KENDRICK HERRING,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D13-5304

_____________________________/

Opinion filed May 22, 2015.

An appeal from the Circuit Court for Leon County.

Dawn Caloca-Johnson, Judge.

Jeffrey E. Lewis, Regional Conflict Counsel, and Melissa Joy Ford, Assistant 

Regional Conflict Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney 

General, Tallahassee, for Appellee.

ROBERTS, J.

Kendrick Herring appeals the trial court’s denial of his motion to suppress any 

evidence obtained as a result of the search and seizure of his real-time cellphone 

location data. The Appellant argues that he had an expectation of privacy in that 
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real-time data and law enforcement’s failure to obtain a warrant violated his Fourth 

Amendment rights. We agree and reverse. 

I. Facts

On March 18, 2011, Timmy Andrew and the Appellant made contact via 

cellphone to arrange a drug deal. Andrew and his friend, Terry Eubanks, met the 

Appellant around 10:30 p.m. When they arrived at the address the Appellant gave 

Andrew, the Appellant and Andrew discussed the sale, and the Appellant then 

opened fire on the vehicle Andrew and Eubanks were occupying. Andrew and 

Eubanks managed to escape from the scene, fled to Eubanks’ home, and contacted 

law enforcement. Andrew died of his injuries, and Eubanks suffered a gunshot 

wound to his arm. 

Around 11:15 p.m., Eubanks told law enforcement that Andrews and the 

Appellant had been communicating via cellphone. At 1:52 a.m., law enforcement 

contacted the cellphone provider using an exigent circumstances form and asked for 

the Appellant’s real-time cellphone location data. Around 2:50 a.m., the cellphone 

provider began sending the real-time cellphone location data. The Appellant was 

located using this data and was arrested around 4:00 a.m. During the Appellant’s 

arrest, law enforcement recovered a .45 caliber handgun, which matched the 

projectiles recovered from Andrew as well as the casings found at the scene of the 

shooting. Law enforcement also recovered the cellphone that was used to 
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communicate with Andrew earlier in the evening. 

The Appellant was charged with the following counts: (1) second-degree 

murder; (2) attempted first-degree murder; (3) aggravated assault on a law 

enforcement officer; (4) possession of a firearm by a convicted felon; (5) carrying a 

concealed firearm; and (6) resisting an officer with violence. He filed a motion to 

suppress arguing that his real-time cellphone location data was illegally seized 

because law enforcement did not seek a warrant and none of the warrantless search 

and seizure exceptions applied. The Appellant sought to suppress the cellphone, 

firearm, and all other physical evidence recovered during his arrest. Following a 

suppression hearing, the trial court entered an order finding that there were exigent 

circumstances in this case that abrogated law enforcement’s requirement to obtain a 

warrant. 

II. Analysis

A. Standard of review

The standard of review for a motion to suppress is summarized in State v. 

Gandy,

A trial court's ruling on a motion to suppress comes to us clothed with 

a presumption of correctness, and we must interpret the evidence and 

reasonable inferences and deductions in a manner most favorable to 

sustaining that ruling. Johnson v. State, 608 So. 2d 4, 9 (Fla. 

1992), cert. denied, 508 U.S. 919 (1993). In this case, the facts are 

undisputed and supported by competent substantial evidence. See Caso 

v. State, 524 So. 2d 422 (Fla.), cert. denied, 488 U.S. 870 (1988). 

Accordingly, our review of the trial court's application of the law to the 

facts is de novo. See United States v. Harris, 928 F.2d 1113, 1115–16 
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(11th Cir.1991). In addition, we are constitutionally required to 

interpret search and seizure issues in conformity with the Fourth 

Amendment of the United States as interpreted by the United States 

Supreme Court. See Fla. Const. art. I, § 12; Perez v. State, 620 So. 2d 

1256 (Fla. 1993); Bernie v. State, 524 So. 2d 988 (Fla. 1988)

766 So. 2d 1234, 1235-36 (Fla. 1st DCA 2000).

B. Expectation of privacy in real-time cellphone location data

The Appellant argues that he had a reasonable expectation of privacy in his 

real-time cellphone location data. The Florida Supreme Court in Tracey v. State

recently held that “regardless of Tracey’s location on public roads, the use of his cell 

site location information emanating from his cell phone in order to track him in real 

time was a search within the purview of the Fourth Amendment for which probable 

cause was required.” 152 So. 3d 504, 525-26 (Fla. 2014). As such, the Appellant is 

correct that he has a reasonable expectation of privacy in his real-time cellphone 

location data. 

The circumstances at issue here occurred prior to the Tracey ruling, and the 

State argues that the good faith exception applies. However, in Tracey, the court 

held that because there was “no warrant, court order, or binding appellate precedent 

authorizing real time cell site location tracking,” the good faith exception was not 

applicable. Id. at 526. As such, here, because there is no warrant, court order, or 

binding appellate precedent providing that one does not have a reasonable 

expectation of privacy in real-time cellphone location data, the good faith exception 
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does not apply.

C. Exigent circumstances

The trial court found that there were exigent circumstances that relieved law 

enforcement of its duty to obtain a warrant. Warrantless searches and seizures are 

per se unreasonable under the Fourth Amendment subject to only a few exceptions. 

See Katz v. United States, 389 U.S. 347, 357 (1967). One of these exceptions is for 

exigent circumstances. Lee v. State, 856 So. 2d 1133, 1136 (Fla. 1st DCA 2003). 

There is no exhaustive list of what constitutes exigent circumstances, but this Court 

has identified the following factors as indicators of exigency:

(1) the gravity or violent nature of the offense with which the suspect 

is to be charged; (2) a reasonable belief that the suspect is armed; (3) 

probable cause to believe that the suspect committed the crime; (4) 

strong reason to believe that the suspect is in the premises being 

entered; and (5) a likelihood that delay could cause the escape of the 

suspect or the destruction of essential evidence, or jeopardize the safety 

of officers or the public.

Id. at 1136-37 (citing to United States v. Standridge, 810 F.2d 1034, 1037 (11th 

Cir.), cert. denied, 481 U.S. 1072 (1987)). 

Here, the suspect was to be charged with murder and attempted murder. Law 

enforcement officers had a reasonable belief that the suspect was armed because they 

did not recover a firearm from the scene of the shooting. The officers also feared 

that a delay in the capture of the suspect could jeopardize the safety of law 

enforcement or the public. As such, there were various factors here that indicated 
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exigent circumstances. 

However, when determining whether sufficient exigent circumstances exist, 

courts examine the totality of the circumstances. Seibert v. State, 923 So. 2d 460, 

468 (Fla. 2006) (citing to Zeigler v. State, 402 So. 2d 365, 371 (Fla. 1981)). One 

such circumstance that courts look to is whether law enforcement had the time to 

secure a warrant. Lee, 856 So. 2d at 1136 (“Some set of facts must exist that 

precludes taking the time to secure a warrant.”). “[I]f time to get a warrant exists, 

the enforcement agency must use that time to obtain the warrant.” Hornblower v. 

State, 351 So. 2d 716, 718 (Fla. 1977). 

Based on the record before us, it appears that the State failed to present 

testimony to establish that officers could not have obtained a warrant during the 2.5 

hour period at issue. Further, there was no testimony that the officers made an 

attempt to obtain a warrant or that they considered making such an 

attempt. Accordingly, under the facts presented, the totality of the circumstances 

does not demonstrate exigent circumstances to overcome the warrant requirement.

REVERSE.

CLARK and ROWE, JJ., CONCUR.