Reed v. Commonwealth

• Decision Date: 12 November 2019
• Docket Number: Record No. 1305-15-4
• Citation: 71 Va.App. 164,834 S.E.2d 505
• Parties: Tobias O. REED v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

71 Va.App. 164
834 S.E.2d 505

Tobias O. REED
v.
COMMONWEALTH of Virginia

Record No. 1305-15-4

Court of Appeals of Virginia.

NOVEMBER 12, 2019

Marvin D. Miller (Law Office of Marvin D. Miller, on briefs), Alexandria, for appellant.

Victoria L. Johnson, Assistant Attorney General (Mark R. Herring, Attorney General; Victoria N. Pearson, Deputy Attorney General; Toby J. Heytens, Solicitor General; Matthew R. McGuire, Principal Deputy Solicitor General, on brief), for appellee.

Present: Judges Petty, Beales and O’Brien

71 Va.App. 167

Appellant Tobias O. Reed was convicted of distribution of cocaine, third or subsequent offense. At trial, the Commonwealth introduced records of Reed’s historical cell site location information ("CSLI") to establish his proximity to the drug transaction on the day of the crime. This data was initially obtained by the Commonwealth through an ex parte court order to the cell-service provider pursuant to the Stored Communications Act ("SCA"), 18 U.S.C. § 2703, and the Virginia equivalent, Code § 19.2-70.3. These statutes permitted the Commonwealth to obtain the ex parte order by "showing that there [were] reasonable grounds to believe ... the records or other information sought, [were] relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d).¹ The statutes did not require a showing of probable cause.

Reed appealed his conviction to this Court, arguing, in part, that his Fourth Amendment rights were violated by the collection of the CSLI without a warrant. This Court affirmed without reaching the Fourth Amendment issue, Reed v. Commonwealth, No. 1305-15-4, 2016 WL 4527199 (Va. Ct. App. Aug. 30, 2016), and the Supreme Court refused Reed’s petition for appeal. Reed v. Commonwealth, No. 161401 (Va. Apr. 26, 2017). Reed then filed a petition for a writ of certiorari with

71 Va.App. 168

the United States Supreme Court, and his case was held in abeyance until that Court reached a decision in Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018).

On June 22, 2018, the United States Supreme Court decided Carpenter. It held that the "Government’s acquisition of [Carpenter’s] cell-site records was a search within the meaning of the Fourth Amendment." Id. at 2220. It then granted Reed’s petition for a writ of certiorari , vacated the judgment below, and remanded the case to the Virginia Supreme Court "for further consideration in light of Carpenter." Reed v. Virginia, ––– U.S. ––––, 138 S. Ct. 2702, 201 L.Ed.2d 1093 (2018). The Virginia Supreme Court then remanded the case to this Court with the same instructions.

After reinstating the matter on the docket, we directed the parties to file supplemental briefs addressing how Carpenter impacted Reed’s case. Both briefs were due on the same date. In its supplemental brief, the Commonwealth argued that the exclusionary rule did not apply because at the time Reed’s CSLI was sought, the officers acted in good-faith reliance on the SCA and Virginia Code § 19.2-70.3(B). Reed then filed a motion to strike the Commonwealth’s good-faith argument,

834 S.E.2d 508

contending that the argument was waived and not properly before this Court because the Commonwealth did not raise it earlier in the litigation. Reed’s motion to strike also responded to the merits of the Commonwealth’s good-faith argument.

After reviewing the supplemental briefs and Reed’s motion to strike, this Court issued an opinion holding that the exclusionary rule did not apply because "the detectives and the Commonwealth’s attorney had a reasonable, good faith belief that their actions were constitutional at the time." Reed v. Commonwealth, 69 Va. App. 332, 339-40, 819 S.E.2d 446 (2018). In a footnote, this Court denied Reed’s motion to strike the portion of the Commonwealth’s brief that argued the good-faith exception. Id. at 338 n.3, 819 S.E.2d 446.

The Virginia Supreme Court granted Reed an appeal, vacated this Court’s order, and remanded the case back to this

71 Va.App. 169

Court to allow Reed "the opportunity to be heard on the good faith question." We reinstated the case on our docket and directed Reed to file a supplemental brief.² We also heard oral argument from both parties. We now consider these arguments.

I. BACKGROUND

In 2011, Reed began working with Detective Benjamin George as a confidential informant for the Alexandria Police Department. Pursuant to this arrangement, Reed was prohibited from engaging in any drug transaction not authorized by Detective George.

On July 18, 2012, Detective John East was working undercover and using Fernando Payne to purchase drugs from a "second source." Payne called the "second source" and then, as Payne walked off to meet the source and buy the drugs, he handed his phone to Detective East, telling him that if the phone rings and it "says ‘Tobias’ that’s my man. Pick up and tell him I’m coming."

Detective George, who was also working with Detective East on the transaction, observed Payne waiting for the "second source" to arrive. As Payne waited, Detective George observed Reed drive up in a silver Ford Escape. He watched as Payne entered the vehicle with Reed and exited a few minutes later, rejoining Detective East in his vehicle. When Payne returned to Detective East, he was in possession of cocaine. Detective George realized that Reed was the "second source" from whom Payne bought the cocaine. He testified that he was "one hundred percent" sure that it was Reed whom he saw in the vehicle with Payne. When the police later inspected Payne’s phone, they found that the number associated with "Tobias," 571-329-7478, was identical to a number used by Reed.

71 Va.App. 170

On August 3, 2012, relying on this information, Detective East applied for, and was granted, an ex parte court order pursuant to the SCA and its Virginia equivalent, Code § 19.2-70.3(B). The order required Verizon, the mobile phone service provider for the cell phone number 571-329-7478, to provide the Commonwealth with approximately five months (May 1, 2012 through October 3, 2012) of CSLI for that number.

Approximately two weeks later, an arrest warrant was issued for Reed for the July 18, 2012 distribution of cocaine. However, before it was served, Reed was sentenced to twenty-four months of incarceration for violating conditions of his supervised release on an unrelated matter and immediately taken into custody. It was not until June 5, 2014, when Reed was released from that incarceration, that he was served with the arrest warrant on the cocaine charge.

In January 2015, the Commonwealth issued a subpoena duces tecum to Verizon’s custodian of records for the historical CSLI for the 571-329-7478 phone number.³ The trial court limited the amount of CSLI the Commonwealth could receive through the

834 S.E.2d 509

subpoena duces tecum to the two days prior to the cocaine transaction, the day of the transaction, and the two days following. Reed unsuccessfully attempted to suppress the introduction of the CSLI, but the CSLI from July 18, 2012, was admitted at Reed’s trial where the custodian of records for Verizon used that information to testify that Reed’s cell phone "pinged" off towers in the general area where the cocaine transaction had occurred and that calls had been routed through those towers.

Reed was found guilty at a bench trial. When announcing the verdict, the trial judge noted, among other comments, that the CSLI placed Reed in the general location of the crime. He stated that "the phone records ... corroborate the location of

71 Va.App. 171

the phone numbers used by Fernando Payne and Tobias Reed."

II. ANALYSIS

As he did in his motion to strike the Commonwealth’s good-faith argument, Reed again contends that (1) "the Commonwealth waived its good faith argument when it failed to raise the argument in the trial court or on direct appeal on the merits" and (2) even if good faith could be raised at this juncture, it does not apply. We address each of these arguments in turn.

Waiver

Reed contends that the Commonwealth waived its good-faith argument by failing to raise the issue earlier – before the case was decided by the United States Supreme Court and remanded to the Virginia Supreme Court.

A similar argument was recently addressed by the Supreme Court in Collins v. Commonwealth, 297 Va. 207, 824 S.E.2d 485 (2019). Similar to the situation in Reed, Collins also involved an unsuccessful motion to suppress evidence of a warrantless search. Id. at 211, 824 S.E.2d 485. On appeal, this Court and the Supreme Court of Virginia affirmed Collins’s conviction, albeit on different grounds. Id. The United States Supreme Court reversed, disagreeing with the Virginia Supreme Court’s conclusion that the search at issue was justified by the automobile exception. Id. It remanded the case back to the Virginia Supreme Court, noting that it was "leav[ing] for resolution on remand"...