IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

V.

TREVOR SCOTT SANDS,

Defendant.

OPINION & ORDER

This matter comes before the Court on the United States's Motion for Reconsideration.

For the reasons below, the Government's Motion is GRANTED.

I. Background

Defendant Trevor Scott Sands was indicted in November 2017 on one count of

interference with interstate commerce by aimed robbery, in violation of 18 U.S.C. § 1951, and

one count ofbrandishing a firearm during a crime ofviolence, in violation of 18 U.S.C.

924(c)(l)(A)(ii) and (2). A supersedingindictment was filed in May 2018, adding five additional

robbery counts and five additional firearms counts, for a total oftwelve counts. In June 2017, the

Columbus Police Department had applied for a court order for Mr. Sands' cell-site location

information ("CSLI") pursuant to 18 U.S.C. § 2703 (the Stored Communications Act, or

"SCA"). In August 2018, Mr. Sands moved to suppress the CSLI, arguing that because it was

obtained via a court order and not via search warrant, it was obtained in violation ofCarpenter v.

UnitedStates, 138 S. Ct. 2206 (2018). (ECF No. 50, Ex. 1). In September 2018 this Court

granted Defendant's Motion. In April 2019, with a jury trial in this matter scheduled to begin in

two weeks and following this Court's order in another matter, the United States filed a Motion

for Reconsideration. This Motion is now ripe.

Case No. 2:17-cr-261

JUDGE ALGENON L. MARBLEY
II. Law and Analysis

The Fourth Amendment protects "againstunreasonable searches and seizures." U.S.

Const. Amend. IV. Whena "search is undertaken by law enforcement officialsto discover

evidence of criminal wrongdoing,... reasonableness generally requires theobtaining of a

judicial warrant." Riley v. California, 134 S.Ct. 2473,2482 (2014) (internal quotation marks

omitted). A warrant "ensures that the inferences to support a search are drawn by a neutral and

detached magistrate instead ofbeingjudged by the officerengaged in the oftencompetitive

enterprise offerreting out crime." Id. (internal citation omitted). The Supreme Courthas

recognized, however, that the warrant requirement may be overcome in some circumstances

because"the ultimate touchstone ofthe FourthAmendment is reasonableness." Kentucky v.

King, 563 U.S. 452,459 (2011) (quoting Brigham City v. Stuart, 547 U.S. 398,403 (2006)

(internal quotation marks omitted)). For a warrantless search to be valid, the government must

show either that the search falls into one ofthe defined exceptions to the warrant requirement,

see Coolidge v. NewHampshire, 403 U.S. 443,474-75 (1971), or that the government obtained

voluntary consent from an occupant with authority over the premises, see Illinois v. Rodriguez,

At91 U.S. 177,181 (1990) {di^ngSchneckloth v. Bustamonte, 412 U.S. 218 (1973)).

When law enforcement officers violate the strictures ofthe Fourth Amendment, the

exclusionary rule generally dictates that evidence obtained as a result ofthat violation be

excluded. Weeks v. United States, 232 U.S. 383,392 (1914). The exclusionary "rule's sole

purpose... is to deter future Fourth Amendment violations." Davis v. UnitedStates, 564 U.S.

229,236 - 37 (2011). In this way, the exclusionary rule, though often spoken of as a "remedy"

for a constitutional violation, "is 'not a personal constitutional right,' nor is it designed to

'redress the injury' occasioned by an unconstitutional search." Id. at 236. Nevertheless,

"[ejxclusion exacts a heavy toll on both the judicial system and society at large." Davis, 564

2
U.S. at237. Thus, "[f]or exclusion tobeappropriate, the deterrence benefits ofsuppression must

outweigh its heavy costs." Id.

In keeping with the exclusionary rule's deterrent purposes andthe costs thatexclusion

imposes, evidence unconstitutionally obtained isadmissible ifthe officers acted "inobjectively

reasonable reliance on a subsequently invalidated search warrant." United States v. Leon,468

U.S. 897,922 (1984). Thisgood faith exception likewise applies "when an officer acts in

objectively reasonable reliance on a statute," subsequently invalidated. Illinois v. Krull, 480 U.S.

340,349 (1987). The good faith exceptionacknowledges "that the deterrence benefitsof

exclusion 'var[y] with the culpability ofthe law enforcementconduct' at issue." Davis, 564 U.S.

at 238 (quoting//cmng v. UnitedStates, 555 U.S. 135, 143 (2009). Law enforcement conduct

that is "deliberate[], reckless[], or gross[ly] negligen[t]," will more readily justify exclusion than

"nonculpable, innocent police conduct." Davis, 564 U.S. at 240.

Mr. Sands has moved to suppress the cell-site location information because it was

obtained without a warrant. Along with the CSLl, law enforcement obtained other records from

Mr. Sands's phone, including "records, text and voice messages, images, internet search history,

and location data." (ECF No. 50, Ex. 1 at 3). Accordingly, he also moved to suppress the fhiits of

this search. (Id.).

Mr. Sands relies on Carpenter v. United States, 138 S. Ct. 2206 (2018). Carpenter held

that, because the acquisition ofCSLl is a search, "the Government must generally obtain a

warrant supported by probable cause before acquiring such records." 138 S. Ct. at 2221. Mr.

Sands argues that because Carpenter requires a warrant for CSLl, law enforcement was required

to obtain one here.
Priorto Carpenter, lawenforcement could obtain CSLI by applying for a courtorder

under the SCA if it could "'offer[] specific and articulable facts showing thatthere are

reasonable grounds to believe' thattherecords sought 'are relevant and material to an ongoing

criminal investigation.'" Carpenterv. United States, 138 S. Ct. at 2212 (quoting 18U.S.C. §

2703(d)). TheColumbus Police Department followed this procedure here, though Carpenter

would invalidate it.

Mr. Sands's predicament is that Carpenter was not decided until after law enforcement

appliedfor the CSLI in his case- almostexactlyone year after, to be precise. Cases after

Carpenter have either assumed or explicitly found that Carpenter is retroactive. See, e.g.. United

States V. Leyva, 2018 WL 6167890 (E.D. Mich. Nov. 26,2018) (stating that Carpenter is

retroactive); UnitedStates v. Curtis, 901 F.3d 846 (7th Cir. 2018) (applying the good faith

exception to CSLI obtained before Carpenter).

Even though obtaining CSLI without a warrant violates the Fourth Amendment, such

evidence need not be suppressed ifofficers acted in good faith. The overwhelming majority of

courts to have considered the issue have applied the good faith exception and allowed the use of

CSLI obtained without a warrant before Carpenter. See. e.g.. United States v. Curtis, 901 F.3d

846 (7th Cir. 2018); United States v. Chavez, 894 F.3d 593 (4th Cir. 2018); United States v.

Joyner, 899 F.3d 1199 (11th Cir. 2018); United States v. Chambers, 2018 WL 4523607 (2d Cir.

Sept. 21,2018) (unpublished); United States v. Leyva, 2018 WL 6167890 (E.D. Mich. Nov. 26,

2018); United States v. Shaw, 2018 WL 3721363 (E.D. Ky. Aug. 3,2018). Against this trend,

the Southern District ofTexas in United States v. Beverly, declined to apply the good faith

exception to CSLI obtained before Carpenter. United States v. Beverly, 2018 WL 5297817 (S.D.

Tex. Oct. 25,2018). The Beverly Court reasoned, briefly, that "to apply the good-faith exception
here would render the Fourth Amendment empty" and that "[u]se ofthe good-faith exception

would mean, inessence, that a statute found unconstitutional still applies inevery pending case

except the one that happened to announce the rule." Id. at *2.

While these lower court opinions offer helpful guidance, and this Court finds the

reasoning oiBeverly to be cogent and persuasive. Supreme Court precedent suggests thatthe

good faith exception applies to CSLI obtained without a warrant. InKruU, theSupreme Court

extended the good faith exception to instances in which lawenforcement officers reasonably

relied on a statute that was valid at the time, even iflaterfound unconstitutional. Krull, 480 U.S.

at 349-50. As the Court reasoned in Krull, "[u]nless a statute is clearly unconstitutional, an

officercannot be expectedto questionthejudgment ofthe legislature that passedthe law." Id.

In such cases, the exclusionaryrule "will not deter future Fourth Amendment violations." Id. at

350. The good faith exception also applies to "[ejvidence obtained during a search conducted in

reasonable reliance on binding precedent." Davis, 564 U.S. at 241.

When law enforcement officers applied for a court order to obtain Mr. Sands's CSLI,

neither Sixth Circuit law nor the statute required law enforcement ofBcers to obtain a warrant.

Indeed, Carpenter was an appeal ofthe Sixth Circuit case holding that collecting CSLI did not

constitute a search. United States v. Carpenter, 819 F.3d 880,888 (6th Cir. 2016). While

Carpenter was on appeal at the Supreme Court, the Sixth Circuit decided United States v.

Pembrook. United States v. Pembrook, 876 F.3d 812 (6th Cir. 2017). In Pembrook, the Sixth

Circuit upheld the district court's decision denying suppression ofCSLI obtained without a

warrant under the good faith exception. Id. at 823.

Though this is a close case and this Court finds compelling the logic of Beverly, this

Court is constrained to find that the good faith exception applies in this case, and the CSLI will
not be suppressed even though obtained without a warrant. Law enforcement officers followed

the procedure set out by a statute and complied with Sixth Circuit law at the time. Krull and

Davis establish that the good faith exception applies in such circumstances.

III. Conclusion

For the forgoing reasons, the United States's Motion is GRANTED. The cell-site

location information, obtained pursuant to court order before Carpenter was decided, is

admissible at trial.

mS SO ORDERED.

s/ Algenon L. Marblev

DATED: April 30,2019

ALGENON L. MARBLEY

UNITED STATES DISTRICT JUDGE