Monday, March 4, 2013

Tenth Circuit US v. Barajas 12-3003

Decision here.

   The DEA was investigating a conspiracy to distribute meth, and the investigation involved lots of wiretaps on cell phones and pinging phones (which the decision describes as a way to query a phone for GPS data).  All of this cell-phone-voodoo was authorized by court orders issued in California, although the charges landed in the tenth circuit because there was a pretty significant seizure of meth and cash in Kansas City which was tied to the conspiracy.  Anyway, Barajas was identified and arrested based on evidence obtained from secretly listening to phone calls and pinging his phone.  He moved to suppress the evidence, he lost, he was convicted at trial, and then he appealed.  

   He argued that pinging his cell phone was a search.  The tenth circuit assumed without deciding that pinging cell phones is, in fact, a search.  Apparently courts around the country are still mulling that question over.  I don't see how anyone could seriously argue that pinging a phone is not a search, but I'm not a lawyer.  But for going-forward purposes, we know that the tenth circuit is humoring the idea that pinging is a search, but hasn't completely made up its mind.  Do with that what you will.

   Barajas also argued that the affidavits which supported the wiretap orders were insufficient.  He argued that they didn't contain probable cause, but the tenth held that they did.  He argued that they didn't explain why a wiretap was necessary (one of the requirements of both California and Federal wiretap laws is that you have to show why more traditional investigative techniques won't work), but the tenth held that the affidavits met that burden too.  Barajas pointed out that the affidavit didn't even request authorization to ping the phones.  The wiretap orders did authorize phone pinging, but there was no request anywhere in the affidavits requesting that authorization.

   Oops.

   The Tenth pointed out that even though the affidavit didn't specifically request that authority, the court could still grant it if the facts contained in the affidavit established probable cause to search the phone's GPS.  The court could rely on the same facts that were used to show PC to listen in on the conversations, as long as those facts showed a fair probability of a nexus between the phone's location and criminal activity.  The court even went so far as to say that next time the officers might want to include in their affidavit something explaining how they could use the GPS data to identify the suspect (since at the time they only knew his nickname).  But the court hesitated to say that the affidavits established PC for the phone ping.  In the end, they decided not to make a decision about that.

   Instead, the courts ruled that the officers' reliance on the warrant invoked the good faith exception.  The affidavits might not have been the best work (despite averaging 115 pages), but they weren't plainly defective either.  They were good enough for the cops to reasonably rely on the warrants, so the court held that whether they actually showed PC for the authorization of phone pinging or not, they were close enough that the evidence is admissible.

   Barajas' conviction was affirmed.

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