United States of America v. Michael Karmo

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1082
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL K ARMO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:20-cr-00170 — J.P. Stadtmueller, Judge.
____________________
A RGUED M AY 15, 2024 — DECIDED J ULY 31, 2024
____________________
Before BRENNAN , K IRSCH , and LEE, Circuit Judges.
K IRSCH , Circuit Judge. On September 1, 2020, Michael
Karmo told a friend that he was traveling with firearms (in-
cluding two machine guns) to Kenosha, Wisconsin, during a
period of severe civil unrest and that people there were shoot-
ing others. The friend informed local police, who in turn no-
tified the FBI that Karmo was traveling to Kenosha to shoot
people and loot. The FBI submitted an exigent circumstances
form to AT&T pursuant to the Stored Communications Act

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2 No. 23-1082
conveying this information and requesting real-time cell site
location information (CSLI) on Karmo’s phone. Based on the
real-time CSLI, law enforcement located Karmo in under two
hours in a hotel parking lot. He consented to searches of his
vehicle and hotel room, which each contained multiple fire-
arms and ammunition. The next day, September 2, local po-
lice notified the FBI that, contrary to what the FBI submitted
in the AT&T exigency form, Karmo did not say that he in-
tended to shoot people and loot, just that people in general
were doing so. The FBI obtained search warrants for Karmo’s
residence and hotel room and a criminal complaint charging
him with possessing a firearm as a felon. In support of the
warrants and complaint, the FBI submitted affidavits incor-
rectly stating that it had learned on September 1 (rather than
September 2) that Karmo himself did not say that he intended
to shoot people and loot.
Following Karmo’s indictment, he moved to suppress the
evidence resulting from the real-time CSLI collection and re-
quested a hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978). He principally challenged the inaccurate statement in
the AT&T exigency form that he intended to shoot people and
loot. The district court denied his motion. Karmo later
pleaded guilty and was sentenced. He now appeals. Because
law enforcement reasonably believed that probable cause and
exigent circumstances existed, and a Franks hearing is inap-
plicable in this context, we affirm.
I
In August 2020, severe civil disorder broke out in Ke-
nosha, Wisconsin. During that period of unrest, Michael
Karmo and Cody Smith drove from Missouri to Kenosha. On
their way, they stopped in Waverly, Iowa, just after midnight

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No. 23-1082 3
on September 1 to meet with one of Karmo’s friends. Karmo
invited the friend to come with him and Smith to Kenosha,
but she declined. Karmo and Smith left shortly thereafter.
Later that day, Karmo’s friend went to the Waverly Police
Department and spoke with Officer Dave Lindley. She in-
formed Officer Lindley of Karmo and Smith’s recent visit, re-
ported that they claimed to have firearms (including two ma-
chine guns) in their vehicle, and shared her text messages
with Karmo, which included a photograph of Karmo and
Smith holding firearms. She also showed Officer Lindley a
photograph Karmo had sent her of a rifle with a drum maga-
zine, which Karmo captioned, “This the game changer.” Ac-
cording to Karmo’s friend, Karmo told her that people were
going to Kenosha and “picking people off” and that he
wanted to “see what’s going on.” She provided a written
statement recapping their visit before leaving.
Officer Lindley then called Sergeant Joshua Hecker of the
Kenosha Police Department to alert him that Karmo and
Smith were traveling to Kenosha with firearms. Officer Lind-
ley informed Sergeant Hecker that they were traveling to Ke-
nosha to loot and to “pick people off.” Shortly after, Sergeant
Hecker relayed this information to the FBI, who learned that
Karmo was a felon and found multiple photographs of him
holding firearms on his Facebook page.
Based on this information, and pursuant to the Stored
Communications Act’s exigent circumstances exception, the
FBI submitted an exigent circumstances form to AT&T that
same day to obtain real-time cell site location information on
Karmo’s cell phone. Specifically, the FBI requested updated
CSLI every 15 minutes for a period of 48 hours. In support of
the request (and consistent with the information it received

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4 No. 23-1082
from Sergeant Hecker), the FBI noted that Karmo was travel-
ing to Kenosha with firearms to “pick people off and loot.”
AT&T complied with the FBI’s request and started sharing
Karmo’s real-time CSLI in the early evening. After collecting
Karmo’s CSLI for around an hour and a half, law enforcement
located Karmo in the parking lot of a hotel near Kenosha.
Upon the FBI agents’ arrival, Karmo and Smith exited their
vehicle, were detained, and consented to a vehicle search,
where law enforcement recovered multiple firearms and fire-
arm magazines, body armor, and a folding knife. They also
consented to a search of their hotel room, which contained ad-
ditional firearms and ammunition.
On September 2, the Waverly Police Department sent the
FBI a formal incident report recounting Officer Lindley’s in-
teraction with Karmo’s friend. The report noted that Karmo
told his friend that people were going up to Kenosha and
picking people off, but—contrary to the AT&T exigency
form—Karmo did not state that he himself would do that. On
September 3, the FBI obtained a search warrant for Karmo’s
residence, where agents found several firearms and rounds of
ammunition. Further, an FBI agent obtained a criminal com-
plaint charging Karmo with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). On September 4,
the FBI obtained a search warrant for Karmo’s hotel room to
collect items that officers had observed during the consent
search but did not seize. In support of the search warrants and
criminal complaint, the FBI submitted affidavits stating,
among other things, that the Waverly Police Department sent
the formal incident report to the FBI on September 1 (rather
than the actual date it was sent, September 2). Though the
warrants inaccurately reflected when the FBI learned this in-
formation, they clarified that while Karmo said that people

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No. 23-1082 5
were going to Kenosha to shoot people and loot, he did not
state that he himself would do so.
After being indicted for possessing firearms as a felon, 18
U.S.C. § 922(g)(1), and possessing an unregistered firearm, 26
U.S.C. § 5861(d), Karmo moved to suppress the evidence re-
sulting from the CSLI collection and requested a hearing pur-
suant to Franks v. Delaware, 438 U.S. 154 (1978). Karmo as-
serted that the real-time collection of CSLI was an unlawful
Fourth Amendment search that was not justified by exigent
circumstances. Specifically, he argued that the AT&T exi-
gency form “fabricated a threat to public safety” because it
falsely detailed that he had expressed an intent to loot and to
pick people off when his friend had informed officers that
Karmo did not state that he personally planned to do so. He
further requested a Franks hearing on the veracity of the con-
tents of the form. The district court denied Karmo’s motion.
Karmo pleaded guilty to unlawfully possessing a firearm
pursuant to a plea agreement and reserved his right to appeal
any issue raised in his motion to suppress. He was sentenced
to 64 months’ imprisonment, and this appeal followed.
II
A
The FBI obtained Karmo’s real-time CSLI pursuant to the
Stored Communications Act’s exigent circumstances excep-
tion, which allows a service provider to disclose records if it,
“in good faith, believes that an emergency involving danger
of death or serious physical injury to any person requires dis-
closure without delay ….” 18 U.S.C. § 2702(c)(4). Even if
Karmo could prove a violation of the Stored Communications
Act, suppression of evidence is not an available remedy. Id.

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6 No. 23-1082
§ 2708 (“The remedies and sanctions described in this chapter
are the only judicial remedies and sanctions for nonconstitu-
tional violations of this chapter.”); United States v. Guerrero,
768 F.3d 351, 358 (5th Cir. 2014) (“[S]uppression is not a rem-
edy for a violation of the Stored Communications Act.”);
United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998)
(“[T]he Stored Communications Act expressly rules out ex-
clusion as a remedy.”). Thus, to obtain the relief he seeks,
Karmo must establish a Fourth Amendment violation. See 18
U.S.C. § 2708; Guerrero, 768 F.3d at 358; cf. Davis v. United
States, 564 U.S. 229, 236–37 (2011) (noting that the purpose of
the exclusionary rule “is to deter future Fourth Amendment
violations”). And, to proceed along this path, Karmo must
show that he was subjected to a Fourth Amendment search in
the first place.
The government on appeal argues that its limited use of
real-time CSLI does not qualify as a Fourth Amendment
search. In Karmo’s view, however, the government waived
this argument by electing not to present it below. But we need
not decide this issue, because even assuming (without decid-
ing) that the government’s use of CSLI data in this case con-
stituted a search for purposes of the Fourth Amendment, we
would still affirm.
B
Assuming (without deciding) that a Fourth Amendment
search occurred, we would affirm the district court’s denial of
Karmo’s motion to suppress without conducting a Franks
hearing. Though law enforcement did not obtain a search
warrant before collecting Karmo’s real-time CSLI, warrant-
less searches are permissible if law enforcement has probable
cause to believe that illegal activity is occurring and that

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No. 23-1082 7
exigent circumstances are present. Jacobs v. City of Chicago, 215
F.3d 758, 769 (7th Cir. 2000); see also Carpenter v. United States,
585 U.S. 296, 319 (2018) (noting that law enforcement does not
need a warrant to access historical CSLI if exigent circum-
stances are present). When viewing the totality of the circum-
stances, United States v. Rosario, 5 F.4th 706, 713 (7th Cir. 2021),
probable cause exists if there is “a reasonable belief that a
search will turn up evidence of criminal activity,” United
States v. Hicks, 650 F.3d 1058, 1065 (7th Cir. 2011). Exigent cir-
cumstances are present if law enforcement reasonably be-
lieves that the safety of the public is threatened. United States
v. Huddleston, 593 F.3d 596, 600 (7th Cir. 2010); see also United
States v. Maxwell, 85 F.4th 1243, 1246 (7th Cir. 2023) (noting
that exigent circumstances are present if there is a need to ren-
der emergency aid).
Karmo principally challenges the inaccurate statement in
the AT&T exigency form that he intended to pick people off
and loot. But even excluding that misrepresentation, the total-
ity of the other circumstances supports a reasonable belief
that there was a threat to public safety and that tracking
Karmo’s real-time CSLI would reveal criminal activity.
Karmo’s friend alerted law enforcement that Karmo and
Smith said that they were traveling with firearms (including
two machine guns) to Kenosha during a period of severe civil
unrest when people were “picking people off” and that
Karmo wanted to “see what’s going on.” Karmo’s friend also
showed law enforcement a photograph of Karmo holding a
firearm and a photograph that Karmo had sent her of a rifle
that he referred to as “the game changer.” And law enforce-
ment learned that Karmo was a felon and found his Facebook
page, which showed multiple photographs of him holding
firearms. Thus, considering the totality of the circumstances,

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8 No. 23-1082
including the extreme civil unrest in Kenosha at the time and
that Karmo, a known felon, said that he was traveling there
with machine guns (and had stated that he possessed a fire-
arm he believed to be the “game changer”), law enforcement’s
tracking of Karmo’s real-time CSLI was supported by exigent
circumstances. And as discussed, absent a constitutional vio-
lation, suppression of evidence is not an available remedy.
Further, a Franks hearing—“an evidentiary hearing re-
garding the veracity of information” provided to a judge to
determine the existence of probable cause, United States v.
Mullins, 803 F.3d 858, 861 (7th Cir. 2015)—is inapplicable here.
The purpose of a Franks hearing is to determine whether the
information provided to the judge would have still supported
probable cause, setting aside any intentional or reckless mis-
representations or omissions. See id. at 861–62; Lickers v.
United States, 98 F.4th 847, 858–59 (7th Cir. 2024). But a judge
never made a probable cause determination. The AT&T exi-
gency form was not a search warrant, and law enforcement’s
collection of Karmo’s real-time CSLI was supported by prob-
able cause even absent the inaccurate statement that Karmo
intended to pick people off and loot. In other words, there is
no search warrant to invalidate, and that the AT&T exigency
form contained a misrepresentation is irrelevant because law
enforcement had authority under the Fourth Amendment (ex-
igent circumstances supported by probable cause) to collect
Karmo’s CSLI regardless. Thus, the district court did not err
in denying Karmo’s request for a Franks hearing.
A FFIRMED

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