Yesterday, in United States v. Carabello, 12-3839, the Second Circuit held that exigent circumstances justified the warrantless “pinging” of a defendant’s cell phone. Law enforcement officers searching for Caraballo in connection with the execution-style murder of one of his drug associates asked Sprint to utilize its emergency procedures to “ping” Caraballo’s cell phones so that the phones, and hopefully Caraballo, could be located through the triangulation of signals given off by the phones in response to the “pings” sent by Sprint.
The Court affirmed the district court’s denial of suppression, holding that it was not clearly erroneous for the district court to find that exigent circumstances justified the warrantless pinging.
The Court reviewed the exigency factors laid out in Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970)(en banc) and United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990)(en banc) and considered these factors in light of “the degree to which [the warrantless pinging] intruded on [the] defendant’s privacy interests.” Opinion at 13. In doing so, the Court did not decide whether the warrantless pinging of a cell phone intruded on Caraballo’s privacy rights, but it commented that “any expectation of privacy that Caraballo had in his cell-phone location was dubious at best,” at least partly because the search here took place before the Supreme Court’s decision in United States v. Jones, 132 S.Ct. 945 (2012). Opinion at 17. Ultimately, the facts supporting exigency, particularly law enforcement fear that the murder of the co-conspirator, who has expressed her fear that Caraballo would kill her if he found out she was talking to the police, indicated that undercover law enforcement officers and confidential informants working with Carabello were in danger and the risk of the loss of evidence, such as gun powder residue, outweighed any privacy interest.
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