COURT OF APPEALS OF VIRGINIA
Present: Judges Beales , Alston and O’Brien Argued at Alexandria, Virginia

TOBIAS OGBANNA REED OPINION BY v. Record No. 1305-15-4 JUDGE ROSSI E D. ALSTON, JR. OCTOBER 16, 2018 COMMONWEALTH OF VIRGINIA

UPON REMAND FROM THE SUPREME COURT OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Lisa B. Kemler, Judge Marvin D. Miller (Kelly R. Green ; Bret D. Lee; Law Offices of Marvin D. Miller, on brief s), for appellant. Victoria L. Johnson, Assistant Atto rney General (Mark R. Herrin g, Attorney General; Victoria N. P earson, Deputy Atto rney General; Toby J. Heytens, Solicitor Ge neral; Matthew R. McGuire, Principal Deputy Solicitor Gen eral, on brief), for appellee.
Tobias Ogbanna Reed (“appellant” ) was convicted of distribution of cocaine, and a portion of his cell phone records was admitted at trial. Appel lant timely appealed to this Court, we affirmed his conviction, 2016 Va. App. LEXIS 233 (Va. Ct. Ap p. Aug. 30, 2016), and the Supreme Court of Virginia refuse d to consider the case. Having exhausted his state court appeals, appellant filed a petition for a writ of certiorari with the Supreme Court of the United States and asked that his petition be stayed until the resoluti on of Carpenter v. United States, 138 S. Ct. 2206 (2018). The Supreme Cour t granted that request, an d after issuing the Carpenter decision, the Supreme Court vaca ted the judgment and remanded t he case to the Supreme CourtPUBLISHED- 2 - of Virginia, 138 S. Ct. 2702 (2018), who then remanded the case to the Court of Appeals of Virginia for further consider ation in light of Carpenter. We now consider appe llant’s arguments.
B ACKGROUND In 2011, appellant began working as a confidential informant f or Detective Benjamin George (“George”) of the Alexa ndria Police Department, with the understanding that appellant would not engage in any drug trans actions other than those iden tified and authorized by George. On July 18, 2012, Detective John East (“East”) was working unde rcover and used Fernando Payne (“Payne”) to purchase drugs from a “second source.” Payn e called the “second source” and then handed his cell phone to E ast, telling him that if it rang and “it says ‘Tobias’ that’s my man. Pick up and tell him I’m comi ng.” After Payne walked off to wait for the “second source,” Payne’s phone rang multiple times and the name “Tobias” appeare d as the caller. George observed the transaction a s a part of East’s “cover team .” While Payne waited for the “second source” to arrive, George noticed a silver Ford Escape drive up, which he recognized. He observed appellant driving the vehicle. George witnessed Payne get into the Ford Escape, exit a few minutes later, and then walk back to Ea st’s vehicle. Payne was in possession of cocaine when he retur ned to East’s vehicle. At t hat point, George realized that appellant was the “second source,” but he had not authorized hi m to participate in the transaction. In his testimony, G eorge stated he was “one hundr ed percent” sure that it was appellant in the vehicle with Payne. On August 3, 2012, East applie d for and obtained an ex parte court order pursuant to the Stored Communications Act (“SCA ”) and its Virginia equivalent, Code § 19.2-70.3(B). The initial order, sent by fax to Ver izon in New Jersey, requested approximately five months of- 3 - appellant’s historical cell si te location information (“CSLI”). 1 In the application, East primarily relied upon George’s identifica tion of appellant, Payne’s state ment when he handed his cell phone to East, and the subsequent analysis of Payne’s phone, wh ich showed that the number associated with “Tobias” was 571-329-7478, a number George reco gnized as used by appellant. About two weeks later, an arres t warrant was issued for appell ant on the charge of distribution of cocaine. The very next day, appellant was sent enced in federal court to 24 months of incarceration after violating the conditions of his supervis ed release on an unrelated matter. Appellant did not come into Ale xandria custody on the state cha rge until June 5, 2014, and he was indicted on the distribution of cocaine charge in July 2014

. The parties scheduled a tri al for March 2, 2015. In January 2 015, the Commonwealth’s attorney requested the issuance of a subpoena duces tecum to the Verizon custodian of records, seeking the CSLI for appellant ’s phone number. The Commonwealt h initially requested the CSLI between July and August 2012, but the trial court narrowed the subpoena’s scope to two days before and after July 18, 2012, t he date of the transactio n. Appellant attempted to suppress the information in the CSLI, 2 asserting that the acquisition of his CSLI violated his consti tutional rights. Finding no constitutional is sue, the trial court denie d the motion to suppress. At the bench trial, East and Geo rge testified about the events that occurred on July 18, 2012 and their interactions with appellant and Payne. The cust odian of records from Verizon

1 CSLI is data that is logged w hen a cell phone connects with ne arby cell towers – the wireless provider can use that d ata to “triangul ate” the locati on of a cell phone to within 50 meters. Some wireless providers store this information for up to five years, allowing the government to “travel back in time to retrace a person’s wherea bouts.” Carpenter, 138 S. Ct. at 2218. Thus, an individual who has continuously used a cell pho ne “has effectively been tailed every moment of every da y for five years.” Id.

2 Appellant’s motion also argued that the subpoena duces tecum should be quashed because it had been illegally served to an entity outside of th e Commonwealth. That issue is not before this Court on remand.- 4 - testified about the CSLI fo r the phone number 571-329-7478, whi ch George had identified as the number that he called whenever he intended to reach appellant. Specifically, the custodian testified about which towers th e phone had “pinged” off of and the towers through which the calls had been routed on July 18, 20 12. The custodian had also produced a map of the towers which showed that they were in the general area where the drug transaction occurred. George also testified tha t appellant made 250 hours of phone c alls from the Alexandria jail and that he liste ned to all of them. On numerous calls, a ppellant referenced letters that he had mailed to various acquaintan ces. Appellant’s letters were later intercepted, and the Commonwealth admitted one at trial, which read: They’re going to test the drugs t hat they had gotten from [Payn e] to see if my DNA fingerprints ar e on the plastic bag of the dru gs. For real, for real, I ain’t eve n worrying in thi s situation bec ause it is not going to show jack shit after two years done gone past . . . all I can say is keep me in your pr ayers on this one. Now I know t hat my prints done got smeared off af ter [Payne] handled the packag e. We will see.

. . . . I have good faith that the fingerprints will come back negative

. But if the package comes back positive with my fingerprints in which I know it is not, but if it does [then] I will call every one that called my lawyer to help me out a s an alibi to back away becaus e they found evidence on me. The trial court found appellant guilty of distribution of coca ine, stating that it based its ruling on the detectives’ tes timony, appellant’s appearance wit hin minutes of Payne contacting him, and the letter written by appe llant. The trial court also referenced the CSLI, stating that “the [cell] phone records . . . corro borate the location of the phone numbers used by Fernando Payne and [appellant].” Appellant received an active penitenti ary sentence of 10 years.- 5 - A

NALYSIS In Carpenter v. United States, the Supreme Court of the United States held that a “search” occurs when the government “accesses historical cell phone reco rds [CSLI] that provide a comprehensive chronicle of the user’s past movements.” Carpent er, 138 S. Ct. at 2211. Carpenter specifically addressed the constitutionality regardin g the acquisition of and use at trial of 127 days of CSLI through an ex parte order issued under the SC A. See 18 U.S.C. § 2703(d) (providing that a court may issu e an order to a cell phone comp any when there is a belief that records are “relevant and ma terial to an ongoing investigation” ). Code § 19.2-70.3(B) contains this exact language. The Supreme Court determined that the language in § 2703(d) all owed law enforcement officers to obtain CSLI based upon a standard that “falls well short of the probable cause required for a warrant.” Ca rpenter, 138 S. Ct. at 2221. Due t o the voluminous and potentially detailed constellation of persona l information that could be re vealed by such an order, the Court held that § 2703(d) of the SCA “ is not a permissible mechanism for accessing [CSLI].” Id. at 2221; see also id. at 2223 (noting “the deeply revealing nature of CSLI, [and] its depth, breadth, and comprehensive reach”). Appellant asserts that Carpente r requires reversal of his convi ction because the Commonwealth obtained five mont hs of his CSLI from Verizon purs uant to an ex parte order issued under Code § 19.2-70.3(B) and § 2703(d) of the SCA. Car penter might well suggest that the initial acquisition of f ive months of CSLI is ipso facto an unconstitutional search. However, this case is not resolved as si mply or as straightforwardly as appellant would suggest.- 6 - The Detectives Acted in Good Faith in 2012 3 The good faith exception to the exc lusionary rule is a well-roo ted component of our nation’s jurisprudence. “The exc lusionary rule’s ‘sole purpose . . . is to deter future Fourth Amendment violations.’” U nited States v. Chavez, 894 F.3d 593, 608 (4th Cir. 2018) (quoting Davis v. United States, 564 U .S. 229, 236-37 (2011)). “The rul e thus operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights ge nerally through its deterrent effect, rather than a personal constitutional right of the part y aggrieved.’” Un ited States v. Leon, 468 U.S. 897, 906 (1984) (quoting Unite d States v. Calandra, 41 4 U.S. 338, 348 (1974)). “[W]hen investigators ‘act wit h an objectively reasonable good- faith belief that their conduct is lawful,’ the exclusionary rul e will not apply.” Chavez, 894 F. 3d at 608 (quoting Leon, 468 U.S. at 909). Importantly, “[o]bjectiv ely reasonable good faith inc ludes ‘searches conducted in reasonable reliance on subsequently invalidated statutes.’” Id . (quoting Davis, 564 U.S. at 239). In Chavez, the Fourth Circuit a ddressed whether the government unconstitutionally acquired Chavez’s CSLI without f irst securing a warrant. Id. a t 608. The government had obtained the data from T-Mobile via an ex parte order issued pursuant to § 2703(d) of the SCA and Code § 19.2-70.3(B). Id. The Fourt h Circuit recognized th at Carpenter had invalidated those specific statutory mechanisms, but nevertheless adhered t o the controlling precedent in effect at the time the governme nt had originally acted. Id. (c iting United States v. Graham, 824 F.3d 421, 425 (4th Cir. 2016) ( en banc ) (holding that “the governm ent does not violate the

3 Appellant filed a motion to str ike the portion of the Commonwe alth’s supplemental brief dedicated to the “good fa ith” argument. Appellant assert ed that the Commonwealth improperly advanced that argument because it did not receive pe rmission from this Court to brief the issue. We conclude that a ppellant’s contentions are withou t merit because this Court directed the parties to “file supplementa l briefs addressing the issue o f how the decision in Carpenter impacts the instant case.” The C ommonwealth’s argument that Ca rpenter does not impact this case because the exclusionary r ule does not apply falls squarel y within that mandate. Accordingly, appellant’s motion to strike is denied.- 7 - Fourth Amendment when it obtains h istorical [CSLI] from a servi ce provider without a warrant”); see also United Sta tes v. Zodhiates, 2018 U.S. App. LEXIS 23278 (2d Cir. Aug. 21, 2018) (holding Carpenter inappli cable to the government’s acqui sition of CSLI in 2011 because the third-party doctrine applied at that time). Moreover, beca use Chavez had already conceded that the government reasonably r elied upon the statutes, the Fo urth Circuit held that the good faith exception applied “[w] ithout question.” 894 F.3d at 608. We adopt the analytical framewo rk set forth in Chavez. Appella nt’s CSLI was acquired in the same way used by the govern ment in Chavez. See id. App ellant does not contend that the statutes were invalid at the tim e the Commonwealth obtained his CSLI in 2012 and 2015 because Carpenter was decided in 2018. Thus , it necessarily follows th at both the detectives and the Commonwealth’s attorney had a r easonable, good faith belief tha t their actions were constitutional at the time. Acco rdingly, the exclusionary rule does not apply as there was no police or governmental conduct th at needed to be deterred at th e time it occurred. Additionally, we note that the C ommonwealth provided two exampl es of other cases, Matthews v. Commonwea lth, 65 Va. App. 334, 778 S.E.2d 122 (2015 ), and Lynch v. Commonwealth, 39 Va. App. 89, 570 S.E.2d 871 (2001), in which t he then-existing Fourth Amendment analysis applicable t o resolution of the issues there in was changed such that the outcome of previously-adjudicate d cases would have been materia lly affected. As those cases demonstrate, this Court has cons istently held that when a law e nforcement officer relies in good faith upon the constitutional s tandards in existence at that time , the exclusionary rule will not be implemented ex post facto . See, e.g., Matthews, 65 Va . App. at 347-53, 778 S.E.2d at 12 9-32 (holding that the exclusionar y rule did not apply to an impermi ssibly delayed traffic stop that occurred before the decision in R odriguez v. United States, 135 S. Ct. 1609 (2015)); Lynch, 39 Va. App. at 93-94, 570 S.E.2d at 873-74 ( holding that the exclu sionary rule did not apply to the- 8 - use of a thermal imaging device to scan a suspect’s home, in a case prior to the decision in Kyllo v. United States, 533 U.S. 27 (2001)). Based upon the good faith exception t o the exclusionary rule, C arpenter does not mandate that we reverse a ppellant’s conviction. 4 Accordingly, we affirm appe llant’s conviction on remand. Affirmed.

4 The Commonwealth further argues that this Court should conside r a harmless error analysis. In this regard, the Co mmonwealth asserts that Carpen ter is significantly distinguishable because there, the entire volume of CSLI was material to the is sues at trial due to (1) the timespan of the robberies and (2) the vastness of the geographi cal area in whic h they occurred. See 138 S. Ct. at 2212. Thus, in Car penter, the CSLI was of pa ramount value and importance in obtaining the convictions, as the only other principal evidence implicating Carpenter consisted of the testimony of his co-defendants, who had “pegged him as the leader.” Id. The government even proclaimed in Carpenter that “the [CSLI] clinched the case .” Id. at 2213. According to the Commonwealth, the CSLI in appellant ’s case was happenstance and tangential in relation to the whole host of other evidence. The trial court referenced a mul titude of other facts when it found appellant guilty, and did not r est its decision on the CSLI. S pecifically, the trial court found that “the [cell] phone records . . . corro borate the location of the phone numbers used by Fernando Payne and [appellant].” See Massey v. Commonwealth, 230 Va. 43 6, 443, 337 S.E.2d 754, 758 (1985) (defining corroborative e vidence as something “that adds to, strengthens, and confirms” other evidence). The Commonwealt h emphasizes these other facts in an effort to highlight the significant dissimilarities betw een the bodies of evidence pres ented in each case. However, because this Court has found that the good faith exception appl ies in this case , a harmless error analysis is not required.