First impression: Exigent circumstances supported warrantless cell phone ‘ping’

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

Prosecutors had argued 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’s Feb. 1 opinion, USA v. Hobbs (VLW 022-2-027, 13 pp), was joined by Judges Robert B. King and James Andrew Wynn.

Imminent threats and arrest

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.”

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.

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 did not justify the officers’ use of cell phone pings and call logs, he argued.

The district court 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 ‘[e]ven an hour delay under the circumstances here could be disastrous.’”

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

First impression

Keenan noted this was a case of first impression; the Fourth Circuit had not 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 decision from the 2nd U.S. Circuit Court of Appeals — 2016’s 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,” the judge 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,” she explained.

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.

‘Rehaif’ rejected

The Fourth Circuit also rejected Hobbs’ argument that the U.S. Supreme Court’s decision in Rehaif v. United States entitled him to vacatur of his conviction for firearm possession.

Keenan said neither the trial court’s failure to instruct the jury on the mens rea requirement, nor the indictment’s failure to allege that element of the offense, affected Hobbs’s substantial rights.

“Hobbs has not proffered ‘a sufficient argument or representation’ that he would have presented a factual basis at trial for contradicting this evidence that he knew he was a felon,” Keenan wrote. “We therefore conclude that Hobbs has failed to carry his burden of showing a reasonable probability that he would not have been convicted absent the Rehaif error.”

Request for en banc determination

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.