Police Misrepresentations to T-Mobile Result in Suppression of Evidence in Rape Case

In State v. Gunsby, the Georgia Court of Appeals held that the trial court properly suppressed evidence that was discovered due to knowing misrepresentations made by a police officer in requesting cell phone records. The ruling not only resulted in the suppression of the cell phone records, but also critical evidence that was later obtained during a search of the defendant’s home.

Factual Background

The police received a report that a woman had been raped after calling a number for a “cash taxi” and getting picked up by a man driving a black SUV. The woman was able to give the police a partial tag number for the vehicle. She said that she was able to escape from the man but left her cell phone inside the SUV.

The next day, the police received another report of a woman being sexually assaulted by a man driving a black SUV. She stated that she was leaving a club and was looking for a ride when she was approached by the man in the parking lot.

Exigent Circumstances Request

The police then made an Exigent Circumstances Request (ECR) to T-Mobile for records related to the phone number that the first woman had used to call the “cash taxi.” The police requested the subscriber information, call history, and the cell-site location information (CSLI) for the phone number for the last 48 hours.

Generally, cell phone providers are not permitted to disclose a customer’s CSLI to the police without a search warrant. This was established by the U.S. Supreme Court’s 2018 decision in Carpenter v. United States.

An exception to this is provided in 18 USC § 2702 which allows disclosure “if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.” The police were relying on this emergency exception when it submitted the ECR to T-Mobile.

In the request, the police stated that the person with this number was suspected to have committed two rapes in the past two days and that the police department’s Crime Analysis Division “predicts that he will rape again tonight.” The request also stated that the person “uses Craigslist to lure victims” and that both women “were in [phone] communication with the suspect hours prior to the assault.”

Based on the ECR, T-Mobile provided the police with the location data for the phone as well as the subscriber’s residence address.

Search Warrant for Residence

The police then obtained a search warrant for the residence and encountered the defendant there with his wife. During the search, the police called the phone number of the “cash taxi” and they discovered a phone ringing inside a closet. They also found the first woman’s cell phone inside of a bag in the attic.

Following the execution of the search warrant, the defendant was arrested and charged with multiple counts of rape as well as other offenses.

Defendant’s Motion to Suppress

The defense filed a motion to suppress the records the police obtained from T-Mobile as well as all of the evidence discovered during the search of the residence. Following an evidentiary hearing, the trial court granted the motion, finding that the police officer who submitted the ECR to T-Mobile made knowing misrepresentations of fact.

Specifically, the trial court ruled that there were four statements in the ECR that contained misrepresentations.

First, one of the women said she was sexually assaulted, not raped. Second, the trial court found that the prediction that the suspect will “rape again tonight” was just speculation. Also, the suspect did not use Craigslist to lure the victims as he met one of them in the parking lot of the club. Lastly, the statement that both women were in phone contact with the suspect prior to the assaults was not true as the second woman met him in person in the parking lot.

At the evidentiary hearing, the officer testified that the “Crime Analysis Division” that had apparently predicted that another rape would occur that night was actually just one person whose name the officer could not recall. Plus, the officer testified that she had no knowledge of this person’s qualifications, methodology, or track record.

Based on the officer’s testimony, the trial court found that the misrepresentations in the ECR were done in bad faith to be able to obtain the T-Mobile records without having to go through the search warrant process.

The State then filed an interlocutory appeal.

Court of Appeals’ Analysis

The Court of Appeals held that the trial court’s findings support the suppression of the evidence. The Court agreed that the officer’s statements to T-Mobile, especially the speculative prediction that “he will rape again tonight,” undermined the entire ECR procedure.

The Court stated that the officer’s request to T-Mobile was based on merely an “alleged exigency” which was established only because of the embellishments by the officer in the ECR.

Therefore, the Court affirmed the trial court’s ruling that the records from T-Mobile were obtained unlawfully. Since it was those records that enabled the police to secure the search warrant for the defendant’s home, the trial court’s suppression of all of the evidence from the home was affirmed as well.