834 S.E.2d 505
Va. Ct. App.2019Background
- Tobias Reed was linked to a July 18, 2012 cocaine sale via an undercover buy where an informant (Fernando Payne) met a "second source" later identified by police as Reed; the informant’s phone showed a contact labeled "Tobias" matching Reed’s number.
- On August 3, 2012 police obtained an ex parte order under the Stored Communications Act (18 U.S.C. § 2703(d)) and Virginia Code § 19.2-70.3(B) directing Verizon to produce several months of historical cell-site location information (CSLI) for Reed’s number.
- A later subpoena duces tecum (and a trial-court limitation) produced CSLI for two days before, the day of, and two days after the transaction; Verizon’s custodian testified that the phone pinged towers in the general area of the sale.
- Reed was convicted at a bench trial of distribution of cocaine (third or subsequent offense) and appealed; after Reed’s cert petition the U.S. Supreme Court decided Carpenter v. United States and remanded for reconsideration in light of that decision.
- On remand the Commonwealth argued the exclusionary rule should not apply because officers relied in good faith on the SCA and state statute when obtaining CSLI; Reed moved to strike that new argument and contested its merits.
- The Court of Appeals held (1) the Commonwealth could raise the good-faith argument on remand (following Collins), and (2) the good-faith exception applied because officers and prosecutors reasonably relied on the then-valid statutes and prevailing third-party doctrine, so Reed’s conviction was affirmed.
Issues
| Issue | Reed's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether the Commonwealth waived the good-faith exception by not raising it earlier | Commonwealth waived the argument by failing to raise it at trial or on initial appeal | Appellee may raise new legal theories on remand (right-result/different-reason doctrine) | No waiver; court permitted the good-faith argument on remand ( Collins controlling) |
| Whether the exclusionary rule requires suppression of CSLI obtained under the SCA before Carpenter | CSLI was a Fourth Amendment search after Jones/Carpenter and suppression is warranted | Officers reasonably relied on SCA and state statute in effect at the time; good-faith exception prevents suppression | Good-faith exception applies; exclusionary rule inapplicable because reliance on then-valid statute was objectively reasonable |
| Whether Jones (GPS trespass case) put officers on notice that CSLI required a warrant | Jones signaled electronic tracking privacy and should have alerted officers | Jones turned on trespass theory and does not control non-trespassory CSLI obtained from third parties | Jones does not change the result; officers reasonably relied on the third-party doctrine and statutes then in effect |
| Whether prosecutor’s reliance (vs. police) can trigger good-faith exception | Good-faith exception inapplicable because action stemmed from a prosecutor’s court motion | Good-faith focuses on objective reasonableness of the state actor (police or prosecutor) relying on a valid statute | Good-faith applies to prosecutors as well; objective-reasonableness is the test |
Key Cases Cited
- Carpenter v. United States, 138 S. Ct. 2206 (U.S. 2018) (held acquisition of historical CSLI is a Fourth Amendment search generally requiring a warrant)
- Collins v. Commonwealth, 297 Va. 207 (Va. 2019) (permitted appellee to raise new legal arguments on remand; applied good-faith exception)
- Stone v. Powell, 428 U.S. 465 (U.S. 1976) (exclusionary rule is a judicially created deterrent remedy, not a personal constitutional right)
- Davis v. United States, 564 U.S. 229 (U.S. 2011) (exclusionary rule inapplicable when officers act with objectively reasonable good-faith belief in lawfulness)
- United States v. Leon, 468 U.S. 897 (U.S. 1984) (origin and purpose of the good-faith exception to suppression)
- Illinois v. Krull, 480 U.S. 340 (U.S. 1987) (good-faith exception applies to reliance on statutes later declared unconstitutional)
- United States v. Jones, 565 U.S. 400 (U.S. 2012) (GPS installation and use to monitor vehicle movements constituted a search based on trespass theory)
- United States v. Miller, 425 U.S. 435 (U.S. 1976) (third-party doctrine: information voluntarily conveyed to third parties carries reduced Fourth Amendment protection)
- United States v. Goldstein, 914 F.3d 200 (3d Cir. 2019) (applied good-faith exception where government relied on SCA to obtain CSLI before Carpenter)
- United States v. Chavez, 894 F.3d 593 (4th Cir. 2018) (held searches in reasonable reliance on subsequently invalidated statutes fall within the good-faith exception)