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Date: 01-31-2020

Case Style:

Tobias O. Reed v. Commonwealth of Virginia

Case Number: 1305-15-4

Judge: RANDOLPH A. BEALES

Court: COURT OF APPEALS OF VIRGINIA

Plaintiff's Attorney: Victoria L. Johnson, Assistant Attorney General (Mark R. Herring, Attorney General; Victoria N. Pearson, Deputy Attorney General; Toby J. Heytens, Solicitor General; Matthew R. McGuire, Principal Deputy Solicitor General, on brief)

Defendant's Attorney:

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In 2011, Reed began working with Detective Benjamin George as a confidential
informant for the Alexandria Police Department. Pursuant to this arrangement, Reed was
prohibited from engaging in any drug transaction not authorized by Detective George.
On July 18, 2012, Detective John East was working undercover and using Fernando
Payne to purchase drugs from a “second source.” Payne called the “second source” and then, as
Payne walked off to meet the source and buy the drugs, he handed his phone to Detective East,
telling him that if the phone rings and it “says ‘Tobias’ that’s my man. Pick up and tell him I’m
coming.”
2 We did not request an additional brief from the Commonwealth as it had already submitted a brief on the good-faith issue, but we did receive a letter from the Commonwealth providing additional legal authority.
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Detective George, who was also working with Detective East on the transaction,
observed Payne waiting for the “second source” to arrive. As Payne waited, Detective George
observed Reed drive up in a silver Ford Escape. He watched as Payne entered the vehicle with
Reed and exited a few minutes later, rejoining Detective East in his vehicle. When Payne
returned to Detective East, he was in possession of cocaine. Detective George realized that Reed
was the “second source” from whom Payne bought the cocaine. He testified that he was “one
hundred percent” sure that it was Reed whom he saw in the vehicle with Payne. When the police
later inspected Payne’s phone, they found that the number associated with “Tobias,”
571-329-7478, was identical to a number used by Reed.
On August 3, 2012, relying on this information, Detective East applied for, and was
granted, an ex parte court order pursuant to the SCA and its Virginia equivalent, Code
§ 19.2-70.3(B). The order required Verizon, the mobile phone service provider for the cell
phone number 571-329-7478, to provide the Commonwealth with approximately five months
(May 1, 2012 through October 3, 2012) of CSLI for that number.
Approximately two weeks later, an arrest warrant was issued for Reed for the July 18,
2012 distribution of cocaine. However, before it was served, Reed was sentenced to twenty-four
months of incarceration for violating conditions of his supervised release on an unrelated matter
and immediately taken into custody. It was not until June 5, 2014, when Reed was released from
that incarceration, that he was served with the arrest warrant on the cocaine charge.
In January 2015, the Commonwealth issued a subpoena duces tecum to Verizon’s
custodian of records for the historical CSLI for the 571-329-7478 phone number.3 The trial court
limited the amount of CSLI the Commonwealth could receive through the subpoena duces tecum
3 The CSLI requested by the subpoena had already been obtained by the ex parte order. According to the Commonwealth, the purpose behind the subpoena was to authorize Verizon’s custodian of records to appear at trial and authenticate the records.
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to the two days prior to the cocaine transaction, the day of the transaction, and the two days
following. Reed unsuccessfully attempted to suppress the introduction of the CSLI, but the CSLI
from July 18, 2012, was admitted at Reed’s trial where the custodian of records for Verizon used
that information to testify that Reed’s cell phone “pinged” off towers in the general area where
the cocaine transaction had occurred and that calls had been routed through those towers.
Reed was found guilty at a bench trial. When announcing the verdict, the trial judge
noted, among other comments, that the CSLI placed Reed in the general location of the crime.
He stated that “the phone records . . . corroborate the location of the phone numbers used by
Fernando Payne and Tobias Reed.”
II. ANALYSIS
As he did in his motion to strike the Commonwealth’s good-faith argument, Reed again
contends that (1) “the Commonwealth waived its good faith argument when it failed to
raise the argument in the trial court or on direct appeal on the merits” and (2) even if good faith
could be raised at this juncture, it does not apply. We address each of these arguments in turn.
Waiver
Reed contends that the Commonwealth waived its good-faith argument by failing to raise
the issue earlier – before the case was decided by the United States Supreme Court and remanded
to the Virginia Supreme Court.
A similar argument was recently addressed by the Supreme Court in Collins v.
Commonwealth, 297 Va. 207 (2019). Similar to the situation in Reed, Collins also involved an
unsuccessful motion to suppress evidence of a warrantless search. Id. at 211. On appeal, this
Court and the Supreme Court of Virginia affirmed Collins’s conviction, albeit on different
grounds. Id. The United States Supreme Court reversed, disagreeing with the Virginia Supreme
Court’s conclusion that the search at issue was justified by the automobile exception. Id. It
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remanded the case back to the Virginia Supreme Court, noting that it was “leav[ing] for
resolution on remand” whether the search “may have been reasonable on a different basis, such
as the exigent circumstances exception to the warrant requirement.” Id. (quoting Collins v.
Virginia, 138 S. Ct. 1663, 1675 (2018)).
On remand, Collins argued, as Reed does now, that the Commonwealth should not be
permitted to raise the good-faith exception to the exclusionary rule as an alternate basis for
affirming the conviction because the Commonwealth “did not rely on the exception earlier in
[the] litigation.” Id. at 212 n.1. The Supreme Court disagreed, explaining that appellate courts
“have the discretion to hear an appellee’s new arguments upon a remand from the United States
Supreme Court for consideration of previously unaddressed issues.” Id. The Virginia Supreme
Court stated that allowing the appellee to raise new legal arguments on remand is simply an
extension of the “right-result-different-reason doctrine,” which permits an appellee to “assert for
the first time on appeal a purely legal ground for upholding the challenged judgment.” Id. In
accordance with this principle, the Supreme Court of Virginia permitted the Commonwealth to
argue the good-faith exception, and affirmed Collins’s conviction on that basis. Id. at 227.
We find no meaningful distinction between this case and Collins.4 Here, the
Commonwealth contends that the evidence should not be excluded because the police were
4 At oral argument before this Court, Reed argued that Collins is distinguishable because the opinion from the United States Supreme Court in Collins noted that it “le[ft] for resolution on remand” whether the search may have been “reasonable on a different basis.” Collins v. Commonwealth, 297 Va. at 211 (quoting Collins v. Virginia, 138 S. Ct. at 1675). Thus, Reed contends, the United States Supreme Court specifically directed the Virginia Supreme Court to consider new arguments. However, the rationale in Collins for allowing the Commonwealth to raise the good-faith argument on remand from the United States Supreme Court does not rely on that Court’s order; it relies on the premise that allowing new legal arguments on remand is a logical extension of the “right-result-different-reason doctrine.” Id. at 212 n.1. Furthermore, the remand order from the United States Supreme Court in Reed permits “further consideration” of the case in light of Carpenter, without any additional limitations on the matters to be considered. Reed v. Virginia, 138 S. Ct. 2702 (2018). Therefore, even that order permits this Court to consider whether Carpenter has no effect on the ultimate outcome of Reed, including an
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acting completely in compliance with the law that was in effect at the time the search occurred –
an argument based on “a purely legal ground.” Therefore, the Commonwealth is permitted to
argue that the good-faith exception to the exclusionary rule applies in this case, and we consider
that argument now.
The Good-Faith Exception to the Exclusionary Rule
In Carpenter, the United States Supreme Court held that “an individual maintains a
legitimate expectation of privacy in the record of his physical movements as captured through
CSLI.” Carpenter, 138 S. Ct. at 2217. It concluded that, given this expectation of privacy, “the
Government must generally obtain a warrant supported by probable cause before acquiring such
records.” Id. at 2221. The Court found that the SCA, which allowed the government to acquire
cell-site data by a court order only by showing “reasonable grounds” for believing that the
records were “relevant and material to an ongoing investigation,” 18 U.S.C. § 2703(d), was “not
a permissible mechanism for accessing historical cell-site records.” Id. Therefore, Carpenter
indicates that the initial acquisition of CSLI in this case may have been unconstitutional.
However, that fact – standing alone – does not mean the evidence should have been excluded or
that Reed’s conviction should be reversed.
While CSLI is relatively new to our jurisprudence, the exclusionary rule is not. The
exclusionary rule was examined in Collins, where the Supreme Court reiterated that the rule’s
origins do not stem from any “personal constitutional right” nor from any mandate implicit in the
Fourth Amendment itself. Collins, 297 Va. at 214 (quoting Stone v. Powell, 428 U.S. 465, 486
argument that the conviction should be affirmed because the good-faith exception to the exclusionary rule may apply. In addition, Reed’s argument that a new legal theory cannot be raised on remand has troubling implications. If his argument were accepted, in every case where a search took place in reliance on a statute, the Commonwealth would need to argue good faith to the trial court in the suppression hearing at the trial level and on appeal in the event that the statute was later found to be unconstitutional on appeal.
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(1976)). “Instead, ‘the rule is a judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect . . . .’” Stone, 428 U.S. at 486 (quoting
United States v. Calandra, 414 U.S. 338, 348 (1974)). The rule’s “sole purpose . . . is to deter
future Fourth Amendment violations.” Collins, 297 Va. at 214 (quoting Davis v. United States,
564 U.S. 229, 236-37 (2011)). Because the rule “generates ‘substantial social costs,’ United
States v. Leon, 468 U.S. 897, 907 (1984), which sometimes include setting the guilty free and the
dangerous at large,” the United States Supreme Court has held that suppression of evidence is
“our last resort, not our first impulse,” Hudson v. Michigan, 547 U.S. 586, 591 (2006).
“[W]hen investigators ‘act with an objectively “reasonable good-faith belief” that their
conduct is lawful,’ the exclusionary rule will not apply.” United States v. Chavez, 894 F.3d 593,
608 (4th Cir.) (quoting Davis, 564 U.S. at 238), cert. denied, 139 S. Ct. 278 (2018). “Objectively
reasonable good faith includes ‘searches conducted in reasonable reliance on subsequently
invalidated statutes.’” Id. (quoting Davis, 564 U.S. at 239). Applying the good-faith exception
to searches performed in reliance on subsequently invalidated statutes comports with the purpose
of the exclusionary rule because, where a “statute is subsequently declared unconstitutional,
excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter
future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to
enforce the statute as written.” Illinois v. Krull, 480 U.S. 340, 350 (1987). “Unless a statute is
clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature
that passed the law.” Id. at 349-50.
In 2012, when the CSLI was sought, the officers complied with the provisions of SCA
and Virginia Code § 19.2-70.3(B), which were certainly not “clearly unconstitutional.” At that
time, neither the United States Supreme Court nor a Virginia appellate court had held that a
warrant was required before a subscriber’s CSLI could be obtained from the cell-service
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provider, nor had either yet declared that the SCA was “not a permissible mechanism for
accessing historical cell-site records.” Carpenter, 138 S. Ct. at 2221. Furthermore, at the time
the information was sought, the constitutionality of the SCA was supported by the third-party
doctrine, which provides “that the Fourth Amendment does not prohibit the obtaining of
information revealed to a third party and conveyed by [the third party] to Government
authorities.” United States v. Miller, 425 U.S. 435, 443 (1976). Therefore, at the time the CSLI
was obtained in this case, the officers were acting in good-faith reliance on the law in effect at
the time, and the exclusionary rule, consequently, does not apply. 5
Despite the presumption of the constitutionality of these two statutes and despite the
third-party doctrine, Reed argues that the United States Supreme Court’s decision in United
States v. Jones, 565 U.S. 400, 404 (2012), would have alerted a reasonable officer that it was
unconstitutional for the government to obtain the CSLI without a warrant. He contends that
Jones put the government and the officers on notice that “Fourth Amendment protections
extended to electronic tracking” and that “individuals have a recognized right to privacy that
protects their right not to be constantly surveilled.” In Jones, the United States Supreme Court
held that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that
device to monitor the vehicle’s movements, constitutes a ‘search.’” Jones, 565 U.S. at 404
(footnote omitted). However, the Jones decision does not support Reed’s argument because the
5 Notably, Carpenter’s conviction was ultimately affirmed by the United States Court of Appeals for the Sixth Circuit after the case was remanded by the United States Supreme Court. Just as we do here, the Sixth Circuit held that the exclusionary rule did not apply because the officers in that case acted in good-faith reliance on the SCA when they acquired Carpenter’s CSLI. United States v. Carpenter, 926 F.3d 313, 318 (6th Cir. 2019). Our holding aligns Virginia with the numerous federal appellate courts that have applied the good-faith exception to the exclusionary rule where officers relied on 18 U.S.C. § 2703(d) to obtain CSLI prior to the decision in Carpenter. See United States v. Goldstein, 914 F.3d 200, 203 (3d Cir. 2019); Carpenter, 926 F.3d at 318; United States v. Korte, 918 F.3d 750, 758 (9th Cir. 2019); Chavez, 894 F.3d at 608; United States v. Curtis, 901 F.3d 846, 849 (7th Cir. 2018); United States v. Joyner, 899 F.3d 1199, 1204 (11th Cir. 2018) (per curiam).
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Supreme Court based its decision in Jones on the government’s trespassory intrusion onto
Jones’s property when it placed the GPS on the Jeep of Jones’s wife. Id. at 404-05. No such
physical intrusion occurs when the government seeks CSLI from a third-party cell-service
provider, as occurred in this case. Therefore, Jones does not actually govern the question before
us and, consequently, does not alter our conclusion that the officers were objectively reasonable
in their reliance on the SCA and Virginia Code § 19.2-70.3(B). See United States v. Chambers,
751 Fed. Appx. 44, 47 (2d Cir. 2018) (“[E]ven after Jones, officers could have reasonably
believed that the third-party doctrine meant a warrant was not required to obtain cell-site data.”),
cert. denied, 139 S. Ct. 1209 (2019).
Reed also argues that the good-faith exception cannot apply in this case because this
“case concerns the granting of a prosecutor’s motion by a trial court” and not “police action.”
Even if we were to agree with Reed’s contention that this case does not involve police action
(although Detective East signed the affidavit used to obtain the court order), this contention
would not defeat the application of the good-faith exception. We agree with the United States
Court of Appeals for the Third Circuit, which addressed this precise issue when it found that the
good-faith exception applied when the government actors in that case relied on the SCA to
obtain the appellant’s CSLI. Dispensing with the appellant’s argument, the Court stated, “The
relevant inquiry here is not who the state actor is, but rather, whether the state actor had a
reasonable, good faith belief that his actions were legal. The prosecutors relied on a then-valid
statute whose constitutionality had been confirmed by this Circuit. The good faith exception
applies.” United States v. Goldstein, 914 F.3d 200, 206 (3d Cir. 2019). Therefore, to the extent
that the search in this case was conducted by the Commonwealth’s Attorney, a state actor, the
good-faith exception still applies.

Outcome: On remand from the Virginia Supreme Court, we permitted Reed to file an additional
brief and had oral argument. After further careful consideration, we conclude that the Commonwealth is permitted to argue that the government acted in good faith, even if it did not raise that issue before the case was remanded from the United States Supreme Court after the Court’s 2018 decision in Carpenter. We also conclude thatthe good-faith exception to the exclusionary rule applies here because the government actors – both the police officers and the
prosecutor – were acting in good-faith reliance on the SCA and Virginia Code § 19.2-70.3(B), which were certainly not “clearly unconstitutional” at the time. For all of these reasons, we affirm Reed’s conviction.

Affirmed

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