Virginia Lawyers Weekly VA Lawyers Weekly
Where the defendant’s former girlfriend told police he had broken into her home, was armed and threatened to kill her, her family or law enforcement; the police found her credible; and the defendant had a violent criminal history, exigent circumstances supported a warrantless request to a cellphone provider for a “ping” of the defendant’s cellphone.
Background
In this appeal, Erick Hobbs primarily challenges the district court’s denial of his motion to suppress evidence obtained after police collected cellphone location data from his cellphone provider without a warrant on the ground of exigent circumstances. In supplemental briefing on appeal, Hobbs argues that the district court erred in failing to comply with the requirements of the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), which was decided while this appeal was pending.
Analysis
This court has not previously considered the exigent circumstances exception in the context of police use of a cellphone “ping” along with call logs from a suspect’s cellphone. The court finds instructive the Second Circuit’s analysis in United States v. Caraballo, 831 F.3d 95 (2d Cir. 2016).
There, after the defendant was suspected of murdering an informant working with law enforcement, the police obtained without a warrant a “ping” on the defendant’s cellphone. The murder victim, a fellow drug dealer, had informed police several months earlier that the defendant would kill her if he ever learned that she was cooperating with the police. The police also knew that the defendant had access to firearms and previously had committed certain violent crimes.
The Second Circuit concluded that exigent circumstances justified the officers’ failure to obtain a warrant for access to the defendant’s cellphone “pings.” The court observed that the officers (1) had “good reason to believe” that the defendant was armed, (2) were aware that he was the primary suspect in a brutal murder and (3) most importantly, had “specific reasons to think” that he would act to kill undercover officers and other informants who had infiltrated his drug operation.
Although the officers could have secured a warrant within about six hours, the defendant’s cellphone provider typically took multiple days to respond to a warrant seeking such information but would act immediately to comply with any “exigent” request for the same information. And finally, the court noted that police intrusion on the defendant’s privacy interests was relatively limited, because the officers’ use of the “pings” was “strictly circumscribed” and the officers located the defendant within two hours.
The same reasoning applies here. When Hobbs’ former girlfriend, Jaquanna 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.
Foreman stated that Hobbs had brandished a handgun during the incident, owned an assault rifle and was “obsessed with firearms.” Before submitting the “exigent form” to T-Mobile, the officers confirmed that Hobbs had a violent criminal history, including convictions for robbery and attempted murder. After assessing that Foreman’s account was credible and observing the damage to her home, the officers had probable cause to conclude that Hobbs had broken into Foreman’s home and had committed an assault and a theft inside.
The record additionally shows that the extent of the intrusion on Hobbs’ privacy rights was reasonably confined to the exigency. Therefore the district court did not clearly err in finding that “the only way to get help from T-Mobile” in a timely fashion was by submitting an “exigent form.
‘Rehaif’
Hobbs argues that he is entitled to vacatur of his conviction because the indictment did not allege, and the jury was not instructed to find, that Hobbs knew he was a felon at the time of the offense, as required by Rehaif. Although it is undisputed that the district court erred in failing to instruct the jury on the mens rea required for a conviction under section 922(g), and that the indictment was defective for failing to allege this element of the offense, Hobbs has not established that these errors affected his substantial rights. Hobbs has failed to carry his burden of showing a reasonable probability that he would not have been convicted absent the Rehaif error.
Affirmed.
United States v. Hobbs, Case No. 19-4419, Feb. 1, 2022. 4th Cir. (Keenan), from DMD at Baltimore (Chasanow). Joshua Elliott Hoffman for Appellant. Brandon Keith Moore for Appellee. VLW 022-2-027. 13 pp.
