Exigency for Warrantless Cell Phone Pinging Created by Threat to Officers
Warrantless pinging of defendant’s cell phone was reasonable where government proved good faith belief immediate apprehension was necessary after defendant was dangerous and linked to a body of person the government had approached to be an informant, says Second Circuit.
Early in the summer of 2011, Brattleboro, Vermont police made a series of controlled purchases of narcotics from Frank Caraballo. They also arrested one of Caraballo’s associates, Melissa Barratt, and asked her to inform on Caraballo. Barratt refused, saying she was extremely nervous and afraid of Caraballo, and that he would kill her if he knew she was talking with police. Police subsequently continued investigating Caraballo and identified two phone numbers Caraballo used in connection with his operation.
On July 29, 2011, officers responded to discovery of Barratt’s body outside Brattleboro. She had been shot in the back of the head and was on the ground in a kneeling position with her hands clasped in front of her. Officers suspected Barratt was the victim of a “coldblooded execution” and they immediately identified Caraballo as their prime suspect, a man with a known propensity for violence and who police knew to be in possession of a number of firearms.
Officers also believed that local police who had infiltrated Caraballo’s drug operation could be harmed if Barratt had leaked information to Caraballo. They therefore believed it was necessary to obtain Caraballo’s location or potentially someone would be hurt or killed. Officers were also concerned that crucial evidence such as gunshot residue and DNA would be lost if they did not promptly apprehend Barratt’s killer.
Believing that applicable law permitted them to request a warrantless search of a phone’s GPS location if there was an emergency involving a threat of serious bodily injury or death, officers, with agreement from the county’s state attorney, requested that Sprint locate Caraballo’s phones through their GPS without first securing a warrant. Sprint agreed to the request and pinged Caraballo’s phones at officers’ request. Sprint soon indicated that one of Caraballo’s phones was unresponsive, and that another was in the Brattleboro area.
Officers had Spring ping the responsive phone thirteen times, narrowing the location of the phone until local police identified Caraballo’s car and visually surveilled until they arrested him for his known narcotics offenses. Upon arrest, Caraballo made a number of statements to police that the government would subsequently offer at trial, after being indicted on charges related to his drug activity and to Barratt’s death. Prior to trial, Caraballo moved to suppress evidence recovered subsequent to his arrest. He was convicted, sentenced to forty years’ imprisonment, and then he appealed to the U.S. Court of Appeals for the Second Circuit.
On appeal, Caraballo contended that police using Sprint to ping his phone and thereby determine his location, without a warrant, violated his Fourth Amendment rights. The appeals court disagreed, finding that exigent circumstances justified the officers’ pinging of Caraballo’s phone following their discovery of Barratt’s body. The court held the officers’ reasonable belief that Caraballo posed an exigent threat to the undercover officers and confidential informants involved in his drug operation justified the warrantless pinging of Caraballo’s phone under the circumstances of the case. Specifically, the court considered that the pinging constituted a limited intrusion into Caraballo’s privacy interests, which was viewed as plausibly consistent with existing law at the time, and that officers used the most limited way to achieve their necessary aim.
Accordingly, the Second Circuit affirmed the judgment of the lower court.
Read the full case: U.S. v. Caraballo
This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.