FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA,

Plaintiff

- Appellant,

v. DONNELL ARTIS; CHANTA HOPKINS, AKA Askari Aquil Mohammed,

Defendants

- Appellees. No. 18

- 10246 D.C. No. 3:16

- cr - 00477

- VC

- 1

OPINION

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding Argued and Submitted January 11, 2019 Pasadena, California Before: A. Wallace Tashima and Paul J. Watford, Circuit Judges, and Eduardo C. Robreno, * District Judge. WATFORD, Circuit Judge: Federal agents may have viola ted California law when they executed two search warrants issued by state court judges . California law authorizes “peace officers” to execute search warrants , but excludes federal law enforcement officers

* The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. 

# FILED

MAR 27 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL SPage 2 of 22

from the definition of that term. This apparent v iolation of state law, we conclude, does not render the warrants invalid under the Fourth Amendment

. O ne of the
warrants , however, was not supported by probable cause , and the evidence seized pursuant to that warrant must be suppressed

. I At the time of the events relevant to this appeal, defendants Donnell Artis and Chanta Hopkins were alleged confederates engaged in credit card fraud and identity theft. B oth were also fugitives from justice with outstanding warrants for their arrest on state law charges

. Artis and Hopkins came to the attention of Stonie Carlson, a Special Agent with the Federal Bureau of Investigation assigned to the Pacific Southwest Regional Fugitive Task Force, a joint federal

- state task force operating un der the direction of the United States Marshals Service

. See 34 U.S.C. § 41503(a)

. Agent Carlson set out to find the two men , both of whom were believed to be in or around Oakland, California

. Officers from the Oakland Police Department informed Agent C arlson that Artis and Hopkins could often be found hanging out at a particular liquor store in Oakland , and Agent Carlson spot ted Artis there one day

. When Agent Carlson and his partner tried to arrest Artis, a brief scuffle ensued, during which Artis dropped his cell phone. Artis broke away and managed to
escape on foot , leaving his cell phone behind. Agent Carlson returned to the liquorPage 3 of 22

store and retrieve d the phone , a seizure rendered lawful by Artis ’ aban donment of the phone when he fled from agents attempting to arrest him

. I n his capacity as a member of the f ugitive t ask f

orce, Agent Carlson applied for a warrant to search Artis’ cell phone. A lthough he could have asked a federal magistrate judge to issue the warrant under Federal Rule of Criminal Procedure 41 , Agent Carlson submitted the application to a judge of the Alameda County Superior Court. Agent Carlson later explained that he did so because Artis’ outstanding arrest warrants were for state law offenses and at the time Agent Carlson was not contemplating filing federal charges against Artis

. For reasons unexplained in the record , Agent Carlson did not predicate the warrant application on Artis ’ status as a known fugitive , which w ould have pr ovided a basis to search his phone for information useful in finding him

. Instead, Agent Carlson ’s affidavit recounted facts establishing probable cause to believe that Artis was engaged (with Hopkins) in a conspiracy to commit credit card fraud under sta te law . H e requested permission to search Artis’ cell phone for evidence of that offense. The Alameda County Superior Court judge issued a warrant , directed to “any peace officer in Alameda County , ” authorizing a search of Artis’ cell phone for “evidence of a crime”

— in particular, for eight specified categories of information , such as stored email and text messages “[c]ontaining any references to fraud or related criminal activity

. ” Agent Carlson found that he lacked thePage 4 of 22

technical expertise to e xecute the warrant himself, but after a few days’ delay he enlisted the help of a fellow FBI agent who was able to extract the relevant information from Artis’ phone. Based in part on that evidence , the government charge d Artis with the federal firearms a nd identity

- theft offenses he faces in this

case . Two days after obtaining the warrant to search A rtis’ phone , but before he had been able to execute it, Agent Carlson applied for a second search warrant, this one targeting Hopkins. Agent Carlson again applied for the warrant in his capacity as a member of the f

ugitive t ask f

orce , and he again submitted the application to an Alameda County Superior Court judge rather than a federal magistrate judge. Agent Carlson predicate d t he Hopkins warrant application solely on Hopkins’ status as a fugitive with an outstanding warrant for his arrest . The application sought authorization to use a cell

- site simulator to track the location of a cell phone assigned the number ( 832 ) 763

- 5555 . Agent Carlson’s af fidavit recounted facts establishing probable cause to believe that Hopkins was then using the targeted cell phone

. An Alameda County Superior Court judge issued a search warrant , also directed to “ any peace officer in the County of Alameda , ” authorizing use of a cell

site simulator for a period of 30 days to track the location of th e target ed cellPage 5 of 22

phone . The warrant stated that federal agents “employed by the United States Marshals Service are authorized to assist in the service of this search warrant. ” A federal agent w orking as part of the fugitive task force deployed the cell

site simulator in accordance with t he warrant. T hrough use of the device and additional investigative work, task force agents determined that Hopkins lived in a particular apartment building in San Francisco . They arrested him as he left the apartment and found incriminating evidence during a search incid ent to arrest. That evidence formed the basis for a search warrant issued by a San Francisco County Superior Court judge authorizing a search of Hopkins’ apartment . The apartment search yielded much of the evidence underlying the federal drug

trafficking and identity

- theft cha rges filed against Hopkins in this case. Artis and Hopkins filed separate motions to suppress that challenged the validity of their respective Alameda County Superior Court search warrants. B oth motions argued that : (1) the warrants were invalid because they were executed by officials not authorized to e xecute warrants under California law ; and (2) the
warrant s w ere not supported b y probable cause. After conducting an evidentiary hearing at which Agent Carlson testified,
t he district court granted both motions to suppress . The court agreed with the defendants that “under California law , federal law enforcement officers are not permitted to execute search warrants issued by California state judges.” UnitedPage 6 of 22

States v. Artis , 315 F. Supp. 3d 1142, 1145 (N.D. Cal. 2018) . The court conclu ded that federal agents impermissibly executed both warrants but recognized that suppression would not be justified on the basis of this state law violation alone

. Id. at 1143

– 44

. In addition, though , t he court held that neither warrant was supported by probable cause , and it declined to apply the good

- faith exception to t h e exclusionary rule in view of a “ string of errors” embodied in the two warrant applications submi tted by Agent Carlson. As permitted under 18 U.S.C. § 3731, the government filed an interlocutory appeal from the district court’s suppression ruling.
II The outcome of this appeal turns on whether the challenged searches violated the Fourth Amendment, which protects the people’s right “to be secure in their persons, houses, papers, and e ffects, against unreasonable searches and seizures.” C ertain searches must be conducted pursuant to a warrant to be deemed reasonable . The search of Artis’ cell phone definitely required a warrant, see Riley v. California , 573 U.S. 373 (2014), and we wil l assume (as the government has) that use of a cell

- site simulator to track the location of Hopkins’ cell phone also required a warrant. But both of the searches in question were conducted pursuant to a warrant. To establish a Fourth Amendment violation, then, the defendants
must succeed in showing either that the warrants were invalid under the FourthPage 7 of 22

Amendment or that, even if valid, the warrants were executed in a manner that rendered the searches unreasonable. The defendants have confined themselves t o the first line of argument, framing their challenge solely as an attack on the validity of their respective warrants. They do not contend that any thing about the manner of execution rendered the searches unreasonable. They have not asserted , for exampl e, that the scope of the searches conducted by the agents exceeded what the warrants authorized, or that the agents seized evidence not described in the warrants

. Their only complaint about the manner in which the warrants were executed is that federal agents conducted the searches instead of officials designated as “peace officers” under state law. But the identity of the executing officers

— federal agents
versus p eace officers

— does not implicate any interest protected by the Fourth Amendment. No greater intrusion upon protected privacy or property interests occurred by virtue of the fact that the searches were conducted by federal agents as opposed to, say, city p olice officers. Cf. Wilson v. Layne , 526 U.S. 603, 614 (1999) ( holding that police violated the Fourth Amendment by allowing members of the news media into a home during the execution of a warrant, due to the heightened intrusion upon privacy interests ca used by their unauthorized presence and non

- law

- enforcement purpose).Page 8 of 22

T o succeed here, the defendants must demonstrate that the ir respective search warrants were invalid under the Fourth Amendment. The Amendment’s Warrant Clause provides that a warrant ma y be issued only “upon probable cause, supported by O ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Supreme Court has held that
t his language imposes three requirements for issuance o f a valid search warrant. First, the warrant must be issued by a neutral and detached magistrate

. Dalia v. United States , 441 U.S. 238, 255 (1979). 1 Second, the warrant must be supported by “probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense.” Id. (internal quotation marks omitted). And third, the warrant must describe the things to be seized and the place to be searched with particularity. Id. Only the second of these requir ements

— whether the warrants were supported by probable ca use

— is open to serious challenge . (We address that issue in the next sect ion.) As to the first requirement, both warrants were issued by neutral and detached judges of the Alameda County Superior Court who were authorized to issue search warrants in the jurisdiction where the warrants were to

1 Our court has recently held that, in addition, the magistrate must be authorized by law to issue warrants in the jurisdiction where the warrant will be executed. United States v. Henderson , 906 F.3d 1109, 1117 (9th Cir. 2018).Page 9 of 22

be executed. 2 N either Artis nor Hopkins challenges the third requirement demanding sufficient particularity. The defend ants argue that we should add a fourth requirement to the list. They contend that a state court warrant is valid for Fourth Amendment purposes only if the officers who execute it are authorized to do so under state law , and that
t he warrants at issue here are invalid because they were issued to and executed by federal agents in contravention of California law. Before addressing the defendants’ argument, i t is useful to separate the warrant process into its three distinct phases : application, issuance , an d execution. See United States v. Freeman , 897 F.2d 346, 348 (8th Cir. 1990). First, someone applies for a warrant , typically a law enforcement officer or an attorney for the government . Second, the magistrate issues the warrant, directing it to a parti cular person or class of people. Finally , someone executes the warrant by conducting the search or seizure that the warrant authorizes.

2 Hopkins contends that t he judge who issued his warrant exceeded the scope of her authority because agents ended up deploying the cell

- site simulator in neighboring San Francisco County. But Hopkins points to no provision of California law that limits a Superior Court judge’s au thority to issue a search warrant to the territorial boundaries of the county in which the judge sits. The few California cases addressing similar issues seem to point in the opposite direction. See , e.g. , People v. Fleming , 631 P.2d 38, 42 (Cal. 1981)

. The district court has not yet addressed this argument , however, and Hopkins remains free to renew it on remand.Page 10 of 22

The defendants really contest only the third phase of this process. They do not contend that Agent Carlson violated Ca lifornia l aw by applying for the warrants, nor could they, for California law places no limits on who may apply for a search warrant. See People v. Bell , 53 Cal. Rptr. 2d 156, 170

– 71 (Ct. App. 1996)

. Nor can they contend that the warrants were improperly issued under state law. It ’ s true that under California law a search warrant must be directed to a “peace officer,” Cal. Penal Code §§ 1523, 1528(a) , 1530 , and that federal law enforcement officers do not qualify as peace officers, § 830.8(a). But the warrants in this case were directed , as state law requires, “ to any peace officer” in Alameda County . The defendants are thus wrong in asserting that the warrants were improperly issued to a federal a gent. Whether the warrants were improperly executed by federal agents is a c loser question. California law requires search warrants to be executed by “peace officers,” but federal agent s may assist a peace officer in executing a search warrant, provided t he federal agent is acting “in aid of the officer on his requiring it, he being present and acting in its execution.” Cal. Penal Code § 1530. As the defendants argue, i t seems doubtful that this requirement was satisfied here, although California courts do not appear to have addressed how strictly thisPage 11 of 22

provision should be construed when federal agents execute a search warrant as members of a joint federal

- state task force that includes peace officers. 3 We find it unnecessary to decide whether federal agen ts violated California law by executing the Artis and Hopkins warrants. E ven if such a violation occurred, the warrants would still be valid under the Fourth Amendment. An otherwise properly issued search warrant is not rendered void for Fourth Amendment purposes merely because it wa s executed by law enforcement officers who lacked warrant

- executing authority under state law. See United States v. Green , 178 F.3d 1099, 1106 (10th Cir. 1999); United States v. Gilbert , 942 F.2d 1537, 1540

– 41 (11th Cir. 1991); Freeman , 897 F.2d at 348

– 49

. 4 Alternatively, the defendants argue that the validity of the warrants should be assessed under Federal Rule of Criminal Procedure 41 , which establishes the procedures for issuance of search warrants in federal court

. Th is argument lacks merit as well. Rule 41 applies only when a search is “federal in character

. ” United

3 The Hopkins cell

- site simulator warrant, as noted above, did provide that federal agents “employed by the United States Marshals Service a re authorized to assist in the service of this warrant.” 4 I n Perry v. United States , 14 F.2d 88 (9th Cir. 1926), we held that the Fourth Amendment was violated when officers without statutory authorization executed a sea rch warrant. Id. at 89. But Perry rested on the Prohibition

- era view that a lawful Fourth Amendment search or seizure required compliance with an authorizing statute. See Orin S. Kerr, Cross

- Enforcement of the Fourth Amendment , 132 Harv. L. Rev. 471, 501 (2018). Perry ’s holding on that point did not survive Virginia v. Moore , 553 U.S. 164, 168 (2008).Page 12 of 22

States v. Martinez

- Garcia , 397 F.3d 1205, 1213 (9th Cir. 2005). The fact t hat federal agents were involved in conducting the search is a relevant consideration, but not sufficient on its own to trigger the rule’s application

. United States v. Palmer , 3 F.3d 300, 30 3 (9th Cir. 1993)

. T he search must be tied to an investigation into potential violation s of federal law. See United States v. Duval , 742 F.3d 246, 254 (6th Cir. 2014); United States v. Claridy , 601 F.3d 276, 282

– 83 (4th Cir. 2010). The searches in question here do not fit that bill . Agent Carlson

s ought the warrants in furtherance of an investigation into state law violations alone

— in Artis’ case, to investigate an alleged conspiracy to commit credit card fraud under state law , and in Hopkins’ case, to aid in locating a fugitive wanted on state law charges. At the time Agent Carlson applied for the warrants, n o discussions were underway about bringing federal c harges against either Artis or Hopkins. The provisions of Rule 41 therefore do not apply.
III The sole remaining issue is whether the warran ts are invalid under the Fourth Amendment because they were not supported by probable cause. The district court held both warrant s invalid on this basis, and further held that the government could not rely on the good

- faith exception to the exclusionary r ule. We agree with the district court ’s conclusion only as to the Artis warrant, which

we address first

.Page 13 of 22
A Agen t Carlson’s application for the Artis warrant requested authorization to search his cell phone for evidence of his involvement in a conspiracy to commit credit card fraud , and t he supporting affidavit accordingly sought to establish probable cause to believe that Artis was engaged in that offense

. In reviewing the adequacy of the probable cause showing, we must assess whether probable cause has been shown with respect to the offense asserted as the basis for issuing the
warrant ; whether Agent Carlson’s affidavit established probable cause with respect to some other offense is irrelevant

. See United States v. $186,416.00 in U.S. Curren cy , 590 F.3d 942, 948 (9th Cir. 2010) . We therefore reject the government’s assertion that the warrant may be upheld because Agent Carlson’s affidavit established probable cause to believe that Artis was a fugitive and that a search of his cell phone woul d yield evidence useful in finding him. The first obstacle the government faces in attempting to defend the adequacy of the probable cause showing is that the most probative evidence mentioned in Agent Carlson’s affidavit must be disregarded

. The affidavit describes an earlier search that occur red when officers attempted to execute a warrant for Artis’ arrest at his girlfriend’s apartment . According to the affidavit , when the officers knocked

on the front door to the apartment , it swung open . Concerned that someone might be inside and in need of help , the officers performed what Agent Carlson termed aPage 14 of 22

“ safety sweep” of the apartment. Although the officers found no one inside, in the course of the safety sweep they observed “ several counterf eit credit cards” bearing Artis’ name on a kitchen counter. (The affidavit does not explain how the officers were able to determine, from the face of the cards alone, that they were indeed counterfeit

. ) The officers’ observation of the counterfeit credit cards obviously provided strong support for the conclusion that Artis was engaged in some sort of credit card fraud, and the judge who issued the warrant no doubt relied heavily on that evidence in deciding that probable cause had been shown

. Artis conten ds here, as he did below, that the search of his girlfriend’s apartment violated his Fourth Amendment rights

. He asserts as a factual matter that he was an overnight guest in his girlfriend’s apartment

. T hus, as a legal
matter , the officers could not rely on Artis’ arrest warrant alone as authorization to
enter his girlfriend’s apartment : T hey needed a search warrant or probable cause to believe he was present at the time of the search , neither of which, he contends, they had

. See United States v. Gorman , 314 F.3d 1105, 1114

– 15 (9th Cir. 2002)

. Artis further suggests that the officers lied when they stat ed the front door to the apartment had been left ajar , eliminating any basis for their claim that exigent circumstances justif

ied a warrantless entry

. The government conceded below that the district court should disregard the evidence discovered during the apartment search when assessing wh e ther probablePage 15 of 22

cause had been shown, albeit not on t he ground that the officers’ entry wa s unlawful but rather because the counterfeit credit cards may not have been found in plain view, as Agent Carlson’s affidavit asserted. In light of the government’s refusal to defend the legality of the apartment search, t he district court properly
struc k from Agent Carlson’s affidavit any reference to the counterfeit credit cards

. We will follow the same course here

. H aving excised evidence from the supporting affidavit, we do not defer, as we normally would, to the issuing magistrate’s determination that probable cause existed . In that scenario, we have nothing to which we could defer, as the magistrate made no determination about whether probable cause exists on the set o f facts now before us

. See United States v. Kelley , 482 F.3d 1047, 1051 (9th Cir. 2007). Instead , we must “determine on our own whether the remaining portions of the affidavit support a finding of probable cause

. ” United States v. Job , 871 F.3d 852, 864 (9th Cir. 2017). The remaining portions of Agent Carlson’s affidavit fail to support a finding of probable cause that Artis was engaged in credit card fraud. The affidavit recounts the following facts : (1) Artis had outstanding arrest warrants for , among other offenses, identity theft ; (2) Artis fled from Agent Carlson and his partner when they attempted to arrest him ; and (3) Artis is a close associate of Hopkins, who also had an outstanding warrant for his arrest

. Considered together, th e sePage 16 of 22

facts fall far short of establishing probable cause regarding credit card fraud. T he y establish little more than Artis’ status as a fugitive from justice

. The affidavit included one additional piece of evidence that merits separate discussion. Agent Carlson stated , without further elaboration, that a cooperating witness had informed him that “ Artis and Hopkins are involved in a conspiracy to commit credit card fraud and that they are in constant communication with each othe r in furtherance of the crime.” If credited, this information would obviously suffice to establish probable cause to believe that Artis was engaged in credit card fraud. But other than the evidence obtained from the unlawful search of Artis’ girlfriend’s apartment, which we must disregard, the affidavit offers no basis for concluding that the information provided by th e unnamed informant was reliable. The affidavit does not state the informant’s basis of knowledge or provide any information about the inf ormant’s reliability in the past. See Illinois v. Gates , 462 U.S. 213, 233 (1983) ; United States v. Bishop , 264 F.3d 919, 9 25 (9th Cir. 2001)

. Nor does the affidavit contain any information corroborating what the informant said. See Gates , 462 U.S. at 2 42

– 43; Bishop , 264 F.3d at 925

– 26. Contrary to the government’s argument, Artis’ outstanding arrest warrant for identity theft does not provide the necessary corroboration. Although identity theft and credit card fraud are potentially related offenses, w ithout knowing more about the age of the warrant and the nature of the underlying conduct, no inferences canPage 17 of 22

be drawn about whether the existence of the warrant bolstered the credibility of the informant’s bare accusation. As the district court held, a fter excising the evidence illegally obtained, the remaining portions of Agent Carlson’s affidavit fail to establish a “fair probability” that evidence of credit card fraud would be found on Artis’ cell phone. Gates , 462 U.S. at 238. The search of the phone pursuant to an invalid warrant violated Artis’ Fourth Amendment rights , requiring suppression of the fruits of th at search unless the government can demonstrate that the good

- faith exception to the exclusionary rule applies.
T he good

- faith excep tion precludes suppression of evidence seized by officers who acted “ in objectively reasonable reliance” on a search warrant that is later declared invalid. United States v. Leon , 468 U.S. 897, 9 22 (1984). However, we have held that the good

- faith except ion may not be invoked when “the search warrant was issued in part on the basis of evidence obtained from an illegal search.” United States v. Wanless , 882 F.2d 1459, 1466

– 67 (9th Cir. 1989) ; see also United States v. Vasey , 834 F.2d 782, 789 (9th Cir. 1987) . That rule would foreclose the government’s reliance on the good

- faith exception here. We acknowledge that the Supreme Court’s precedent on application of the good

- faith exception has shifted somewhat since we decided Vasey and Wanless

. When t hose cases were decided, the good

- faith exception had been held to applyPage 18 of 22

only when the police acted in reasonable reliance on mistakes made by others, such as the magistrate who issued the defective warrant in Leon . It was not yet clear whether the good

- f

aith exception would apply when the police acted in reliance on their own mistakes . Thus, in rejecting application of the good

- faith exception in Vasey , we stressed that “[t]he constitutional error was made by the officer in this case, not by the magistra te as in Leon .” 834 F.2d at 789. The good

- faith exception could not apply to the fruit of that cons titutional violation, including evidence seized under the resulting warrant

. The Supreme Court has since held that the good

- faith exception can apply

even when the police are responsible for the mistake that le d to an unlawful search or seizure. In Herring v. United States , 55 5 U.S. 135 (2009), the Court applied the good

- faith exception to uphold the admission of evidence seized during a concededly unlawful arrest, even though the arrest occurred because law enforcement officials negligently failed to remove a recalled warrant from their database. Id. at 138 , 147

– 48

. The Court held that, to justify suppression as a remedy for a Fourth Amendment violation, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 144

. The “isolated negligence” at issue in Herring , the Court concluded, did not meet that standard. Id. at 137.Page 19 of 22

In light of Herring , we can no longer declare the good

- faith exception categorically inapplicable whenever a search warrant is issued on the basis of evidence illegally obtained as a result of constitutional errors by the police. We must instead determine whether the police misconduct that led to discovery of the illegally obtained evidence is itself subject to the good

- faith exception. If it is, suppression of the evidence seized pursuant to the warrant will not be justified. But if the police misconduct is not protected by the good

- faith exception, suppression is the appropriate remedy. The misconduct will by definition be “sufficiently deliberate” that it can be deterred through applicati on of the exclusionary rule, and “sufficiently culpable” to warrant exclusion as a remedy. Id. at 144. And b ecause the illegally obtained evidence will necessarily have been decisive in establishing probable cause (otherwise there would be no need to res ort
to the good

- faith exception ) , evidence discovered pursuant to the warrant will be the fruit of that earlier illegality and subject to suppression for that reason. See Wong Sun v. United States , 371 U.S. 471, 485 (1963). Under th is standard, suppressio n is warranted here. The government bears the burden of showing that the good

- faith exception applies

. See United States v. Underwood , 725 F.3d 1076, 1085 (9th Cir. 2013). In this case, it must show that the good

- faith exception would have applied to re nder the counterfeit credit cards evidence admissible. The government cannot carry that burden because it hasPage 20 of 22

made no effort to defend the legality of the search that yield ed the evidence in question . The search violated the Fourth Amendment either becau se the officers lacked authority to enter Artis’ girlfriend’s apartment in the first place, as Artis contends, or because the officers did not discover the credit cards in plain view, as the government has effectively conceded . Either way, the police disc overed the evidence through conduct that, on this record at least, is plainly unconstitutional , in
contrast to the kind of “isolated negligence ” at issue in Herring . That misconduct is sufficiently deliberate that it can be deterred through exclusion of the fruit of the illegal search, and sufficiently culpable to warrant imposition of that sanction. The evidence seized pursuant to the Artis warrant must be suppressed as the fruit of the illegal sear ch of his girlfriend’s apartment . As we have held , observation of the counterfeit credit cards was crucial to issuance of the warrant , since without that illegally obtained evidence probable cause was lacking. We therefore affirm the district court’s ord er granting Artis’ motion to suppress.
B We next address whether probable cause supported the Hopkins warrant, which authorized use of a cell

- site simulator to track the location of the cell phone using the number (832) 763

- 5555. T he Hopkins warrant was predicated solely on his status as a fugitive from justice and the government’s legitimate interest in apprehending him. No onePage 21 of 22

disputes that tracking the location of a particular cell phone will likely assist in locating the person using that phone. The warrant application therefore needed to establish probable cause to believe two things: that Hopkins was in fact a fugitive , and that he was currently using the target ed cell phone. Hopkins challenges only the adequacy of the showing as to his use of the phone

. Agent Carlson’s affidavit recounts the following facts. A fter he obtained possession of Artis’ cell phone, the phone received “several incoming calls” from the number ( 832 ) 763

- 5555. (During the evidentiary hearing, Agent Carlson clarified t hat he saw several notifications on the locked screen of Artis’ phone reflecting contact s from the target ed cell phone , at least one of which was an incoming call. T his clarification does not affect the analysis.) A search of a law enforcement database r evealed that the number was issued to an unknown subscriber with Verizon Wireless

. Agent Carlson contacted a cooperating witness who told him that Hop kins’ cell phone number was (832) 763

- 5555 and that the cooperating witness had learned this fact from Ar tis

— s omeone who, as a “known associate” of Hopkins , would presumably know the latter’s cell phone number . If credited, this information from the informant would easily establish probable cause to believe that Hopkins was usi ng the target ed cell phone

. Hopkins contends that the affidavit provided no basis for crediting the informant as reliable because nothing disclosed in the affidavit corroborated thePage 22 of 22

informant’s tip. W e disagree

. T he informant’s tip was corroborated by the fact that someone using th e number attributed to Hopkins attempted to contact Artis, one of Hopkins’ associates. Had the informant simply made up a phone number for Hopkins, it would be a remarkable coincidence to find a missed call from that number on Artis’ cell phone

. Hopkins assumes that Agent Carlson told the informant that several notifications from the number (832) 763

- 5555 had appeared

on Artis’ phone and then asked the informant to confirm whether that number belonged to Hopkins . If accurate, th is sequence of events woul d undoubtedly undermine the corroborative value of the contacts from the target ed cell phone

. But nothing in the affidavit supports Hopkins’ version of events . A nd despite having had an opportunity to cross

- examine Agent Carlson at the evidentiary hearin g, Hopkins can point to nothing in the record to support his factual narrative.
T he inform ant’s tip plus the corroborating notification s found on Artis ’ phone sufficed

— although barely

— to establish probable cause that Hopkins was using the targeted cell phone. Because the Hopkins warrant i s valid under the Fourth Amendment, we need not address whether the good

- faith exception to the exclusionary rule applies as to this warrant . We reverse the district court’s order granting Hopkins’ motion to
suppre ss. AFFIRMED IN PART, REVERSED IN PART, and REMANDED.