                                                                   FILED
                         FOR PUBLICATION
                                                                   MAR 04 2019
               UNITED STATES COURT OF APPEALS                   MOLLY C. DWYER, CLERK
                                                                 U.S. COURT OF APPEALS


                       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No.   16-10109

         Plaintiff-Appellant,             D.C. No.
                                          3:13-cr-00764-WHO-1
v.

REGINALD ELMORE, AKA Fat Reg;             OPINION
ESAU FERDINAND, AKA Sauce,

         Defendants,

BARRY GILTON, AKA Prell; ADRIAN
GORDON, AKA Tit; MONZELL
HARDING, Jr.; CHARLES HEARD,
AKA Cheese; LUPE MERCADO; PAUL
ROBESON, AKA P World; ALFONZO
WILLIAMS, AKA Fonz, AKA Relly;
JAQUAIN YOUNG, AKA Loc,

         Defendants,

and

ANTONIO GILTON, AKA TG, AKA
Tone,

         Defendant-Appellee.


             Appeal from the United States District Court
                  for the Northern District of California
            William Horsley Orrick, District Judge, Presiding
                         Argued and Submitted January 7, 2019
                                San Diego, California

Before: J. Clifford Wallace, M. Margaret McKeown, and Jay S. Bybee, Circuit
Judges.

                               Opinion by Judge Bybee

BYBEE, Circuit Judge:

      Following the June 2012 murder of Calvin Sneed, police obtained a warrant

authorizing the seizure of Antonio Gilton’s historical cell-site location information.

Gilton was subsequently charged with four counts relating to the murder of Sneed.

He moved to suppress the location data, arguing that the warrant issued without

probable cause and that the officers’ reliance on the warrant was not in good faith.

The district court granted Gilton’s motion, concluding that the warrant was so

deficient in indicia of probable cause that no officer could have relied on the

warrant in good faith.

      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, 468 U.S. 897, 923

(1984). We reverse.

                           I. FACTS AND PROCEEDINGS


                                           2
                                          A

      At approximately 2:00 a.m. on June 4, 2012, officers of the San Francisco

Police Department responded to a report of shots fired in the area of Meade and Le

Conte Avenues, San Francisco. When the officers arrived, they found Calvin

Sneed slumped in the driver’s seat of a crashed Toyota Camry with a gunshot

wound to his head. Sneed was later pronounced dead.

      Standing distraught next to the car was Sneed’s minor girlfriend, L.G. She

told the police that approximately eight months before the shooting, she had moved

from San Francisco to Los Angeles for a “new start,” and that she had been staying

with her “elder brother,” Antonio Gilton (hereinafter “Gilton”).1 In Los Angeles,

L.G. met and began dating Calvin Sneed. L.G. subsequently learned that Sneed

was pimping young women for prostitution in the Los Angeles area, and she began

to advertise herself on various prostitution websites.

      L.G.’s friends and family eventually discovered what she was doing, and

L.G.’s mother traveled to Los Angeles on May 31, 2012, to persuade L.G. to return

to San Francisco. L.G. did not return with her mother. Three days later, however,




      1
        On appeal, Antonio Gilton informs us that he is actually L.G.’s cousin, not
her older brother. All parties agree, however, that L.G. was referring to Antonio
Gilton when she mentioned her “elder brother.”
                                           3
L.G. and Sneed traveled together to San Francisco, where Sneed dropped L.G. off

at her parents’ house around 4:00 p.m.

      L.G. stayed with her parents until approximately 12:15 a.m. on June 4, 2012,

when she texted Sneed to come and pick her up. L.G. began to argue with her

mother about returning to Los Angeles with Sneed, but her father merely told her

“you grown” and instructed her “before you leave, turn the lights off” before he

exited the room.

      Around 1:56 a.m., L.G. was waiting for Sneed outside her parents’ home and

noticed a silver SUV parked nearby with its lights on. As Sneed’s car arrived, the

silver SUV drove off, but as Sneed drove past where L.G. was standing and turned

the corner, L.G. saw the SUV reappear and accelerate towards Sneed’s vehicle.

L.G. heard gunshots and saw a muzzle flash coming from the SUV. L.G. then

heard a crash and ran to Sneed’s car, where she found him “slumped in the driver’s

seat with a gunshot wound to his head.” L.G. cooperated with police and allowed

them to search her cell phone. During the search, the police identified and L.G.

confirmed cell phone numbers for her father, her mother, Gilton, and L.G.’s

younger brother.

      Later that day, the police received confidential information implicating

L.G.’s father, Barry Gilton, and a second, unidentified individual in the murder.


                                          4
As a result, the police obtained historical cell-site location information (“CSLI”)

data for Barry Gilton’s phone pursuant to an exigent circumstances request to T-

Mobile.2 Although Barry Gilton told police that he had been at home in bed after

12:15 a.m. on the night of the murder, the CSLI data indicated that between 12:49

a.m. and 2:19 a.m. that night, Barry Gilton’s cell phone traveled from near his

home to the Western Addition. The cell phone then returned to the vicinity of the

Gilton home around the time of the murder before traveling towards the northern

area of the Mission after the shooting. The police also obtained video surveillance

from a camera near the site of the murder that showed a light colored mid-size

SUV believed to be the vehicle used in the shooting.

       Based on all the information set forth above, San Francisco Police

Department (SFPD) Sergeant Gary Watts submitted a fourteen-page affidavit in

support of a state search warrant. The application sought CSLI data for two cell



      2
        Cell sites usually consist of a set of radio antennas mounted on a tower,
although “they can also be found on light posts, flagpoles, church steeples, or the
sides of buildings.” Carpenter v. United States, 138 S. Ct. 2206, 2211 (2018).
“Each time [a] phone connects to a cell site, it generates a time-stamped record
known as cell-site location information (CSLI).” Id. This CSLI data indicates the
general geographic area in which the cell phone user was located when his or her
phone connected to the network. Because most smartphones tap into the wireless
network “several times a minute whenever their signal is on . . . modern cell
phones generate increasingly vast amounts of increasingly precise CSLI.” Id. at
2211–12.
                                          5
phone numbers, a phone associated with an unknown individual and the phone

associated with Gilton. Sergeant Watts laid out in some detail what the police

knew about the crime, Sneed’s relationship with L.G., and information learned

from the confidential informant. He related how L.G. was related to Gilton, that

she had been staying with Gilton in Los Angeles (where she met Sneed and began

engaging in prostitution), that Gilton’s phone number was in her cell phone, and

that the murder was likely committed by a family member or members. Watts

averred that “there appear[ed] to be probable cause to believe that the cell phone

numbers provided [would] tend to show . . . possible first-hand knowledge of those

persons responsible for the shooting of . . . Calvin Sneed” and that “the cell-site

tower locations used on the date and times listed could possibly lead to the proper

identity and the whereabouts of additional persons associated with this crime.”

Watts also stated that he had “discussed the merits of the case with the District

Attorney’s Office.”

      That same day, June 6, 2012, a judge of the Superior Court of California,

County of San Francisco issued a warrant to Sprint for the seizure of cell phone

records for Gilton’s phone number. The warrant identified three categories of

information for seizure: (1) subscriber and billing information; (2) all incoming

and outgoing calls and text messages from the period of May 1, 2012, to June 6,


                                           6
2012; and (3) cell-site location information (CSLI). Only the third category—the

CSLI data—is at issue in this appeal.

                                          B

      Gilton was indicted by a federal grand jury in 2013, on four counts related to

Sneed’s murder. In 2015, Gilton filed a motion to suppress the CSLI obtained by

the San Francisco police pursuant to the Sprint warrant. The district court granted

Gilton’s motion to suppress. The court concluded first that Gilton had a reasonable

expectation of privacy in the historical CSLI he sought to suppress. Accordingly,

the court determined that probable cause was required to obtain that CSLI from

Sprint. The court concluded, however, that “[t]he affidavit in support of the Sprint

warrant plainly failed to provide a substantial basis for concluding that there was

probable cause to search” because the affidavit “hardly mention[ed] Gilton” and

did not provide a substantial basis for inferring that Gilton was in the San

Francisco area at the time of the shooting. Even assuming that the warrant

supported an inference of a “family-based attack,” the district court concluded that

the “facts pointed to one particular family member being involved: [Barry] Gilton,

not [Antonio] Gilton.” Finally, the district court concluded that the “good faith”

exception did not apply because “it was entirely unreasonable to believe that the




                                           7
affidavit’s passing, innocuous references to A. Gilton established probable cause to

obtain his cell phone data.”

      The government appealed the district court’s order granting the motion to

suppress. We originally heard argument in March 2017, but then withdrew the

case from submission pending the final decision of the Supreme Court in United

States v. Carpenter, 138 S. Ct. 2206 (2018). Following the Court’s resolution of

Carpenter, we requested supplemental briefing and heard reargument in January

2019. We agree with the district court that the police lacked probable cause to

obtain Gilton’s CSLI data, but we disagree with the district court’s conclusion that

the good faith exception does not apply. Accordingly, we reverse.

                                  II. ANALYSIS

      In Carpenter, the Supreme Court held that “an individual maintains a

legitimate expectation of privacy in the record of his physical movements as

captured through CSLI.” 138 S. Ct. at 2217. Consequently, Fourth Amendment

protections generally require the government to “obtain a warrant supported by

probable cause before acquiring [CSLI] records.” Id. at 2221.

      Here, the government did in fact obtain 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


                                          8
should nevertheless be upheld on the basis of the officers’ good faith reliance on

the warrant.

                                            A

      We turn first to the issue of whether the Sprint warrant was supported by

probable cause. Probable cause exists where the totality of the circumstances

indicates a “fair probability that . . . evidence of a crime will be found in a

particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). This standard does

not require the affidavit to establish that the evidence is in fact in the place to be

searched, or even that it is more likely than not to be there. United States v.

Fernandez, 388 F.3d 1199, 1254 (9th Cir. 2004), modified 425 F.3d 1248 (9th Cir.

2005). Rather, the issuing judge “need only conclude that it would be reasonable

to seek the evidence in the place indicated in the affidavit.” Id. (quotation

omitted).

      In general, the issuing judge’s finding of probable cause is entitled to “great

deference.” United States v. Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011).

“[N]otwithstanding the deference that magistrates deserve,” however, we may

determine that a warrant was invalid where “the magistrate’s probable-cause

determination reflected an improper analysis of the totality of the circumstances.”




                                            9
Leon, 468 U.S. at 915. In addition, the decision of the magistrate “cannot be a

mere ratification of the bare conclusions of others.” Gates, 462 U.S. at 239.

      Here, police sought a warrant to obtain subscriber and billing information,

incoming and outgoing calls, incoming and outgoing texts, and CSLI information

for phones belonging to Gilton and a second, unidentified person. The application

was supported by a lengthy affidavit describing the results of interviews, video

surveillance, and an exigent circumstances request to T-Mobile. The affidavit thus

provided the magistrate with a basis for determining the existence of probable

cause, see id., and the magistrate’s finding of probable cause is appropriately

entitled to deference, see Krupa, 658 F.3d at 1177.

      Although the affidavit explained in some detail the need for the information

from the unidentified person’s phone, the affidavit mentions Gilton only three

times. First, the affidavit records L.G.’s testimony that she “was staying with her

elder brother in L.A.” Second, the affidavit indicates that one of the phone

numbers discovered in L.G.’s phone belonged to Gilton. Third, the affidavit states

that L.G. identified which number belonged to Gilton. As the district court pointed

out, the affidavit does not indicate that police had reason to believe that Gilton

“was . . . in or around San Francisco on or around June 4, 2012.”




                                          10
       The affidavit’s scant and innocuous references to Gilton do not establish a

“fair probability” that evidence of the crime would be found in Gilton’s location

data. Rather, these facts merely indicate that L.G. had the phone number of a

family member with whom she had lived in Los Angeles. Surely, it is common for

an adolescent to store the phone number of the relative with whom she is living,

and the mere existence of a familial connection between L.G. and Gilton is not

sufficient to render it “reasonable” to search for evidence of the crime in Gilton’s

location data. See United States v. Grant, 682 F.3d 827, 836–37 (9th Cir. 2012)

(stating that an association “through family . . . affiliation” is insufficient to

establish probable cause).

       The government depends on two related inferences to support the finding of

probable cause. First, the government contends that the totality of the

circumstances supports an inference that “[t]he murder of Calvin Sneed was a

family solution to a family problem.” Second, because Gilton is related to L.G.

and because L.G. met Sneed while living with Gilton, the government asserts that

the magistrate could reasonably infer that Gilton was well aware of Sneed’s

relationship with L.G., that Gilton had reason to be upset with Sneed, and that he

had a motive to commit the crime. The government argues that these two

inferences tie Gilton to the murder. We disagree.


                                            11
      First, we agree with the district court that the affidavit “pointed to one

particular family member being involved in the attack: B. Gilton, not A. Gilton.”

Although the affidavit indicated that more than one person was likely involved in

the shooting and that the second person might have been a family member, nothing

in the affidavit suggested that the identity of the second person was Gilton. Nor do

we agree with the government’s contention that a magistrate could reasonably

believe that Gilton was the accomplice because of his supposed motive. As the

district court pointed out, there is no evidence in the affidavit that Gilton “had

communicated with family members (or anyone else) about [L.G.’s] relationship

with Sneed,” although that surely was one of the reasons police wanted Gilton’s

call and text records. There is thus no basis in the affidavit to support the inference

that Gilton was upset with Sneed, that he had motive to commit the crime, and,

importantly, that he was in the San Francisco area on the night of the murder. We

conclude, as did the district court, that the affidavit’s passing references to Gilton

are insufficient to support a reasonable inference that evidence of a crime would be

found in his CSLI data.

                                           B

      Having determined that the warrant was not supported by probable cause,

we turn now to the question of whether the officers nevertheless relied in good


                                           12
faith on the warrant they obtained. The Supreme Court has made quite clear that

“[t]he Fourth Amendment contains no provision expressly precluding the use of

evidence obtained in violation of its commands.” Leon, 468 U.S. at 906. Because

“[t]he wrong condemned by the Amendment is ‘fully accomplished’ by the

unlawful search or seizure itself, . . . the exclusionary rule is neither intended nor

able to ‘cure the invasion of the defendant’s rights which he has already suffered.’”

Id. (first quoting United States v. Calandra, 414 U.S. 338, 354 (1974); then

quoting Stone v. Powell, 428 U.S. 465, 540 (1976)). As a result, “the use of fruits

of a past unlawful search or seizure ‘work[s] no new Fourth Amendment wrong.’”

Id. (alteration in original) (quoting Calandra, 414 U.S. at 354).

      The exclusionary rule is thus not “a personal constitutional right of the party

aggrieved,” but rather “a judicially created remedy designed to safeguard Fourth

Amendment rights generally through its deterrent effect.” Calandra, 414 U.S. at

348. As such, the question of “[w]hether the exclusionary sanction is appropriately

imposed in a particular case” is an entirely separate issue “from the question

whether the Fourth Amendment rights of the party seeking to invoke the rule were

violated by police conduct.” Leon, 468 U.S. at 906 (quoting Gates, 462 U.S. at

223). Thus, having determined that the SFPD’s search of Gilton’s CSLI data




                                           13
violated his Fourth Amendment rights, we must address separately the question of

whether exclusion is an appropriate remedy.

      The question of application of the exclusionary rule is answered by weighing

“[t]he substantial social costs exacted by the exclusionary rule” with the benefit of

increased deterrence of police misconduct. Id. at 906–07. “If . . . the exclusionary

rule does not result in appreciable deterrence” of police misconduct, “then, clearly,

its use in the instant situation is unwarranted.” United States v. Janis, 428 U.S.

433, 454 (1976). To have any appreciable deterrent benefit, the exclusion of

evidence “must alter the behavior of individual law enforcement officers or the

policies of their departments.” Leon, 468 U.S. at 918.

      In Leon, the Supreme Court took up the issue of whether the exclusionary

rule should be applied in cases where the police seized evidence “in reasonable,

good-faith reliance on a search warrant that is subsequently held to be defective.”

Id. at 905. The Court reasoned that “[t]he deterrent purpose of the exclusionary

rule necessarily assumes that the police have engaged in willful, or at the very least

negligent, conduct which has deprived the defendant of some right,” and that

“[w]here the official action was pursued in complete good faith . . . the deterrence

rationale loses much of its force.” Id. at 919 (quoting United States v. Peltier, 422

U.S. 531, 539 (1975)). In such cases, “excluding the evidence will not further the


                                          14
ends of the exclusionary rule in any appreciable way.” Id. at 920 (quoting Stone,

428 U.S. at 539–40).

      The Court emphasized that “[t]his is particularly true . . . when an officer

acting with objective good faith has obtained a search warrant from a judge or

magistrate and acted within its scope.” Id. Because “[i]t is the magistrate’s

responsibility to determine whether the officer’s allegations establish probable

cause[,] . . . [i]n the ordinary case, an officer cannot be expected to question the

magistrate’s probable cause determination.” Id. at 921. As a result, “[i]n most

such cases, there is no police illegality” and “[p]enalizing the officer for the

magistrate’s error, rather than his own, cannot logically contribute to the deterrence

of Fourth Amendment violations.” Id. at 920–21. The Court concluded that “the

marginal or nonexistent benefits produced by suppressing evidence obtained in

objectively reasonable reliance on a subsequently invalidated search warrant

cannot justify the substantial costs of exclusion.” Id. at 922.

      The existence of a search warrant does not automatically preclude

application of the exclusionary rule, however. Rather, the Court instructed that we

should conduct our analysis “on a case-by-case basis,” id. at 918, and recognized

four exceptions to the exception where suppression “remains an appropriate

remedy,” id. at 923. First, in cases where “the magistrate or judge . . . was misled


                                           15
by information in an affidavit that the affiant knew was false or would have known

was false except for his reckless disregard of the truth.” Id. Second, “in cases

where the issuing magistrate wholly abandoned his judicial role” by acting as “an

adjunct law enforcement officer” or mere “rubber stamp” for the police. Id. at 914,

923 (citing Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979)). Third, in cases

where “an affidavit [is] so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable.” Id. at 923 (citation omitted). Finally,

in cases where the warrant is “so facially deficient—i.e., in failing to particularize

the place to be searched or the things to be seized—that the executing officers

cannot reasonably presume it to be valid.” Id.

      Here, the parties do not urge and the evidence does not support a conclusion

that the officers wilfully mislead the magistrate, that the magistrate wholly

abdicated his role as a neutral and detached judicial officer, or that the warrant was

facially deficient. Thus, the sole question before us is whether Officer Watts’s

affidavit was “so lacking in indicia of probable cause” that no reasonable officer

would believe that probable cause existed to search Gilton’s CSLI data. We

conclude that the deficiencies in probable cause discussed in subpart II.A., supra,

are not so stark as to render official belief in the existence of probable cause

“entirely unreasonable.”


                                           16
          First, we observe that the application for the warrant was issued only two

days after the murder. Second, the affidavit in support of the application was

lengthy and laid out for the magistrate what the police knew about the murder and

how they had obtained the information they had, including the results of interviews

with family members and witnesses, video surveillance from a camera on a house

near the murder scene, information received from an anonymous caller who may

have had first-hand facts, and cell phone information obtained on an emergency

basis from the T-Mobile Law Enforcement Center. Third, the police suspected that

both L.G.’s father, Barry Gilton, and a female family member had been involved in

instigating Sneed’s murder. The police also had reason to believe Barry Gilton and

at least one other person were in the car when the shooting occurred. Fourth, the

affidavit indicated that police had discussed the case with the District Attorney’s

office.

          For the reasons we have previously explained, all of these facts did not add

up to probable cause to obtain Gilton’s CSLI data. The police likely had probable

cause to obtain the other information they sought from Gilton’s cellphone—his

incoming and outgoing calls and texts—because L.G. had been living with Gilton

in Los Angeles when she was dating Sneed, and Gilton may well have been in

contact with L.G.’s family in San Francisco about Sneed. Gilton does not


                                            17
challenge the scope of the warrant with respect to his calls and texts, only his CSLI

information. What the affidavit is missing is an explanation for why police

thought Gilton’s CSLI information was relevant, since there was no

suggestion—other than the cryptic information that multiple family members were

likely involved and that there was a second person in the car, who might or might

not have been a family member—that Gilton was in San Francisco rather than

home in Los Angeles. But we cannot say that no reasonable officer would have

relied on the warrant obtained from the Superior Court just two days into their

investigation.

      Gilton points primarily to our holding in Grant to support his contention that

the affidavit was so lacking in indicia of probable cause that no reasonable officer

would depend on the warrant. See 682 F.3d at 836–41. In Grant, the police

obtained a warrant to search Grant’s home nine months after the homicide. Id. at

828. They had “no evidence suggesting that Grant was involved.” Id. at 832.

Rather, the police suspected Grant’s two sons. Police had no evidence that one of

the boys had visited his father after the homicide, id. at 833, and only scant

evidence that the second son had visited his father some six months after the

murder (and two months prior to the search), id. at 833–34. There was no evidence

that the murder weapon was in Grant’s home. Id. In fact, the police found nothing


                                          18
in Grant’s home related to the murder, but charged him with being a felon in

possession of other firearms. Id. We concluded that there was no “plausible

connection between Grant’s house and any evidence of the murder” and

determined that “the magistrate so obviously erred in approving the warrant that

the officers executing it could not have relied on it in good faith.” Id. at 841

(quotation marks and citation omitted). Gilton argues that as in Grant, the

affidavit’s sparse references to him rendered the magistrate’s error “so obvious[]”

that the officers executing the warrant “could not have relied on it in good faith.”

See id.

      Grant is distinguishable from this case. Here, Gilton was more closely

connected to the suspected crime than the father in Grant. The affidavit here

indicated that Gilton had contact with L.G. up until the day preceding the murder.

The police suspected that the murder was family related, stemming from Sneed’s

promoting the prostitution of the under-aged L.G., and coordinated by at least two

family members. Thus, rather than appearing as a last-ditch, needle-in-the-

haystack effort—as the search in Grant did—the conclusion that Gilton might have

been involved the events leading to Sneed’s murder was not at all far-fetched. To

hold that the police could not have relied in good faith on the magistrate’s

determination here would be to “[p]enaliz[e] the officer for the magistrate’s error,


                                           19
rather than his own,” and thus “cannot logically contribute to the deterrence of

Fourth Amendment violations.” See Leon, 468 U.S. at 921.

      This is particularly true in light of the fact that in 2012, no circuit court had

yet held the Fourth Amendment applicable to CSLI data. See United States v.

Thompson, 866 F.3d 1149 (10th Cir. 2017), vacated 138 S. Ct. 2706 (2018);

United States v. Stimler, 864 F.3d 253 (3d Cir. 2017), vacated in part by United

States v. Goldstein, 902 F.3d 411 (3d Cir. 2018); United States v. Graham, 824

F.3d 421 (4th Cir. 2016) (en banc), abrogated by Carpenter, 138 S. Ct. 2206

(2018); United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), rev’d 138 S. Ct.

2206 (2018); United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc),

abrogated by Carpenter, 138 S. Ct. 2206 (2018); In re Application of U.S. for

Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013), abrogated by Carpenter,

138 S. Ct. 2206 (2018). In light of the prevailing belief in 2012 that CSLI data was

not protected by the Fourth Amendment, we conclude that there was no “willful”

or “grossly negligent” error here where the officers nevertheless took the

precautionary step of seeking a warrant and provided ample factual background by

which the magistrate could reach his own determination of the existence of

probable cause. Although we conclude that the magistrate’s determination was

erroneous, we hold that the police here were not required to second-guess the


                                           20
determination of a neutral and detached magistrate. As such, we conclude that

application of the exclusionary rule to Gilton’s CSLI data would have no

“appreciable deterrent” effect and is thus unwarranted.3

                                III. CONCLUSION

      We REVERSE the district court’s order granting Gilton’s motion to

suppress.




      3
        Having concluded that application of the good faith exception is warranted
under Leon, we do not reach the government’s arguments that the good faith
exception is also warranted on the basis of Davis v. United States, 564 U.S. 229
(2011) (upholding the good faith exception where officers reasonably relied on
binding appellate precedent) or Illinois v. Krull, 480 U.S. 340 (1987) (upholding
the good faith exception where officers reasonably relied on a statute).
                                         21
                                                                         FILED
USA V. ANTONIO GILTON, No. 16-10109                                       MAR 4 2019
                                                                     MOLLY C. DWYER, CLERK
MCKEOWN, J., dissenting                                                U.S. COURT OF APPEALS


      I respectfully dissent. 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. Thus, I would affirm the district court’s order

granting Gilton’s motion to suppress.

      I join the majority’s analysis in Part II.A with respect to the absence of

probable cause. As the majority and district court concluded, “the [warrant]

affidavit’s passing references to Gilton are insufficient to support a reasonable

inference that evidence of a crime would be found in his CSLI data.” Maj. Op. at

14–15. Taking a closer look at the warrant reveals why the good faith exception

does not apply.

                                          1
      The warrant was issued as part of the San Francisco Police Department’s

investigation of the murder of Calvin Sneed. Sneed was shot and killed in San

Francisco. His minor girlfriend, L.G., who was waiting at her parents’ house for

Sneed to pick her up, was found standing next to his car after the attack. L.G.’s

mother had recently gone to Los Angeles to persuade her to move home because

Sneed was pimping L.G. and other girls. In Los Angeles, L.G. lived with Antonio,

whom she referred to as her “brother,” though he was a cousin. Police believed

that someone in the family, most likely L.G.’s father, Barry Gilton, was

responsible for the murder. In the affidavit, there are only three references to

Antonio:

           • L.G. said she had been living with Antonio in Los Angeles.

           • One of the numbers in L.G.’s phone was Antonio’s cell number.

           • L.G. identified the number as belonging to Antonio.

      These unremarkable facts do nothing to tie Antonio to the murder—and they

are even more benign when considering Antonio’s familial relationship with L.G.

Nothing indicates Antonio, who was living in Los Angeles, was in or near San

Francisco at the time, that he had any connection to the home where L.G.’s parents

lived, or that he had any connection to Sneed or knowledge of his pimping

activities. The only link was that Antonio was a member of the extended Gilton



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family. Conspicuously absent was any statement by the officer that he believed

that Antonio’s CSLI would lead to information about the Sneed shooting.

         Even accepting the government’s suggestion that the affidavit supported a

reasonable inference about a family-based killing, that inference does not support

any plausible connection to Antonio. In the course of their investigation, the police

received confidential information indicating that two family members were

involved in the shooting. That information implicated L.G.’s father, Barry Gilton,

and indicated that the second family member was a woman. Nothing suggested

two male family members were involved. Thus, when the warrant issued, any

relationship between Antonio and the murder was purely speculative.

         The flimsy basis for the warrant is central to analyzing the government’s

invocation of the good faith exception. The majority cites the appropriate standard

under United States v. Leon, 468 U.S. 897 (1984), but then gives it a rote

application. Good faith reliance is the pivotal question. As Leon teaches,

suppression “remains an appropriate remedy” when “a warrant [is] based on an

affidavit ‘so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable.’” Id. at 923 (quoting Brown v. Illinois, 422 U.S.

590, 611 (1975)). Simply having a warrant is not a free pass or substitute for good

faith.




                                            3
      We rejected good faith reliance in Grant because the target had no

“independent connection to the homicide” and his limited association “through

family and gang affiliation” provided an insufficient link to the crime. Grant, 682

F.3d at 836–37. In analyzing good faith, we circled back to the absence of

probable cause, noting that Grant’s link with another family member was “so weak

as to be unreasonable to rely on for probable cause.” Id. at 836. This weak link

fared no better under Leon’s analysis.

      Antonio’s case is no different. Although Grant involved a warrant issued

nine months after the murder, the timing of the Gilton warrant—two days after the

murder—does nothing to buttress good faith. What matters is that the warrant

included only the three innocuous facts about Antonio. As we know from Grant,

“[a] reasonable officer would know that probable cause is not supplied by stating

everything one knows about a particular item one would like to find to solve a

murder.” Id. at 841. Grant fits Antonio’s situation to a tee—the mere family

connection, which is all that was present here, is simply not enough to justify

applying the good faith exception.

      An alternative ground for applying the good faith rule is “when the police

conduct a search in compliance with binding precedent that is later overruled.”

Davis v. United States, 564 U.S. 229, 232 (2011). This relatively narrow




                                          4
expansion of the good faith exception has no bearing on this case and the majority

explicitly notes it does not apply Davis. Maj. Op. at 23, n.3.

      Yet the majority blesses the officer’s good faith reliance on the warrant

based in part on Carpenter v. United States, which was handed down during this

appeal. 138 S. Ct. 2206 (2018). In Carpenter, the Supreme Court held that

acquiring CSLI is a search requiring a warrant supported by probable cause. Id. at

2217, 2221. In its use of Carpenter, the majority misses the point. Carpenter only

affects a question not at issue here: the warrant requirement for CSLI. As we all

agree, the police got a warrant for Antonio’s cell data. What they did not do is rely

in good faith on the probable cause determination. Carpenter did not alter that

doctrine, and it is not relevant to our inquiry.

      Even under the Davis rule, Carpenter does not provide a relevant change in

law permitting the application of the good faith exception. The notion that

Carpenter put into play the Supreme Court’s precedent that “a person has no

legitimate expectation of privacy in information he voluntarily turns over to third

parties,” Smith v. Maryland, 442 U.S. 735, 743–44 (1979), was laid to rest by the

Court’s clear statement that “[w]e . . . decline to extend Smith and [United States

v.] Miller[, 425 U.S. 435 (1976)] to the collection of CSLI.” Carpenter, 138 S. Ct.

at 2220. And it is surely not clear that cell phone customers “voluntarily” share

their location data with their cellular provider “in any meaningful way.” In re

                                            5
Application of the U.S. for an Order Directing a Provider of Elec. Commc’n Serv.

to Disclose Record to Gov’t, 620 F.3d 304, 317 (3d Cir. 2010). The best the

government can claim is lack of clarity; no appellate precedent has been overruled.

      Nonetheless, the majority shoehorns Carpenter into a watered-down

application of Davis’ good faith exception. The majority argues that, before

Carpenter, many circuits thought acquiring CSLI did not require a warrant, so

there is no significant error here because the police sought a warrant and then

relied on the state of the law that did not protect CSLI. This bootstrapping ignores

Davis’ requirement that officers conduct their searches in line with relevant,

binding precedent. The majority dilutes that rule and expands the good faith

exception beyond Davis’ narrow boundaries without providing a clear limiting

principle. There was no change in precedent related to probable cause, which is

the only precedent relevant here because the police already had gone the warrant

route. Compounding the problem, the majority asserts that it does not rely on

Davis. Maj. Op. at 23, n.3. Thus, we are left to understand the majority’s

expansion of the good faith exception as unhinged from Davis, when in fact it

erodes the narrow limits announced in that case.

      Recognizing the tough hurdle under Davis, the government falls back on the

Stored Communications Act, which permits retrieval of phone data under relaxed

standards. 18 U.S.C. § 2703(d). Never mind that the police did not seek or even

                                          6
allude to a Section 2703(d) order for Antonio’s CSLI. Under the circumstances

here, Leon’s good faith exception benchmarks the officer’s good faith reliance on

the actual warrant issued by the state court in San Francisco, not a hypothetical,

alternative order that might have issued under a federal statute never referenced to

the state court. Such an expansion of Leon is unsupported.

      I agree with the district court’s grant of Antonio Gilton’s motion to suppress

the cell phone evidence. It was the right answer and one that faithfully enforces

the purpose of deterrence with respect to an obviously defective warrant.




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