On July 31, 2024, the Seventh Circuit Court of Appeals decided the United States v. Karmo[i], in which the court discussed the Stored Communications Act (SCA), exigent orders for cell-site location information (CSLI) and the Fourth Amendment. The relevant facts of Karmo are as follows:
In August 2020, severe civil disorder broke out in Kenosha, Wisconsin. During that period of unrest, Michael Karmo and Cody Smith drove from Missouri to Kenosha. On their way, they stopped in Waverly, Iowa, just after midnight on September 1 to meet with one of Karmo’s friends. Karmo invited the friend to come with him and Smith to Kenosha, but she declined. Karmo and Smith left shortly thereafter.
Later that day, Karmo’s friend went to the Waverly Police Department and spoke with Officer Dave Lindley. She informed Officer Lindley of Karmo and Smith’s recent visit, reported that they claimed to have firearms (including two machine guns) in their vehicle, and shared her text messages with Karmo, which included a photograph of Karmo and Smith holding firearms. She also showed Officer Lindley a photograph Karmo had sent her of a rifle with a drum magazine, which Karmo captioned, “This the game changer.” According to Karmo’s friend, Karmo told her that people were going to Kenosha and “picking people off” and that he wanted to “see what’s going on.” She provided a written statement recapping their visit before leaving.
Officer Lindley then called Sergeant Joshua Hecker of the Kenosha Police Department to alert him that Karmo and Smith were traveling to Kenosha with firearms. Officer Lindley informed Sergeant Hecker that they were traveling to Kenosha to loot and to “pick people off.” Shortly after, Sergeant Hecker relayed this information to the FBI, who learned that Karmo was a felon and found multiple photographs of him holding firearms on his Facebook page.
Based on this information, and pursuant to the Stored Communications Act’s exigent circumstances exception, the FBI submitted an exigent circumstances form to AT&T that same day to obtain real-time cell site location information on Karmo’s cell phone. Specifically, the FBI requested updated CSLI every 15 minutes for a period of 48 hours. In support of the request (and consistent with the information it received from Sergeant Hecker), the FBI noted that Karmo was traveling to Kenosha with firearms to “pick people off and loot.” AT&T complied with the FBI’s request and started sharing Karmo’s real-time CSLI in the early evening. After collecting Karmo’s CSLI for around an hour and a half, law enforcement located Karmo in the parking lot of a hotel near Kenosha. Upon the FBI agents’ arrival, Karmo and Smith exited their vehicle, were detained, and consented to a vehicle search, where law enforcement recovered multiple firearms and firearm magazines, body armor, and a folding knife. They also consented to a search of their hotel room, which contained additional firearms and ammunition.
On September 2, the Waverly Police Department sent the FBI a formal incident report recounting Officer Lindley’s interaction with Karmo’s friend. The report noted that Karmo told his friend that people were going up to Kenosha and picking people off, but—contrary to the AT&T exigency form—Karmo did not state that he himself would do that. On September 3, the FBI obtained a search warrant for Karmo’s residence, where agents found several firearms and rounds of ammunition. Further, an FBI agent obtained a criminal complaint charging Karmo with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On September 4, the FBI obtained a search warrant for Karmo’s hotel room to collect items that officers had observed during the consent search but did not seize. In support of the search warrants and criminal complaint, the FBI submitted affidavits stating, among other things, that the Waverly Police Department sent the formal incident report to the FBI on September 1 (rather than the actual date it was sent, September 2). Though the warrants inaccurately reflected when the FBI learned this information, they clarified that while Karmo said that people were going to Kenosha to shoot people and loot, he did not state that he himself would do so.[ii]
Karmo was subsequently indicted under federal law for being a felon in possession of firearms. He filed a motion to suppress, alleging that the real-time cell-site location information was obtained in violation of the Fourth Amendment because the exigency form contained false information, particularly that he intended to “loot and pick people off.” He also requested a Franks hearing regarding the veracity of the information on the form. The district court denied both of Karmo’s motions. He entered a guilty plea with the right to appeal the denial of his motions. Karmo then filed a timely appeal with the Seventh Circuit Court of Appeals.
On appeal, Karmo argued (1) that the cell-site location information (CSLI) was obtained in violation of the Stored Communications Act and the Fourth Amendment based on the false information on the exigency form, and (2) that he is entitled to a Franks hearing to determine the veracity of the information on the exigency form.
The court of appeals first discussed the rules relevant to the Stored Communications Act, cell-site location information, and exigency forms. The court stated that law enforcement can obtain
[R]eal-time CSLI pursuant to the Stored Communications Act’s exigent circumstances exception, which allows a service provider to disclose records if it, “in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay ….” 18 U.S.C. § 2702(c)(4). Even if Karmo could prove a violation of the Stored Communications Act, suppression of evidence is not an available remedy. Id. § 2708 (“The remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter.”); United States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014) (“[S]uppression is not a remedy for a violation of the Stored Communications Act.”); United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998) (“[T]he Stored Communications Act expressly rules out exclusion as a remedy.”). Thus, to obtain the relief he seeks, Karmo must establish a Fourth Amendment violation. See 18 U.S.C. § 2708; Guerrero, 768 F.3d at 358; cf. Davis v. United States, 564 U.S. 229, 236-37, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) (noting that the purpose of the exclusionary rule “is to deter future Fourth Amendment violations”).[iii]
Thus, Karmo must show (1) that a search under the Fourth Amendment occurred when the FBI and officers obtained his real-time CSLI and (2) the exigency exception to the warrant requirement was not satisfied.
On appeal, the government argued that the limited use of the real-time CSLI was not a “search” under the Fourth Amendment. However, the court of appeals stated that they did not need to decide this because, even if it was a search, there was sufficient exigency to justify the search. [Note: The Seventh Circuit stated that they were not rendering a decision of whether or obtained the CSLI in this case constituted a search under the Fourth Amendment.]
The court of appeals then discussed why the exigency exception was satisfied in this case. The court of appeals explained
Though law enforcement did not obtain a search warrant before collecting Karmo’s real-time CSLI, warrantless searches are permissible if law enforcement has probable cause to believe that illegal activity is occurring and that exigent circumstances are present. Jacobs v. City of Chicago, 215 F.3d 758, 769 (7th Cir. 2000); see also Carpenter v. United States, 585 U.S. 296, 319, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018) (noting that law enforcement does not need a warrant to access historical CSLI if exigent circumstances are present). When viewing the totality of the circumstances, United States v. Rosario, 5 F.4th 706, 713 (7th Cir. 2021), probable cause exists if there is “a reasonable belief that a search will turn up evidence of criminal activity,” United States v. Hicks, 650 F.3d 1058, 1065 (7th Cir. 2011). Exigent circumstances are present if law enforcement reasonably believes that the safety of the public is threatened. United States v. Huddleston, 593 F.3d 596, 600 (7th Cir. 2010); see also United States v. Maxwell, 85 F.4th 1243, 1246 (7th Cir. 2023) (noting that exigent circumstances are present if there is a need to render emergency aid).[iv]
Karmo’s argued that the exigency form included information that he stated he intended to “loot and pick people off.” It was acknowledged by the police officer the next day that he did not say that. The court of appeals stated that, even if that inaccurate information was removed from the form,
[T]he totality of the other circumstances supports a reasonable belief that there was a threat to public safety and that tracking Karmo’s real-time CSLI would reveal criminal activity.[v]
The court discussed the facts that justified the exigency order. First, Karmo’s friend told the police that he and Smith were traveling to Kenosha, a city that was experiencing severe civil unrest, with firearms, including “two machine guns.” Second, Karmo’s friend showed the police a photo Karmo holding a gun and a photo that Karmo sent the friend of rifle that he said was “the game changer.” Third, the FBI, prior to obtaining the order, learned that Karmo was a convicted felon and saw, on his Facebook page, multiple photographs of him holding firearms. The court then stated
Thus, considering the totality of the circumstances, including the extreme civil unrest in Kenosha at the time and that Karmo, a known felon, said that he was traveling there with machine guns (and had stated that he possessed a firearm he believed to be the “game changer”), law enforcement’s tracking of Karmo’s real-time CSLI was supported by exigent circumstances.[vi]
Therefore, since there was no constitutional violation, the district court correctly denied the motion to suppress.
The court of appeals also examined whether Karmo was entitled to a Franks hearing. The court stated
[A] Franks hearing—”an evidentiary hearing regarding the veracity of information” provided to a judge to determine the existence of probable cause, United States v. Mullins, 803 F.3d 858, 861 (7th Cir. 2015)—is inapplicable here. The purpose of a Franks hearing is to determine whether the information provided to the judge would have still supported probable cause, setting aside any intentional or reckless misrepresentations or omissions. See id. at 861-62; Lickers v. United States, 98 F.4th 847, 858-59 (7th Cir. 2024).[vii]
The court of appeals then noted that there was no probable cause determination by a judge for a search warrant for the CSLI. It was merely an AT&T exigency form that contained inaccurate information. However, the court of appeals determined there was, in fact, probable cause to obtain the CSLI, even not considering the inaccurate statement. Further, the court of appeals also determined the exigency exception to the Fourth Amendment’s warrant requirement was met in this case. Therefore, the district did not err in denying the request for a Franks hearing.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 23-1082 (7th Cir. July 31, 2024)
[ii] Id. at 3-6
[iii] Id. at 7 (emphasis added)
[iv] Id. at 8-9 (emphasis added)
[v] Id. at 9
[vi] Id. at 9-10
[vii] Id. at 10 (emphasis added)
