Case o' The Week: En Banc Petition, Grant? - Antonio Gilton, Leon "Good Faith," and Search Warrants

  The Ninth holds the D.J. was prescient: we do have a privacy interest in our cell site location data.

  The Ninth holds the D.J. was correct: there was insufficient probable cause to support a valid search warrant.

  (And the Ninth should take this opinion en banc . . . )

United States v. Antonio Gilton, 2019 WL 1008722 (9th Cir. Mar. 4, 2019), decision available here.

Players: Decision by Judge Bybee, joined by Judge Wallace. Forceful dissent by Judge McKeown.

  Hard-fought appeal by ND Cal CJA Stalwart Mark Goldrosen (and half of the NorCal CJA Bar as Elmore’s co-counsel).  

Facts: Pimp Sneed had a minor “girlfriend:” “L.G.” Id. at *1. L.G. had been staying with her cousin Antonio Gilton in L.A. Id. Her parents did not approve of Sneed.

  Early one morning, Sneed waited to pick up L.G. near her parents’ home in San Francisco. L.G. later told police that a SUV approached Sneed in his car, shots were fired, and Sneed was killed. Id. Antonio Gilton’s cell number was in L.G.’s phone. Id. at *2.  

  A snitch implicated L.G.’s father, Barry Gilton, and an unknown person. Id. Cell site location on Barry Gilton showed his cell moving through San Francisco and near the shooting, when he had claimed to be asleep at home. Id. SF Police Sgt. Gary Watts obtained a search warrant for the cell site location data for Antonio Gilton, relying on the above information. Id.

  When Antonio Gilton was later charged in federal court, he moved to suppress the cell site location data from this warrant. Id. District Judge William H. Orrick granted that motion, correctly finding no probable cause for the cell site location search. Judge Orrick rejected the government’s good faith pitch, holding “it was entirely unreasonable to believe that the affidavit’s passing, innocuous references to A. Gilton established probable cause to obtain his cell phone data.” Id. at *2.

  The government appealed.

Issue(s): “[T]he government . . . obtain[ed] a warrant authorizing the acquisition of Gilton’s CSLI data. Our analysis is thus confined to the questions of whether that warrant was supported by probable cause, and, if not, whether the search should nevertheless be upheld on the basis of the officers’ good faith reliance on the warrant.” Id. at *3.

Held: “Although we agree with the district court that the warrant authorizing the seizure of Gilton’s location data was not supported by probable cause, we conclude that the deficiencies were not so stark as to render the officers’ reliance on the warrant ‘entirely unreasonable.’ See United States v. Leon, . . . (1984). We reverse.”

Of Note: Judge McKeown’s dissent correctly challenges the “good faith” holding of Antonio Gilton. 

  

The Hon. Judge Margaret McKeown

Judge McKeown explains, “The warrant affidavit for Antonio Gilton’s cell-site location information (“CSLI”) so thoroughly lacked probable cause that it was objectively unreasonable for the officer to have relied on it. The affidavit’s only statement vaguely implicating Antonio was a suggestion that a Gilton family member may have been involved in the murder. As any reasonable officer should have known, ‘none of the facts in the affidavit, singly or en masse, provide a reasonable basis from which to infer that’ Gilton’s CSLI connected him to the murder. United States v. Grant, 682 F.3d 827, 841 (9th Cir. 2012). Weak inferences from vague facts do not amount to probable cause as to specific individuals. These are precisely the circumstances where the good faith exception cannot save a defective warrant.” Id. at *7 (emphasis added).

   This opinion cries out for en banc review, for its unprecedented extension of Leon “good faith” to inoculate a search from a patently deficient warrant.

How to Use: Though a bitter loss on Leon “good faith,” Antonio Gilton concedes the privacy protections set forth by SCOTUS in Carpenter. In NorCal, however, even that is weak tea: our prescient bench correctly anticipated Carpenter, and CLSI warrants have long been the norm. See Judge Koh’s decision here.                 
                           

For Further Reading: Judge McKeown is right: Antonio Gilton cannot fairly be reconciled with the Ninth’s great Leon case: United States v. Grant, 682 F.3d 827,841 (9th Cir. 2012).

  For a recap of Judge Berzon’s Grant decision (joined by CJ Thomas and Judge Wardlaw), see the summary here (just avoid the painfully incorrect “For Further Reading” speculation in this blog posting . . .)

Image of “Come back with a warrant” from https://i.etsystatic.com/9789359/r/il/c6bec6/794497835/il_1588xN.794497835_1nal.jpg

Image of the Honorable Judge Margaret McKeown from https://kevincooper.org/judge-mckeown-opinion/

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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