United States v. Caraballo, Docket No. 12-3839-cr (L), 14-4203-cr (Con)

• Citation: 831 F.3d 95
• Decision Date: 01 August 2016
• Docket Number: August Term, 2015,Docket No. 12-3839-cr (L), 14-4203-cr (Con)
• Parties: United States of America, Appellee, v. Frank Caraballo, Defendant–Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

831 F.3d 95

United States of America, Appellee,

v.Frank Caraballo, Defendant–Appellant,

Docket No. 12-3839-cr (L), 14-4203-cr (Con)

August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: January 27, 2016

Decided: August 1, 2016

Natasha Sen, Esq., Brandon, Vermont (Mark Kaplan, Kaplan and Kaplan , Burlington, Vermont, on the brief), for Defendant–Appellant

Paul J. Van de Graaf, Chief, Criminal Division, (Joseph R. Perella, Gregory L. Waples, Assistant United States Attorneys, on the brief), for Eric S. Miller, United States Attorney for the District of Vermont, Burlington, VT, for Appellee

Before: CALABRESI, LYNCH, and LOHIER, Circuit Judges.

CALABRESI

, Circuit Judge:

Early in the summer of 2011, Brattleboro police made a series of controlled purchases of narcotics from Frank Caraballo. After the body of Melissa Barratt, an associate of Caraballo's, was discovered on the morning of July 29, 2011, the officers investigating her death asked Sprint, Caraballo's cell-phone provider, to track the GPS coordinates of Caraballo's cell phone over a two-hour period. Sprint complied with the officers' request, and Caraballo was located and apprehended later that day. Caraballo contends that the “pinging” of his cell phone was a search that violated the Fourth Amendment and that, as a result, the District Court's failure to suppress evidence recovered upon his arrest requires reversal of his conviction. Because we conclude that the circumstances justified the officers' warrantless identification of the GPS coordinates of Caraballo's phone, we AFFIRM the judgment of the District Court.¹

BACKGROUND

The Scene. At approximately 10:45 AM on July 29, 2011, officers of the Vermont State Police responded to a report of a woman's body near the town limits of Brattleboro, Vermont. This area was “off the beaten path,” in a wooded area approximately 30 yards from the road. United States v. Caraballo , 963 F.Supp.2d 341, 343 (D. Vt. 2013)

. When the officers arrived, they found the woman's body. She had a gunshot wound to the back of the head and was on the ground in a kneeling position with her hands clasped in front of her. Based on the body's position, it was apparent that the woman had not committed suicide. Moreover, the lack of a blood trail indicated that she had been shot there. The officers inferred that the homicide had taken place that morning based on a report from a nearby construction crew of a gunshot-like sound earlier in the morning.² As a result, the officers “suspected that the woman was a victim of a homicide and that her assailant could still be armed.” Id.

The officers identified the woman as Melissa Barratt. Barratt had recently come to the attention of Vermont State Police when she was arrested in Brattleboro for selling drugs on May 31, 2011. At the time, Barratt had told her arresting officers that she was “extremely nervous and afraid of Frank Caraballo,” with whom she worked dealing drugs. Id.

In particular, she stated that “if he knew that she was talking to [the officer], he would hurt her, kill her.” Id. This, she indicated, was not an idle threat, as she knew Caraballo to have access to multiple firearms, and to have committed assault or even homicide on previous occasions. Id . Though the arresting officers sought to have Barratt cooperate with them in an investigation of Caraballo, she refused, largely out of fear that she would “basically be killed” if she did so. Id . The officers at the scene subsequently learned that Barratt had continued to work for Caraballo after her release.

Moreover, the investigating officers knew that, after Barratt's arrest, Brattleboro police had conducted an investigation of Caraballo's drug operation. Through June and July, police completed “at least three recent controlled buys of narcotics” with Caraballo, id. at 344

, and these sales required the participation of multiple undercover agents and confidential informants. Through these sales, the police knew two phone numbers that Caraballo had used in connection with his operation. They were similarly aware that Caraballo had no residence in Vermont, but instead traveled to and from Massachusetts and stayed in hotels.

In sum, the officers found themselves in a difficult position. They had found a woman who was the subject of a “coldblooded execution.” Id .

Their primary suspect was a man whom the victim had told them not only had a significant propensity for violence but also possessed a number of firearms. In addition, the investigation of Caraballo had separately indicated that he had taken over the drug operation of his brother, Michael, and was as such “armed and dealing drugs.” Id.

The officers also believed that the local police who had infiltrated Caraballo's drug operation could be harmed if they came into contact with him. As one officer testified, referring particularly to agents and informants involved in the investigation of Caraballo's drug operation:

I was concerned that if there was information leaked before the homicide occurred we did not know what extent that information was. We knew that we had our narcotics officers in deep working with their [confidential informants] investigating Frank Caraballo. And we were concerned that if there was some sort of information leaked we weren't sure if he was going to be going after any sort of [informants] or narcotic officers at that point.

App. 208. Thus, the officers' belief was that it was necessary to obtain Caraballo's location or “potentially someone [was] going to get hurt or killed.” Id . at 211.

The officers were also assertedly concerned for the possible destruction or dissipation of evidence. Consistent with this, one officer testified that “access to the potential assailant shortly after the homicide was likely to yield important and irreplaceable evidence” such as gunshot residue and DNA. Caraballo , 963 F.Supp.2d at 345

. This evidence would likely dissipate or be destroyed if the assailant was not “promptly apprehended.” App. at 211.

The Officers' Response. The officers considered various methods for tracking down Caraballo. These included a) having a confidential informant contact him, and b) posting police on major roadways to identify his vehicle as it left the state. They also thought of obtaining a search warrant, and, pursuant to that warrant, asking Sprint, Caraballo's cell carrier, to determine the position of the cell phones associated with Caraballo's drug business. As discussed below, Sprint could determine the location of those phones through their global positioning system (“GPS”). The officers, however, viewed the time that it would take to secure this information by search warrant prohibitory. This was because, “in the absence of exigent circumstances,” the provider's slow compliance with the warrant would “likely ... involve ‘a huge delay of getting the information.’ ”³ Id.

Cell phones like Caraballo's can be located in two ways. First, cell phones create a record of their location based on the cell towers near them (called “cell-site” location data or information). Cell phones automatically generate this data when turned on; having phones in constant communication with the network enables calls to be routed appropriately. This process can generate a historical log of a phone's movements, though only with limited precision (here, with a margin for error of about 5,000 meters).

Second, the position of a cell phone can be determined based on its GPS location, which is generated by triangulating the cell phone's position by reference to three or more network satellites. By contrast with cell-site data, this information is generated only at the specific command of a Sprint operator—an action called “pinging”—and is quite precise (here, within a range of 8 to 46 meters). App. 471. If fewer than three satellites are in contact with a phone at the time of a request, however, the ping produces only the phone's less precise, cell-tower location.

The investigating officers believed that applicable law permitted them to request a warrantless search of a phone's GPS location “if there was an emergency involving a threat of serious bodily injury or death.” Caraballo , 963 F.Supp.2d at 345–46

.⁴ They had little experience with this procedure; one officer testified to having requested such information without a warrant “on two previous occasions: one involving a kidnapping and the other involving a missing person.” Id. Concluding that this was “a legitimate emergency,” the officers decided to request that Sprint locate Caraballo's phones through their GPS without securing a warrant. Id. This approach was endorsed by the county's state attorney, who agreed that such a search “was appropriate and it was probably the best action to take.” Id.

The officers then contacted Sprint, which had them fill out a standard form to request the relevant GPS data. This form was submitted at 3:20 pm, and it explained the exigency by stating that a “[m]ale with phones is suspect in possible homicide.” Id. at 347

. Sprint's practice was to provide location information as soon as possible whenever law enforcement submitted such an emergency request form. Accordingly, Sprint accepted the form and agreed to help the officers locate Caraballo's phones. As agreed, the officers would call Sprint to initiate each search, or “ping,” of the location of Caraballo's phone. The results of each “ping” would then be immediately conveyed back to them by a Sprint representative.

Caraballo is Apprehended. Sprint's attempts to ping Caraballo's phones began at 3:43 pm. Although one of Caraballo's phones was unresponsive, a ping of another phone hit at 4:03 pm, revealing that this phone was in the Brattleboro area. The officers had Sprint continue to ping this phone—thirteen times in all, with nine providing GPS coordinates and four providing cell-site location information. Through this process they determined that the phone was being transported north on Interstate 91 and had ceased moving...