Cellphone-location Data to Prosecute Accused for the Drive-by Slaying

It’s always interesting to me how the law continues to address and mold itself to “new” technologies.

From Courthouse News: The Ninth Circuit on Monday signaled it will likely allow federal prosecutors to use a San Francisco man’s cellphone-location data to prosecute him for the drive-by slaying of his young sister’s pimp.

The court’s three-judge panel suggested it would rule against the brother, Antonio Gilton, despite Gilton’s insistence that the data allegedly placing him in the area of the 2012 murder just before it occurred was obtained by San Francisco police via an illegal search warrant.

A ruling against Gilton would seemingly place the Ninth Circuit at odds with the Supreme Court’s landmark 2018 ruling in Carpenter v. United States. There, the high court held that police must have a valid warrant to obtain cellphone-location data, which shows which cell towers a person’s phone connected to during a specific period of time.

But the Supreme Court held in 2011 in another case, Davis v. United States, that evidence obtained through searches conducted in good faith – or based on appellate precedent – is admissible in criminal trials, even if the evidence was obtained illegally.

“Let’s suppose for purposes of this argument that I completely agree with you, that the magistrate [judge] should not have signed this warrant,” U.S. Circuit Judge Jay Bybee said in Monday’s hearing, addressing Gilton’s attorney Mark Goldrosen. “What do we do with the fact that the police went to the trouble of drafting a series of warrants, trying to make sure they crossed all of their Ts and dotted all of their Is, didn’t do so as skillfully as we, on reflection years later, would like; what makes this not done in good faith?”

The case stretches back to June 2012, when city prosecutors charged Gilton’s parents, Barry Gilton and Lupe Mercado, with the murder of Compton-area gang member Calvin Sneed. Sneed, 22, had begun a relationship four months earlier with the couple’s 17-year-old daughter upon her arrival in Los Angeles to live with Antonio Gilton. Sneed became her pimp soon after.

In the early morning hours of June 4, 2012, Sneed was gunned down in his car as he arrived at Gilton’s and Mercado’s Bayview neighborhood home to pick up their daughter, identified in court records only as L.G. According to prosecutors, Sneed died of a gunshot wound to his forehead, fired by an unknown passenger in a silver SUV that had pulled up alongside him.

San Francisco police suspected the Gilton family in the murder, and obtained a search warrant from a state magistrate judge for the seizure of cellphone-location data for both Barry and Antonio Gilton. According to federal prosecutors, the data shows Antonio Gilton had been in the area around Meade and Le Conte Avenues where the shooting occurred, leading them to conclude he was either involved in the murder or had valuable information about the perpetrators.

Both Gilton men, Mercado and several others were subsequently charged in federal court in San Francisco in connection with Sneed’s murder.

But in February 2016, U.S. District Judge William Orrick III granted Antonio Gilton’s motion to suppress his cellphone-location data, reasoning the warrant’s affidavit hadn’t established probable cause justifying a search because it “hardly mention[ed]” him. Orrick also concluded the good-faith exception to the exclusionary rule, which bars the use of evidence in a criminal trial obtained illegally, didn’t apply to Gilton’s case.

On Monday, the appellate panel appeared to reject Orrick’s good-faith finding.

Bybee, a George W. Bush appointee, suggested that even if the magistrate issued the warrant without probable cause, the police still acted on the warrant in good faith, thereby permitting the use of Gilton’s cellphone data at trial.

The suggestion prompted Goldrosen to accuse a San Francisco police sergeant of having “suckered” the magistrate into issuing the warrant without probable cause, and that the good-faith exception established by the Supreme Court in 1984 in United States v. Leon is therefore not applicable.

“You really believe [the police sergeant] didn’t have probable cause and then went to a magistrate and asked for it? That’s a pretty strong indictment of a police officer,” replied Senior U.S. Circuit Judge J. Clifford Wallace, a Nixon appointee.

Wallace set up the core question – can a “reasonable” police officer conclude from the affidavit that, for example, L.G.’s family plotted Sneed’s murder and that L.G. and Antonio Gilton were closely involved, and can the officers act “reasonably” under these circumstances?

“We wish we had lawyers to write these out, but it never happens that way,” Wallace said. “It just seems to me you’re asking a little more than these cases do for what a reasonable police officer might do under these circumstances,” he said, referring to cases like Leon.

U.S. Circuit Judge M. Margaret McKeown wanted to know if the Stored Communications Act “effectively let the officers off the hook here.”

Enacted by Congress in 1986, the Stored Communications Act authorizes telephone companies to disclose call records and cellphone-location data to law enforcement either via a warrant or a court order.

A Clinton appointee, McKeown seemed to reject as unsound Goldrosen’s reply that it didn’t in part because police “did not get an order pursuant to the Stored Communications Act.”

On rebuttal, Justice Department attorney Daniel Lerman argued that San Francisco police “went above and beyond” the requirements of the Stored Communications Act by seeking a warrant. He said the officers satisfied Leon’s good-faith exception, noting five appellate courts had held by the time of Sneed’s murder that no warrant was required to obtain cellphone-location data, and that the rulings and the officers’ actions had occurred long before Carpenter.

“I find it hard to believe that there is no colorable argument for probable cause when you have five courts of appeals reaching the very same conclusions here,” Lerman said. “Here we have officers going above and beyond; they got a warrant when they didn’t need to do so, statute didn’t require them to do so, case law didn’t require them to do so. I think it would be perverse under the motivations of the exclusionary rule to punish the officers for going above and beyond what was required for seeking a warrant.”

The panel concluded the hearing after about an hour of arguments and took the case under submission.

According to media reports, L.G.’s parents turned to law enforcement for help when the girl rebuffed their pleas to leave Sneed. They filed police reports in Culver City and Compton in the Los Angeles area, but the reports were reportedly ignored.

The Los Angeles Police Department and the Los Angeles County Sheriffs’ Department did not respond on Monday to requests for comment or to confirm the existence of the reports.

California is one of the top destinations in the United States for human trafficking, according to a 2016 report published by the Los Angeles County District Attorney. Gangs account for much of the “proliferation” of sex trafficking in the county, the report says.

According to the report, Los Angeles prosecuted 75 new sex trafficking cases in 2015 and 68 new cases involving 88 sex trafficking defendants in 2016. The year of Sneed’s murder, in 2012, the county prosecuted just 15 new sex trafficking cases.

“With heightened sensitivity to these crimes and the approval of Proposition 35, which eliminated barriers to prosecuting human traffickers and toughened penalties, the caseload increased,” the report states.

Requests for comment or information regarding how many pimps have been prosecuted in Los Angeles and San Francisco in the last 10 years were not returned Monday.

According to a 2008 report published on the website of the U.S. State Department, pimps use a “grooming” process to gain the trust of their intended female victims, many of whom are runaways or have a history of sexual abuse.

The first step often involves developing a relationship with the victim – whom she comes to regard as her boyfriend – through the use of flattery, affection and gifts, according to the report. Victims are subsequently forced into performing sexual acts for the pimp’s friends and eventually into prostitution under threat of abuse or violence if they refuse.

Los Angeles prosecutors report having filed sex trafficking cases involving victims as young as 12.

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