Circumstances supported warrantless cell phone ‘ping’

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BY NICHOLAS A. HURSTON

Exigent circumstances supported a warrantless request to a cellphone provider for a “ping” of the defendant’s cellphone, the 4th U.S. Circuit Court of Appeals has held in a case of first impression.

Prosecutors had argued that the man’s violent criminal history and armed threats of harm to civilians and police allowed them to consider the defendant “an extreme urgent threat to the community,” which justified the warrantless search.

Senior Judge Barbara Milano Keenan agreed with the lower court’s statement that even a brief delay in apprehending the defendant placed several individuals at significant risk of harm.

“Based on the record before us, we hold that the officers reasonably concluded that use of the ‘exigent form’ was necessary to obtain a prompt response from the cell phone provider when an armed and dangerous suspect was at large,” Keenan wrote in a Feb. 1 opinion.

The case stemmed from domestic violence allegations reported by Jaquanna Foreman, who was defendant Erick Hobbs’s former girlfriend.

Foreman was at home with her 7-year-old daughter when Hobbs used a handgun to forcibly enter her home and retrieve a television set. Before leaving, Hobbs threatened to kill her, her daughter, and other family members. Hobbs also allegedly stated that if she contacted the police, he also would kill any responding officers.

Officers took Foreman and her daughter to the police station. At the station, Foreman told the officers of Hobbs’s criminal record. Detective Michael Nesbitt verified that information and concluded there was an “extreme urgent threat to the community.”

Around midnight, Nesbitt submitted an “exigent form” to Hobbs’s cellphone provider, T-Mobile, seeking immediate police access without a warrant to “pings” that would show the location of Hobbs’s cell phone and to call logs showing the phone numbers Hobbs contacted.

T-Mobile responded within an hour with real-time pings on Hobbs’s phone. Nesbitt was alerted every 15 minutes to Hobbs’s general location. Another officer used the call logs to figure out which of Hobbs’s associates lived within that general area.

Hobbs tried to flee when a team of officers tried to conduct a traffic stop of his vehicle. He was arrested, and a handgun was found on the ground between the curb and the driver’s side of his vehicle.

Hobbs moved to suppress evidence of the firearm. The exigent circumstances exception to the warrant requirement didn’t justify the officers’ use of cell phone pings and call logs, he argued.

District Judge Deborah K. Chasanow of the District of Maryland denied the motion, holding that Nesbitt “reasonably concluded that the ‘exigent form’ was the only way to ensure a timely response from T-Mobile, because ‘even an hour delay under the circumstances here could be disastrous.’”

Chasanow also said the officers had properly used the call logs to “narrow the search area” shown by the pings.

Keenan noted this was a case of first impression since the Fourth Circuit hadn’t yet considered the exigent circumstances exception in the context of police use of a cellphone “ping” along with call logs from a suspect’s cellphone.

She found a 2016 decision from the 2nd U.S. Circuit Court of Appeals, United States v. Caraballo, instructive. The exigent circumstances in that case “justified the officers’ failure to obtain a warrant for access to the defendant’s cell phone ‘pings.’”

The Caraballo court pointed out that the officers had “good reason to believe” the defendant was armed and they “were aware that he was the primary suspect in a brutal murder.” Most importantly, however, the officers “had ‘specific reasons to think’ that he would act to kill undercover officers and other informants who had infiltrated his drug operation.”

While the officers could have obtained a warrant within about six hours, the defendant’s cellphone provider would act immediately to comply with any “exigent” request. Further, according to the court, there was relatively limited police intrusion on the defendant’s privacy interests. The use of pings was “strictly circumscribed” and the officers located the defendant within two hours.

Keenan said the same reasoning applied here.

“When Foreman recounted Hobbs’ actions to the police, she was trembling and distraught, explaining that Hobbs was armed and had threatened to kill her, her minor daughter, other family members and any law enforcement officers who might try to apprehend him,” she wrote.

She added that the officers were “so concerned about Foreman’s safety that they escorted her to the police station, an extremely rare precaution according to Detective Nesbitt, and initiated ‘constant surveillance’ of Foreman’s residence while Hobbs was still at large.”

Keenan said the district court made no error when it held that “‘the only way to get help from T-Mobile’ in a timely fashion was by submitting an ‘exigent form.’”

“Under these circumstances, we hold that the officers reasonably concluded that Hobbs was armed and dangerous, that he posed an imminent threat to Foreman, to her family members, and to law enforcement officers, and that these exigent circumstances required them to seek the cell phone location information from T-Mobile without delay.”

Keenan offered a word of caution, though, emphasizing that the exigent circumstances exception “does not serve as a tool of convenience to be employed by law enforcement in the absence of immediate danger to persons, a fleeing suspect, or the need to ‘prevent the imminent destruction of evidence.’”

In fact, she noted, the warrant requirement, by design, imposes certain restrictions on law enforcement to protect suspects’ rights. The time and effort to get a warrant is typically not enough to show exigent circumstances.

“Based on the record before us, we hold that the officers reasonably concluded that use of the ‘exigent form’ was necessary to obtain a prompt response from the cell phone provider when an armed and dangerous suspect was at large,” Keenan said.

Baltimore attorney Joshua E. Hoffman represented Hobbs. He said the issue regarding T-Mobile being “notoriously slow” in responding to warrants was “unexpected,” and he was surprised it was effective. He added that he felt the Fourth Circuit misapplied the Caraballo holding because that defendant exhibited a far greater and more imminent threat compared with Hobbs.

On Feb. 15, Hoffman filed a request that the Fourth Circuit conduct a rehearing of the appeal en banc.

Brandon Keith Moore of the Office of the United States Attorney in Baltimore did not respond to a request for comment.

The 13-page opinion is United States v. Hobbs (Lawyers Weekly No. 001-023-22). The full text of the opinion is available online at sclawyersweekly.com.