Reed v. Commonwealth
| Decision Date | 16 October 2018 |
| Docket Number | Record No. 1305-15-4 |
| Citation | 69 Va.App. 332,819 S.E.2d 446 |
| Court | Virginia Court of Appeals |
| Parties | Tobias Ogbanna REED v. COMMONWEALTH of Virginia |
Marvin D. Miller (Kelly R. Green; Bret D. Lee ; Law Offices 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 Beales, Alston and O’Brien
UPON REMAND FROM THE SUPREME COURT OF VIRGINIA
OPINION BY JUDGE ROSSIE D. ALSTON, JR.
Tobias Ogbanna Reed ("appellant") was convicted of distribution of cocaine, and a portion of his cell phone records was admitted at trial. Appellant timely appealed to this Court, we affirmed his conviction, 2016 WL 4527199, 2016 Va. App. LEXIS 233 (Va. Ct. App. Aug. 30, 2016), and the Supreme Court of Virginia refused to consider the case. Having exhausted his state court appeals, appellant filed a petition for a writ of certiorari with the Supreme Court of the United States and asked that his petition be stayed until the resolution of Carpenter v. United States, ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). The Supreme Court granted that request, and after issuing the Carpenter decision, the Supreme Court vacated the judgment and remanded the case to the Supreme Court of Virginia, ––– U.S. ––––, 138 S.Ct. 2702, ––– L.Ed.2d –––– (2018), who then remanded the case to the Court of Appeals of Virginia for further consideration in light of Carpenter.
We now consider appellant’s arguments.
In 2011, appellant began working as a confidential informant for Detective Benjamin George ("George") of the Alexandria Police Department, with the understanding that appellant would not engage in any drug transactions other than those identified and authorized by George. On July 18, 2012, Detective John East ("East") was working undercover and used Fernando Payne ("Payne") to purchase drugs from a "second source." Payne called the "second source" and then handed his cell phone to East, telling him that if it rang and After Payne walked off to wait for the "second source," Payne’s phone rang multiple times and the name "Tobias" appeared as the caller.
George observed the transaction as a part of East’s "cover team." While Payne waited for the "second source" to arrive, George noticed a silver Ford Escape drive up, which he recognized. He observed appellant driving the vehicle. George witnessed Payne get into the Ford Escape, exit a few minutes later, and then walk back to East’s vehicle. Payne was in possession of cocaine when he returned to East’s vehicle. At that point, George realized that appellant was the "second source," but he had not authorized him to participate in the transaction. In his testimony, George stated he was "one hundred percent" sure that it was appellant in the vehicle with Payne.
On August 3, 2012, East applied for and obtained an ex parte court order pursuant to the Stored Communications Act ("SCA") and its Virginia equivalent, Code § 19.2-70.3(B). The initial order, sent by fax to Verizon in New Jersey, requested approximately five months of appellant’s historical cell site location information ("CSLI").1 In the application, East primarily relied upon George’s identification of appellant, Payne’s statement when he handed his cell phone to East, and the subsequent analysis of Payne’s phone, which showed that the number associated with "Tobias" was 571-329-7478, a number George recognized as used by appellant.
About two weeks later, an arrest warrant was issued for appellant on the charge of distribution of cocaine. The very next day, appellant was sentenced in federal court to 24 months of incarceration after violating the conditions of his supervised release on an unrelated matter. Appellant did not come into Alexandria custody on the state charge until June 5, 2014, and he was indicted on the distribution of cocaine charge in July 2014.
The parties scheduled a trial for March 2, 2015. In January 2015, the Commonwealth’s attorney requested the issuance of a subpoena duces tecum to the Verizon custodian of records, seeking the CSLI for appellant’s phone number. The Commonwealth initially requested the CSLI between July and August 2012, but the trial court narrowed the subpoena’s scope to two days before and after July 18, 2012, the date of the transaction. Appellant attempted to suppress the information in the CSLI,2 asserting that the acquisition of his CSLI violated his constitutional rights. Finding no constitutional issue, the trial court denied the motion to suppress.
At the bench trial, East and George testified about the events that occurred on July 18, 2012 and their interactions with appellant and Payne. The custodian of records from Verizon testified about the CSLI for the phone number 571-329-7478, which George had identified as the number that he called whenever he intended to reach appellant. Specifically, the custodian testified about which towers the phone had "pinged" off of and the towers through which the calls had been routed on July 18, 2012. The custodian had also produced a map of the towers which showed that they were in the general area where the drug transaction occurred.
George also testified that appellant made 250 hours of phone calls from the Alexandria jail and that he listened to all of them. On numerous calls, appellant referenced letters that he had mailed to various acquaintances. Appellant’s letters were later intercepted, and the Commonwealth admitted one at trial, which read:
The trial court found appellant guilty of distribution of cocaine, stating that it based its ruling on the detectives’ testimony, appellant’s appearance within minutes of Payne contacting him, and the letter written by appellant. The trial court also referenced the CSLI, stating that "the [cell] phone records ... corroborate the location of the phone numbers used by Fernando Payne and [appellant]." Appellant received an active penitentiary sentence of 10 years.
In Carpenter v. United States, the Supreme Court of the United States held that a "search" occurs when the government "accesses historical cell phone records [CSLI] that provide a comprehensive chronicle of the user’s past movements." Carpenter, ––– U.S. at ––––, 138 S.Ct. at 2211. Carpenter specifically addressed the constitutionality regarding the acquisition of and use at trial of 127 days of CSLI through an ex parte order issued under the SCA. See 18 U.S.C. § 2703(d) (). Code § 19.2-70.3(B) contains this exact language.
The Supreme Court determined that the language in § 2703(d) allowed law enforcement officers to obtain CSLI based upon a standard that "falls well short of the probable cause required for a warrant." Carpenter, ––– U.S. at ––––, 138 S.Ct. at 2221. Due to the voluminous and potentially detailed constellation of personal information that could be revealed by such an order, the Court held that § 2703(d) of the SCA "is not a permissible mechanism for accessing [CSLI]." Id. at ––––, 138 S.Ct. at 2221 ; see also id. at ––––, 138 S.Ct. at 2223 ().
Appellant asserts that Carpenter requires reversal of his conviction because the Commonwealth obtained five months of his CSLI from Verizon pursuant to an ex parte order issued under Code § 19.2-70.3(B) and § 2703(d) of the SCA. Carpenter might well suggest that the initial acquisition of five months of CSLI is ipso facto an unconstitutional search. However, this case is not resolved as simply or as straightforwardly as appellant would suggest.
The good faith exception to the exclusionary rule is a well-rooted component of our nation’s jurisprudence. "The exclusionary rule’s ‘sole purpose ... is to deter future Fourth Amendment violations.’ " United States v. Chavez, 894 F.3d 593, 608 (4th Cir. 2018) (quoting Davis v. United States, 564 U.S. 229, 236-37, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011) ). "The rule thus operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’ " United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974) ). "[W]hen investigators ‘act with an objectively reasonable good-faith belief that their conduct is lawful,’ the exclusionary rule will not apply." Chavez, 894 F.3d at 608 (quoting Leon, 468 U.S. at 909, 104 S.Ct. at 3413 ). Importantly, "[o]bjectively reasonable good faith includes ‘searches conducted in reasonable reliance on subsequently invalidated statutes.’ " Id. (quoting Davis, 564 U.S. at 239, 131 S.Ct. at 2428 ).
In Chavez, the Fourth Circuit addressed whether the government...
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