Aug. 29, 2024 – The FBI was not required to seek a warrant before obtaining cell phone data on an armed man heading toward the site of civil unrest because of exigent circumstances, the U.S. Court of Appeals for the Seventh Circuit has held in U.S. v. Karmo, No. 23-1082 (July 31, 2024).

Civil unrest broke out in Kenosha on Aug. 23, 2020, after the police shot a Black man while attempting to arrest him.

Michael Karmo and Cody Smith decided to drive to Kenosha from Missouri. They stopped in Waverly, Iowa just after midnight on Sept. 1, 2020, to visit a friend of Karmo’s.

Karmo invited his friend to come to Kenosha, but she declined. Karmo and Smith left for Kenosha a short time later.

Later that day, Karmo’s friend went to the Waverly police. She told Officer Dave Lindley that Karmo and Smith claimed to have guns – including two machine guns – in their vehicle.

'Picking People Off'

The woman showed Lindley text messages sent to her by Karmo. One of those messages included a photo of Karmo and Smith holding guns.

Karmo’s friend told the police that Karmo said that people were going to Kenosha and “picking people off.”

FBI Alerted

Lindley called Sergeant Joshua Hecker with the Kenosha police and warned him that Karmo and Smith were armed and headed to Kenosha.

Lindley said that Karmo and Smith were headed to Kenosha to loot and “pick people off.” Hecker gave the information to the FBI.

When the FBI agents looked up Karmo, they discovered that he was a felon. They also found multiple photos of Karmo holding guns on his Facebook page.

Cell Phone Data

Acting pursuant to the Stored Communications Act (SCA), the FBI submitted an exigent circumstances form to AT&T on September 1.

In the form, the FBI requested updated cell-site location information (CSLI) every 15 minutes for 48 hours.

To support their application under the SCA, the FBI said that Karmo was heading to Kenosha with guns to “pick people off and loot.”

Guns, Ammo, a Knife

Later that day, AT&T began sharing Karmo’s CSLI data with the FBI in real-time.

After collecting Karmo’s CSLI data for about 90 minutes, the police detained Karmo and Smith in their vehicle in a hotel parking lot.

The police searched the vehicle and recovered multiple guns and magazines for guns, along with body armor and a folding knife.

In a hotel room rented by Karmo and Smith, the police found additional guns and ammunition.

Mistake Corrected

On Sept. 2, 2020, the Waverly police sent the FBI an incident report recounting Lindley’s interview with Karmo’s friend.

In the incident report, the Waverly police clarified that Karmo told his friend that people were going to Kenosha to pick people off but didn’t’ say that he would pick people off.

That distinction was missing from the form the FBI submitted to AT&T.

On Sept. 3, the FBI obtained a search warrant for Karmo’s residence in Missouri. There, agents found several guns and some ammunition.

On Sept. 4, the FBI obtained a search warrant for Karmo’s hotel room in Kenosha. Acting under that warrant, agents seized the items they’d discovered during their search on the evening of Sept. 1.

The affidavits submitted by the FBI to support a criminal complaint and the search warrant for the hotel room said the incident report from the Waverly police was sent on Sept. 1, instead of Sept. 2.

However, the affidavits correctly stated that while Karmo had said that people were going to Kenosha to shoot people and loot, he didn’t say that he would do those things.

Motion to Suppress

The U.S. Attorney for the Eastern District of Wisconsin obtained an indictment against Karmo, for possessing firearms as a felon (18 U.S.C. section 922(g)(1)) and possessing an unregistered firearm (18 U.S.C. section 5861(d)).

Karmo moved to suppress the evidence against him.

Karmo argued that by collecting his CSLI data, the FBI had violated his Fourth Amendment right against unreasonable search and seizure by fabricating a threat to public safety to justify their claim of exigent circumstances.

The U.S. District Court for the Eastern District of Wisconsin denied Karmo’s motion.

Karmo pled guilty to unlawfully possessing a firearm. After being sentenced to five-and-a-half years in prison, he appealed.

Exigent Circumstances

Judge Thomas Kirsch began his opinion for a three-judge panel by explaining that even if Karmo could provide that the FBI had violated the SCA, he was not entitled to suppression of the evidence.

Kirsch noted that: 1) the SCA specifies that the remedies listed in that act are exclusive; and 2) the SCA explicitly rules out exclusion of evidence as a remedy.

On appeal, the government argued that obtaining CSLI data​ is not a search under the Fourth Amendment. Karmo argued that the government had waived that argument by not raising it before the circuit court.

But the panel concluded that even if obtaining Karmo’s CSLI data constituted a search, the government had met the exigent circumstances exception to the Fourth Amendment’s warrant requirement.

Karmo argued that the inaccurate statement that he said he was going to Kenosha to shoot people, used by the FBI when it completed the exigent circumstances form and submitted the form to AT&T, meant that the exigent circumstances exception didn’t apply.

But the panel concluded that the totality of the circumstances supported a reasonable belief that a threat to public safety existed and that monitoring Karmo’s CSLI data in real-time would disclose criminal behavior.

Judge Kirsch pointed to the following:

• Karmo’s friend told the Waverly police that Karmo and Smith said they were heading to Kenosha with guns – including machine guns – during a period of civil unrest when people were “picking people off;”
• Karmo’s friend showed the Waverly police a photo of Karmo holding a gun
• The FBI learned that Karmo was felon and saw pictures of him holding a gun on Facebook.