Commonwealth v. Reed

• Decision Date: 16 June 2022
• Docket Number: 2020-SC-0116-DG
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Dovontia REED, Appellee.
• Court: United States State Supreme Court — District of Kentucky

647 S.W.3d 237

COMMONWEALTH of Kentucky, Appellant,

v.Dovontia REED, Appellee.

2020-SC-0116-DG

Supreme Court of Kentucky.

JUNE 16, 2022

COUNSEL FOR APPELLANT: Daniel J. Cameron, Attorney General of Kentucky, Jeffrey A. Cross, Frankfort, Matthew F. Kuhn, Brett R. Nolan, Office of Solicitor General.

COUNSEL FOR APPELLEE: Adam Meyer, Assistant Public Advocate.

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

The grand jury indicted Dovontia Reed on one count of first-degree robbery, one count of possession of a handgun by a convicted felon, and one count of receiving stolen property (firearm). Reed moved pretrial to suppress the location data obtained from the police's search of his real-time cell-site location information (CSLI) and the evidence obtained from the search. The trial court denied his motion. Reed then entered a conditional guilty plea, reserving his right to challenge the denial of his suppression motion.

On review, the Court of Appeals reversed the trial court's denial of Reed's suppression motion, finding that the officers’ acquisition of Reed's real-time CSLI constituted a warrantless, unreasonable search. Additionally, the Court of Appeals found that the good-faith exception to the exclusionary rule did not apply because the officers were not acting in reliance on binding precedent.

We granted the Commonwealth's motion for discretionary review. Like the Court of Appeals, we find that the police acquisition of Reed's real-time CSLI was a warrantless, unreasonable search, and we find that the good-faith exception to the exclusionary rule does not apply in this case. Accordingly, we affirm the decision of the Court of Appeals to reverse the trial court's judgment and remand this case to the trial court for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Late one night, Dovontia Reed called Kirby Caldwell, an acquaintance, on his cell phone. Reed told Caldwell that he had run out of gas and asked Caldwell to meet him at a gas station in Versailles. When Caldwell arrived there, he alleges that Reed threatened him at gunpoint and demanded that Caldwell give him whatever cash Caldwell was carrying. Then Reed climbed into the passenger seat of a Nissan Altima and left the gas station.

Caldwell called the police, and an officer arrived at the gas station to investigate. Caldwell told the officer what had happened and described the vehicle in which Reed fled. The officer examined the gas station's security-camera footage to identify the vehicle and obtain its license plate number. Caldwell also provided the officer with Reed's cell-phone number.

The officer contacted dispatch, provided Reed's cell-phone number, and requested dispatch contact Reed's cell-service carrier and obtain Reed's real-time CSLI. The carrier's initial ping showed Reed was traveling on the Bluegrass Parkway. The carrier continued to ping the phone for the next hour and a half, providing the police with its CSLI continually during that period. When the cell-service carrier's ping showed that Reed was returning toward Versailles, an officer stationed himself on the road in anticipation of Reed's approach. When the officer spotted the Nissan Altima, he pulled it over and arrested Reed.

The grand jury indicted Reed on one count of first-degree robbery, one count of possession of a handgun by a convicted felon, and one count of receiving stolen property. Before trial, Reed moved to suppress the CSLI obtained by the police and the evidence obtained as a result of the search on the grounds that the police unlawfully obtained the CSLI without a warrant. The trial court denied the motion, finding that the officers’ access of Reed's CSLI was not a search under the Fourth Amendment and, therefore, no warrant was required. Reed entered a conditional guilty plea, reserving the right to appeal the trial court's decision denying suppression of the CSLI evidence.

The Court of Appeals reversed the decision of the trial court, finding that police acquisition of a person's CSLI implicates significant privacy concerns and thus the Fourth Amendment requires a warrant to search a person's CSLI. Additionally, the Court of Appeals found that the good-faith exception to the warrant requirement did not apply because this Court's decision in Hedgepath v. Commonwealth alerted officers that the warrant requirement for obtaining real-time CSLI was an unsettled point of law.¹ The Court of Appeals remanded the case to the trial court for further proceedings in accordance with this holding. The Commonwealth moved for discretionary review, and we granted the Commonwealth's request to address this issue of first impression.

II. ANALYSIS

In reviewing a trial court's decision to deny a motion to suppress evidence, we accept the trial court's findings of fact as conclusive if they are supported by substantial evidence.² We then review de novo the trial court's application of the law to those facts.³ In this case, the application of the good-faith exception to the exclusionary rule hinges upon the existence of binding appellate precedent supporting the officers’ actions. As such, we also review that issue de novo.

Regarding the trial court's denial of Reed's suppression motion, the pertinent factual findings are uncontested: the investigating officers contacted Reed's cell-service provider, obtained Reed's real-time CSLI, used this CSLI to track Reed in real time on a roadway, performed a traffic stop, and placed Reed under arrest. We find these facts to be supported by substantial evidence, and, as such, we focus our analysis on the questions of law presented.

A. By obtaining Reed's real-time CSLI, the officers conducted a search under the Fourth Amendment to the United States Constitution and under Section 10 of the Kentucky Constitution.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This Court has held this provision to mean that "[a]ll searches without a valid search warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant."⁴

The language of Section 10 of the Kentucky Constitution varies from the Fourth Amendment only in that it replaces the word effects with the word possessions. This Court has previously held that no substantial difference results from this variation in language.⁵ So this Court looks to the United States Supreme Court's interpretation and application of the Fourth Amendment for guidance in construing Section 10.⁶

To run afoul of the Fourth Amendment, an action by police must be warrantless, must constitute a search, and no established exception to the warrant requirement must be applicable. In this case, the Commonwealth does not dispute that the officers did not get a warrant before obtaining Reed's real-time CSLI. And the Commonwealth failed to raise any argument that an established exception to the warrant requirement existed. So our analysis hinges upon whether the acquisition of a person's real-time CSLI constitutes a search.

The federal courts’ jurisprudence on the Fourth Amendment has shifted dramatically since the amendment's adoption. Initially, the Fourth Amendment was believed to be intimately related to the Fifth Amendment.⁷ The seizure of an individual's property and use of that property as evidence against him was found to be inherently unreasonable and violative of the Fifth Amendment's prohibition on compulsory self-incrimination.⁸ However, writing in dissent in Olmstead v. United States , Justice Brandeis first presented a revisionist theory of the intimate-relation doctrine.⁹ Instead of primarily protecting the right against compulsory self-incrimination, he suggested that the Fourth Amendment's central concern was an individual's right to be left alone—the prevention of the invasion of an individual's privacy.¹⁰

Justice Brandeis's theory of the Fourth Amendment as a protection for personal privacy would not take hold until nearly 40 years later in Katz v. United States .¹¹ In Katz , the Court held that the use of an electronic recording device to surveil a suspect's conversation in a telephone booth constituted a violation of the Fourth Amendment, despite the lack of invasion of a traditionally constitutionally protected space.¹² Concurring with the majority, Justice Harlan described a second sphere protected by the Fourth Amendment: areas in which a person has a reasonable expectation of privacy.¹³

In 1996, this Court adopted Justice Harlan's Katz analysis in LaFollette v. Commonwealth .¹⁴ The analysis first considers whether "the individual manifests a subjective expectation of privacy in the object of the challenged search," and, second, whether "society is willing to recognize that subjective expectation as reasonable."¹⁵ If both elements are fulfilled, the individual is said to have a reasonable expectation of privacy in the challenged object such that a warrantless search of that item is unconstitutional under the Fourth Amendment. In LaFollette , the Court held that LaFollette had no reasonable expectation of privacy in the heat emitted from his greenhouse because he had employed no heat-containment measures.¹⁶ Because LaFollette knowingly exposed these heat emanations to the public, the Court concluded those emanations could not be the subject of Fourth Amendment protections.¹⁷

In Carpenter v. United States , the United States Supreme Court considered whether an individual has a reasonable expectation of privacy in his cell phone's historical CSLI.¹⁸ In that case, law enforcement suspected Carpenter of involvement in a string of robberies.¹⁹ Acting without a warrant, officers contacted Carpenter's cell-phone...