State v. Thomas, ___ N.C. App. ___, 834 S.E.2d 654 (Oct. 15, 2019)

The defendant was convicted of four counts of first-degree murder and other charges and appealed. He argued the trial court erred in denying his motion to suppress, his motion to dismiss, and in admitting certain evidence. The Court of Appeals unanimously affirmed.

The offenses occurred in 2005, although the defendant was not tried until 2017. As a part of the investigation into the homicides and other crimes, law enforcement obtained an order authorizing the use of a pen register to obtain 60 days of cell-site location information (“CSLI”) on a phone connected to the defendant in 2005. Law enforcement acted under G.S. 15A-262, requiring a showing only of “relevance” to an investigation, and did not obtain a search warrant. The defendant alleged this violated U.S. v. Carpenter, __U.S. __, 201 L. Ed. 2d 507 (2018). Rejecting this argument, the court first noted Carpenter’s scope: “Carpenter only established the government must obtain a warrant before it can access a phone company’s historical CSLI; it did not extend its holding to the issue of government acquisition of real-time or prospective CSLI.” Here, the State sought both types of data, and it was unclear which category of information was used to actually locate the defendant. Carpenter would only control as to the historical data (but did indeed apply to that category of data, despite having been decided 13 years after the events in question, since Carpenter was decided while this matter was on direct appeal).

Here, it was unnecessary to decide the extent of protections for real-time or prospective CSLI, given that the evidence was sufficiently attenuated from any illegality (an alternative ground found by the trial court to justify the search). “Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that ‘the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.’”

The Supreme Court has identified three factors to aid in determining whether there was a sufficient intervening event to break the casual link between the government’s unlawful act and the discovery of evidence: (1) the ‘temporal proximity’ of the unconstitutional conduct and the discovery of evidence, (2) the ‘presence of intervening circumstances’, and (3)  ‘particularly, the purpose and flagrancy of the official misconduct.’

Here, three days had passed between the court order authorizing the CSLI and law enforcement locating the defendant. That amount of time was not substantial and weighed in favor of suppression. However, the intervening circumstances here weighed heavily in favor of attenuation—the defendant was found with guns and ammo, threatened to shoot at officers when they attempted to apprehend him, and actually fired a gun at officers during the course of his arrest. “[T]his constituted an intervening circumstance sufficient to attenuate the connection between any unconstitutional police conduct and the discovery of evidence.” Finally, the purpose of the exclusionary rule would not be served by suppression here because the misconduct was “neither purposeful nor flagrant.” Officers acted according to the law and common understanding of pen registers in 2005 and no reasons existed at the time to believe those procedures were unconstitutional. The trial court did not therefore err in denying the motion to suppress.