On February 1, 2022, the Fourth Circuit Court of Appeals decided the United States v. Hobbs[i], which is instructive regarding police use of an emergency order for a cellular service provider to ping a cell phone and provide location information to police. The relevant facts of Hobbs are as follows:
This case arose from allegations of domestic violence reported to Baltimore County police by Hobbs’ former girlfriend, Jaquanna Foreman, shortly after 7:00 p.m. on February 3, 2018. 1 At the time, Foreman was home with her seven-year-old daughter. Foreman told the responding officers that Hobbs had come to the back of her home, brandished a semi-automatic handgun, and used the gun to break a window in the home. He then forcibly entered the home and removed a television. Before leaving the home with the television, Hobbs threatened to kill Foreman, her daughter, and other family members, and stated that if she contacted the police, he also would kill any responding officers.
The officers escorted Foreman and her daughter to the police station, where Foreman provided additional details about Hobbs, including aliases, dates of birth, information about his vehicle and his social media usage, and a cell phone number. She also stated that Hobbs had a criminal record. Foreman informed Detective Michael Nesbitt that, in addition to the handgun Hobbs displayed that night, she previously had seen him armed with assault rifles and that he was “obsessed with firearms.” Nesbitt verified that Hobbs had a violent criminal history, including convictions for robbery and attempted murder.
Based on this information, Detective Nesbitt concluded that there was “an extreme urgent threat to the community.” Around midnight, he submitted an “exigent form” to T-Mobile, Hobbs’ cell phone provider. That request sought immediate police access without a warrant to “pings” 2 revealing Hobbs’ cell phone location, and to call logs displaying the phone numbers that Hobbs contacted, which would enable the officers to locate Hobbs. On the “exigent form,” Nesbitt stated that the basis for the exigency was “[s]uspect threatened girlfriend[‘]s life with a handgun, said he will not be taken alive by police[,] was armed.” As Nesbitt was preparing this request, another officer began detailing information to obtain an arrest warrant. Within an hour, T-Mobile responded with real-time “pings” on Hobbs’ cell phone that alerted Nesbitt every 15 minutes to Hobbs’ general location within 3,000 to 5,000 meters. Another detective used call logs obtained from T-Mobile to determine which of Hobbs’ associates lived within the geographical range of each “ping” to pinpoint Hobbs’ location more precisely.
About six hours after the domestic incident, a team of officers attempted to effect a traffic stop of Hobbs’ vehicle. Hobbs tried to flee from the officers until his car eventually collided with a parked vehicle. The officers placed Hobbs under arrest and recovered a loaded handgun on the ground between the driver-side door of his car and the curb. Later that night, Detective Nesbitt secured a search warrant for Hobbs’ car, and two days later obtained a search warrant for the same cell phone information obtained earlier pursuant to the “exigent form.” The police also executed a separate search warrant for Hobbs’ residence and seized 65 rounds of ammunition from his home.[ii]
Hobbs was subsequently charged with being a felon in possession of a firearm under federal law. He filed a motion to suppress and argued that that the exigent circumstances exception to the search warrant requirement did not justify the use pings and call-logs obtained by use of the “exigent form.” The district court denied the motion. Hobbs was convicted by a jury and subsequently appealed the denial of his motion to suppress.
The issue on appeal was whether the officers’ use of the cell phone “pings” and call log records was justified under the exigent circumstances exception to the warrant requirement.
Hobbs argued that the use of phone pings and call records was not justified under the exigent circumstances exception. Specifically, Hobbs argued that that the officers lacked information that he would flee from the police and, therefore, the exigent circumstances exception did not apply. Hobbs also argued that the officers were not facing “imminent harm.” Lastly, Hobbs argued that Foreman and her family were no longer in danger because Hobbs had obtained the television he was seeking, and was therefore, no longer a threat.
The court noted the legal principles relevant to the case and stated
At issue in the present case is the exigent circumstances exception, under which a warrantless search will be found valid under the Fourth Amendment when “there is compelling need for official action and no time to secure a warrant.” Mitchell v. Wisconsin, 139 S. Ct. 2525, 2534 (2019) (quoting Missouri v. McNeely, 569 U.S. 141, 149 (2013)); see also Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016) (“The exigent circumstances exception allows a warrantless search when an emergency leaves police insufficient time to seek a warrant.”). This exception applies when “the exigencies of the situation . . . render the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Curry, 965 F.3d at 321 (citation, alteration, and internal quotation marks omitted). Thus, when officers face “an immediate and credible threat or danger, it is inherently reasonable to permit police to act without a warrant.” United States v. Yengel, 711 F.3d 392, 396 (4th Cir. 2013).[iii]
The court further explained
[T]he Supreme Court has identified only a few “emergency conditions” that may support a finding of exigent circumstances: “(1) the need to pursue a fleeing suspect; (2) the need to protect individuals who are threatened with imminent harm; and (3) the need to prevent the imminent destruction of evidence.” Id. at 321 (citing Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018)) (internal quotation marks omitted); see also Lange v. California, 141 S. Ct. 2011, 2017-18 (2021). Courts ultimately evaluate the totality of the circumstances to determine whether an emergency is “enveloped by a sufficient level of urgency” to be reasonable under the Fourth Amendment. Yengel, 711 F.3d at 397; Curry, 965 F.3d at 316, 322. We consider the “officers’ objectively reasonable belief based on specific articulable facts and reasonable inferences that could have been drawn” from those facts. Curry, 965 F.3d at 322 (quoting Yengel, 711 F.3d at 397) (internal quotation marks and alteration omitted).[iv]
The Fourth Circuit then observed that they have not previously decided a case in which the exigent circumstances exception to the warrant requirement was used to authorize cell phone location pings and the use of call-logs. As such, they looked to precedent from the Second Circuit, particularly United States v. Caraballo, 831 F.3d 95 (2d Cir. 2016). In this case, the police were looking for a drug dealer who they suspected had committed a brutal murder of a person who was acting as an informant to the police. The police knew that he was armed and had “specific reasons” to believe he would kill undercover officers or informants if he discovered their identity. Additionally, the court knew that the officers could have obtained a search warrant for the cell location information in about six hours, but the officers testified that the cellular service provider takes several days to respond to search warrants, whereas they respond to exigent orders immediately. The Second Circuit also noted that upon receiving information from the exigent order, the police located and arrested the suspect within two hours. As such, the Second Circuit upheld the use of the exigent circumstances exception to the warrant requirement.
Additionally, the Fourth Circuit noted a case from the Tenth Circuit, particularly United States v. Banks, 884 F.3d 998, 1012 (10th Cir. 2018), in which that court held that exigent circumstances justified an exigent ping order when the suspect threatened to shoot an informant.
The Fourth Circuit then held that the same rationale from the Second and Tenth Circuit cases justified the ping order in Hobbs’ case. The court explained that when Foreman told the police what had happened, she was trembling and distraught, explaining that Hobbs was armed and had threatened to kill her, her daughter, other family members, and any police officers who might try to apprehend him. She also told the police that Hobbs brandished a firearm during the incident and also owned an assault rifle. Further, the officers conducted a background investigation of Hobbs and learned that he had a history of violence, to include armed robbery and attempted murder. The police also observed damage to Foreman’s home that corroborated her story. In fact, the police were so concerned about Foreman’s safety, they escorted her to the police station while they obtained the order and searched for Hobbs. Lastly, the police located Hobbs in his vehicle within one hour of receiving the ping information.
The Fourth Circuit also discussed how their decision to allow the exigent order in Hobbs case did not contradict the Supreme Court in Carpenter v. United States, 138 S. Ct. 2206 (2018). In Carpenter, the Court held that people “have a legitimate expectation of privacy in the “whole of their physical movements” as captured by historical cell site location information and, thus, law enforcement must secure a warrant to obtain such information.”[v] The Fourth Circuit reasoned that their decision in Hobbs did not contradict Carpenter because Carpenter concerned tracking of the suspect over long period of time to gather evidence in an ongoing investigation. As such, the Fourth Circuit stated that, in Carpenter
The [Supreme] Court did not express an opinion regarding “real-time” location information or the use of such data under exigent circumstances.[vi]
The Fourth Circuit further explained
Our conclusion is not altered by the fact that the officers used Hobbs’ call logs together with the cell phone “pings” to determine Hobbs’ location. The exigent phone provider was known to be “notoriously slow” in responding to law enforcement search warrants and could take several days to produce the necessary cell phone location information. Given the facts recounted by Foreman, we agree with the district court’s observation that even a brief delay in apprehending Hobbs placed many individuals at significant risk of harm. We therefore conclude that the district court did not clearly err in finding that “the only way to get help from T-Mobile” in a timely fashion was by submitting an “exigent form.” See Coleman, 18 F.4th at 135. Under these circumstances, we hold that the officers reasonably concluded that Hobbs was armed and dangerous, that he posed an imminent threat to Foreman, to her family members, and to law enforcement officers, and that these exigent circumstances required them to seek the cell phone location information from T-Mobile without delay. In reaching this conclusion, we emphasize that the exigent circumstances exception does not serve as a tool of convenience to be employed by law enforcement in the absence of immediate danger to persons, a fleeing suspect, or the need to “prevent the imminent destruction of evidence.” Curry, 965 F.3d at 321 (citation omitted). By design, the warrant requirement imposes certain restrictions on law enforcement to protect the rights of suspects. These restrictions include the requirements that officers establish probable cause and seek approval from a neutral magistrate in advance of a search. Thus, the time and circumstances presented here justified the officers’ use of these means to determine Hobbs’ precise location during the brief time it took to apprehend him. And we observe that we are not faced here with a situation in which officers used other cell phone information such as, for example, historical call records or the contents of text messages, which would require additional consideration of the intrusion on Hobbs’ privacy interests.[vii]
Therefore, the Fourth Circuit held that the officers reasonably concluded that use of the “exigent form” was necessary to obtain a prompt response from the cell service provider when an armed and dangerous suspect was at large.
As such, the court of appeals affirmed the denial of the motion to suppress.
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. 19-4419 (4th Cir. Decided February 1, 2022)
[ii] Id. at 2-5
[iii] Id. at 7-8 (emphasis added)
[iv] Id. at 8-9 (emphasis added)
[v] Id. at 12
[vi] Id.
[vii] Id. at 12-13
