United States of America v. REGINALD ELMORE, AKA Fat Reg; ESAU FERDINAND, AKA Sauce

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
REGINALD ELMORE, AKA Fat
Reg; 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.
No. 16-10109
D.C. No.
3:13-cr-00764-WHO-1
OPINION

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UNITED STATES V. GILTON 2
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
Filed March 4, 2019
Before: J. Clifford Wallace, M. Margaret McKeown,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Dissent by Judge McKeown
SUMMARY*
Criminal Law
Reversing the district court’s order suppressing a criminal
defendant’s cell-site location information, the panel held that
the warrant authorizing seizure of the defendant’s location
data was not supported by probable cause, but the good faith
exception to the exclusionary rule applied because the
deficiencies were not so stark as to render police officers’
reliance on the warrant “entirely unreasonable.”
The panel held that, under United States v. Carpenter, 138
S. Ct. 2206 (2018), an individual maintains a legitimate
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. GILTON 3
expectation of privacy in the record of his physical
movements as captured through cell-site location information,
or CSLI. The panel held that the warrant was not supported
by probable cause because the supporting affidavit’s scant
and innocuous references to the defendant did not establish a
fair probability that evidence of the crime would be found in
his location data. Distinguishing United States v. Grant, 682
F.3d 827 (9th Cir. 2012), on the basis that the defendant in
Grant was less closely connected to the suspected crime, the
panel further held that the good faith exception to the
exclusionary rule applied because the warrant was not so
lacking in indicia of probable cause that no reasonable officer
would have believed that probable cause existed to search the
defendant’s CSLI data.
Dissenting, Judge McKeown wrote that the warrant
affidavit for the defendant’s CSLI so thoroughly lacked
probable cause that it was objectively unreasonable for the
police to have relied on it. Thus, she would affirm the district
court’s order granting the motion to suppress. Judge
McKeown joined the majority’s analysis with respect to the
absence of probable cause.
COUNSEL
Daniel Lerman (argued), Washington, D.C.; Anne M. Voigts,
Assistant United States Attorney; J. Douglas Wilson, Chief,
Appellate Division; United States Attorney’s Office, San
Francisco, California; for Plaintiff-Appellant.
Mark Stuart Goldrosen (argued), San Francisco, California,
for Defendant-Appellee.

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UNITED STATES V. GILTON 4
Nathan Freed Wessler, American Civil Liberties Union
Foundation, New York, New York; Linda Lye, American
Civil Liberties Union Foundation of Northern California, San
Francisco, California; Gregory T. Nojeim, Center for
Democracy and Technology, Washington, D.C.; David M.
Porter, Co-Chair, NACDL Amicus Curiae Committee,
National Association of Criminal Defense Lawyers,
Sacramento, California; Michael W. Price and Rachel
Levinson-Waldman, Brennan Center for Justice at NYU
School of Law, New York, New York; Jennifer Lynch,
Electronic Frontier Foundation, San Francisco, California;
Ross Schulman and Kevin S. Bankston, New America’s Open
Technology Institute, Washington, D.C.; for Amici Curiae
American Civil Liberties Union, American Civil Liberties
Union of Northern California, Brennan Center for Justice,
Center for Democracy & Technology, Electronic Frontier
Foundation, National Association of Criminal Defense
Lawyers, and New America’s Open Technology Institute.
OPINION
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.

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UNITED STATES V. GILTON 5
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
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.
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.”

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UNITED STATES V. GILTON 6
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, 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. As a result, the
police obtained historical cell-site location information
(“CSLI”) data for Barry Gilton’s phone pursuant to an

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UNITED STATES V. GILTON 7
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 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
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.

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UNITED STATES V. GILTON 8
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, 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

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UNITED STATES V. GILTON 9
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 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

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UNITED STATES V. GILTON 10
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 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.” Leon, 468 U.S. at 915.
In addition, the decision of the magistrate “cannot be a mere

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UNITED STATES V. GILTON 11
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.”
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

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UNITED STATES V. GILTON 12
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.
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

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UNITED STATES V. GILTON 13
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 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

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UNITED STATES V. GILTON 14
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 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 ends of the exclusionary rule in any

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UNITED STATES V. GILTON 15
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 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

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UNITED STATES V. GILTON 16
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.”
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

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UNITED STATES V. GILTON 17
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
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

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UNITED STATES V. GILTON 18
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 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 in 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, rather than his own,” and thus “cannot logically
contribute to the deterrence of Fourth Amendment
violations.” See Leon, 468 U.S. at 921.

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UNITED STATES V. GILTON 19
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
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
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).

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UNITED STATES V. GILTON 20
III. CONCLUSION
We REVERSE the district court’s order granting Gilton’s
motion to suppress.
McKEOWN, Circuit Judge, dissenting:
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 13. Taking a closer look at the warrant reveals
why the good faith exception does not apply.

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UNITED STATES V. GILTON 21
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
family. Conspicuously absent was any statement by the
officer that he believed that Antonio’s CSLI would lead to
information about the Sneed shooting.

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UNITED STATES V. GILTON 22
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.
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.

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UNITED STATES V. GILTON 23
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
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 19, 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.

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UNITED STATES V. GILTON 24
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
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 19, n.3. Thus, we are left to understand the majority’s
expansion of the good faith exception as unhinged from

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UNITED STATES V. GILTON 25
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 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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