(CN) - 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.
