TOBIAS O. REED
COMMONWEALTH OF VIRGINIA
THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Lisa B. Kemler,
REMAND FROM THE SUPREME COURT OF VIRGINIA
D. Miller (Law Office of Marvin D. Miller, on briefs), for
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),
Present: Judges Petty, Beales and O'Brien Argued by
RANDOLPH A. BEALES, JUDGE
Tobias O. Reed was convicted of distribution of cocaine,
third or subsequent offense. At trial, the Commonwealth
introduced records of Reed's historical cell site
location information ("CSLI") to establish his
proximity to the drug transaction on the day of the crime.
This data was initially obtained by the Commonwealth through
an ex parte court order to the cell-service provider
pursuant to the Stored Communications Act ("SCA"),
18 U.S.C. § 2703, and the Virginia equivalent, Code
§ 19.2-70.3. These statutes permitted the Commonwealth
to obtain the ex parte order by "showing that
there [were] reasonable grounds to believe . . . the records
or other information sought, [were] relevant and material to
an ongoing criminal investigation." 18 U.S.C. §
2703(d). The statutes did not require a showing of
appealed his conviction to this Court, arguing, in part, that
his Fourth Amendment rights were violated by the collection
of the CSLI without a warrant. This Court affirmed without
reaching the Fourth Amendment issue, Reed v.
Commonwealth, No. 1305-15-4 (Va. Ct. App. Aug. 30,
2016), and the Supreme Court refused Reed's petition for
appeal. Reed v. Commonwealth, No. 161401 (Va. Apr.
26, 2017). Reed then filed a petition for a writ of
certiorari with the United States Supreme Court, and
his case was held in abeyance until that Court reached a
decision in Carpenter v. United States, 138 S.Ct.
22, 2018, the United States Supreme Court decided
Carpenter. It held that the "Government's
acquisition of [Carpenter's] cell-site records was a
search within the meaning of the Fourth Amendment."
Id. at 2220. It then granted Reed's petition for
a writ of certiorari, vacated the judgment below,
and remanded the case to the Virginia Supreme Court "for
further consideration in light of Carpenter."
Reed v. Virginia, 138 S.Ct. 2702 (2018). The
Virginia Supreme Court then remanded the case to this Court
with the same instructions.
reinstating the matter on the docket, we directed the parties
to file supplemental briefs addressing how Carpenter
impacted Reed's case. Both briefs were due on the same
date. In its supplemental brief, the Commonwealth argued that
the exclusionary rule did not apply because at the time
Reed's CSLI was sought, the officers acted in good-faith
reliance on the SCA and Virginia Code § 19.2-70.3(B).
Reed then filed a motion to strike the Commonwealth's
good-faith argument, contending that the argument was waived
and not properly before this Court because the Commonwealth
did not raise it earlier in the litigation. Reed's motion
to strike also responded to the merits of the
Commonwealth's good-faith argument.
reviewing the supplemental briefs and Reed's motion to
strike, this Court issued an opinion holding that the
exclusionary rule did not apply because "the detectives
and the Commonwealth's attorney had a reasonable, good
faith belief that their actions were constitutional at the
time." Reed v. Commonwealth, 69 Va.App. 332,
339-40 (2018). In a footnote, this Court denied Reed's
motion to strike the portion of the Commonwealth's brief
that argued the good-faith exception. Id. at 338
Virginia Supreme Court granted Reed an appeal, vacated this
Court's order, and remanded the case back to this Court
to allow Reed "the opportunity to be heard on the good
faith question." We reinstated the case on our docket
and directed Reed to file a supplemental brief. We also heard
oral argument from both parties. We now consider these
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