SAN JOSE — An appellate court has thrown out a man’s 2025 robbery conviction after ruling that San Jose police investigators improperly obtained his cell phone records without a warrant, rejecting the police claim of an emergency despite the absence of an active crime and the fact they were already watching him.
In a written opinion Tuesday that reversed the trial court’s conviction of Marcos Andres Andrade — who pleaded no contest to second-degree robbery — the 6th District Court of Appeal determined police violated his Fourth Amendment rights when they cited exigent circumstances to request his real-time cell phone tracking data from Verizon.
Justices pointedly criticized police for bypassing warrant requirements, especially in light of their active surveillance of Andrade in connection with the March 2022 armed carjacking and robbery, and a detective’s later admission that judges usually expedited their warrant requests.
“Our review of the record has persuaded us that the evidence here does not support a determination that investigators in this case reasonably believed they were confronted with an ’emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence,’” Presiding Justice Mary Greenwood wrote in the ruling, quoting prior case law.
Greenwood, leading a three-judge panel, added that their ruling should govern similar investigations going forward.
“Under these circumstances, it appears that investigators in this case submitted the emergency request to Verizon for general investigative purposes, in contravention of the Fourth Amendment. … Thus, applying the exclusionary rule in this case would act to deter similar searches that are devoid of articulable facts to support a request for a defendant’s location data,” Greenwood said.
The ruling also reverses Santa Clara County Superior Court Judge Erik Johnson’s December 2024 order denying Andrade’s motion to suppress the cell phone data. The case now goes back to trial court, with the cell phone data disallowed.
Andrade, who already completed a four-year prison sentence through a combination of jail and prison time, is now permitted to withdraw his no-contest plea that was negotiated with prosecutors. Additionally, the appellate court ordered Johnson and attorneys to re-assess “whether evidence other than the location data of Andrade’s cell phone should be suppressed as the fruits of the illegally obtained location data.”
“We welcome the Court of Appeal’s ruling which confirms that officers cannot simply claim, without evidence, that an emergency exists in order to obtain the cell site location data of community members without a judicial warrant supported by probable cause,” Deputy Public Defender Steven Otero, who represented Andrade, told this news organization. “The court’s ruling ensures the continued protection of our right to be free from warrantless government intrusions into the vast and deeply personal data stored on our cell phones in the absence of a true emergency.”
Neither the District Attorney’s Office nor the police department responded to requests for comment as of Friday morning.
Andrade and Jesus Ivan Larios were both suspected of brandishing guns to rob two people and take their car in the early morning hours of March 1, 2022. San Jose police detectives tracked signals from victims’ phones, which were among the items taken, to an apartment complex on Fontaine Street, where they found the stolen car abandoned.
Another victim phone signal pointed detectives to an Alum Rock area home where Andrade was listed as a resident, and where a car identified as a getaway vehicle was parked. Police put the home and vehicle under surveillance.
According to the police record cited in the appellate ruling, police faxed an emergency disclosure form to Verizon requesting historical and real-time cell site information for Andrade’s phone, which the company provided within about two hours.
The record shows that police were reviewing that data when Detective Amanda Estantino prepared search and arrest warrant applications, which were approved by a judge about four hours later. That night, they arrested Andrade and reported that a search of the home and car turned up one victim’s purse and a gun holster, and that a separate search of Larios’ home yielded the stolen car’s keys and the victims’ phones. Larios, who was not involved in Andrade’s appeal, was separately convicted and was sentenced to a 15-year prison term.
Estantino later testified at the suppression motion hearing for the cell phone data that she swiftly requested the Verizon records because of an ongoing threat to public safety. She cited her experience with robbery cases to assert the threat of additional robberies by the two suspects, which in turn carried the risk of a homicide or accidental shooting. She also contended the suspects had demonstrated a willingness to use guns in their alleged crimes.
The appellate panel rejected her argument, stating that “on these facts, Detective Estantino did not act reasonably in requesting Andrade’s location data from Verizon without a warrant.” The panel further stated that the seriousness of the alleged offense was not, on its own, grounds for bypassing Fourth Amendment warrant requirements.
“The mere fact that Andrade participated in an armed robbery does not itself give rise to exigency. Detective Estantino did not provide any specific or articulable facts to support her belief that there was an ongoing risk to public safety. … Neither Andrade nor his co-perpetrator Larios fired any shots at the victims during the commission of the robbery and the record demonstrates that (the victims) were not harmed during the incident,” the ruling states.
“With law enforcement observing Andrade’s residence and the vehicle he had used in the carjacking,” the ruling continues, “the record provides no reason to believe Andrade could have committed additional crimes without law enforcement knowing about them and being able to intervene.”
Greenwood said allowing a warrantless search of Andrade’s location records based on the detective’s past experience working robbery cases “would be tantamount to creating a (robbery) exception to the warrant requirement. … Given the totality of the circumstances, we conclude there was no exigency in this case based on risk to public safety.”
This is a developing story. Check back for updates.