit has suggested its alignment with the Fifth,

Seventh, and Eleventh Circuits. See United States v.

Carabello, 831 F.3d 95 (2d Cir. 2016) (declining to apply the exclusionary rule because “[t]he investigating

officers believed that applicable law permitted them

to request a warrantless search of a phone’s GPS location” even if it did not).

The lower courts are thus intractably divided on

the question left open in Krull: whether a government

agent’s good faith but objectively incorrect reading of

a statute prevents the exclusion of constitutionally

tainted evidence in a criminal trial. This Court’s intervention is thus desperately needed.

C. The questions are exceptionally important

and analytically connected

1. The questions presented warrant the Court’s

attention. With increasing frequency, law enforcement agencies are using real-time location monitoring

and tracking to obtain sensitive, hyper-specific information about Americans. By submitting a pro-forma

request to a wireless provider, the government can

track Americans in real-time at all hours of the day,

whether they’re going to work, at the doctor’s office, or

in the bathroom.

As Justice Alito recognized in Jones, of the “many

new devices that permit the monitoring of a person’s

movements,” cell phones are “[p]erhaps most significant.” 132 S. Ct. at 963 (Alito, J., concurring in the

judgment). People carry their phones with them virtually everywhere they go, including inside their

homes and other constitutionally protected spaces. By

offering accurate ongoing geolocation, real-time cell

phone tracking upsets the “reasonable expectation of

privacy” that exists “in the whole of [an individual’s]

physical movements.” Jones, 565 U.S., at 430 (Alito,

J., concurring in judgment).

Moreover, there is significant frequency—as well

as a staggering rise—in the use of real-time tracking

of cell phones. AT&T alone received 26,614 demands

for real-time data from January 2020 to June 2021, as

well as 45,110 “exigent” requests, many of which include demands for real-time tracking data. 4 In 2020,

Compiled from AT&T US, Inc., Transparency Reports (20202021), perma.cc/2BT9-L2D3.

Verizon Wireless and T-Mobile received 236,663 such

exigency requests. 5

As long as these important legal questions remain

unanswered, tens of thousands of citizens will be subjected to warrantless real-time phone tracking every

year. And the over “90% of American adults” who own

a cell phone will remain vulnerable to this invasive

breach of privacy. Riley v. California, 134 S. Ct. 2473,

2490 (2014).

2. This case is a suitable vehicle for addressing

both questions presented. The Seventh Circuit answered both questions clearly on facts that present

the questions cleanly. And because answering either

question practically demands resolution of the other

question, this case provides the Court with an appropriate opportunity to resolve these important, logically related questions together, in a single go.

A law enforcement agency seeking to obtain realtime locational information without a warrant necessarily must invoke Section 2702(c)(4) of the Stored

Communications Act. Absent a warrant, a telephone

carrier may only convey such information to a law enforcement agency “if the provider, in good faith, believes that an emergency * * * requires disclosure

without delay of information relating to the emergency.” 18 U.S.C. 2702(c)(4). Almost invariably when

officers attempt to justify a warrantless acquisition of

real-time tracking data, courts must decide whether

the use of real-time location monitoring constitutes a

search under the Fourth Amendment and, if it does,

to determine the applicability of the good faith exception under the SCA. As just one example, in Tracey,

Compiled from T-Mobile US, Inc. Transparency Report for

2020, perma.cc/B3PD-7CRS; and Verizon Wireless, Transparency Report for the Second Half of 2020, perma.cc/Y4GN-L7UE.

the State invoked the good-faith exception, but the

Florida Supreme Court ultimately concluded that the

officers were not entitled to that exception because

they could not have reasonably relied on the SCA’s

state analogue. 152 So. 3d at 526. There is therefore

no denying this case would have come out differently

if it had arisen in the state courts of Florida.

Awaiting independent presentations of the questions presented here would perpetuate a pervasive,

ongoing offense to the Fourth Amendment. The costs

of a wait-and-see approach are too grave. The time for

review is now.

D. The decision below is wrong

1. In addressing whether real-time CSLI constituted a search, the Seventh Circuit ignored the logic

of Carpenter and instead relied on Knotts, an almost

forty-year-old case involving tracking via radio transmitter rather than real-time GPS or CSLI data. App.,

infra, 19a. Instead of considering the intrusiveness of

the technology at issue, the court focused on the duration of the pinging and the fact that, as in Knotts, the

police “only collected location data that Hammond had

already exposed to public view” while driving on public roads. Id. at 22a. This analysis misses the point.

First, when an officer compels a carrier to send a

ping to a cell phone, he does so because he does not

know where the person currently is. The suspect could

be driving to work. But she could just as easily be in

the shower. “Cell phone tracking can easily invade the

right to privacy in one’s home or other private areas,

a matter that the government cannot always anticipate and one which, when it occurs, is clearly a Fourth

Amendment Violation.” Tracey, 152 So. 3d at 524.

The analogy to Knotts is thus misplaced. The technology in that case “merely enable[d] police officers to

accomplish the same task that they could have accomplished through ‘[v]isual surveillance from public

places.’” Jones, 168 A.3d at 712 (quoting Knotts, 460

U.S. at 282). A radio transmitter helps police track an

individual they have already located; it does not allow

them—as CSLI or GPS does—to locate an individual

out of thin air.

The Seventh Circuit’s conclusion that the public

would not reasonably expect privacy from this kind of

tracking is also deeply misguided. App., infra, 24a.

(“[S]ociety is fully aware that officers may follow and

track a suspect’s movements for several hours.”) Police cannot guarantee that information obtained from

real-time location monitoring will always point to suspects in public places. And once an officer has located

a suspect sitting privately in her home, there is no unseeing that information. The public do not expect police to be able to locate them at any moment, anywhere.

2. Additionally, the decision below misinterpreted

the good faith exception, mistakenly relying on Ghiringhelli’s erroneous interpretation of the SCA.

The good faith exception does not apply where officers act outside the boundaries of their statutory authority. The essential purpose of the exclusionary rule

is “to deter police officers from violating the Fourth

Amendment.” Krull, 480 U.S. at 348. The good faith

exception operates where police officers reasonably

rely on the judgement of other governmental actors,

like legislators or judges, and thus cannot “properly

be charged with knowledge, that [a] search was unconstitutional under the Fourth Amendment.” Id. at

348–49. Yet, where, as here, officers rely on their own

legal interpretations, “the relevant actors are not legislators or magistrates, but police officers” themselves. Id. at 360 n.17.

For that reason, as the Illinois Supreme Court has

powerfully explained, to adopt the extension of the

good-faith exception endorsed by the Seventh Circuit

“would essentially eviscerate the exclusionary rule.”

Madison, 520 N.E.2d at 380. If courts were to rely on

officers’ erroneous understandings of statutory law,

that reliance “would remove the incentive for police to

make certain that they properly understand the law

that they are entrusted to enforce and obey.” Song Ja

Cha, 597 F.3d at 1005. And, in doing so, it would grant

the police nearly “unlimited authority to conduct

searches and seizures until specifically restricted by

the legislature or the courts.” Madison, 520 N.E.2d at

380. An interpretation of the good faith exception that

is so “fundamentally at odds with the central purpose

of deterring police misconduct which underlies the exclusionary rule,” Madison, 520 N.E.2d at 380, cannot

be a correct reading of this Court’s jurisprudence.

Both courts below relied on Ghiringhelli’s erroneous interpretation of the SCA as a basis for applying

the good faith exception in this case. Contrary to Ghiringhelli’s understanding, the SCA does not in fact authorize law enforcement officers to obtain real-time

CSLI. Multiple courts have held and judges have

opined as much. See In re Application of the U.S. for

an Order Authorizing the Installation and Use of a

Pen Register Device, a Trap and Trace Device, & for

Geographic Location Info., 497 F. Supp. 2d 301 (D.P.R.

2007); In re Application for an Order Authorizing the

Installation & Use of a Pen Register & Directing the

Disclosure of Telecomms. Records for the Cellular

Phone Assigned the No. [Sealed], 439 F. Supp. 2d 456

(D. Md. 2006); In re Application for Pen Reg. &

Trap/Trace Device with Cell Site Location Auth., 396

F. Supp. 2d 747 (S.D. Tex. 2005); United States v. Wallace, 885 F.3d 315 (5th Cir. 2018) (Dennis, J., dissenting)). As one court explained,

[T]he entire focus of the SCA is to describe the

circumstances under which the government

can compel disclosure of existing communications and transaction records in the hands of

third party service providers. Nothing in the

SCA contemplates a new form of ongoing surveillance in which law enforcement uses coopted service provider facilities.

In re Application for Pen Reg. & Trap/Trace Device

with Cell Site Location Auth., 396 F. Supp. 2d 747, 760

(S.D. Tex. 2005) (emphasis added).

The Seventh Circuit nevertheless held that Ghiringhelli’s interpretation was sufficient to invoke the

good faith exception—regardless of whether it led him

to step “outside the scope” of the SCA. Krull, 480 U.S.

at 360 n.17 (1987)). That was reversible error.

CONCLUSION

The Court should grant the petition.

Respectfully submitted.