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Reed v. Commonwealth

Court of Appeals of Virginia

November 12, 2019

TOBIAS O. REED
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Lisa B. Kemler, Judge

         UPON REMAND FROM THE SUPREME COURT OF VIRGINIA

          Marvin D. Miller (Law Office of Marvin D. Miller, on briefs), for appellant.

          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), for appellee.

          Present: Judges Petty, Beales and O'Brien Argued by teleconference

          OPINION

          RANDOLPH A. BEALES, JUDGE

         Appellant 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).[1] The statutes did not require a showing of probable cause.

         Reed 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. 2206 (2018).

         On June 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.

         After 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.

         After 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 n.3.

         The 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.[2] We also heard oral argument from both parties. We now consider these arguments.

         I. Background

         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 ...


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