(CN) – A divided Ninth Circuit ruled Monday that federal prosecutors can use a San Francisco man’s cellphone-location data to try him for the murder of his young sister’s pimp even though the data were illegally obtained.
In a 2-1 opinion issued Monday, the Ninth Circuit sided with a lower court that the warrant authorizing the seizure of Antonio Gilton’s location data apparently placing him near the scene of the Bayview-neighborhood crime wasn't supported by probable cause. But the appellate panel nonetheless lifted a block on the data, reasoning the warrant's deficiencies "were not so stark as to render the officers’ reliance on the warrant 'entirely unreasonable'" under Supreme Court precedent.
"[A]ll of these facts did not add up to probable cause to obtain Gilton’s CSLI [cellphone-location information] data," U.S. Circuit Judge Jay Bybee wrote for the majority. "But we cannot say that no reasonable officer would have relied on the warrant obtained from the superior court just two days into their investigation."
The case stretches back to June 2012, when San Francisco 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, L.G., upon her arrival in Los Angeles to live with Antonio, and 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 the parents’ Bayview home to pick up L.G. According to prosecutors, Sneed died of a gunshot wound to the forehead, fired by an unknown assailant 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 show Antonio Gilton was near the crime scene when the shooting occurred, leading them to conclude he was either involved in the shooting 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 location data. In that order, Orrick concluded that probable cause was required to obtain the data from Gilton's cellphone carrier, and that the warrant's 14-page affidavit "plainly failed to provide a substantial basis for concluding that there was probable cause to search” because it “hardly mention[ed] Gilton."
The Ninth Circuit rejected the existence of probable cause on similar grounds Monday, holding that the affidavit insufficiently identified Gilton and the magistrate couldn't have reasonably concluded that Gilton was involved in Sneed's murder.
But Bybee, joined by Senior U.S. Circuit Judge J. Clifford Wallace, said San Francisco police "nevertheless relied in good faith on the warrant they obtained," in part because the affidavit "was lengthy and laid out for the magistrate what the police knew about the murder and how they had obtained the information they had."
"[T]sole question before us is whether [San Francisco Police Sergeant Gary] Watts’s affidavit was 'so lacking in indicia of probable cause' that no reasonable officer would believe that probable cause existed to search Gilton’s CSLI data," Bybee wrote in the 21-page opinion. "We conclude that the deficiencies in probable cause ... are not so stark as to render official belief in the existence of probable cause 'entirely unreasonable.'"
Dissenting in part, U.S. Circuit Judge M. Margaret McKeown accused the majority of "shoehorning" Carpenter v. United States – a 2018 Supreme Court ruling that a warrant supported by probable cause is required for obtaining location data – "into a watered-down application of Davis’ good faith exception."
Davis v. United States, decided by the Supreme Court in 2011, held that the good faith exception may be applied “when the police conduct a search in compliance with binding precedent that is later overruled.”
"This relatively narrow expansion of the good faith exception has no bearing on this case and the majority explicitly notes it does not apply," McKeown, a Bill Clinton appointee, wrote in the 7-page dissent. "Weak inferences from vague facts do not amount to probable cause as to specific individuals. These are precisely the circumstances where the good faith exception cannot save a defective warrant."
Bybee was appointed by George W. Bush, while Wallace is a Richard Nixon pick.
Neither Gilton's lawyer, Mark Goldrosen, nor the Justice Department could immediately be reached for comment Monday.
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