United States v. Aaron Graham

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________
No. 12-4659
____________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON GRAHAM,
Defendant – Appellant.
------------------------------------
ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY;
AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Amici Supporting Appellant.
_____________
No. 12-4825
_____________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC JORDAN,
Defendant – Appellant.
------------------------------------
ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY;
AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Amici Supporting Appellant.
___________
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:11-cr-00094-RDB-1; 1:11-cr-00094-RDB-2)
____________
Argued: December 11, 2014 Decided: August 5, 2015
____________
Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
_____________
Affirmed by published opinion. Senior Judge Davis wrote the
majority opinion, in which Judge Thacker joined. Judge Thacker
wrote a separate concurring opinion. Judge Motz wrote an opinion
dissenting in part and concurring in the judgment.
_____________
ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland; Ruth J. Vernet, RUTH J VERNET,
ESQ., LLC, Rockville, Maryland, for Appellants. Rod J.
Rosenstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant Aaron Graham. Nathan Judish, Computer
Crime & Intellectual Property Section, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Benjamin M. Block, Assistant
United States Attorney, Baltimore, Maryland, Sujit Raman, Chief
of Appeals, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee. Nathan Freed Wessler, Catherine Crump,
Ben Wizner, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York,
New York; David R. Rocah, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND, Baltimore, Maryland; Kevin S. Bankston,
Gregory T. Nojeim, CENTER FOR DEMOCRACY & TECHNOLOGY,
Washington, D.C.; Thomas K. Maher, Vice-Chair, 4th Circuit
Amicus Committee, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS, Durham, North Carolina; Hanni Fakhoury, ELECTRONIC
FRONTIER FOUNDATION, San Francisco, California, for Amici
Curiae.
2
DAVIS, Senior Circuit Judge:
Appellants Aaron Graham and Eric Jordan appeal their
convictions for several offenses arising from a series of armed
robberies. Specifically, Appellants challenge the district
court’s admission of testimonial and documentary evidence
relating to cell site location information (“CSLI”) recorded by
their cell phone service provider. We conclude that the
government’s warrantless procurement of the CSLI was an
unreasonable search in violation of Appellants’ Fourth Amendment
rights. Nevertheless, because the government relied in good
faith on court orders issued in accordance with Title II of the
Electronic Communications Privacy Act, or the Stored
Communications Act (“SCA”), we hold the court’s admission of the
challenged evidence must be sustained.
Jordan separately challenges restrictions on his own
testimony imposed by the district court, the court’s denial of
his motion for severance, the exclusion of certain out-of-court
statements attributed to Graham, the admission of evidence
seized during a search of his residence, and the sufficiency of
the evidence supporting several of his convictions. Finding no
reversible error in these respects, we affirm the judgment of
the district court.
I.
3
This prosecution arose from a series of six armed robberies
of several business establishments located in Baltimore City and
Baltimore County, Maryland. After a nine-day joint trial in the
U.S. District Court for the District of Maryland, a jury found
Appellants guilty on all counts submitted to it. Aaron Graham
was convicted of being a felon in possession of a firearm, Hobbs
Act robbery, conspiracy to commit Hobbs Act robbery, and
brandishing a firearm in connection with all six robberies. Eric
Jordan was convicted of conspiracy, Hobbs Act robbery, and
brandishing a firearm in connection with three of the robberies.
A.
The evidence adduced at trial permitted the jury to find
the following facts.
The first robbery occurred the evening of January 17, 2011,
at a Dollar Tree store in Baltimore County. Graham entered the
store, brandished a small black gun, and directed a cashier to
open a cash register. The cashier removed cash from the register
and gave it to Graham. Graham reached over the counter to grab
additional cash before fleeing the store.
The second and third robberies occurred five days later. On
the evening of January 22, 2011, five individuals, including
Graham, arrived at Mondawmin Mall in Baltimore in a dark colored
Ford F-150 pickup truck, exited the vehicle, and entered the
shopping mall before the truck pulled away. Graham, seen on
4
video surveillance wearing the same clothing worn during the
Dollar Tree robbery five days earlier, entered the Milan Gold &
Diamonds jewelry store (“Milan Gold”) inside the mall with a
second individual. After two other individuals entered the
store, leaving a fifth standing outside the door, Graham pointed
a gun at a clerk and demanded, “Don’t be smart with me. Just
give me everything.” J.A. 1522. The three persons with Graham
picked up the jewelry as the clerk removed it from a display
case. Graham demanded a specific watch from a separate display
case and, after the clerk gave it to him, he and the others left
the mall.
Later that evening, Graham, again wearing the same clothes,
entered a 7-Eleven store in Baltimore, walked behind the
counter, grabbed the clerk, and demanded that he open the cash
register. The clerk did not see a gun but saw Graham’s hand
inside his jacket and later testified that “it felt like there
was some kind of weapon, some kind of material in there . . . .”
J.A. 1600. Graham emptied two cash registers and then ordered
the clerk to go into a back room inside the store. After Graham
left, the clerk observed Graham enter the driver’s side of an F-
150 truck and depart. The clerk recorded video of the truck
pulling away and its appearance matched that of the truck used
at Mondawmin Mall earlier that evening.
5
The fourth robbery occurred on February 1, 2011, at a Shell
gas station in Baltimore County. Graham and a masked individual
entered the cashier’s booth, where Graham pushed the clerk to
the floor, began punching and kicking him, and then brandished a
small gun, placing it near the clerk’s ear. Meanwhile, a third
individual stood near the door to the store with a sawed-off
shotgun. When a customer attempted to leave, the third robber
blocked the exit, forced the customer to the ground, and beat
him in the head with the shotgun. After Graham and the second
robber removed cash from the booth, the three robbers departed.
The fifth and sixth robberies occurred four days later. On
February 5, 2011, at approximately 3:29 p.m., Graham entered a
Burger King restaurant in Baltimore wearing the same jacket worn
during the Dollar Tree, Milan Gold, and 7-Eleven robberies, and
carrying a small black gun with a white handle. Graham
brandished the weapon and demanded money. The restaurant manager
opened several cash registers, which Graham emptied before
departing. Graham was seen entering a dark colored F-150 truck
on the passenger side before the truck pulled away.
About forty five minutes later, Graham entered a McDonald’s
restaurant approximately two miles from the Burger King, went
behind the counter, and demanded money, brandishing a small
black gun with a white handle. After the restaurant manager
opened three cash registers, Graham removed cash and stuffed it
6
into his jacket before departing. The manager saw Graham enter
the passenger side of a dark pickup truck, which pulled away
rapidly.
While investigating the Burger King robbery, Officer Joshua
Corcoran of the Baltimore Police Department received reports
describing the robber, his clothing, and the pickup truck.
Shortly thereafter, he heard a radio call regarding the
McDonald’s robbery and indicating that the pickup truck was
possibly headed toward his location.
After leaving the Burger King, Corcoran spotted a pickup
truck matching the descriptions he received and observed that a
passenger inside the vehicle wore a jacket matching the
description of that reportedly worn by the Burger King robber.
During Corcoran’s pursuit of the truck, the driver drove it up
onto a sidewalk and accelerated. Corcoran continued pursuit just
before the truck became trapped between heavy traffic, a
construction barrier, and a moving train in front of it, and was
forced to stop.
Corcoran and another officer conducted a felony car stop,
directing orders to Graham and the driver, Jordan. Graham and
Jordan were non-compliant with some of the officers’
instructions but were eventually secured and arrested. At the
scene, employees of Burger King and McDonald’s identified Graham
as the robber. A black .25 caliber Taurus pistol with a pearl
7
handle was recovered from under the passenger seat. Nearly
$1,100 in cash bundles were recovered from the person of Graham
and Jordan, and from an open console inside the truck.
B.
During the ensuing, post-arrest investigation, Detective
Chris Woerner recognized similarities between the restaurant
robberies and the Milan Gold and 7-Eleven robberies. Woerner
prepared search warrants for Graham’s and Jordan’s residences
and the pickup truck. The probable cause portion of each of the
warrant affidavits described what was known at the time about
the Milan Gold, 7-Eleven, Burger King, and McDonald’s robberies.
The search warrants were issued by a judge of the Circuit Court
of Maryland for Baltimore City.
While Woerner was seeking the warrant for Graham’s
residence, other officers conducted a search of Jordan’s
apartment, recovering a sawed-off shotgun, a matching shotgun
shell, a .357 caliber Rossi revolver, .357 caliber cartridges,
and other items. Woerner executed searches of Graham’s residence
and the pickup truck, recovering a gun holster and several rings
and watches from the residence, and two cell phones from the
truck. After Woerner obtained warrants for the phones, the phone
numbers associated with each phone was determined and matched
the respective numbers disclosed by Graham and Jordan after
their arrest.
8
Woerner contacted the Baltimore County Police Department to
determine whether they were investigating any potentially
related robberies, sending photos of Graham and Jordan and
photos from the searches. Detective Kelly Marstellar recognized
similarities to the Dollar Tree and Shell station robberies,
including the similarity between the jacket worn by Jordan at
the time of his arrest and that worn by the masked robber of the
Shell station, who had entered the cashier booth. The Baltimore
County Police Department prepared and executed a second round of
search warrants at Graham’s and Jordan’s residences on February
23, 2011. During the second search of Jordan’s apartment,
officers recovered clothing that matched that worn by Graham
during the Shell station robbery.
The government sought cell phone information from
Sprint/Nextel, the service provider for the two phones recovered
from the truck. Sprint/Nextel identified Graham’s phone as
subscribed to Graham’s wife at their shared Baltimore County
address and Jordan’s phone as subscribed to an alias or proxy.
The government then sought and obtained two court orders for
disclosure of CSLI for calls and text messages transmitted to
and from both phones. The government’s initial application for a
court order sought CSLI for four time periods: August 10-15,
2010; September 18-20, 2010; January 21-23, 2011; and February
4-5, 2011. A second application followed, seeking information
9
for a much broader timeframe: July 1, 2010 through February 6,
2011. The government used the court order to obtain from
Sprint/Nextel records listing CSLI for this 221-day time period.
C.
The government charged Graham and Jordan with multiple
counts of being felons in possession of a firearm, see 18 U.S.C.
§ 922(g)(1) (2011); robbery affecting commerce, see 18 U.S.C. §
1951(a) (Hobbs Act); conspiracy to commit Hobbs Act robbery, see
id.; brandishing a firearm during a crime of violence, see 18
U.S.C. § 924(c); and conspiracy to brandish a firearm during a
crime of violence, see 18 U.S.C. § 924(o). Jordan was also
charged with possession of an unregistered sawed-off shotgun.
See 18 U.S.C. § 5861(d). The indictment also charged aiding and
abetting the felon-in-possession, Hobbs Act robbery, conspiracy,
and brandishing-a-firearm offenses. See 18 U.S.C. § 2. Graham
was charged in connection with all six robberies, and Jordan was
charged in connection with the Shell, Burger King, and
McDonald’s robberies.
Appellants filed a number of pre-trial motions, including
motions for severance under Rule 14 of the Federal Rules of
Criminal Procedure and a motion to suppress the CSLI obtained
from Sprint/Nextel on Fourth Amendment grounds. Jordan
separately filed a motion to suppress evidence seized during the
search of his apartment, arguing that the first search warrant
10
was defective. The district court denied all of Appellants’
motions, and the case proceeded to trial.
During trial, Appellants objected to proposed testimony
regarding CSLI from a Sprint/Nextel records custodian and from
an FBI agent who investigated the case, arguing that the
proposed testimony was impermissible expert opinion. The
district court disagreed and admitted the proposed testimony.
Jordan also filed a motion in limine seeking to admit a
handwritten statement purportedly written by Graham and a
recorded telephone call in which Graham participated. The court
denied the motion, excluded the handwritten statement as hearsay
and unauthenticated, and excluded the phone call as irrelevant.
The court also ordered that the scope of Jordan’s testimony be
limited to exclude certain irrelevant topics that were
potentially prejudicial to Graham.
At the close of the government’s case, the government moved
to dismiss the count of conspiracy to possess a firearm during a
crime of violence. Graham and Jordan moved for judgment of
acquittal as to all remaining counts for insufficiency of
evidence under Rule 29(a) of the Federal Rules of Criminal
Procedure. The court denied the defendants’ Rule 29(a) motions,
except with respect to the felon-in-possession count, which the
court granted as to Jordan.
11
Jordan’s defense case consisted of his own testimony as
well as that of four character witnesses and a private
investigator. Graham declined to testify and offered no
evidence.
The parties rested on April 26, 2012, and delivered closing
arguments the following day. On April 30, 2012, the jury
returned guilty verdicts on all remaining counts. Graham and
Jordan submitted motions for new trials, which the district
court denied. This appeal followed.
D.
During the pendency of this appeal, prior to oral argument,
this Court directed each party to file a supplemental brief
addressing the U.S. Supreme Court’s recent decision in Riley v.
California, 134 S. Ct. 2473 (2014), and permitted Appellants to
file a supplemental reply brief. Dkt. No. 135. Appellants filed
their supplemental brief on July 18, 2014, Dkt. No. 138; the
government filed its supplemental response brief on August 4,
2014, Dkt. No. 142; and Appellants filed a supplemental reply
brief on August 8, 2014, Dkt. No. 144.
On August 21, 2014, the government filed a letter with the
Court requesting permission to identify what it called
“erroneous factual assertions” in Appellants’ supplemental reply
and seeking to rebut several assertions made in that brief. Dkt.
No. 145. The next day, Appellants filed a motion to strike the
12
government’s letter as a sur-reply, Dkt. No. 146, to which the
government did not respond.
The government’s submission is, in effect, a sur-reply
brief in the form of a letter. This Court does not generally
permit the filing of sur-reply briefs without first granting
leave for such a filing. Moreover, the government’s letter fails
to make an adequate demonstration of the need for a sur-reply.
Accordingly, we grant the motion to strike, deny the
government’s request, and do not consider the content of the
government’s letter in disposition of this appeal.
E.
Graham and Jordan present several issues on appeal, arguing
that the district court erred in admitting the government’s CSLI
evidence and certain testimony of the case agent and the
Sprint/Nextel records custodian regarding the CSLI. Jordan
argues separately that the district court also committed
constitutional error in restricting his testimony and erred in
denying his severance motion, excluding the out-of-court
statements attributed to Graham, and admitting evidence seized
from his apartment. Jordan argues further that the evidence
presented at trial was insufficient to support convictions for
conspiracy, Hobbs Act robbery, or brandishing a firearm during a
crime of violence. We consider these issues in turn.
II.
13
During the investigation of the robberies charged in this
case, the government secured court orders under the SCA for 221
days’ worth of historical CSLI from Sprint/Nextel. Appellants
filed a motion to suppress use of the CSLI at trial, arguing
that the government’s acquisition of the records without a
warrant based on probable cause was an unreasonable search in
violation of the Fourth Amendment. The district court denied the
motion, holding that the government’s conduct was not an
unreasonable search and, even if it was, the good-faith
exception to the exclusionary rule justified admission of the
CSLI. See generally United States v. Graham, 846 F. Supp. 2d 384(D. Md. 2012). The government ultimately used the CSLI at trial
to establish Appellants’ locations at various times before and
after most of the charged robberies.
Appellants now appeal the denial of their motion to
suppress. We review a district court’s evidentiary rulings for
abuse of discretion, United States v. Rivera, 412 F.3d 562, 566
(4th Cir. 2005), but we review de novo any legal conclusions as
to whether certain law enforcement conduct infringes Fourth
Amendment rights, United States v. Breza, 308 F.3d 430, 433 (4th
Cir. 2002).
For the reasons explained below, we hold that the
government’s procurement of the historical CSLI at issue in this
case was an unreasonable search. Notwithstanding that
14
conclusion, we affirm the district court’s denial of the
suppression motion because, in obtaining the records, the
government acted in good-faith reliance on the SCA and the court
orders issued under that statute.
A.
Historical CSLI identifies cell sites, or “base stations,”
to and from which a cell phone has sent or received radio
signals, and the particular points in time at which these
transmissions occurred, over a given timeframe. Cell sites are
placed at various locations throughout a service provider’s
coverage area and are often placed on towers with antennae
arranged in sectors facing multiple directions to better
facilitate radio transmissions. A cell phone connects to a
service provider’s cellular network through communications with
cell sites, occurring whenever a call or text message is sent or
received by the phone. 1 The phone will connect to the cell site
with which it shares the strongest signal, which is typically
the nearest cell site. The connecting cell site can change over
the course of a single call as the phone travels through the
coverage area. When the phone connects to the network, the
1A “smartphone,” a type of cell phone with a computer
operating system, may communicate more frequently with the
network than other types of cell phones through, for example,
automatic updates to email inboxes and other operations of
software applications installed on the phone.
15
service provider automatically captures and retains certain
information about the communication, including identification of
the specific cell site and sector through which the connection
is made.
By identifying the nearest cell tower and sector, CSLI can
be used to approximate the whereabouts of the cell phone at the
particular points in time in which transmissions are made. The
cell sites listed can be used to interpolate the path the cell
phone, and the person carrying the phone, travelled during a
given time period. The precision of this location data depends
on the size of the identified cell sites’ geographical coverage
ranges. Cell sites in urban areas, which have the greatest
density of cell sites, tend to have smaller radii of operability
than those in rural areas. The cell sites identified in the CSLI
at issue in this case covered areas with a maximum radius of two
miles, each divided into three 120-degree sectors.
B.
The government obtained Appellants’ CSLI through use of
court orders issued under the SCA directing Sprint/Nextel to
disclose the information. The SCA “provid[es] an avenue for law
enforcement entities to compel a provider of electronic
communication services to disclose the contents and records of
electronic communications.” In re Application of U.S. for an
Order Pursuant to 18 U.S.C. Section 2703(d) (In re Application
16
(Fourth Circuit)), 707 F.3d 283, 287 (4th Cir. 2013); see also
18 U.S.C. §§ 2701–2711 (2010). The statute outlines procedures a
governmental entity must follow to procure information from a
service provider, treating subscriber account records
differently than the content of electronic communications.
United States v. Clenney, 631 F.3d 658, 666 (4th Cir. 2011)
(citing 18 U.S.C. § 2703).
Absent subscriber notice and consent, the government must
secure a warrant or a court order for subscription account
records. 18 U.S.C. § 2703(c)(1). A warrant from a federal
district court for the disclosure of subscriber records must be
issued pursuant to the Federal Rules of Criminal Procedure, id.§ 2703(c)(1)(A), which, in accordance with the Fourth Amendment,
require a finding of probable cause by an impartial magistrate,
Fed. R. Crim. P. 41(d); see also Payton v. New York, 445 U.S.
573, 588 n.26 (1980).
Section 2703(d) sets out the requirements for a court order
for a service provider to disclose subscriber account records.
The government must “offer[] specific and articulable facts
showing that there are reasonable grounds to believe that . . .
the records or other information sought[] are relevant and
material to an ongoing criminal investigation.” 18 U.S.C. §
2703(d). “This is essentially a reasonable suspicion
standard[,]” In re Application (Fourth Circuit), 707 F.3d at
17
287, in contrast to the substantially higher probable cause
standard for securing a warrant. The statute offers no express
direction as to when the government should seek a warrant versus
a § 2703(d) order.
The government obtained two § 2703(d) court orders for the
CSLI at issue in this appeal. The first order directed
Sprint/Nextel to disclose CSLI records for four time periods
amounting to 14 days, and the second order directed disclosure
of records for a much broader 221-day time period that included
the previously ordered 14 days. Sprint/Nextel disclosed to the
government the total 221 days’ worth of CSLI for each
Appellant’s phone.
C.
Appellants argue that the government violated the Fourth
Amendment in seeking and inspecting the CSLI at issue here
without a warrant based on probable cause. We agree.
The Fourth Amendment protects individuals against
unreasonable searches and seizures. Katz v. United States, 389
U.S. 347, 353 (1967). A “search” within the meaning of the
Fourth Amendment occurs where the government invades a matter in
which a person has an expectation of privacy that society is
willing to recognize as reasonable. Kyllo v. United States, 533
U.S. 27, 33 (2001) (citing Katz, 389 U.S. at 361 (Harlan, J.,
concurring)). A person’s expectation of privacy is considered
18
reasonable by societal standards when derived from “‘concepts of
real or personal property law or . . . understandings that are
recognized and permitted by society.’” Minnesota v. Carter, 525
U.S. 83, 88 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143
n.12 (1978)). Warrantless searches are, “as a general matter, .
. . per se unreasonable under the Fourth Amendment,” although
“there are a few specifically established and well-delineated
exceptions to that general rule.” United States v. (Earl
Whittley) Davis, 690 F.3d 226, 241-42 (4th Cir. 2012) (quoting
City of Ontario, Cal. v. Quon, 560 U.S. 746, 760 (2010))
(internal quotation marks omitted).
We hold that the government conducts a search under the
Fourth Amendment when it obtains and inspects a cell phone
user’s historical CSLI for an extended period of time.
Examination of a person’s historical CSLI can enable the
government to trace the movements of the cell phone and its user
across public and private spaces and thereby discover the
private activities and personal habits of the user. Cell phone
users have an objectively reasonable expectation of privacy in
this information. Its inspection by the government, therefore,
19
requires a warrant, unless an established exception to the
warrant requirement applies. 2
1.
As an initial matter, we are not persuaded that, as the
district court stated, Sprint/Nextel’s privacy policy disproves
Appellants’ claim that they had an actual expectation in the
privacy of their location and movements. The privacy policy in
effect at the time Sprint/Nextel disclosed CSLI to the
government stated as follows:
Information we collect when we provide you with
Services includes when your wireless device is turned
on, how your device is functioning, device signal
strength, where it is located, what device you are
using, what you have purchased with your device, how
you are using it, and what sites you visit.
J.A. 957. First, the policy only states that Sprint/Nextel
collects information about the phone’s location – not that it
discloses this information to the government or anyone else.
2
The en banc Eleventh Circuit recently held that, assuming
government acquisition of CSLI through use of a § 2703(d) order
is a Fourth Amendment search, such a search would be reasonable
under the Fourth Amendment and not require a warrant. United
States v. (Quartavious) Davis, 785 F.3d 498, 516-18 (11th Cir.
2015) (en banc). Section 2703(d) orders, as previously noted, do
not require a showing of probable cause and do not fit within
any of the “well delineated exceptions” to the general rule that
a search requires a warrant based on probable cause. Quon, 560
U.S. at 760. We decline here to create a new exception to a rule
so well established in the context of criminal investigations.
20
Second, studies have shown that users of electronic
communications services often do not read or understand their
providers’ privacy policies. 3 There is no evidence that
Appellants here read or understood the Sprint/Nextel policy.
2.
The Supreme Court has recognized an individual’s privacy
interests in comprehensive accounts of her movements, in her
location, and in the location of her personal property in
private spaces, particularly when such information is available
only through technological means not in use by the general
public.
a.
In United States v. Knotts, 460 U.S. 276 (1983), law
enforcement officers used a combination of visual surveillance
and monitoring of a radio transmitter installed in a container
of chloroform to track the container’s movements by automobile
to the defendants’ homes. 460 U.S. at 278-79. In holding that
this practice did not infringe upon a reasonable expectation of
3See, e.g., Federal Trade Commission, Mobile Privacy
Disclosures: Building Trust Through Transparency 10 (Feb. 2013),
http://www.ftc.gov/sites/default/files/documents/reports/mobile-
privacy-disclosures-building-trust-through-transparency-federal-
trade-commission-staff-report/130201mobileprivacyreport.pdf
(saved as ECF opinion attachment); Aleecia M. McDonald & Lorrie
Faith Cranor, The Cost of Reading Privacy Policies, 4 I/S: J. L.
& Pol’y Info. Soc’y 543, 544 (2008).
21
privacy, the Court emphasized the “limited” nature of the
government’s electronic surveillance effort, which was confined
to tracking the container’s movement on public roads from its
place of purchase to its ultimate destination. Id. at 284.
Although the government tracked the container to a defendant’s
private home, there was no indication that the officers
continued to monitor the container inside the private space
after its public journey had ended. Id. at 285; see also
California v. Ciraolo, 476 U.S. 207, 213 (1986) (“The Fourth
Amendment protection of the home has never been extended to
require law enforcement officers to shield their eyes when
passing by a home on public thoroughfares.”).
Knotts left unanswered two questions critical to assessing
the constitutionality of the government’s conduct in the present
case: (1) whether tracking the location of an individual and her
property inside a private space constitutes a Fourth Amendment
search; and (2) whether locational tracking of an individual and
her property continuously over an extended period of time
constitutes a search. Courts have answered each of these
questions in the affirmative.
b.
United States v. Karo, 468 U.S. 705 (1984), addressed the
first question. As in Knotts, government agents surreptitiously
used a radio transmitter to track the movements of a chemical
22
container to a private residence, but here the agents continued
to monitor the container while it was inside the residence.
Karo, 468 U.S. at 709-10. The Court held that this practice
“violate[d] the Fourth Amendment rights of those who have a
justifiable interest in the privacy of the residence.” Id. at
714. The government’s monitoring of the beeper “reveal[ed] a
critical fact about the interior of the premises . . . that [the
government] could not have otherwise obtained without a
warrant”: “that a particular article is actually located at a
particular time in the private residence and is in the
possession of the person or persons whose residence is being
watched.” Id. at 715. “Indiscriminate monitoring of property
that has been withdrawn from public view would present far too
serious a threat to privacy interests in the home to escape
entirely some sort of Fourth Amendment oversight.” Id. at 716(footnote omitted).
In Kyllo v. United States, 533 U.S. 27 (2001), the Court
again considered whether the use of technology to discover
information hidden in a private home constituted a Fourth
Amendment search. The government aimed a thermal imaging device
at the petitioner’s home from a public street to detect infrared
radiation inside the home, which would allow it to identify the
locations and movements of persons and certain objects inside.
Id. at 29-30. The Court held that “[w]here . . . the Government
23
uses a device that is not in general public use, to explore
details of the home that would previously have been unknowable
without physical intrusion, the surveillance is a ‘search’ and
is presumptively unreasonable without a warrant.” Id. at 40.
Like the searches challenged in Karo and Kyllo, examination
of historical CSLI can allow the government to place an
individual and her personal property – specifically, her cell
phone – at the person’s home and other private locations at
specific points in time. “In the home, . . . all details are
intimate details, because the entire area is held safe from
prying government eyes.” Id. at 37; see also Karo, 468 U.S. at
714 (“[P]rivate residences are places in which the individual
normally expects privacy free of governmental intrusion not
authorized by a warrant, and that expectation is plainly one
that society is prepared to recognize as justifiable.”). The
Karo and Kyllo Courts recognized the location of a person and
her property within a home at a particular time as a “critical”
private detail protected from the government’s intrusive use of
technology. See Kyllo, 533 U.S. at 37; Karo, 468 U.S. at 715.
Inspection of long-term CSLI invades an even greater
privacy interest than the search challenged in Karo because,
unlike a cell phone, the tracking device in Karo was not carried
on anyone’s person and therefore was not capable of tracking the
location of any individual. Additionally, the private location
24
information discovered in this case covered a remarkable 221
days, potentially placing each Appellant at home on several
dozen specific occasions, far more than the single instances
discovered in Karo and Kyllo. See Kyllo, 533 U.S. at 30; Karo,
468 U.S. at 709, 714.
c.
The Supreme Court considered long-term electronic location
surveillance in United States v. Jones, 132 S. Ct. 945 (2012).
In that case, the government, acting without a warrant,
installed a Global Positioning System (“GPS”) device on a
suspect’s vehicle to track the movements of the vehicle over a
28-day period. Jones, 132 S. Ct. at 948. The D.C. Circuit had
decided that this practice was a search because (1) a reasonable
individual would not expect that the sum of her movements over a
month would be observed by a stranger in public, and (2) this
information could reveal “an intimate picture” of her life not
disclosed by any one of her movements viewed individually.
United States v. Maynard, 615 F.3d 544, 561-64 (D.C. Cir. 2010),
aff’d sub. nom. Jones, 132 S. Ct. 945.
The Supreme Court unanimously affirmed the D.C. Circuit
without reaching full agreement as to the basis for this
decision. See Jones, 132 S. Ct. at 954; id. at 964 (Alito, J.,
concurring in the judgment). The entire Court did agree however
that Knotts had explicitly left unanswered the constitutionality
25
of “dragnet type law enforcement practices” like the form of
“twenty-four hour surveillance” employed in Jones. Knotts, 460
U.S. at 283-84); see Jones, 132 S. Ct. at 952 n.6 (Scalia, J.,
writing for the majority); id. at 956 n.* (Sotomayor, J.,
concurring); id. at 963 n.10 (Alito, J., concurring in the
judgment). Justice Scalia’s majority opinion, expressing the
views of five Justices, held that the government’s installation
of the GPS device on the suspect’s vehicle constituted a search
under the traditional trespass-based theory of Fourth Amendment
protection, bypassing the reasonable-expectation-of-privacy
analysis established in Katz. See id. at 949-52. While
acknowledging that “[s]ituations involving merely the
transmission of electronic signals without trespass would remain
subject to Katz analysis,” Justice Scalia declined to address
this question. Id. at 953; see also id. at 954 (“It may be that
achieving the same result through electronic means, without an
accompanying trespass, is an unconstitutional invasion of
privacy, but the present case does not require us to answer that
question.”).
In two concurring opinions, five Justices confronted the
Katz question and agreed that “longer term GPS monitoring in
investigations of most offenses impinges on expectations of
privacy.” Id. at 955 (Sotomayor, J., concurring); id. at 964(Alito, J., concurring in the judgment). Justice Sotomayor
26
echoed the D.C. Circuit’s concerns about the government’s
ability to record an individual’s movements and aggregate the
information “in a manner that enables the Government to
ascertain, more or less at will,” private facts about the
individual, such as her “political and religious beliefs, sexual
habits, and so on.” Id. at 956. Neither concurrence indicated
how long location surveillance could occur before triggering
Fourth Amendment protection, but, considering the investigation
challenged in Jones, Justice Alito stated that “the line was
surely crossed before the 4-week mark.” Id. at 964.
The privacy interests affected by long-term GPS monitoring,
as identified in Maynard and the Jones concurrences, apply with
equal or greater force to historical CSLI for an extended time
period. See Commonwealth v. Augustine, 4 N.E.3d 846, 861 (Mass.
2014) (“CSLI implicates the same nature of privacy concerns as a
GPS tracking device.”). “[C]itizens of this country largely
expect the freedom to move about in relative anonymity without
the government keeping an individualized, turn-by-turn itinerary
of our comings and goings.” Renée McDonald Hutchins, Tied Up in
Knotts? GPS Technology and the Fourth Amendment, 55 UCLA L. Rev.
409, 455 (2007). Much like long-term GPS monitoring, long-term
location information disclosed in cell phone records can reveal
both a comprehensive view and specific details of the
individual’s daily life. As the D.C. Circuit stated in Maynard,
27
“A person who knows all of another’s travels can deduce whether
he is a weekly church goer, a heavy drinker, a regular at the
gym, an unfaithful husband, an outpatient receiving medical
treatment, an associate of particular individuals or political
groups – and not just one such fact about a person, but all such
facts.” 615 F.3d at 561-62; compare Jones, 132 S. Ct. at 955(Sotomayor, J., concurring) (“GPS monitoring generates a
precise, comprehensive record of a person’s public movements
that reflects a wealth of detail about her familial, political,
professional, religious, and sexual associations.”), with State
v. Earls, 70 A.3d 630, 642 (N.J. 2013) (“[CSLI] can reveal not
just where people go — which doctors, religious services, and
stores they visit — but also the people and groups they choose
to affiliate with and when they actually do so.”).
Inspection of historical CSLI may provide even more private
information about an individual than the locational monitoring
challenged in Maynard/Jones. The surveillance at issue in that
case was limited to movements of an automobile on public roads.
See Jones, 132 S. Ct. at 948. Quite unlike an automobile, a cell
phone is a small hand-held device that is often hidden on the
person of its user and seldom leaves her presence. As previously
discussed, cell phone users regularly carry these devices into
their homes and other private spaces to which automobiles have
28
limited access at best. See Augustine, 4 N.E.3d at 861. 4 Thus,
unlike GPS monitoring of a vehicle, examination of historical
CSLI can permit the government to track a person’s movements
between public and private spaces, impacting at once her
interests in both the privacy of her movements and the privacy
of her home. 5
Considering the multiple privacy interests at stake, it is
not surprising that we are not the first court to recognize as
objectively reasonable cell phone users’ expectation of privacy
in their long-term CSLI. See, e.g., Augustine, 4 N.E.3d at 865-
4 Cell phones are not subject to the “lesser expectation of
privacy in a motor vehicle,” which, as noted in Knotts, “has
little capacity for escaping public scrutiny.” 460 U.S. at 281(quoting Cardwell v. Lewis, 417 U.S. 583, 590 (1974)
(plurality)). Additionally, while a car “seldom serves . . . as
the repository of personal effects[,]” id., cell phones often
provide access to substantial collections of private notes and
records, hiding these personal effects from inspection even
while themselves hidden from view in their owners’ purses or
pockets, see Riley, 134 S. Ct. at 2489-91.
5 Indeed, a recent survey by the Pew Research Center
revealed that 82% of adults feel that the details of their
physical location revealed by cell phone GPS tracking is at
least “somewhat sensitive,” with half of adults considering this
information “very sensitive.” Pew Research Center, Public
Perceptions of Privacy and Security in the Post-Snowden Era 34
(Nov. 12, 2014),
http://www.pewinternet.org/files/2014/11/PI_PublicPerceptionsofP
rivacy_111214.pdf (saved as ECF opinion attachment). This
percentage rivals that of adults who consider their health
information and the content of their phone conversations,
emails, and text messages at least “somewhat sensitive” – 81%,
81%, 77%, and 75%, respectively. Id. at 32-34.
29
66 (reasonable expectation of privacy in location information
shown in historical CSLI records); Earls, 70 A.3d at 632
(reasonable expectation of privacy in location of cell phones);
Tracey v. State, 152 So.3d 504, 526 (Fla. 2014) (objectively
reasonable expectation of privacy in “location as signaled by
one’s cell phone”); In re Application of U.S. for an Order
Authorizing Disclosure of Location Info. of a Specified Wireless
Tel., 849 F. Supp. 2d 526, 539 (D. Md. 2011) (“reasonable
expectation of privacy both in [subject’s] location as revealed
by real-time [CSLI] and in his movement where his location is
subject to continuous tracking over an extended period of time,
here thirty days”); In re Application of U.S. for an Order
Authorizing the Release of Historical Cell-Site Info. (In re
Application (E.D.N.Y.)), 809 F. Supp. 2d 113, 120 (E.D.N.Y.
2011) (“reasonable expectation of privacy in long-term cell-
site-location records”). 6 Even the Supreme Court, in Riley,
6
As the dissenting opinion points out, a number of courts
that have addressed the issue have not reached the same
conclusion we reach today. Courts that have reached the opposite
conclusion, like the dissent, have typically done so through
application of the “third-party” doctrine as discussed in Part
II.C.4 infra.
In United States v. Skinner, 690 F.3d 772 (6th Cir. 2012),
the Sixth Circuit held that the defendant “did not have a
reasonable expectation of privacy in the data given off by his
voluntarily procured pay-as-you-go cell phone.” 690 F.3d at
777. This case involved locational surveillance of two cell
phones in real time over the course of a few days as the users
(Continued)
30
specifically cited “[h]istoric location information” as among
the heightened privacy concerns presented in government
inspection of cell phones, as such information details the
user’s “specific movements down to the minute, not only around
town but also within a particular building.” 134 S. Ct. at 2490. 7
Taken together, Karo, Kyllo, and the views expressed in
Riley and the Jones concurrences support our conclusion that the
government invades a reasonable expectation of privacy when it
relies upon technology not in general use to discover the
movements of an individual over an extended period of time. Cell
phone tracking through inspection of CSLI is one such
technology. It is possible that the CSLI for a particular cell
transported marijuana along public roads. Id. at 776. The Sixth
Circuit determined that the case was governed by Knotts, id. at
777-78, and distinguished Jones based on the “comprehensiveness
of the tracking” in that case, involving “‘constant monitoring’”
over the course of four weeks, id. at 780 (quoting Jones, 132 S.
Ct. at 963 (Alito, J., concurring in the judgment)). The instant
case is similarly distinguishable.
7Some courts, including the district court in this case, as
well as the dissent, have suggested that privacy interests in
real-time or prospective location information are greater than
those in historical location information, like that at issue in
this case. See (Quartavious) Davis, 785 F.3d at 509 n.10;
Graham, 846 F. Supp. 2d at 391. We see no constitutional
distinction between the two types of data. A person’s
expectation of privacy in information about where she has been
is no less reasonable, or less deserving of respect, than that
regarding where she is or where she is going.
31
phone is not very revealing at all because, for instance, the
phone has been turned off or it has made few or no connections
to the cellular network. But the government cannot know in
advance of obtaining this information how revealing it will be
or whether it will detail the cell phone user’s movements in
private spaces. See Earls, 70 A.3d at 642. We hold, therefore,
that the government engages in a Fourth Amendment search when it
seeks to examine historical CSLI pertaining to an extended time
period like 14 or 221 days. 8
3.
The district court concluded that this case is
distinguishable from Karo and Maynard/Jones because the type of
locational surveillance at issue in those cases permits real-
time tracking with greater precision and continuity than the
examination of historical CSLI. See Graham, 846 F. Supp. 2d at
391-92, 404. The use of GPS technology challenged in
Maynard/Jones permitted law enforcement to track the suspect’s
vehicle continuously at every moment “‘24 hours a day for 28
days[,]’” id. at 392 (quoting Maynard, 615 F.3d at 558), while,
8This case does not require us to draw a bright line as to
how long the time period for historical CSLI can be before its
inspection rises to the level of a Fourth Amendment search, and
we decline to do so.
32
here, the CSLI records only disclose a finite number of location
data points for certain points in time.
This distinction is constitutionally insignificant. The
Fourth Amendment challenge is directed toward the government’s
investigative conduct, i.e., its decision to seek and inspect
CSLI records without a warrant. There is no way the government
could have known before obtaining the CSLI records how granular
the location data in the records would be. If Appellants had
been in constant use of their phones as they moved about each
waking day – constantly starting and terminating calls – then
the government would have obtained a continuous stream of
historical location information approaching that of GPS. A
similar or greater degree of continuity would have been achieved
if Appellants had smartphones that automatically connect to the
nearest cell site every few minutes or seconds.
As it turns out, the CSLI records did reveal an impressive
29,659 location data points for Graham and 28,410 for Jordan,
amounting to well over 100 data points for each Appellant per
day on average. This quantum of data is substantial enough to
provide a reasonably detailed account of Appellants’ movements
during the 221-day time period, including movements to and from
the cell-site sectors in which their homes were located. We
therefore reject the district court’s suggestion that the CSLI
33
was not sufficiently continuous to raise reasonable privacy
concerns.
The district court also questioned the precision of the
location data itself, concluding that the CSLI did not identify
sufficiently precise locations to invade a reasonable privacy
expectation. Unlike GPS data, the court found, CSLI “can only
reveal the general vicinity in which a cellular phone is used.”
Graham, 846 F. Supp. 2d at 392.
The precision of CSLI in identifying the location of a cell
phone depends in part on the size of the coverage area
associated with each cell-site sector listed in the records. 9
Service providers have begun to increase network capacity and to
fill gaps in network coverage by installing low-power cells such
as “microcells” and “femtocells,” which cover areas as small as
40 feet. 10 The intense competition among cellular networks
9
Sprint/Nextel’s custodian testified at trial that the cell
sites listed in the records each had, at most, a two-mile radius
of operability. Each cell site, therefore, covered no greater
than approximately 12.6 square miles, divided into three sectors
of approximately 4.2 square miles or less.
10
See Federal Communications Commission, Public Safety Tech
Topic #23 – Femtocells, http://www.fcc.gov/help/public-safety-
tech-topic-23-femtocells; PR Newswire, Small Cells Market 2014-
2019: Femtocell, Picocell, & Microcell Prospects for LTE, SONs,
Wireless Offloading & Heterogeneous Networks (Nov. 6, 2014),
http://www.prnewswire.com/news-releases/small-cells-market-2014-
2019-femtocell-picocell--microcell-prospects-for-lte-sons-
wireless-offloading--heterogeneous-networks-281857341.html;
Nancy Gohring, Femtocells Make Way Into Enterprises,
(Continued)
34
provides ample reason to anticipate increasing use of small
cells and, as a result, CSLI of increasing precision. We must
take such developments into account. See Kyllo, 533 U.S. at 36(“While the technology used in the present case was relatively
crude, the rule we adopt must take account of more sophisticated
systems that are already in use or in development.”).
In any event, the CSLI at issue here was precise enough, at
minimum, to support reasonable inferences about Appellants’
locations at specific points in time. Otherwise, the information
would have lacked any probative value at trial. The very reason
that the government obtained and introduced the evidence was to
establish Appellants’ locations during times surrounding the
charged robberies. 11 Investigators and prosecutors must have
ComputerWorld (May 7, 2011),
http://www.computerworld.com/article/2550032/mobile-
wireless/femtocells-make-way-into-enterprises.html.
11Specifically, the government used the CSLI to show, among
other things, that Graham was within a few miles of the Dollar
Tree before and after the robbery of January 17, 2011; Graham
was within a few miles of the 7-Eleven before and after the
robbery of January 22, 2011; minutes after the robbery of Shell
on February 1, 2011, Jordan was near the Shell and then both he
and Graham were near Jordan’s apartment; Appellants were both
near Jordan’s apartment approximately 45 minutes before robbery
of Burger King on February 5, 2011; Graham was near the Burger
King within minutes of the robbery; Appellants were together a
few miles north of the Burger King minutes after the robbery;
and Graham was near the McDonald’s approximately one half hour
before the McDonald’s robbery.
35
believed, after analyzing the CSLI, that it was sufficiently
precise to establish Appellants’ whereabouts. The fact that
inference was required to glean Appellants’ past locations from
the CSLI does not ameliorate or lessen in any manner the
invasion of privacy. Indeed, the Supreme Court, in Kyllo,
specifically rejected “the novel proposition that inference
insulates a search . . . .” Id. at 36 (citing Karo, 468 U.S.
705). We therefore reject the government’s argument that the
CSLI was not adequately precise to infringe upon Appellants’
expectations of privacy in their locations and movements.
4.
We also disagree with the district court’s and the
dissent’s conclusion that Appellants lacked a reasonable
expectation of privacy in their CSLI because the CSLI records
were kept by Sprint/Nextel in the ordinary course of business.
See Graham, 846 F. Supp. 2d at 403; post at 111.
The dissent argues first that “[t]he nature of the
governmental activity” at issue in this case sets it apart from
Karo, Kyllo, and Jones. Post at 108-09. While Karo, Kyllo, and
Jones each involved direct and contemporaneous surveillance by
government agents, the locational tracking challenged here was
achieved through government inspection of records held by a
third party.
36
This distinction is inconsequential. The precedents of this
Court and others show that a Fourth Amendment search may
certainly be achieved through an inspection of third-party
records. See, e.g., Doe v. Broderick, 225 F.3d 440, 450-52 (4th
Cir. 2000) (holding that detective’s examination of a patient
file held by a methadone clinic was a search and, without
probable cause, violated the patient’s Fourth Amendment rights);
DeMassa v. Nunez, 770 F.2d 1505, 1508 (9th Cir. 1985) (holding
that “an attorney’s clients have a legitimate expectation of
privacy in their client files”); cf. Ferguson v. City of
Charleston, 532 U.S. 67, 78 (2001) (holding that patients enjoy
a reasonable expectation of privacy that the results of
diagnostic tests will not be disclosed to law enforcement
without the patient’s consent). 12 That the government acquired
12
In the sense most crucial to a proper Fourth Amendment
analysis, “[t]he nature of the governmental activity” challenged
in this case, post at 108-09, was not unlike that challenged in
Karo, Kyllo, and Jones. The dissent’s language is apparently
drawn from Smith v. Maryland, 442 U.S. 735 (1979), where the
Court deemed it important to identify “the nature of the state
activity that is challenged” in order to determine the precise
nature of Smith’s Fourth Amendment claim. 442 U.S. at 741.
Specifically, this initial inquiry was made in order to
determine whether Smith could claim an invasion of his property
or intrusion into a constitutionally protected area, under the
traditional trespass-based theory of Fourth Amendment
protection. Because the challenged governmental activity was the
installation of a pen register “on telephone company property at
the telephone company’s central offices,” Smith could make no
such claim. Id. Instead, Smith claimed an invasion of a
legitimate expectation of privacy in the numbers he dialed,
(Continued)
37
Appellants’ private information through an inspection of third-
party records cannot dispose of their Fourth Amendment claim.
Yet the dissent seizes upon the fact that the government
obtained Appellants’ CSLI from a third-party cell service
provider and maintains that we have placed our focus on the
wrong question. Instead of assessing the reasonableness of
Appellants’ expectation of privacy in their “location and
movements over time,” our dissenting colleague would frame the
question as “whether an individual has a reasonable expectation
which the government obtained through use of the pen register.
Id. at 742.
In this sense, the nature of the governmental activity
challenged in this case is not unlike the activities challenged
in Karo, Kyllo, and Jones. In Karo and Kyllo, the nature of the
challenged governmental activity was the use of technology to
acquire certain private information rather than the physical
invasion of constitutionally protected property or spaces. See
Karo, 468 U.S. at 714; Kyllo, 533 U.S. at 34-35. The
governmental activity challenged in Jones was of both sorts:
installation of a GPS tracking device effected through a
trespass onto Jones’ property, and use of the device to obtain
information about Jones’ location and movements over an extended
period of time. As previously noted, the majority confined its
analysis to the trespass without considering the nature of the
information the government subsequently acquired. 132 S. Ct. at
949-54. In the concurrences, five Justices focused on the
government’s acquisition of location information and whether
this conduct invaded a legitimate expectation of privacy.
Because the challenged activity in the present case, like those
considered in Karo, Kyllo, and the Jones concurrences, is the
government’s non-trespassory acquisition of certain information,
our inquiry is properly focused on the legitimacy of Appellants’
expectation of privacy in this information.
38
of privacy in a third party’s records that permit the government
to deduce this information.” Post at 109. But even the analyses
in the cases upon which the dissent relies focused foremost on
whether, under Katz, the privacy expectations asserted for
certain information obtained by the government were legitimate.
See United States v. Miller, 425 U.S. 435, 442 (1976) (“We must
examine the nature of the particular documents sought to be
protected in order to determine whether there is a legitimate
‘expectation of privacy’ concerning their contents.” (emphasis
added)); Smith v. Maryland, 442 U.S. 735, 742 (1979)
(“[P]etitioner’s argument that [the] installation and use [of a
pen register] constituted a ‘search’ necessarily rests upon a
claim that he had a ‘legitimate expectation of privacy’
regarding the numbers he dialed on his phone.” (emphasis
added)). In answering that question, the fact that the
information at issue in Miller and Smith was contained in
records held by third parties became relevant only insofar as
the defendant in each case had “voluntarily conveyed” the
information to the third party in the first place. See Miller,
425 U.S. at 442; Smith, 442 U.S. at 743-44.
It is clear to us, as explained below, that cell phone
users do not voluntarily convey their CSLI to their service
providers. The third-party doctrine of Miller and Smith is
therefore inapplicable here.
39
a.
The Supreme Court held in Miller and Smith that “a person
has no legitimate expectation of privacy in information he
voluntarily turns over to third parties.” Smith, 442 U.S. at
743-44; see also Miller, 425 U.S. at 442. This is so even if
“the information is revealed on the assumption that it will be
used only for a limited purpose and the confidence placed in the
third party will not be betrayed.” Miller, 425 U.S. at 443. 13
In Miller, the government used defective subpoenas to
obtain financial records from the defendant’s bank. 425 U.S. at
436. The Court determined first that the defendant could not
claim an unconstitutional invasion of his “private papers”
because he had neither ownership nor possession of the
transactional records at issue. Id. at 440-41 (citation
omitted). Next, the Court turned to the defendant’s claim that
the government violated his privacy interests in the contents of
13This “third-party” doctrine finds its roots in cases
involving consensual disclosures to informants or undercover
government agents. See United States v. White, 401 U.S. 745,
751-752 (1971); Hoffa v. United States, 385 U.S. 293, 302-303
(1966); Lopez v. United States, 373 U.S. 427, 439 (1963). White,
Hoffa, Lopez, and similar cases generally establish that a
person who confides information about her illegal activities in
another bears the risk that this information will be reported to
law enforcement, see White, 401 U.S. at 752, and introduced as
evidence against her, see Lopez, 373 U.S. at 439. Any
expectation she holds that this information will be held in
confidence is not one entitled to Fourth Amendment protection.
See White, 401 U.S. at 749; Hoffa, 385 U.S. at 301.
40
the bank records. Id. at 442. Because such documents “contain
only information voluntarily conveyed to the banks and exposed
to their employees in the ordinary course of business,” the
Court held that the depositor lacks “any legitimate expectation
of privacy” in this information. Id. at 442. “[I]n revealing his
affairs to another,” the defendant assumed the risk “that the
information [would] be conveyed by that person to the
Government.” Id. at 443.
In Smith, a telephone company, at the request of police,
utilized a pen register device to record the numbers dialed from
the home phone of Michael Lee Smith, a man suspected of robbing
a woman and then harassing her through anonymous phone calls.
442 U.S. at 737. Smith argued that the warrantless installation
of the pen register was an unreasonable search. Id. at 737-38.
The Court determined, first, that people generally understand
that they must communicate the numbers they dial to the phone
company and that the company has facilities for recording and
storing this information permanently. Id. at 742. Even if Smith
had an actual expectation of privacy in the numbers he dialed,
this would not be a “legitimate” expectation because he
“voluntarily conveyed” the numerical information to the phone
company and “‘exposed’” the information to the company’s
recording and storage equipment. Id. at 744. In so doing, Smith
41
“assumed the risk” that the company would disclose this
information to law enforcement. Id.We recently applied the third-party doctrine of Miller and
Smith in United States v. Bynum, 604 F.3d 161 (4th Cir. 2010),
where the government served administrative subpoenas on a
website operator to obtain a user’s account information. 604
F.3d at 162. Specifically, the government obtained the user’s
name, email address, telephone number, and physical address, id.
at 164, all information that the user entered on the website
when he opened his account, id. at 162. Citing Smith, we
determined that, in “voluntarily convey[ing] all this
information” to the Internet company, the user “‘assumed the
risk’” that this information would be revealed to law
enforcement. Id. at 164 (quoting Smith, 442 U.S. at 744). The
user, therefore, could not show that he had either an actual or
an objectively reasonable expectation of privacy in this
information. Id.These precedents do not categorically exclude third-party
records from Fourth Amendment protection. They simply hold that
a person can claim no legitimate expectation of privacy in
information she voluntarily conveys to a third party. It is that
voluntary conveyance – not the mere fact that the information
winds up in the third party’s records – that demonstrates an
assumption of risk of disclosure and therefore the lack of any
42
reasonable expectation of privacy. We decline to apply the
third-party doctrine in the present case because a cell phone
user does not “convey” CSLI to her service provider at all –
voluntarily or otherwise – and therefore does not assume any
risk of disclosure to law enforcement. 14
The service provider automatically generates CSLI in
response to connections made between the cell phone and the
provider’s network, with and without the user’s active
participation. See Augustine, 4 N.E.3d at 862 (“CSLI is purely a
function and product of cellular telephone technology, created
by the provider’s system network at the time that a cellular
telephone call connects to a cell site.”); id. at 863
14 At the outset of its argument that the third-party
doctrine applies here, the dissent insists that Appellants
“exposed” their CSLI to their service provider and therefore
assumed the risk of disclosure to law enforcement. Post at 111.
This “exposure” language is derived from Miller and Smith, but
it is clear in each of those cases that any “exposure” of the
information at issue to the third party’s employees or
facilities occurred only through the defendant’s voluntary
conveyance of that information to the third party. See Miller,
425 U.S. at 442 (noting that the financial information at issue
had been “voluntarily conveyed to the banks and exposed to their
employees in the ordinary course of business” (emphasis added));
Smith, 442 U.S. at 744 (“When he used his phone, petitioner
voluntarily conveyed numerical information to the telephone
company and ‘exposed’ that information to its equipment in the
ordinary course of business.” (emphasis added)). The dissent
goes on to argue that Appellants did indeed voluntarily convey
the wealth of cell site location data points at issue here to
their service provider by choosing generally to operate and
carry their phones. We reject this contention.
43
(describing CSLI as “location-identifying by-product” of cell
phone technology). “Unlike the bank records in Miller or the
phone numbers dialed in Smith, cell-site data is neither
tangible nor visible to a cell phone user.” In re Application of
U.S. for Historical Cell Site Data, 747 F. Supp. 2d 827, 844
(S.D. Tex. 2010), vacated, 724 F.3d 600 (5th Cir. 2013). A user
is not required to actively submit any location-identifying
information when making a call or sending a message. Such
information is rather “quietly and automatically calculated by
the network, without unusual or overt intervention that might be
detected by the target user.” Id. at 833. We cannot impute to a
cell phone user the risk that information about her location
created by her service provider will be disclosed to law
enforcement when she herself has not actively disclosed this
information.
Notably, the CSLI at issue in this appeal details location
information not only for those transmissions in which Appellants
actively participated – i.e., messages or calls they made or
answered – but also for messages and calls their phones received
but they did not answer. When a cell phone receives a call or
message and the user does not respond, the phone’s location is
identified without any affirmative act by its user at all – much
less, “voluntary conveyance.” See In re Application of U.S. for
an Order Directing a Provider of Electronic Communication
44
Service to Disclose Records to the Government (In re Application
(Third Circuit)), 620 F.3d 304, 317 (3d Cir. 2010) (“[W]hen a
cell phone user receives a call, he hasn’t voluntarily exposed
anything at all.”). We conclude, in agreement with the analysis
of the Third Circuit in In re Application (Third Circuit) and
that of several state supreme courts, that the third-party
doctrine of Smith and Miller does not apply to CSLI generated by
cell phone service providers. See id.; Augustine, 4 N.E.3d at
862-63; Tracey, 152 So.3d at 525; see also Earls, 70 A.3d at
641-42 (categorically rejecting third-party doctrine).
b.
The Fifth Circuit, in In re Application of U.S. for
Historical Cell Site Data (In re Application (Fifth Circuit)),
724 F.3d 600 (5th Cir. 2013), and the en banc Eleventh Circuit
in United States v. (Quartavious) Davis, 785 F.3d 498 (11th Cir.
2015), have reached the opposite conclusion. While acknowledging
that the cell phone user “does not directly inform his service
provider of the location of the nearest cell phone tower[,]” the
Fifth Circuit decided that users voluntarily convey CSLI to
their service providers through general use of their cell
phones. In re Application (Fifth Circuit), 724 F.3d at 614. 15 In
15
In United States v. Guerrero, 768 F.3d 351 (5th Cir.
2014), the Fifth Circuit reaffirmed its holding in In re
(Continued)
45
reaching this conclusion, the court relied on the proposition,
advanced by the government, that “users know that they convey
information about their location to their service providers when
they make a call.” Id. at 612. The Eleventh Circuit followed
suit, suggesting that because users are generally aware that
their calls are connected through cell towers, their use of
their phones amounts to voluntary conveyance of “their general
location within that cell tower’s range[.]” (Quartavious) Davis,
785 F.3d at 511.
We cannot accept the proposition that cell phone users
volunteer to convey their location information simply by
choosing to activate and use their cell phones and to carry the
devices on their person. Cell phone use is not only ubiquitous
in our society today but, at least for an increasing portion of
our society, it has become essential to full cultural and
economic participation. See Quon, 560 U.S. at 760 (“Cell phone
and text message communications are so pervasive that some
persons may consider them to be essential means or necessary
instruments for self-expression, even self-identification.”);
Riley, 134 S. Ct. at 2484 (“[M]odern cell phones . . . are now
such a pervasive and insistent part of daily life that the
Application (Fifth Circuit) in affirming denial of a motion to
suppress CSLI evidence. See 768 F.3d at 358-61.
46
proverbial visitor from Mars might conclude they were an
important feature of human anatomy.”). People cannot be deemed
to have volunteered to forfeit expectations of privacy by simply
seeking active participation in society through use of their
cell phones. “The fiction that the vast majority of the American
population consents to warrantless government access to the
records of a significant share of their movements by ‘choosing’
to carry a cell phone must be rejected.” In re Application
(E.D.N.Y.), 809 F. Supp. 2d at 127, quoted in Tracey, 152 So.3d
at 523. 16
16The dissent points out that similar arguments were made
in dissenting opinions in Miller and Smith and ultimately
rejected by the Court. We do not doubt that the financial
services implicated in Miller or the telephone service
implicated in Smith were any less crucial to social and economic
participation than cell phone service has become. But the
determination in each of those cases that the defendant had
assumed the risk of disclosure to law enforcement did not rely
upon the defendant’s general choice to avail himself of these
services. The assumption of risk was based on voluntary acts by
which the defendant conveyed specific information to a third
party while using these services. Smith, for instance, actively
and voluntarily turned specific numbers over to his phone
company, and was surely aware of what numbers he was turning
over, when he placed specific calls. See Smith, 442 U.S. at 742.
Smith even conceded that he could claim no legitimate
expectation of privacy in the same numbers had he placed the
calls through a live operator. Id. at 744. Similarly here, we do
not believe that Appellants could claim a legitimate privacy
expectation had they specifically identified their location or
the closest cell tower to their service provider each time a
transmission was made to or from their cell phones.
47
Users’ understanding of how cellular networks generally
function is beside the point. The more pertinent question is
whether users are generally aware of what specific cell sites
are utilized when their phones connect to a cellular network.
After all, it is the specificity with which CSLI identifies cell
sites that allows users’ location to be tracked and raises
privacy concerns. We have no reason to suppose that users
generally know what cell sites transmit their communications or
where those cell sites are located. A cell phone user cannot be
said to “voluntarily convey” to her service provider information
that she never held but was instead generated by the service
provider itself without the user’s involvement. 17
Both the Fifth and Eleventh Circuits emphasized that
service providers maintain CSLI records for their own business
purposes rather than for law enforcement purposes and on this
basis concluded that a subscriber can have no legitimate privacy
17 In (Quartavious) Davis, the Eleventh Circuit pointed out
that the pen register information at issue in Smith had the
effect of disclosing precise information about the phone user’s
location. 724 F.3d at 511-12. Pen register information could be
used to place the phone user at a specific address at a specific
time “because the phone lines at issue in Smith corresponded to
stationary landlines at known physical addresses.” Id. The
location information at issue in the present case is not
“stationary” but permits tracking of a person’s movements across
private and public spaces. In this way, CSLI raises greater
locational privacy concerns than any location information
revealed through use of a stationary landline. See Karo, 468
U.S. at 715.
48
expectation in the information these records contain. See In re
Application (Fifth Circuit), 724 F.3d at 611-12; (Quartavious)
Davis, 785 F.3d at 511-12. CSLI records are, however, wholly
unlike business records such as “credit card statements, bank
statements, hotel bills, purchase orders, and billing invoices,”
which the government “routinely” obtains from third-party
businesses by subpoena. Id. at 506. These sorts of business
records merely capture voluntary commercial transactions to
which the business and its individual client or customer are
parties. See Miller, 425 U.S. at 442. CSLI, on the other hand,
records transmissions of radio signals in which the cell phone
service subscriber may or may not be an active and voluntary
participant.
We agree with our sister circuits that a service provider’s
business interest in maintaining CSLI records is a relevant
consideration in determining whether a subscriber can have a
legitimate expectation of privacy in this information. But it is
not the only consideration. Courts consider not only such
“concepts of real or personal property law” in making this
determination but also “‘understandings that are recognized and
permitted by society.’” Carter, 525 U.S. at 88 (citation
omitted). As we have explained, society recognizes an
individual’s privacy interest in her movements over an extended
time period as well as her movements in private spaces. The fact
49
that a provider captures this information in its account
records, without the subscriber’s involvement, does not
extinguish the subscriber’s reasonable expectation of privacy.
Applying the third-party doctrine in this context would simply
permit the government to convert an individual’s cell phone into
a tracking device by examining the massive bank of location
information retained by her service provider, and to do so
without probable cause. See David Gray & Danielle Citron, The
Right to Quantitative Privacy, 98 Minn. L. Rev. 62, 140 (2013)
(“If the government lacks legal authority to install and monitor
a GPS-enabled tracking device, then it can get the same
information by securing locational data from OnStar, Lojac, a
cellular phone provider, or any number of ‘apps’ that gather and
use locational information as part of their services.” (emphasis
added)).
This is not a case like Hoffa, where a person assumes the
risk that an associate or confidante will disclose her
communications to law enforcement, see 385 U.S. at 302-03; nor
is this a case like Miller, where a person assumes the risk that
a bank will disclose her financial transactions to the
government, see 425 U.S. at 443. Cell phone users do not
actively or knowingly communicate or “trade” their location
information to their service providers as part of the
consideration for the services provided, to say nothing of the
50
documentation of such information in reproducible formats. That
this information winds up in the provider’s hands as a
consequence of how cellular networks function does not and
should not affect cell phone users’ reasonable expectations of
privacy in this information or society’s respect for that
expectation.
c.
Courts have recognized that not all private information
entrusted to third-party providers of communications services is
subject to warrantless government inspection. As far back as
1877, the Supreme Court recognized Fourth Amendment protection
against warrantless inspection of the contents of mail entrusted
to the postal service for delivery. Ex parte Jackson, 96 U.S.
727, 733 (1877). In so holding, the Court recognized a
distinction between, on one hand, protected matter “intended to
be kept free from inspection, such as letters[] and sealed
packages[,]” and, on the other hand, unprotected matter
“purposefully left in a condition to be examined” as well as the
“outward form and weight” of sealed articles. Id.The Court continued to recognize this distinction 90 years
later in Katz: “What a person knowingly exposes to the public,
even in his own home or office, is not a subject of Fourth
Amendment protection. . . . But what he seeks to preserve as
private, even in an area accessible to the public, may be
51
constitutionally protected.” 389 U.S. at 351-52 (citations
omitted). Katz involved a Fourth Amendment challenge to use of
an electronic recording device attached to the outside of a
public phone booth that recorded the petitioner’s side of a
phone conversation. Id. at 348-49. Applying the principle that
the Fourth Amendment protects that which a person “seeks to
preserve as private,” id. at 351, the Court held that “[o]ne who
occupies [a public phone booth], shuts the door behind him, and
pays the toll that permits him to place a call is surely
entitled to assume that the words he utters into the mouthpiece
will not be broadcast to the world[,]” id. at 352. Although
shutting the door to the phone booth proved inadequate to
prevent the petitioner’s private words from being overheard, and
indeed would have been inadequate to prevent monitoring by the
phone company, the petitioner demonstrated an expectation of
privacy society would accept as reasonable. See Smith, 442 U.S.
at 746-47 (Stewart, J., dissenting); Katz, 389 U.S. at 361(Harlan, J., concurring).
In the current digital age, courts continue to accord
Fourth Amendment protection to information entrusted to
communications intermediaries but intended to remain private and
free from inspection. Courts have, for example, deemed
government inspection of the contents of emails a Fourth
Amendment search but have declined to do the same for email
52
address information used to transmit emails. Compare United
States v. Warshak, 631 F.3d 266, 287-88 (6th Cir. 2010) (holding
that email subscribers enjoy a reasonable expectation of privacy
in the content of their emails even though such content is
accessible to Internet service providers), with United States v.
Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (holding that
government surveillance of a computer to discover email address
information, IP addresses, and amount of data transmitted by
email does not constitute a Fourth Amendment search).
The dissent argues essentially that, like the forms of
address information at issue in Forrester, CSLI is simply
information that facilitates the routing of communications
rather than protected content, and on this basis distinguishes
cases like Warshak. Post at 124. CSLI is of course more than
simple routing information; it tracks a cell phone user’s
location across specific points in time. 18 And as previously
18The dissent argues that types of information deemed
unworthy of Fourth Amendment protection “‘track[]’ some form of
activity when aggregated over time.” Post at 125. To be sure, we
do not hold that a person may claim Fourth Amendment protection
for records of just any type of information that happens to
disclose a location, i.e., her location when she deposits an
article of mail or engages in a credit card transaction. We do
hold that a person may claim protection for her long-term CSLI
because this information may track practically all of the
movements a person makes over an extended period of time. This
feature sets CSLI apart from the various sorts of address and
routing information cited in the dissent.
53
noted, cell phone users generally consider their location
information no less sensitive than the contents of emails and
phone calls. 19 Like a user of web-based email who intends to
maintain the privacy of her messages, however, there is nothing
the typical cell phone user can do to hide information about her
location from her service provider. 20 In the absence of any
evidence that Appellants or cell phone users generally intend
for their location information to be open to inspection by
others, we cannot treat the fact that CSLI is used to route
communications and is recorded by intermediaries as dispositive
of Appellants’ claim of Fourth Amendment protection for this
information.
d.
Our review of well settled Fourth Amendment jurisprudence
teaches us that, even as technology evolves, protections against
government intrusion should remain consistent with those privacy
expectations society deems reasonable. See, e.g., United States
19 See supra note 4.
20It seems that, here, Appellants took what little action
was possible that might have concealed their personal location
information from their service provider. Graham’s service was
subscribed in his wife’s name, and Jordan used an alias or proxy
on his account, although the record does not indicate that these
actions were taken specifically to protect Appellants’ privacy
interests.
54
v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S.
297, 312 (1972) (“There is, understandably, a deep-seated
uneasiness and apprehension that [government’s capability for
electronic surveillance] will be used to intrude upon cherished
privacy of law-abiding citizens.”); Berger v. State of N.Y., 388
U.S. 41, 62 (1967) (“‘[T]he fantastic advances in the field of
electronic communication constitute a great danger to the
privacy of the individual; . . . indiscriminate use of such
devices in law enforcement raises grave constitutional questions
under the Fourth and Fifth Amendments . . . .’”) (quoting Lopez,
373 U.S. at 1389 (Warren, C.J., concurring in the result)). That
is not to say that societal expectations of privacy cannot
change over time, but the advent of new technology alone – even
major technological advances – is not a sufficient basis upon
which to infer an equally dramatic shift in people’s privacy
expectations. 21
21
In Smith, for instance, the Supreme Court rejected the
notion that different constitutional rules should apply to
different technological means of engaging in the same form of
communication, lest “a crazy quilt” be made of the Fourth
Amendment. 442 U.S. at 745. Just as a caller could claim no
legitimate expectation of privacy in telephone connections made
personally by an operator, Smith could claim no privacy
expectation in numbers he dialed to connect his calls through
the phone company’s automatic switching equipment. Id. at 744.
Smith, in this way, reflects the principle that the use of new
technology to hide from view what would otherwise be exposed
cannot by itself expand Fourth Amendment rights where none would
otherwise exist.
(Continued)
55
It turns out that the proliferation of cellular networks
has left service providers with a continuing stream of
increasingly precise information about the locations and
movements of network users. Prior to this development, people
generally had no cause for concern that their movements could be
tracked to this extent. That new technology has happened to
generate and permit retention of this information cannot by
itself displace our reasonable privacy expectations; nor can it
justify inspection of this information by the government in the
absence of judicially determined probable cause.
Courts and commentators have for years begun to acknowledge
the increasing tension, wrought by our technological age,
between the third-party doctrine and the primacy Fourth
Amendment doctrine grants our society’s expectations of privacy.
The natural corollary to this principle is that a
technological advance alone cannot constrict Fourth Amendment
protection for private matters that would otherwise be hidden or
inaccessible. Confronting the question of “what limits there are
upon [the] power of technology to shrink the realm of guaranteed
privacy” in Kyllo, 533 U.S. at 34, Justice Scalia concluded for
the majority that the use of new technology “to explore details
of the home that would previously have been unknowable without
physical intrusion” constitutes a search, id. at 40. “This
assures preservation of that degree of privacy against
government that existed when the Fourth Amendment was adopted.”
Id. at 34. As one prominent commentator explained, the Fourth
Amendment not only “permit[s] access to that which technology
hides” but also “protect[s] that which technology exposes.” Orin
S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L.
Rev. 561, 580 (2009).
56
In her concurring opinion in Jones, Justice Sotomayor declared
the assumption that people lack reasonable privacy expectations
in information held by third parties “ill suited to the digital
age, in which people reveal a great deal of information about
themselves to third parties in the course of carrying out
mundane tasks.” Jones, 132 S. Ct. at 957 (Sotomayor, J.,
concurring).
It is concerning that now, during a time and context in
which the viability of the third-party doctrine, “the Lochner of
search and seizure law,” Orin S. Kerr, The Case for the Third-
Party Doctrine, 107 Mich. L. Rev. 561, 563 (2009) (footnote
omitted), has never been in graver doubt, the dissent’s
treatment of the doctrine would expand it into a full-on
exception to the legitimate-expectation-of-privacy inquiry. Post
at 133. Our dissenting colleague reads into Miller and Smith a
rule that would preclude virtually any Fourth Amendment
challenge against government inspection of third-party records.
But just a few years ago, writing for the Court in Bynum, our
dissenting colleague rightly declared that the question of
whether an individual has a reasonable expectation of privacy in
a matter searched is “[t]he ‘touchstone’ of Fourth Amendment
analysis[.]” 604 F.3d 164 (citation omitted). Contrary to her
current views, the third-party doctrine was not devised to side-
step this question; rather, the doctrine aids the court
57
precisely in deciding whether certain privacy expectations are
reasonable by societal standards. See Smith, 442 U.S. at 743-44;
Bynum, 604 F.3d at 164; (Quartavious) Davis, 785 F.3d at 527
(Rosenbaum, J., concurring) (“Supreme Court precedent fairly may
be read to suggest that the third-party doctrine must be
subordinate to expectations of privacy that society has
historically recognized as reasonable.”). Smith and Miller do
not endorse blind application of the doctrine in cases where
information in which there are clearly reasonable privacy
expectations is generated and recorded by a third party through
an accident of technology. The third-party doctrine is intended
to delimit Fourth Amendment protections where privacy claims are
not reasonable - not to diminish Fourth Amendment protections
where new technology provides new means for acquiring private
information. See Orin S. Kerr, An Equilibrium-Adjustment Theory
of the Fourth Amendment, 125 Harv. L. Rev. 476, 527 (2011)
(“[I]f a new technology permits the government to access
information that it previously could not access without a
warrant, using techniques not regulated under preexisting rules
that predate that technology, the effect will be that the Fourth
Amendment matters less and less over time.”).
* * * * *
For these reasons, we decline to apply the third-party
doctrine here and hold that Appellants have a reasonable
58
expectation of privacy in their long-term CSLI. 22 Specifically,
we conclude that the government’s procurement and inspection of
Appellants’ historical CSLI was a search, and the government
violated Appellants’ Fourth Amendment rights by engaging in this
search without first securing a judicial warrant based on
probable cause. 23 If the Twenty-First Century Fourth Amendment
is to be a shrunken one, as the dissent proposes, we should
22 Echoing the sentiments of the Fifth and Eleventh
Circuits, the dissent suggests that any privacy concerns raised
by the government’s warrantless acquisition of CSLI should be
presented to Congress and addressed legislatively, rather than
to the courts for constitutional protection. Post at 131-33. We
think the same argument might be made in any case in which a new
technological means or investigative practice is employed to
obtain personal information and the court must decide the Katz
question. In each of these cases, the court is tasked with
making an assessment of what privacy interests society might
deem reasonable. This is a task for which one might argue the
legislative branch is suited, but one that is, as a matter of
constitutional interpretation, nonetheless imposed upon the
courts. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
(1803) (“It is emphatically the province and duty of the
judicial department to say what the law is.”).
23 Moving beyond her theoretical objections to our holding,
our dissenting colleague declares the holding “bizarre in
practice,” citing the fact that the cell service records
admitted in this case included not just CSLI but also
information we have not deemed Fourth Amendment protected. Post
at 126. The § 2703(d) orders in this case specifically requested
the CSLI associated with Appellants’ cell service accounts.
After today’s holding, the government will need to secure a
warrant for this information. This requirement would not affect
whether, in response to such a warrant, the service provider
produces records that include information for which a warrant is
not specifically required. It is unclear to us what makes this
practice “bizarre.”
59
leave that solemn task to our superiors in the majestic building
on First Street and not presume to complete the task ourselves.
D.
Although we conclude that the government violated
Appellants’ Fourth Amendment rights in procuring their CSLI
without a warrant based on probable cause, the records were not
subject to suppression because the government acted in good-
faith reliance on court orders issued under the SCA.
“The exclusionary rule ‘generally prohibits the
introduction at criminal trial of evidence obtained in violation
of a defendant’s Fourth Amendment rights[.]’” United States v.
Stephens, 764 F.3d 327, 335 (4th Cir. 2014) (quoting Pa. Bd. of
Prob. & Parole v. Scott, 524 U.S. 357, 359 (1998)). But our
system of justice and society at large incur “‘heavy costs’”
when courts are required to disregard reliable evidence,
“‘suppress the truth’” about criminal conduct, and release to
the community a criminal who might otherwise be subject to
imprisonment. Id. (quoting (Willie Gene) Davis v. United States,
131 S. Ct. 2419, 2427 (2011)). Considering that the “sole
purpose” of the exclusionary rule “is to deter future Fourth
Amendment violations[,]” (Willie Gene) Davis, 131 S. Ct. at
2426, courts apply the rule to exclude evidence only where the
benefits of deterrence outweigh the costs of suppression, id. at
2427.
60
In assessing the deterrent value of suppression, our focus
is properly placed on culpable police conduct and not on the
actions of legislators and judicial officers. Id. at 2432-33.
Where law enforcement acts “with an objectively ‘reasonable
good-faith belief’ that their conduct is lawful,” there is no
need for deterrence sufficient to justify the exclusion of
reliable evidence. Id. at 2427 (quoting United States v. Leon,
468 U.S. 897, 909 (1984)). This good-faith exception to the
exclusionary rule applies where law enforcement reasonably
relies on (1) an enacted statute, unless that statute is clearly
unconstitutional, Illinois v. Krull, 480 U.S. 340, 349-50
(1987); (2) a search warrant or other court order issued by a
neutral magistrate, unless issuance of the order is clearly
defective, Leon, 468 U.S. at 922-23, 926; or (3) “binding
appellate precedent,” (Willie Gene) Davis, 131 S. Ct. at 2429.
Here, the government is entitled to the good-faith
exception because, in seeking Appellants’ CSLI, the government
relied on the procedures established in the SCA and on two court
orders issued by magistrate judges in accordance with the SCA.
The government’s first § 2703(d) application requested data
regarding calls and messages to and from Appellants’ phones
during four time periods and described robberies under
investigation that occurred during some of those time periods.
After learning about other similar robberies, the government
61
submitted a second application to request records for the much
broader 221-day time frame. The second application included the
same facts provided in the first application but added
descriptions of additional robberies under investigation.
Appellants do not claim that the government was “dishonest or
reckless” in preparing either application. Leon, 468 U.S. at
926. Upon consideration of each of the government’s
applications, two magistrate judges of the district court
respectively issued § 2703(d) orders to Sprint/Nextel for the
disclosure of Appellants’ account records. There is nothing in
the record to suggest that either magistrate “abandoned” her or
his “detached and neutral” role such that a well trained
officer’s reliance on either order would have been unreasonable.
Id.
Appellants do not attack the facial validity of the §
2703(d) orders. Instead, they argue that the government cannot
reasonably rely on the § 2703 orders because, in offering law
enforcement a choice between seeking a warrant and a § 2703(d)
court order to obtain subscriber records, the statute is
internally inconsistent. Appellants point out that, while a
warrant requires a showing of probable cause, a § 2703(d) order
62
requires a significantly lesser showing – a standard akin to
reasonable suspicion. 24
We find no “inherent contradiction on the face of the SCA.”
Appellants’ Br. 46. Section 2703(c) unambiguously offers law
enforcement a choice between specific avenues to obtain records
from service providers. “Unless a statute is clearly
unconstitutional, an officer cannot be expected to question the
judgment of the legislature that passed the law.” Krull, 480
U.S. at 349-50. That the statute provides options that set
different requirements on law enforcement does not amount to a
contradiction or render the statute facially unconstitutional.
Appellants argue next that the SCA cannot justify the
government’s unconstitutional use of discretion granted under
the statute to seek a § 2703(d) court order instead of a warrant
for historical CSLI. Citing State v. Thompson, 810 P.2d 415(Utah 1991), Appellants argue that the good-faith exception is
24
Appellants cite In re Application (Third Circuit),
wherein the Third Circuit reviewed a district court’s denial of
§ 2703(d) applications for CSLI. 620 F.3d at 305-06. In seeking
to determine whether a magistrate has authority under the
statute to deny an application that satisfies the requirements
of § 2703(d), the court stated, “There is an inherent
contradiction in the statute or at least an underlying
omission.” Id. at 319. The court did not specifically identify
any contradiction in the statute. We presume that the court’s
comment is based on the statute’s lack of clarity as to the
scope of the magistrate’s discretion to grant or deny § 2703(d)
applications. That does not appear to be the “inherent
contradiction” upon which Appellants rely.
63
inapplicable where a prosecutor fails to exercise a statutory
grant of discretionary power within constitutional bounds. In a
related case prior to Thompson, the Supreme Court of Utah had
determined that issuance and use of certain subpoenas by the
state attorney general under Utah’s Subpoena Powers Act violated
the Utah Constitution in several respects for which the attorney
general was responsible. In re Criminal Investigation, 7th Dist.
Ct. No. CS-1, 754 P.2d 633, 658-59 (Utah 1988), cited in
Thompson, 810 P.2d at 146. In Thompson, the court determined
that “a good faith exception [to Utah’s exclusionary rule] . . .
would be inapplicable to illegal subpoenas issued . . . by the
attorney general, who is chargeable for the illegality[,]” and
therefore evidence obtained through use of the illegal subpoenas
was subject to suppression. 810 P.2d at 420. The constitutional
defects in the issuance and use of the subpoenas were clear
enough for the attorney general to concede that the Subpoena
Powers Act had been unconstitutionally applied. See id. at 639,
658.
The constitutionally infirm decision of the prosecution in
the present case to seek § 2703(d) orders instead of warrants
was not so clear, at least not prior to today’s decision. Prior
to our ruling today, neither this Court nor the U.S. Supreme
Court had deemed the government’s conduct in this case
unconstitutional.
64
We agree with Appellants that, when in doubt, the
government should “err on the side of constitutional
behavior[.]” Leon, 468 U.S. at 926 (Brennan, J., dissenting).
And we recognize that, at the time the government obtained the
CSLI at issue here, court rulings outside of this Circuit were
in conflict as to the constitutionality of obtaining this
information without a warrant. But the government’s conduct in
this case was not governed by disagreements among a handful of
courts outside this Circuit, and there was no decisional
authority in this Circuit suggesting that the choice presented
in § 2703(c) was unconstitutional as applied to CSLI from cell
phone service providers. We conclude, therefore, that the
government reasonably relied on the SCA in exercising its option
to seek a § 2703(d) order rather than a warrant. The good-faith
exception applies. 25 We affirm denial of Appellants’ motion to
suppress.
III.
Appellants appeal the district court’s admission of certain
testimony of Jeff Strohm, records custodian for Sprint/Nextel,
25Now that we have determined that law enforcement violates
the Fourth Amendment when it acts without a warrant to obtain an
individual’s long-term CSLI, its choice under § 2703(c) is
constrained. The government may no longer rely on the statute to
justify an election not to secure a warrant for this
information.
65
and Special Agent Colin Simons of the FBI, arguing that portions
constitute expert testimony in the guise of lay opinion.
As previously stated, we review the district court’s
evidentiary rulings for abuse of discretion. United States v.
Johnson, 617 F.3d 286, 292 (4th Cir. 2010). “A district court
has abused its discretion if its decision ‘is guided by
erroneous legal principles’ or ‘rests upon a clearly erroneous
factual finding.’” Morris v. Wachovia Sec., Inc., 448 F.3d 268,
277 (4th Cir. 2006) (quoting Westberry v. Gislaved Gummi AB, 178
F.3d 257, 261 (4th Cir. 1999)). If we find such an abuse of
discretion, we review it under the harmless-error standard
stated in Rule 52(a) of the Federal Rules of Criminal Procedure.
Johnson, 617 F.3d at 292. We find the district court’s error
harmless if we can “say with fair assurance, after pondering all
that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error.” Id. (quoting United States v. Brooks, 111 F.3d 365, 371
(4th Cir. 1997)) (internal quotation marks omitted).
For the reasons explained below, we find no abuse of
discretion in the district court’s admission of Simons’
testimony and portions of Strohm’s testimony. Insofar as the
court erred in admitting other portions of Strohm’s testimony as
that of a lay witness, we find such error harmless.
A.
66
The admission of expert testimony is governed by Rule 702
of the Federal Rules of Evidence, which permits one “who is
qualified as an expert” to offer at trial opinion testimony
based on “scientific, technical, or other specialized
knowledge.” Prior to admitting any expert testimony, the trial
judge must act as a gatekeeper, conducting a preliminary
assessment of whether the expert’s proffered testimony is both
relevant and reliable. Kumho Tire Co. v. Carmichael, 526 U.S.
137, 149 (1999) (citing Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 592 (1993)).
Under Rule 701, lay witnesses are “‘not permit[ted] . . .
to express an opinion as to matters which are beyond the realm
of common experience and which require the special skill and
knowledge of an expert witness.’” Certain Underwriters at
Lloyd’s, London v. Sinkovich, 232 F.3d 200, 203 (4th Cir. 2000)
(quoting Randolph v. Collectramatic, Inc., 590 F.2d 844, 846
(10th Cir. 1979)). “At bottom, . . . Rule 701 forbids the
admission of expert testimony dressed in lay witness clothing,
but it ‘does not interdict all inference drawing by lay
witnesses.’” United States v. Perkins, 470 F.3d 150, 156 (4th
Cir. 2006) (quoting United States v. Santos, 201 F.3d 953, 963
(7th Cir. 2000)).
B.
67
Appellants challenge Strohm’s testimony regarding how cell
phones connect with cell sites and the operations and radio
frequency range of cell sites. Strohm testified that, in seeking
or receiving a connection to the cellular network, a cell phone
connects to the cell tower emitting the strongest signal, and
that cell sites in urban areas have a two-mile maximum range of
connectivity. He testified further that, aside from proximity,
factors such as line of sight and volume of call traffic may
affect the ability of a particular cell tower to connect to a
phone, but, in any case, the phone must be located within two
miles of any cell tower in the Baltimore area in order to
connect to it.
Strohm’s testimony that signal strength determines which
cell tower will connect to a phone and that cell towers in urban
areas have a two-mile maximum range of operability was not
opinion testimony. These statements were not conclusions Strohm
drew based on any specialized reasoning or assessment, and were
not presented in the form of an opinion or inference. They were
facts based on Strohm’s experience as an employee of
Sprint/Nextel. Indeed, at trial, defense counsel specifically
declined to challenge Strohm’s testimony that a cell phone
connects to the tower emitting the strongest signal. Strohm’s
testimony as to cell sites’ range of operability required no
greater than the same minimal technical knowledge. The district
68
court did not abuse its discretion in admitting this testimony
by a lay witness.
Similarly, Strohm’s testimony that factors including
proximity, line of sight, and call traffic may affect a phone’s
ability to connect to a particular cell tower did not rise to
the level of an expert opinion. Strohm did not, for instance,
engage in any analysis comparing the factors or seek to
determine how these factors resulted in any particular
connection, which would have required scientific, technical, or
specialized knowledge. He merely presented the fact that these
factors exist, which prevented the jury from being misled into
believing that signal strength is a matter of proximity alone or
that a cell phone will always connect to the nearest tower.
Even if the district court abused its discretion in
admitting Strohm’s testimony about these factors, any such error
was harmless. The government’s evidence as to the locations of
Appellants’ cell phones at various points in time was based
solely on the locations of the cell towers listed in
Sprint/Nextel’s records and each tower’s two-mile maximum range
of operability. In order for Appellants’ cell phones to connect
to the towers listed in Sprint/Nextel’s records, they had to
have been located within two miles of the listed towers, even if
line of sight or call traffic affected which cell sites within
two miles ultimately connected to the phones. The mere fact that
69
these factors exist, therefore, could not have substantially
affected the jury’s assessment of the government’s evidence and
the resultant verdict.
The admission of other aspects of Strohm’s lay testimony is
more concerning. Strohm provided explanations of how cell phones
connect to a cellular network for the completion of calls,
going, at times, into technical details about operations
performed by cell sites and how calls are routed through network
switches. Such testimony was clearly “based on scientific,
technical, or specialized knowledge within the scope of Rule
702.” Fed. R. Evid. 701(c); see also United States v. Yeley-
Davis, 632 F.3d 673, 684 (10th Cir. 2011) (“The agent’s
testimony concerning how cell phone towers operate constituted
expert testimony because it involved specialized knowledge not
readily accessible to any ordinary person.”); United States v.
Evans, 892 F. Supp. 2d 949, 954 (N.D. Ill. 2012) (holding that
testimony as to “how cellular networks operate, i.e., the
process by which a cell phone connects to a given tower”
requires an expert qualified to “meet the demands of Rule 702
and Daubert”).
We conclude, however, that any error in the admission of
this testimony was harmless. The technical aspects of how cell
phone calls are completed have little to do with establishing
the location of a cell phone based on cell site information. All
70
that really matters is that the cell site had a particular range
of connectivity and that the phone connected to a cell site at a
particular time – facts established through Sprint/Nextel’s
records and admissible portions of Strohm’s testimony.
C.
Appellants challenge testimony offered by Agent Simons
regarding his creation of maps based on the CSLI disclosed by
Sprint/Nextel. The maps plot the locations of certain cell sites
listed in the CSLI records, the business establishments robbed,
and Jordan’s apartment. The maps also identify the dates and
times of inbound and outbound calls made by Appellants’ phones
through the plotted cell sites.
Simons’ testimony did not amount to an expert opinion. To
create the maps, Simons utilized mapping software that was
marketed to the general public and required little more than
identification of the various locations he intended to plot. He
entered the locations of the businesses and Jordan’s apartment
by their physical addresses and the cell sites by latitude and
longitude, as disclosed by Sprint/Nextel. The minimal technical
knowledge or skill required to complete this task was not so
“specialized” as to constitute a matter of expertise within the
meaning of Rule 702. See United States v. Henderson, 564 F.
App’x 352, 364 (10th Cir. 2014) (unpublished) (holding that
agent’s testimony regarding review of cell phone records and
71
creation of map of cell tower locations “did not require
expertise”). The district court did not abuse its discretion in
admitting Simons’ testimony.
IV.
Jordan appeals the district court’s decision to set certain
restrictions on his testimony, arguing that these restrictions
infringed upon his constitutional right to testify in his own
defense. We review the district court’s evidentiary rulings for
abuse of discretion but review constitutional questions de novo.
United States v. Dinkins, 691 F.3d 358, 382 (4th Cir. 2012). We
find no constitutional error or abuse of discretion in the
challenged restrictions.
A.
A criminal defendant has a constitutional right to testify
on her own behalf derived from the compulsory process clause of
the Sixth Amendment and the due process clause of the Fourteenth
Amendment. Rock v. Arkansas, 483 U.S. 44, 52 (1987); United
States v. Midgett, 342 F.3d 321, 325 (4th Cir. 2003). The right
to testify is not absolute, however, and “‘may, in appropriate
cases, bow to accommodate other legitimate interests in the
criminal trial process.’” Rock, 483 U.S. at 55 (quoting Chambers
v. Mississippi, 410 U.S. 284, 295 (1973)). This Court has
previously held, for instance, that “criminal defendants do not
have a right to present evidence that the district court, in its
72
discretion, deems irrelevant or immaterial.” United States v.
Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003); see also Taylor
v. Illinois, 484 U.S. 400, 410 (1988) (holding that compulsory
process clause does not give defendant “an unfettered right to
offer testimony that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence”); Montana v.
Egelhoff, 518 U.S. 37, 42 (1996) (applying same rule in due
process context).
The defendant exercising her right to testify “must comply
with established rules of procedure and evidence designed to
assure both fairness and reliability in the ascertainment of
guilt and innocence.” Chambers, 410 U.S. at 302. Thus, under
Rule 403 of the Federal Rules of Evidence, even relevant
testimony by the defendant “may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury[.]”
B.
The district court set certain restrictions on Jordan’s
testimony to prevent unfair prejudice to Graham. Specifically,
Jordan was precluded from
73
.
Jordan did not object to these restrictions at trial, so
any error committed by the district court in imposing the
restrictions is subject to plain-error review. United States v.
Godwin, 272 F.3d 659, 672 (4th Cir. 2001); see also Fed. R.
Crim. P. 52(b). We will reverse only upon a showing by Jordan
that an error by the district court was “clear or obvious[,]”
affected Jordan’s substantial rights, and “‘seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.’” Godwin, 272 F.3d at 672-73 (quoting United States
v. Olano, 507 U.S. 725, 732 (1993)).
C.
We find no constitutional error in the restrictions the
district court placed on Jordan’s testimony because the
restrictions did not prevent Jordan from presenting a full
narrative in his defense. Jordan was permitted to testify – and
did indeed testify – as follows: In late January or early
February of 2011, Graham and a group of friends began coming to
Jordan’s home on a regular basis. Jordan would socialize with
them “for a little while” before asking them to leave because “I
don’t live like they live[.]” J.A. 2303. Friends of Graham were
at Jordan’s apartment on the morning of February 5, 2011, and
74
Graham arrived later. After Jordan and Graham visited a liquor
store together, Graham dropped Jordan off at his home, and then
Jordan went to visit his aunt’s home on the 300 block of North
Stricker Street in Baltimore. Graham came through the
neighborhood, and Jordan arranged for him to meet an
unidentified person to “do their little business.” J.A. 2310.
When Graham returned to Jordan, he asked Jordan to take him to a
Wal-Mart store to purchase a television set. Jordan drove
Graham’s truck and was eventually stopped by police, and the two
were arrested. When asked about the weapons recovered from his
home after his arrest, Jordan testified that he did not know how
they got there but believed that Graham’s friends left them
there. 26
Jordan argues that the court’s restrictions prevented him
from explaining the basis of his association with Graham. He
avers that a full account of his relationship with Graham would
have shown that they were together and communicated at certain
times for reasons other than to commit robberies. The only
alternative explanation disclosed in Jordan’s brief is that
26
Specifically, Jordan stated, “I think the day I let his
home boys stay [in my house], they left them in there.” J.A.
2314. Viewed in context, the statement implicitly referred to
Graham. The court admonished Jordan for this statement,
instructing him “to confine [his] remarks to what [he] did.” Id.75
. Jordan also sought to testify that,
.
The restrictions imposed by the district court were not
arbitrary but were appropriately tailored to suit their purpose
in preventing unfair prejudice to Graham. Testimony that
had the potential to
prejudice Graham while bearing no real exculpatory value for
Jordan. Specifically naming Graham and his associates would have
had minimal probative value in Jordan’s favor. The district
court did not abuse its discretion in determining that the risk
of unfair prejudice to Graham outweighed the probative value of
any of this testimony. See Fed. R. Evid. 403.
D.
Jordan argues that testimony about
would have explained a prior inconsistent statement the
government used to impeach him.
76
The cell phone records
obtained by the government disproved this version of events,
showing that the last call Graham made to Jordan was much
earlier that afternoon and then both Jordan’s and Graham’s
phones were near each other, but several miles away from
Jordan’s apartment.
Jordan’s initial version of events also contradicted his
testimony at trial, wherein he stated that Graham picked him up
from Stricker Street to ask for a ride – not from his home. When
confronted by the inconsistent statement made to authorities,
Jordan admitted that he had lied, but stated that he did so
because he was “scared.” J.A. 2314, 2343. Jordan avers that his
initial account was not accurate because he was afraid to inform
the authorities about
. However, Jordan was precluded from
explaining the basis for his fear at trial due to the court’s
restriction against testifying about .
During its closing argument, the government disputed whether
Jordan’s purported fear was the reason for the lies he told
authorities, stating to the jury, “he didn’t mislead the police
77
because he was afraid. He misled the police to get away with
what he had done.” J.A. 2444.
We agree with Jordan that, in the context of the
government’s efforts to impeach him, it was an abuse of
discretion for the court to prevent Jordan from rebutting these
efforts through a full explanation of his prior inconsistent
statement. Jordan’s counsel, however, did not object to the
restriction and thus forfeited the issue. The forfeited error
only warrants reversal if it was “clear or obvious” and affected
Jordan’s substantial rights. Godwin, 272 F.3d at 672. Absent an
objection that would have brought the issue to the district
court’s attention, the court’s abuse of discretion was not
“clear or obvious.”
Further, Jordan fails to show that the error affected his
substantial rights. At trial, the government introduced
substantial evidence tending to disprove Jordan’s version of
events. Such evidence included data from test drives and
Computer Aided Dispatch (“CAD”) reports showing that it would
not have been possible for Graham to have picked Jordan up from
the 300 block of North Stricker Street during the brief time
period between the McDonald’s robbery and the point at which
Jordan and Graham were apprehended by Baltimore police. On this
record, we cannot conclude that the government’s impeachment of
78
Jordan by prior inconsistent statement was necessary for the
jury to determine that Jordan’s version of events was untrue.
In sum, Jordan fails to show that the restriction against
testimony about
on the date of the Burger King and McDonald’s
robberies was plain error. 27 We affirm.
V.
Jordan appeals the district court’s denial of his motion
for severance, arguing that the joint trial of him and Graham
compromised his right to testify fully in his own defense. “We
review a district court’s denial of a motion for severance for
an abuse of discretion.” United States v. Lighty, 616 F.3d 321,
348 (4th Cir. 2010) (citation omitted). The district court has
“broad discretion” to deny a motion for severance. Id. To
27Based on the apparent agreement between Jordan’s counsel,
the government, and the district court about the restrictions on
Jordan’s testimony, the government argues that Jordan waived the
issue and that even plain-error review is not warranted. See
Olano, 507 U.S. at 733 (“Waiver is different from forfeiture.
Whereas forfeiture is the failure to make the timely assertion
of a right, waiver is the ‘intentional relinquishment or
abandonment of a known right.’”) (citation omitted). Jordan
argues that the restriction implicated his personal
constitutional right to testify in his own defense, which cannot
be waived by defense counsel or the court. United States v.
Flores-Martinez, 677 F.3d 699, 711 (5th Cir. 2012); United
States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992); see also
Midgett, 342 F.3d at 327 (agreement between court and defense
counsel did not effect waiver of defendant’s constitutional
right to testify). We need not decide whether Jordan waived the
issue because there is no plain error.
79
establish abuse of discretion, “a defendant must show that he
was prejudiced by the denial of a severance motion . . . .” Id.(citation omitted).
Under Rule 8(b) of the Federal Rules of Criminal Procedure,
multiple defendants “may be charged in the same indictment if
they are alleged to have ‘participated in the same act or
transaction, or in the same series of acts or transactions,
constituting an offense or offenses.’” Id. (quoting Fed. R.
Crim. P. 8(b)). “There is a preference in the federal system for
joint trials of defendants who are indicted together[]” because
such trials “promote efficiency and ‘serve the interests of
justice by avoiding the scandal and inequity of inconsistent
verdicts.’” Zafiro v. United States, 506 U.S. 534, 537 (1993)
(quoting Richardson v. Marsh, 481 U.S. 200, 210 (1987)).
“Accordingly, severance under Rule 14 is only warranted when
‘there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or innocence.’”
United States v. Najjar, 300 F.3d 466, 473 (4th Cir. 2002)
(quoting Zafiro, 506 U.S. at 539). The defendant seeking
severance must show “‘that actual prejudice would result from a
joint trial, . . . and not merely that a separate trial would
offer a better chance of acquittal.’” Id. (quoting United States
v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995)).
80
Jordan argues that the joint trial compromised his right to
provide exculpatory testimony on his own behalf and resulted in
prejudice to him. As discussed in Part IV supra, the district
court placed some restrictions on Jordan’s testimony to prevent
prejudice to Graham and to permit a fair joint trial between the
defendants. Jordan contends, again, that these restrictions
impaired his right to provide testimony that would exculpate him
but tend to inculpate Graham. This Court has previously held,
however, that a defendant’s “desire . . . to exculpate himself
by inculpating another [is] insufficient grounds to require
separate trials.” Najjar, 300 F.3d at 474 (quoting United States
v. Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986)). As explained
in Part IV, Jordan was permitted to present a full narrative in
his defense to the charges against him. The testimony that
Jordan sought to provide inculpating Graham held little
exculpatory value for Jordan. The restrictions did not prejudice
Jordan and did not prevent the jury from making a reliable
judgment.
As we stated in Najjar,
[Rule 14] requires more than finger pointing. There
must be such a stark contrast presented by the
defenses that the jury is presented with the
proposition that to believe the core of one defense it
must disbelieve the core of the other . . . or “that
the jury will unjustifiably infer that this conflict
alone demonstrates that both are guilty.”
Id. (citations omitted).
81
In summary, Graham’s defense was that he was not any of the
individuals seen in video surveillance of the armed robberies
charged in the case; witnesses’ identifications of Graham were
dubious; the CSLI in the cell phone records was imprecise; the
government failed to show that Graham’s and Jordan’s association
amounted to an agreement to commit crime; and items of clothing
and the vehicle used to link Graham to various robberies were
common and not distinctive. Similarly, Jordan contended at trial
that he did not drive Graham’s pickup truck to flee any robbery;
that he was visiting a relative’s home when the Burger King and
McDonald’s robberies occurred; that descriptions of individuals
who committed the Shell robbery did not match Jordan; that the
government failed to show that his association with Graham
amounted to a conspiracy; and that the CSLI was imprecise.
Additionally, Jordan asserted in his defense that he did not
sanction Graham’s friends using his apartment to store weapons
and clothing. There is little, if any, contrast between
Appellants’ defenses, and certainly no contrast so stark as to
necessitate severance. We cannot conclude that the district
court abused its broad discretion and therefore affirm denial of
Jordan’s motion for severance.
VI.
Jordan challenges the district court’s decision to exclude
from evidence two out-of-court statements of an unavailable
82
declarant, i.e., Graham. We review the district court’s decision
for abuse of discretion. United States v. Bumpass, 60 F.3d 1099,
1102 (4th Cir. 1995).
Hearsay is generally not admissible in evidence, Fed. R.
Evid. 802, given the “dangers” of insincerity, misperception,
misremembrance, and ambiguity presented in out-of-court
statements, Williamson v. United States, 512 U.S. 594, 598
(1994). Rule 804(b)(3), however, provides an exception to the
hearsay rule for statements made against the declarant’s
interest, including statements that, at the time they were made,
“had so great a tendency . . . to expose the declarant to civil
or criminal liability” that a reasonable person in her position
would not have made the statements unless believing them to be
true. Fed. R. Evid. 804(b)(3). “[H]earsay may be admitted under
this exception if (1) the declarant is unavailable, (2) the
statement is genuinely adverse to the declarant’s penal
interest, and (3) ‘corroborating circumstances clearly indicate
the trustworthiness of the statement.’” Bumpass, 60 F.3d at
1102. Satisfying these requirements presents a “formidable
burden” to the party offering the statement. Id.Jordan argues that the district court should have admitted
a written statement bearing the signature “Aaron Graham” and the
recording of a jail call between Graham and an individual called
Tony. Dated February 9, 2011, the written statement reads, “I
83
Aaron Graham I did pick up Eric Jordan 10-15 minutes prior to my
truck being pulled over and he had no knowledge of anything I’m
accused of.” J.A. 2638. On the jail call, Tony asks, “Remember,
didn’t you write a statement or something saying he wasn’t with
you or something like that?” Graham responds, “Oh, yeah, yeah,
yeah, yeah, yeah.” J.A. 2218. Exercising his Fifth Amendment
right not to testify at trial, Graham was unavailable to testify
as the declarant of the statements at issue. See United States
v. Dargan, 738 F.3d 643, 649 (4th Cir. 2013).
We conclude that the district court did not abuse its
discretion in excluding the statements from evidence. First, the
written statement was not genuinely adverse to Graham’s penal
interest. The statement admits of no wrongdoing by Graham but
rather casts the charges against Graham as mere allegations.
Second, Jordan fails to show corroborating circumstances
that clearly indicate that the written statement is trustworthy.
While recognizing that “the precise nature of the corroboration
required by Rule 804(b)(3) cannot be fully described,” this
Court has identified several factors that courts consider in
“determining whether sufficient corroboration exists to justify
admitting a statement under the rule[.]” Bumpass, 60 F.3d at
1102. These factors include
(1) whether the declarant had at the time of making
the statement pled guilty or was still exposed to
prosecution for making the statement, (2) the
84
declarant’s motive in making the statement and whether
there was a reason for the declarant to lie, (3)
whether the declarant repeated the statement and did
so consistently, (4) the party or parties to whom the
statement was made, (5) the relationship of the
declarant with the accused, and (6) the nature and
strength of independent evidence relevant to the
conduct in question.
Id.The fact that Graham and Jordan were friends or associates
likely gave Graham a motive to exonerate Jordan and a reason to
lie for this purpose. Further, there is no indication in the
record that the content of the written statement was ever
repeated by Graham; nor is there any independent evidence, aside
from Jordan’s own testimony, to show that Jordan was not with
Graham during the robberies. Graham was facing prosecution on
the date attached to the written statement, but he could not
have exposed himself to greater criminal liability or risk of
conviction in making the statement, given its non-incriminating
character.
In sum, we agree with the district court that there are not
sufficient corroborating circumstances to “clearly” indicate the
trustworthiness of the written statement. We find no abuse of
discretion in the district court’s decision to exclude the
hearsay statement.
We also agree with the district court that the jail call is
insufficient to establish that the written statement was indeed
85
a statement by Graham. See Fed. R. Evid. 901. On the call,
Graham appears to affirm that he, at some point, wrote a
statement, but his comment falls short of identifying or
otherwise authenticating the written statement Jordan sought to
admit into evidence. We find no abuse of discretion in the
district court’s decision to exclude jail call as non-relevant.
See Fed. R. Evid. 401.
VII.
Jordan challenges the district court’s denial of his motion
to suppress evidence obtained in searches of his home conducted
after his arrest in February 2011. The searches were conducted
pursuant to two warrants Jordan argues were invalid based on
defects in the affidavit of probable cause submitted to obtain
the first warrant and in the return after the first warrant was
executed. Jordan does not dispute that the affidavits for both
warrants provided a substantial basis for a finding of probable
cause. Instead, Jordan argues that the warrants were invalid
because (1) the affidavit supporting the first warrant omitted
exculpatory information while including information about
robberies for which Jordan was not ultimately charged; and (2)
the affiant falsely certified in the return that he executed the
warrant. We find no reversible error.
A.
86
Jordan identifies two sets of defects in the affidavit
supporting the first warrant: (1) it included facts about the
robberies of January 22, 2011, with which Jordan was not
ultimately charged; and (2) it omitted the facts about these
robberies that would tend to exculpate Jordan, including the
fact that descriptions of the robbers did not match Jordan and
the lack of forensic evidence linked to Jordan. Jordan claims
that he was prejudiced by these additions and omissions.
An affidavit supporting a search warrant is entitled to “a
presumption of validity[,]” Franks v. Delaware, 438 U.S. 154,
171 (1978), but a defendant may “attack a facially sufficient
affidavit” “in certain narrowly defined circumstances[,]” United
States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (citing
Franks, 438 U.S. 154). After making a preliminary showing, a
defendant may demand under the Fourth Amendment a hearing to
determine (1) whether an affiant has “knowingly and
intentionally, or with reckless disregard for the truth,”
included a false statement in a warrant affidavit; and (2)
whether the false statement “is necessary to the finding of
probable cause[.]” Franks, 438 U.S. at 155-56.
“[T]he search warrant must be voided” if perjury or
reckless disregard is established by a preponderance of the
evidence, and, “with the affidavit’s false material set to one
side, the affidavit’s remaining content is insufficient to
87
establish probable cause[.]” Id. at 156. In such a case, “the
fruits of the search [must be] excluded to the same extent as if
probable cause was lacking on the face of the affidavit.” Id.This rule “also applies when affiants omit material facts ‘with
the intent to make, or in reckless disregard of whether they
thereby made, the affidavit misleading.’” Colkley, 899 F.2d at
300 (quoting United States v. Reivich, 793 F.2d 957, 961 (8th
Cir. 1986)).
Jordan did not request a Franks hearing before the district
court and has made no showing before this Court that the affiant
on the challenged affidavit included any false statement,
whether “knowingly and intentionally, . . . with reckless
disregard for the truth,” or otherwise. Franks, 438 U.S. at 155.
Jordan also has not shown that any of the complained-of
statements included in the affidavit were “necessary to the
finding of probable cause” or that any of the excluded facts
would have prevented a finding of probable cause. Id. at 156.
We also reject Jordan’s challenge with respect to the
potentially exculpatory information he complains was not
included in the first warrant affidavit. In Colkley, this Court
affirmed denial of a defendant’s motion to suppress fruits of an
arrest warrant that “did not contain certain potentially
exculpatory information known to the affiant.” 899 F.2d at 298.
The defendant “made no showing that the affiant intended to
88
mislead the magistrate by omitting information, and because the
warrant with the omitted information would in any event have
been supported by probable cause . . . .” Id. Similarly here,
Jordan has not shown that the affiant intended to mislead the
magistrate by omitting, or was reckless in omitting, information
that tended to exculpate Jordan as to the robberies of January
22, 2011.
We find no reason to set aside our presumption that the
challenged warrant affidavit was valid and therefore find no
reversible error in the district court’s decision to admit
evidence seized during the searches of Jordan’s home.
B.
Citing Rule 41(f)(1) of the Federal Rules of Criminal
Procedure, Jordan next argues that the first search warrant was
defective because the affiant, Detective Woerner, falsely
certified in the return that he executed the warrant. Rule
41(f)(1) provides that “[a]n officer present during the
execution of the warrant must prepare and verify an inventory of
any property seized” and that “[t]he officer executing the
warrant must promptly return it — together with a copy of the
inventory — to the magistrate judge designated on the warrant.”
By its own terms, however, Rule 41 applies only to federal
search warrants requested by “a federal law enforcement officer”
or “an attorney for the government[.]” Fed. R. Crim. P. 41. This
89
Court has held that “a warrant proceeding must meet the
particulars of Rule 41 only where the warrant application was
made at the direction or urging of a federal officer.” United
States v. Clyburn, 24 F.3d 613, 616 (4th Cir. 1994) (citations
and internal quotation marks omitted). We have also held that
“[n]on-constitutional violations of Rule 41 warrant suppression
only when the defendant is prejudiced by the violation . . . or
when ‘there is evidence of intentional and deliberate disregard
of a provision in the Rule[.]’” United States v. Simons, 206
F.3d 392, 403 (4th Cir. 2000) (citations omitted).
The warrants Jordan challenges were prepared and executed
by local law enforcement officers, not federal agents. Thus, any
defect in the return cannot serve as a basis for suppression.
Even if Rule 41 applied, however, Jordan has not shown that the
officers intentionally or deliberately disregarded the
requirements of Rule 41(f) or that he was prejudiced by the
defect in the return. In this context, prejudice would be
established by a showing that the search would not have taken
place the same way if the officers had complied with the Rule
with respect to the return. See United States v. Pangburn, 983
F.2d 449, 455 (2d Cir. 1993) (“[T]here was no prejudice to
Salcido because the search of his storage locker would have
taken place in exactly the same way if Rule 41 had been followed
with regard to notice of the entry . . . .”). Jordan has made no
90
such showing. The false certification of the return provides no
basis for suppression in this case. We affirm the district
court’s decision to admit the challenged evidence.
VIII.
Jordan appeals the district court’s denial of his motion
for acquittal with respect to the charges for conspiracy, Hobbs
Act robbery, and brandishing a firearm during a crime of
violence in connection with the Shell, Burger King, and
McDonald’s robberies. Rule 29(a) of the Federal Rules of
Criminal Procedure requires the district court to “enter a
judgment of acquittal of any offense for which the evidence is
insufficient to sustain a conviction.” At the close of
government’s case-in-chief, Jordan submitted motions for
acquittal as to all offenses charged in the indictment. The
district court granted the motion as to the charge under 18
U.S.C. § 922(g)(1) in Count One for being a felon in possession
of a firearm but denied the motion as to the remaining counts.
The jury ultimately returned guilty verdicts as to each of these
offenses. Jordan argues that the evidence presented at trial was
not sufficient to support the guilty verdicts beyond a
reasonable doubt. We disagree.
A.
We review challenges to the sufficiency of evidence de
novo. United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012),
91
cert. denied, 133 S. Ct. 179 (2012). The Court must sustain the
verdict if, “viewing the evidence and the reasonable inferences
to be drawn therefrom in the light most favorable to the
Government, ‘. . . the evidence adduced at trial could support
any rational determination of guilty beyond a reasonable
doubt.’” United States v. Burgos, 94 F.3d 849, 863 (4th Cir.
1996) (quoting United States v. Powell, 469 U.S. 57, 67 (1984)).
In assessing the challenge, we focus on “‘the complete picture
that the evidence presents[,]’ . . . consider[ing] the evidence
‘in cumulative context’ rather than ‘in a piecemeal fashion[.]’”
United States v. Strayhorn, 743 F.3d 917, 921-22 (4th Cir.
2014), cert. denied, 134 S. Ct. 2689 (2014) (quoting Burgos, 94
F.3d at 863).
This Court “may not overturn a substantially supported
verdict merely because it finds the verdict unpalatable or
determines that another, reasonable verdict would be
preferable.” Burgos, 94 F.3d at 862. Rather, “reversal for
insufficiency [is] ‘. . . confined to cases where the
prosecution’s failure is clear[.]’” Engle, 676 F.3d at 419
(quoting Burks v. United States, 437 U.S. 1, 17 (1978)). A
defendant asserting a sufficiency challenge therefore bears a
“‘heavy burden[.]’” Id. (quoting United States v. Hoyte, 51 F.3d
1239, 1245 (4th Cir. 1995)).
B.
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The evidence presented at trial included the following:
Three individuals were seen on video surveillance using
firearms to rob Shell on February 1, 2011. Clothing matching
that worn by one of the individuals, who the government sought
to prove was Graham, and weapons matching those seen in the
video and described by victims were later recovered from
different locations inside Jordan’s apartment, among his
personal belongings. Photographs showed that distinctive
clothing Jordan wore at the time of his arrest closely resembled
that worn by a masked robber seen in the video of the Shell
robbery, which was confirmed in the testimony of two police
detectives. CSLI in cell phone records showed that, minutes
after the Shell robbery on February 1, 2011, Jordan was near
Shell and then both he and Graham were near Jordan’s apartment.
Cell phone records also showed that numerous calls were
made between Jordan and Graham between February 1 and February
5, 2011. CSLI showed that, on February 5, 2011, Jordan and
Graham were both near Jordan’s apartment approximately 45
minutes before the Burger King robbery and that Graham was near
Burger King within minutes of the robbery. On that date,
according to eyewitness testimony, an individual later
identified as Graham used a black pistol with a white handle to
rob Burger King and then McDonald’s. Graham was seen fleeing
93
each robbery by entering the passenger side of a dark colored
Ford F-150 pickup truck that was driven by another individual.
Officer Corcoran testified that, during his investigation
of the Burger King robbery, he received reports describing the
robber, his weapon, and the getaway vehicle. A 911 call was
placed reporting the McDonald’s robbery and described the
getaway vehicle as a pickup truck. CAD reports confirm that
approximately five minutes after the call, Corcoran spotted a
speeding F-150 truck on the road and saw that the passenger wore
a jacket matching the description of the Burger King robber.
Corcoran pursued the vehicle and activated the siren on his
patrol car. The driver of the truck, who turned out to be
Jordan, responded by driving up on a sidewalk before becoming
trapped between heavy traffic, a construction barrier, and a
moving train in front of the truck. Jordan was initially non-
compliant with instructions given by Officer Corcoran but was
eventually secured and arrested. Graham was arrested from the
passenger side of the vehicle.
Bundles of folded and crumbled cash were recovered from
Jordan and Graham, including more than $200 recovered from
Jordan’s person and $83 stuffed in the console inside the truck.
A .25 caliber Taurus pistol with a pearl handle was found under
the passenger seat of the truck and matched the description of
the gun used in the Burger King and McDonald’s robberies. The
94
truck was owned by Graham and matched the description of the
truck used as the getaway vehicle after each of the Burger King
and McDonald’s robberies. A fingerprint belonging to Graham was
found at Burger King after the robbery.
Test drives were conducted of the route between McDonald’s
and the location on North Stricker Street where Jordan testified
that he was picked up by Graham on February 5, 2011. The tests
showed that the trip would take more than seven minutes to
travel at the highest possible rate of speed in traffic, using
emergency lights and sirens. This evidence tended to show that
it would not have been possible for Jordan to have been picked
up from North Stricker Street between the time of the McDonald’s
robbery and the pursuit by Officer Corcoran.
In addition to the foregoing evidence, the parties
stipulated that the businesses robbed operated in interstate
commerce and that the robberies affected interstate commerce.
Viewed as a whole and in the light most favorable to the
government, a reasonable juror could accept the evidence
presented at trial “as adequate and sufficient to support a
conclusion of guilt beyond a reasonable doubt[]” on each of the
offenses of which Jordan was convicted. Engle, 676 F.3d at 419.
C.
Jordan’s sufficiency challenges as to his robbery and
firearm convictions proceed from assumptions that he was found
95
guilty of these offenses solely on a theory of having aided and
abetted armed robberies principally committed by Graham. These
assumptions are dubious, considering that the jury found Jordan
guilty of conspiracy in Count Four.
To prove conspiracy, the government must show “(1) an
agreement between two or more people to commit a crime, and (2)
an overt act in furtherance of the conspiracy.” United States v.
Ellis, 121 F.3d 908, 922 (4th Cir. 1997). “The existence of a
‘tacit or mutual understanding’ between conspirators is
sufficient evidence of a conspiratorial agreement.” Id. (quoting
United States v. Chorman, 910 F.2d 102, 109 (4th Cir. 1990)).
Such an agreement may be established through circumstantial
evidence, such as the defendant’s “‘relationship with other
members of the conspiracy, the length of this association, [the
defendant’s] attitude [and] conduct, and the nature of the
conspiracy.’” Burgos, 94 F.3d at 858 (4th Cir. 1996) (citation
omitted).
“Like the conspirators’ agreement, a defendant’s
participation in the conspiracy ‘need not be explicit; it may be
inferred from circumstantial evidence.’” Id. This Court has held
that “once a conspiracy is established, even a slight connection
between a defendant and the conspiracy is sufficient to include
him in the plan.” Ellis, 121 F.3d at 922 (internal quotation
marks and citation omitted).
96
A reasonable fact finder could conclude from the evidence
presented at trial that Jordan conspired with Graham to commit
armed robberies of Shell, Burger King, and McDonald’s.
Circumstantial and direct evidence showing that Jordan and
Graham cooperated in performing the armed robbery of Shell
reflects a “‘tacit and mutual understanding’” between the two
and supports a reasonable inference that they had an agreement
to commit this crime. Ellis, 121 F.3d at 922 (citation omitted).
Evidence of the pair’s involvement in the Shell robbery, ongoing
communications between Jordan and Graham over the course of the
days to follow, and Jordan’s role as getaway driver after
Graham’s robberies of Burger King and McDonald’s provide
circumstantial evidence that Jordan and Graham agreed to
cooperate in assuming their respective roles in these robberies.
In sum, the evidence presented at trial was sufficient to
support Jordan’s conspiracy conviction.
As a co-conspirator with Graham in the Shell, Burger King,
and McDonald’s robberies, Jordan is liable for Graham’s
reasonably foreseeable acts in furtherance of the conspiracy.
See United States v. Ashley, 606 F.3d 135, 142-43 (4th Cir.
2010) (citing Pinkerton v. United States, 328 U.S. 640, 647
(1946)). Jordan does not dispute that the government presented
substantial evidence that Graham was responsible for Hobbs Act
robbery of Shell, Burger King, and McDonald’s, and used a
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firearm in each of those robberies. 28 We hold, therefore, that
Jordan’s convictions for Hobbs Act robbery and brandishing a
firearm under 18 U.S.C. § 924(c) are supported by substantial
evidence.
D.
Jordan contends that the district court made a ruling that
the government failed to prove Jordan’s knowledge that Graham
brought a firearm into the pickup truck after the McDonald’s
robbery. Without such evidence, Jordan argues, there was not
sufficient evidence to convict him on the Hobbs Act robbery and
firearm offenses arising from the Burger King and McDonald’s
robberies. The record discloses no clear ruling from the
district court as to any evidence of Jordan’s knowledge about
the Taurus pistol in the truck.
Jordan directs our attention to the district court’s
decision to grant Jordan’s Rule 29(a) motion for acquittal on
Count One, which charged Jordan with being a felon in possession
28 A conviction under the Hobbs Act requires proof
(1) that the defendant coerced the victim to part
with property; (2) that the coercion occurred through
the “wrongful use of actual or threatened force,
violence or fear or under color of official right”;
and (3) that the coercion occurred in such a way as to
affect adversely interstate commerce.
United States v. Buffey, 899 F.2d 1402, 1403 (4th Cir. 1990)
(citation omitted); see also 18 U.S.C. § 1951.
98
of a firearm under 18 U.S.C. § 922(g)(1). Liability under §
922(g)(1) may arise from a felon’s voluntary and intentional
possession of a firearm, whether the felon possessed the weapon
actually or constructively, exclusively or jointly with others.
See United States v. Gallimore, 247 F.3d 134, 136-37 (4th Cir.
2001). “‘Constructive possession’ . . . occurs when a person
‘exercise[s], or ha[s] the power to exercise, dominion and
control over [an] item’ of property.” United States v. Scott,
424 F.3d 431, 435 (4th Cir. 2005) (quoting United States v.
Shorter, 328 F.3d 167, 172 (4th Cir. 2003)). The government may
“prove constructive possession of an item in instances when a
defendant has dominion and control over the premises or vehicle
where the item is located.” Id. at 435 n.*.
The government asserted multiple theories of the felon-in-
possession charge against Jordan, including the theory that
Jordan was in constructive possession of the Taurus pistol
through operation of the truck in which it was located. The
district court rejected each of the government’s theories. As to
the constructive-possession theory, the district court stated
two grounds for its decision: (1) “all of the evidence
introduced to date indicates the firearm was under the complete
individual control of the co-defendant Graham[;]” and (2) there
was “no evidence tending to show that Jordan’s alleged
99
constructive possession of the firearm was voluntary as required
by the Scott case.” J.A. 2213.
We are not persuaded that, in so ruling, the district court
implied that there was insufficient evidence that Jordan knew
about the gun Graham brought into the truck. Cf. Schneckloth v.
Bustamonte, 412 U.S. 218, 224 (1973) (“[Voluntariness] cannot be
taken literally to mean a ‘knowing’ choice.”). From the larger
context of the court’s colloquy with counsel regarding the
felon-in-possession charge, it is apparent that the court’s
skepticism of the constructive-possession theory was based on
the view that Jordan, as “the alleged getaway driver,” J.A.
2192, could not have assumed joint possession of a weapon that
was solely within the control of Graham simply because Graham
chose to bring it into the vehicle. In that sense, any
possession Jordan had of the weapon by virtue of his control of
the vehicle was not “voluntary.” But that does not mean that
Jordan was unaware that the weapon was present. 29
In any case, our review of the district court’s sufficiency
determination is de novo, and we hold that there was indeed
sufficient evidence that Jordan knew the Taurus pistol was in
the truck after the Burger King and McDonald’s robberies.
29
We decline to reach the question of whether the district
court expressed the correct view of constructive possession of a
firearm through control of the vehicle in which it is located.
100
Accordingly, we reject Jordan’s sufficiency challenge to his
convictions for these robberies and associated firearm offenses.
IX.
For the foregoing reasons, Appellants’ Motion to Strike the
Sur-Reply of the United States is granted, and the judgment of
the district court is
AFFIRMED.
101
THACKER, Circuit Judge, concurring:
I am in agreement with Judge Davis’s conclusion that
cell site location information (”CSLI”) cannot be obtained
without a warrant but that, in this case, admission of the CSLI
evidence must be sustained pursuant to the “good faith”
exception to the warrant requirement. I write separately to
express my concern about the erosion of privacy in this era of
rapid technological development.
The tension between the right to privacy and emerging
technology, particularly as it relates to cell phones, impacts
all Americans. Indeed, as the Supreme Court noted in Riley v.
California, cell phones “are now such a pervasive and insistent
part of daily life that the proverbial visitor from Mars might
conclude they were an important feature of human anatomy.”
134 S. Ct. 2473, 2484 (2014). Nearly every American adult owns
a cell phone. * See Mobile Technology Fact Sheet, Pew Research
Ctr., http://www.pewinternet.org/fact-sheets/mobile-technology-
fact-sheet (last visited July 23, 2015) (saved as ECF opinion
attachment) (reporting that, as of January 2014, “90% of
*
Cell phone ownership is even higher among young adults.
See Aaron Smith, How Americans Use Text Messaging, Pew Research
Ctr., http://www.pewinternet.org/2011/09/19/how-americans-use-
text-messaging (last visited July 23, 2015) (saved as ECF
opinion attachment) (reporting that 95% of 18 to 24 year olds
own a cell phone).
102
American adults own a cell phone”). More than three-fifths of
American adults own a smartphone. See Aaron Smith, Pew
Research Ctr., U.S. Smartphone Use in 2015
2 (2015), http://www.pewinternet.org/files/2015/03/
PI_Smartphones_0401151.pdf (saved as ECF opinion attachment)
(reporting that “64% of American adults now own a smartphone of
some kind”). And each year more Americans decide to rely solely
on cell phones, untethering from landlines. See, e.g.,
Stephen J. Blumberg & Julian V. Luke, U.S. Dept. of Health &
Human Res., Wireless Substitution: Early Release Estimates from
the National; Health Interview Survey, July - December 2014
(2015), http://www.cdc.gov/nchs/data/nhis/earlyrelease/
wireless201506.pdf (saved as ECF opinion attachment). As of
2014, almost half of American homes only had cell phones. See
id. (“More than two in every five American homes (45.4%) had
only wireless telephones (also known as cellular telephones,
cell phones, or mobile phones) during the second half of
2014 . . . .”).
And cell phones are far more than sophisticated
walkie-talkies. Unlike a walkie-talkie, which merely facilities
a conversation, “a cell phone collects in one place many
distinct types of information . . . that reveal much more in
combination than any isolated record” or conversation. Riley,
134 S. Ct. at 2489. This information -- stored on the phone and
103
on remote servers -- makes reconstructing a day in the life of
any individual a simple task. See, e.g., id. (“The sum of an
individual’s private life can be reconstructed through a
thousand photographs labeled with dates, locations, and
descriptions . . . .”). In fact, gathering and storing location
information “is a standard feature on many smart phones and can
reconstruct someone’s specific movements down to the minute, not
only around town but also within a particular building,”
including in the privacy of his or her own home. Id. at 2490.
This is the reality of modern life. “The fact that technology
now allows an individual to carry such information in his hand
does not make the information any less worthy of the protection
for which the Founders fought.” Id. at 2495 (2014).
It is particularly disturbing that any one of us can
be tracked from afar regardless of whether or not we are
actively using our phones. Even just sitting at home alone,
your phone may be relaying data, including your location data.
This data is transmitted to the remote servers of your service
provider, where the data is stored. According to the
Government, it does not need a warrant to force your service
provider to turn over this information. By doing nothing, you
disclosed your location information to a third party. Per the
Government’s theory, in so doing you have foregone your right to
104
privacy such that a warrant is not necessary. I cannot approve
of such a process (or lack thereof).
As the march of technological progress continues to
advance upon our zone of privacy, each step forward should be
met with considered judgment that errs on the side of protecting
privacy and accounts for the practical realities of modern life.
At bottom, this decision continues a time-honored
American tradition -- obtaining a warrant is the rule, not the
exception.
105
DIANA GRIBBON MOTZ, Circuit Judge, dissenting in part and
concurring in the judgment:
I concur in the judgment affirming Defendants’ convictions
and sentences. But, with respect, I dissent from the holding
that the government violated Defendants’ Fourth Amendment
rights. The majority concludes that the government did so when
it obtained, pursuant to 18 U.S.C. § 2703(d) court orders, but
without warrants, records of the cell phone towers Defendants
used to make and receive calls and text messages. That holding
flies in the face of the Supreme Court’s well-established third-
party doctrine. 1
The Court has long held that an individual enjoys “no
legitimate expectation of privacy,” and so no Fourth Amendment
protection, in information he “voluntarily turns over to [a]
third part[y].” Smith v. Maryland, 442 U.S. 735, 743-44 (1979).
This rule applies even when “the information is revealed,” as it
assertedly was here, “on the assumption that it will be used
only for a limited purpose and the confidence placed in the
1
Given the majority’s affirmance of Defendants’ convictions
on alternate grounds, its rejection of the third-party doctrine
makes no difference to the result in this case. But the
majority’s disavowal of the third-party doctrine will have
profound consequences in future cases in the Fourth Circuit.
For unlike in cases arising in every other circuit to consider
the matter, the government will have to obtain a search warrant
supported by probable cause before obtaining even historical
CSLI in this circuit.
106
third party will not be betrayed.” United States v. Miller, 425
U.S. 435, 443 (1976). Accordingly, the government’s acquisition
of historical cell site location information (CSLI) from
Defendants’ cell phone provider did not implicate, much less
violate, the Fourth Amendment.
I.
The Fourth Amendment ensures that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated.” U.S. Const. amend. IV. Broadly, “a Fourth
Amendment search occurs when the government violates a
subjective expectation of privacy that society recognizes as
reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001).
In assessing whether such a search occurred, “it is
important to begin by specifying precisely the nature of the
state activity that is challenged.” Smith, 442 U.S. at 741(emphasis added). Here, that “activity” is the government’s
acquisition from a phone company, Sprint/Nextel, of CSLI records
-- i.e., the records the phone company created that identify
which cell towers it used to route Defendants’ calls and
messages. The government did not surreptitiously view, listen
to, record, or in any other way engage in direct surveillance of
Defendants to obtain this information. Rather, it was
Sprint/Nextel alone that obtained the information, and generated
107
the business records, that Defendants now claim are
constitutionally protected.
The nature of the governmental activity here thus
critically distinguishes this case from those on which the
majority relies -- cases in which the government did
surreptitiously collect private information. 2 In United States
v. Karo, 468 U.S. 705, 714-15 (1984), for instance, the Drug
Enforcement Agency placed a beeper within a can of ether and
received tracking information from the beeper while the can was
inside a private residence. Similarly, in Kyllo, 533 U.S. at
34-35, the Department of the Interior used a thermal imager to
2My colleagues acknowledge this distinction but dismiss it
as “inconsequential.” I cannot agree. It matters, for Fourth
Amendment purposes, how the government acquires information.
Just as the Supreme Court applies a different analysis depending
on whether the government engages in a physical trespass, see
United States v. Jones, 132 S. Ct. 945, 949-53 (2012), so too
the Court applies a different analysis, in non-trespassory
cases, depending on whether the information at issue was
voluntarily disclosed to a third party. See Smith, 442 U.S. at
743-44. Perhaps, in accord with the two lower court cases the
majority cites, the Court will someday conclude that, given
long-established statutory and common-law protections, the
third-party doctrine does not apply to information a patient
reveals to a doctor or a client to a lawyer -- i.e., that the
patient and client do have reasonable expectations of privacy in
information conveyed in the course of these confidential
relationships. But see 1 Wayne R. LaFave, Search & Seizure: A
Treatise on the Fourth Amendment § 2.7(d) (5th ed. 2012 & Supp.
2014). Clearly, however, the Court has already declined to
recognize any reasonable expectation of privacy for information
a phone company customer provides to the phone company. See
Smith, 442 U.S. at 743-44.
108
gather “information regarding the interior of the home.” And in
United States v. Jones, 132 S. Ct. 945, 949 (2012), the FBI and
local law enforcement secretly installed a GPS tracking device
on a suspect’s vehicle and monitored the vehicle’s movements for
four weeks.
On the basis of these cases, the majority contends that
“the government invades a reasonable expectation of privacy when
it relies upon technology not in general use to discover the
movements of an individual over an extended period of time.”
Perhaps. But that question is not before us. The question we
must answer is not whether, in the abstract, an individual has a
reasonable expectation of privacy in his location and movements
over time. Rather, the question before us is whether an
individual has a reasonable expectation of privacy in a third
party’s records that permit the government to deduce this
information. Karo, Kyllo, and Jones, all of which involve
direct government surveillance, tell us nothing about the answer
to that question.
Instead, the cases that establish the third-party doctrine
provide the answer. Under the third-party doctrine, an
individual can claim “no legitimate expectation of privacy” in
information that he has voluntarily turned over to a third
party. Smith, 442 U.S. at 743-44. The Supreme Court has
reasoned that, by “revealing his affairs to another,” an
109
individual “takes the risk . . . that the information will be
conveyed by that person to the Government.” Miller, 425 U.S. at
443. The Fourth Amendment does not protect information
voluntarily disclosed to a third party because even a subjective
expectation of privacy in such information is “not one that
society is prepared to recognize as ‘reasonable.’” Smith, 442
U.S. at 743 (internal quotation marks and citation omitted).
The government therefore does not engage in a Fourth Amendment
“search” when it acquires such information from a third party.
Applying the third-party doctrine to the facts of this
case, I would hold that Defendants did not have a reasonable
expectation of privacy in the CSLI recorded by Sprint/Nextel.
The Supreme Court’s reasoning in Smith controls. There, the
defendant challenged the government’s use of a pen register -- a
device that could record the outgoing phone numbers dialed from
his home telephone. Id. at 737. The Court held that the
defendant could “claim no legitimate expectation of privacy” in
the numbers he had dialed because he had “voluntarily conveyed”
those numbers to the phone company by “‘expos[ing]’ that
information to” the phone company’s “equipment in the ordinary
course of business.” Id. at 744. The defendant thereby
“assumed the risk that the company would reveal to police the
numbers he dialed.” Id.110
Here, as in Smith, Defendants unquestionably “exposed” the
information at issue to the phone company’s “equipment in the
ordinary course of business.” Id. Each time Defendants made or
received a call, or sent or received a text message --
activities well within the “ordinary course” of cell phone
ownership -- Sprint/Nextel generated a record of the cell towers
used. The CSLI that Sprint/Nexel recorded was necessary to
route Defendants’ cell phone calls and texts, just as the dialed
numbers recorded by the pen register in Smith were necessary to
route the defendant’s landline calls. Having “exposed” the CSLI
to Sprint/Nextel, Defendants here, like the defendant in Smith,
“assumed the risk” that the phone company would disclose their
information to the government. Id. at 744. For these reasons,
the government’s acquisition of that information (historical
CSLI) pursuant to § 2703(d) orders, rather than warrants, did
not violate the Fourth Amendment.
Three other federal appellate courts have considered the
Fourth Amendment question before us. Not one has adopted the
majority’s holding. Two of our sister courts have expressly
held, as I would, that individuals do not have a reasonable
expectation of privacy in historical CSLI records that the
government obtains from cell phone service providers through a
§ 2703(d) order. See United States v. Davis, 785 F.3d 498, 511
(11th Cir. 2015) (en banc) (holding defendant had no
111
“objective[ly] reasonable expectation of privacy in MetroPCS’s
business records showing the cell tower locations that
wirelessly connected his calls”); In re Application of U.S. for
Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013) (In
re Application (Fifth Circuit)) (holding the government can use
“[s]ection 2703(d) orders to obtain historical cell site
information” without implicating the Fourth Amendment (emphasis
omitted)). And although the third court opined that “[a] cell
phone customer has not ‘voluntarily’ shared his location
information with a cellular provider in any meaningful way,” it
held that “CSLI from cell phone calls is obtainable under a
§ 2703(d) order,” which “does not require the traditional
probable cause determination” necessary for a warrant. In re
Application of U.S. for an Order Directing a Provider of Elec.
Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313,
317 (3d Cir. 2010) (In re Application (Third Circuit)).
Even in the absence of binding circuit precedent, the vast
majority of federal district court judges have reached the same
conclusion. 3 Given this near unanimity of federal authority, the
3 See, e.g., United States v. Epstein, No. 14-287, 2015 WL
1646838, at *4 (D.N.J. Apr. 14, 2015) (Wolfson, J.); United
States v. Dorsey, No. 14-328, 2015 WL 847395, at *8 (C.D. Cal.
Feb. 23, 2015) (Snyder, J.); United States v. Lang, No. 14-390,
2015 WL 327338, at *3-4 (N.D. Ill. Jan. 23, 2015) (St. Eve, J.);
United States v. Shah, No. 13-328, 2015 WL 72118, at *7-9
(E.D.N.C. Jan. 6, 2015) (Flanagan, J.); United States v.
(Continued)
112
majority is forced to rest its holding on three inapposite state
cases and three district court opinions -- including one that
has been vacated, In re Application of U.S. for Historical Cell
Site Data, 747 F. Supp. 2d 827 (S.D. Tex. 2010), vacated, 724
F.3d 600 (5th Cir. 2013), and another that involves only
prospective and real-time CSLI, In re Application of U.S. for an
Order Authorizing Disclosure of Location Info. of a Specified
Wireless Tel., 849 F. Supp. 2d 526, 535 & n.4 (D. Md. 2011). 4
Martinez, No. 13-3560, 2014 WL 5480686, at *3-5 (S.D. Cal. Oct.
28, 2014) (Hayes, J.); United States v. Rogers, No. 13-952, 2014
WL 5152543, at *3-4 (N.D. Ill. Oct. 9, 2014) (Kocoras, J.);
United States v. Giddins, 57 F. Supp. 3d 481, 491-94 (D. Md.
2014) (Quarles, J.); United States v. Banks, 52 F. Supp. 3d
1201, 1204-06 (D. Kan. 2014) (Crabtree, J.); United States v.
Serrano, No. 13-0058, 2014 WL 2696569, at *6-7 (S.D.N.Y. June
10, 2014) (Forrest, J.); United States v. Moreno-Nevarez, No.
13-0841, 2013 WL 5631017, at *1-2 (S.D. Cal. Oct. 2, 2013)
(Benitez, J.); United States v. Rigmaiden, No. 08-814, 2013 WL
1932800, at *14 (D. Ariz. May 8, 2013) (Campbell, J.); United
States v. Gordon, No. 09-153-02, 2012 WL 8499876, at *2 (D.D.C.
Feb. 6, 2012) (Urbina, J.); United States v. Benford, No. 09-86,
2010 WL 1266507, at *2-3 (N.D. Ind. Mar. 26, 2010) (Moody, J.);
In re Application of the U.S. for an Order Authorizing the
Disclosure of Cell Site Location Info., No. 08-6038, 2009 WL
8231744, at *9-11 (E.D. Ky. Apr. 17, 2009) (Wier, Mag. J.); In
re Applications of U.S. for Orders Pursuant to Title 18, U.S.
Code Section 2703(d), 509 F. Supp. 2d 76, 79-82 (D. Mass. 2007)
(Stearns, J.). But see United States v. Cooper, No. 13-00693,
2015 WL 881578, at *6-8 (N.D. Cal. Mar. 2, 2015) (Illston, J.);
In re Application of U.S. for an Order Authorizing the Release
of Historical Cell-Site Info., 809 F. Supp. 2d 113, 120-27
(E.D.N.Y. 2011) (Garaufis, J.).
4
Two of the state cases do not even interpret the Fourth
Amendment, but instead rely on broader state constitutional
protections. See Commonwealth v. Augustine, 4 N.E.3d 846, 858
(Continued)
113
In sum, the majority’s holding lacks support from all
relevant authority and places us in conflict with the Supreme
Court and three other federal appellate courts.
II.
Despite the lack of support for its position, the majority
insists that the third-party doctrine does not apply here. The
majority maintains that “a cell phone user does not ‘convey’
CSLI to her service provider at all –- voluntarily or otherwise
–- and therefore does not assume any risk of disclosure to law
enforcement.” This is the analytical lynchpin of my colleagues’
holding. 5 By my count, they invoke a cell phone user’s asserted
(Mass. 2014) (finding “no need to wade into the[] Fourth
Amendment waters” when the court could rely on article 14 of the
Massachusetts Declaration of Rights); State v. Earls, 70 A.3d
630, 641-42 (N.J. 2013) (explaining that New Jersey has
“departed” from Smith and Miller and does not recognize the
third-party doctrine). And the court in the third state case
repeatedly pointed out that it was not considering “historical
cell site location records” -- like those at issue here -- but
“real time cell site location information,” which had been
obtained, not through a § 2703(d) order, but under an order that
had authorized only a “pen register” and “trap and trace
device.” Tracey v. State, 152 So. 3d 504, 506-08, 515-16, 526
(Fla. 2014). Thus, contrary to my colleagues’ charge, it is not
the dissent, but rather cases on which the majority relies, that
“have suggested” that there are different privacy interests in
“real-time” versus “historical” location information. See id.;
see also In re Application of U.S. for an Order Authorizing
Disclosure of Location Info. of a Specified Wireless Tel., 849
F. Supp. 2d 526, 535-39 (D. Md. 2011).
5 My colleagues also emphasize the general “sensitiv[ity]”
of location information. But to the extent they do so to argue
(Continued)
114
lack of “voluntariness” no less than twenty times in their
discussion of the third-party doctrine. But my colleagues’
holding that cell phone users do not voluntarily convey CSLI
misapprehends the nature of CSLI, attempts to redefine the
third-party doctrine, and rests on a long-rejected factual
argument and the constitutional protection afforded a
communication’s content.
A.
With respect to the nature of CSLI, there can be little
question that cell phone users “convey” CSLI to their service
providers. After all, if they do not, then who does? Perhaps
the majority believes that because a service provider generates
a record of CSLI, the provider just conveys CSLI to itself. But
before the provider can create such a record, it must receive
information indicating that a cell phone user is relying on a
that the third-party doctrine does not apply to CSLI, they are
mistaken. The third-party doctrine clearly covers information
regarded as comparably “sensitive” to location information, like
financial records, Miller, 425 U.S. at 442, and phone records,
Smith, 442 U.S. at 745. Indeed, the public polling study the
majority twice cites in attempting to establish the
“sensitivity” of CSLI relates that a similar number of adults
regard the phone numbers they call to be just as “sensitive” as
location data. Pew Research Ctr., Public Perceptions of Privacy
and Security in the Post-Snowden Era 34-35 (2014),
http://www.pewinternet.org/files/2014/11/PI_PublicPerceptionsof
Privacy_111214.pdf. This is so even though the location data
that the study asked about (GPS) is far more precise than the
CSLI at issue here. See id. at 34.
115
particular cell tower. The provider only receives that
information when a cell phone user’s phone exchanges signals
with the nearest available cell tower. A cell phone user
therefore “conveys” the location of the cell towers his phone
connects with whenever he uses the provider’s network.
There is similarly little question that cell phone users
convey CSLI to their service providers “voluntarily.” See
Davis, 785 F.3d at 512 n.12 (“Cell phone users voluntarily
convey cell tower location information to telephone companies in
the course of making and receiving calls on their cell
phones.”). This is so, as the Fifth Circuit explained, even
though a cell phone user “does not directly inform his service
provider of the location of the nearest cell phone tower.” In
re Application (Fifth Circuit), 724 F.3d at 614.
Logic compels this conclusion. When an individual
purchases a cell phone and chooses a service provider, he
expects the provider will, at a minimum, place outgoing calls,
send text messages, and route incoming calls and messages. As
most cell phone users know all too well, however, proximity to a
cell tower is necessary to complete these tasks. Anyone who has
stepped outside to “get a signal,” or has warned a caller of a
potential loss of service before entering an elevator,
understands, on some level, that location matters. See id. at
613 (“Cell phone users recognize that, if their phone cannot
116
pick up a signal (or ‘has no bars’), they are out of the range
of their service provider’s network of towers.”).
A cell phone user thus voluntarily enters an arrangement
with his service provider in which he knows that he must
maintain proximity to the provider’s cell towers in order for
his phone to function. Whenever he expects his phone to work,
he is thus permitting -- indeed, requesting -- his service
provider to establish a connection between his phone and a
nearby cell tower. A cell phone user therefore voluntarily
conveys the information necessary for his service provider to
identify the CSLI for his calls and texts. And whether the
service provider actually “elects to make a . . . record” of
this information “does not . . . make any constitutional
difference.” Smith, 442 U.S. at 745.
To be sure, some cell phone users may not recognize, in the
moment, that they are “conveying” CSLI to their service
provider. See In re Application (Third Circuit), 620 F.3d at
317. But the Supreme Court’s use of the word “voluntarily” in
Smith and Miller does not require contemporaneous recognition of
every detail an individual conveys to a third party. 6 Rather,
6
If it were otherwise, as my colleagues appear to believe,
then courts would frequently need to parse business records for
indicia of what an individual knew he conveyed to a third party.
For example, when a person hands his credit card to the cashier
at a grocery store, he may not pause to consider that he is also
(Continued)
117
these cases make clear that the third-party doctrine does not
apply when an individual involuntarily conveys information -- as
when the government conducts surreptitious surveillance or when
a third party steals private information.
Thus, this would be a different case if Sprint/Nextel had
misused its access to Defendants’ phones and secretly recorded,
at the government’s behest, information unnecessary to the
provision of cell service. Defendants did not assume that risk
when they made calls or sent messages. But like the defendant
in Smith, 442 U.S. at 747, Defendants here did “assume the risk”
that the phone company would make a record of the information
necessary to accomplish the very tasks they paid the phone
company to perform. They cannot now protest that providing this
essential information was involuntary.
B.
To justify its rejection of the third-party doctrine, the
majority attempts to redefine it. The majority maintains that
the third-party doctrine does not apply to CSLI because a cell
“conveying” to his credit card company the date and time of his
purchase or the store’s street address. But he would hardly be
able to use that as an excuse to claim an expectation of privacy
if those pieces of information appear in the credit card
company’s resulting records of the transaction. Cf. United
States v. Phibbs, 999 F.2d 1053, 1077-78 (6th Cir. 1993)
(Defendant “did not have both an actual and a justifiable
privacy interest in . . . his credit card statements.”).
118
phone user need not “actively submit any location-identifying
information when making a call or sending a message.” My
colleagues apparently believe that an individual only
“voluntarily convey[s]” information he “actively submit[s],” but
such a rule is nowhere to be found in either Miller or Smith.
Moreover, this purported requirement cannot be squared with the
myriad of federal cases that permit the government to acquire
third-party records, even when individuals do not “actively
submit” the information contained in the records.
For starters, courts have attached no constitutional
significance to the distinction between records of incoming
versus outgoing phone calls. The technology the police used in
Smith -- a pen register -- recorded only the numbers dialed by a
suspect’s phone. It did not (and could not) record any
information about incoming calls. To capture that information,
police routinely use a “trap and trace” device. If the majority
were correct that the third-party doctrine applies only when an
individual “actively submit[s]” information, then any effort to
acquire records of incoming phone calls would constitute a
search protected by the Fourth Amendment. After all, the phone
customer never “actively submits” to the phone company --
“voluntarily or otherwise” -- the numbers from incoming
telephone calls. Only the user on the other end of the line,
who actually dials the numbers, does so.
119
But federal courts have not required a warrant supported by
probable cause to obtain such information. Rather, they
routinely permit the government to install “trap and trace”
devices without demonstrating probable cause or even reasonable
suspicion, the showing required for § 2703(d) orders. See,
e.g., United States v. Reed, 575 F.3d 900, 914 (9th Cir. 2009);
United States v. Hallmark, 911 F.2d 399, 402 (10th Cir. 1990).
And recently we held that police “did not violate the Fourth
Amendment” when obtaining a defendant’s “cellular phone
records,” even though the records included “basic information
regarding incoming and outgoing calls on that phone line.”
United States v. Clenney, 631 F.3d 658, 666-67 (4th Cir. 2011)
(emphasis added). 7
Moreover, outside the context of phone records, we have
held that third-party information relating to the sending and
routing of electronic communications does not receive Fourth
Amendment protection. United States v. Bynum, 604 F.3d 161, 164
7 Nor has this court ever suggested that other information
typically contained in phone records -- the date, time, and
duration of each call, for example -- merits constitutional
protection. Yet a phone customer never “actively submits” this
information either. Rather, this information is, to borrow a
phrase from the majority opinion, “quietly and automatically
calculated” by the phone company “without unusual or overt
intervention that might be detected by the target user.” If
individuals “voluntarily convey” all of this information to
their phone companies, I see no basis for drawing the line at
CSLI. Notably, the majority does not provide one.
120
(4th Cir. 2010). In Bynum, we explained that it “would not be
objectively reasonable” for a defendant to expect privacy in his
phone and Internet subscriber records, including “his name,
email address, telephone number, and physical address.” Id.Although we had no occasion in Bynum to consider whether an
individual has a protected privacy interest in his Internet
Protocol (IP) address, id. at 164 n.2, several of our sister
circuits have concluded that no such interest exists. See
United States v. Suing, 712 F.3d 1209, 1213 (8th Cir. 2013);
United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010).
And as the majority itself recognizes, the Ninth Circuit
has held that “e-mail and Internet users have no expectation of
privacy in . . . the IP addresses of the websites they visit.”
United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008).
The Forrester court also held that there is no reasonable
expectation of privacy in either the to/from addresses of a
user’s emails or the “total amount of data transmitted to or
from [a user’s] account.” Id. at 510-11. The court found the
government’s acquisition of this information “constitutionally
indistinguishable from the use of a pen register that the Court
approved in Smith,” in part because “e-mail and Internet users,
like the telephone users in Smith, rely on third-party equipment
in order to engage in communication.” Id. at 510.
121
Of course, computer users do “actively submit” some of the
information discussed in the above cases, like the “to” address
in an email and the subscriber information conveyed when signing
up for Internet service. But users do not actively submit other
pieces of information, like an IP address or the amount of data
transmitted to their account. Internet service providers
automatically generate that information. See Christie, 624 F.3d
at 563; Forrester, 512 F.3d at 511.
If the majority is correct that the Fourth Amendment
protects information individuals do not “actively submit” to
third parties, then it should trouble my colleagues that we and
our sister circuits have consistently failed to recognize this
protection. Yet nowhere in their opinion do my colleagues even
attempt to grapple with these cases or to reconcile the rule
they announce with the previous applications of the third-party
doctrine. Today’s decision is a holding in search of a coherent
legal principle; my colleagues have offered none.
C.
Instead, my colleagues rely on an argument long rejected by
the Supreme Court and a series of cases involving the content of
communications to support their holding that CSLI is protected
by the Fourth Amendment.
First, my colleagues emphasize that cell phone use is
“ubiquitous in our society today” and “essential to full
122
cultural and economic participation.” To the majority, such
“ubiquitous” and “essential” use shields CSLI from the
consequences of the third-party doctrine. For, the majority
contends, cell phone users cannot be held to voluntarily
“forfeit expectations of privacy by simply seeking active
participation in society through use of their cell phones.”
But the dissenting justices in Miller and Smith
unsuccessfully advanced nearly identical concerns. Dissenting
in Miller, Justice Brennan contended that “the disclosure by
individuals or business firms of their financial affairs to a
bank is not entirely volitional, since it is impossible to
participate in the economic life of contemporary society without
maintaining a bank account.” 425 U.S. at 451 (Brennan, J.,
dissenting) (internal quotation marks and citation omitted).
And dissenting in Smith, Justice Marshall warned that “unless a
person is prepared to forgo use of what for many has become a
personal or professional necessity,” i.e., a telephone, “he
cannot help but accept the risk of surveillance.” 442 U.S. at
750 (Marshall, J., dissenting). It was, in Justice Marshall’s
view, “idle to speak of ‘assuming’ risks in contexts where, as a
practical matter, individuals have no realistic alternative.”
Id. The Supreme Court has thus twice rejected the majority’s
“ubiquitous” and “essential” theory. Until the Court says
otherwise, these holdings bind us.
123
Second, the majority relies on cases that afford Fourth
Amendment protection to the content of communications to suggest
that CSLI warrants the same protection. See Ex parte Jackson,
96 U.S. 727, 733 (1877) (content of letters and packages); Katz
v. United States, 389 U.S. 347, 353 (1967) (content of telephone
calls); United States v. Warshak, 631 F.3d 266, 287 (6th Cir.
2010) (content of emails). What the majority fails to
acknowledge is that for each medium of communication these cases
address, there is also a case expressly withholding Fourth
Amendment protection from non-content information, i.e.,
information involving addresses and routing. See Jackson, 96
U.S. at 733 (no warrant needed to examine the outside of letters
and packages); Smith, 442 U.S. at 743-44 (no reasonable
expectation of privacy in phone numbers dialed); Forrester, 512
F.3d at 510 (no reasonable expectation of privacy in the to/from
addresses of emails); accord Jones, 132 S. Ct. at 957(Sotomayor, J., concurring) (noting the Fourth Amendment does
not currently protect “phone numbers” disclosed to phone
companies and “e-mail addresses” disclosed to Internet service
providers).
The Supreme Court has thus forged a clear distinction
between the contents of communications and the non-content
information that enables communications providers to transmit
124
the content. 8 CSLI, which reveals the equipment used to route
calls and texts, undeniably belongs in the non-content category.
My colleagues apparently disagree with this conclusion.
They posit that CSLI is “of course more than simple routing
information” because “it tracks a cell phone user’s location
across specific points in time.” But all routing information
“tracks” some form of activity when aggregated over time. The
postmark on letters “tracks” where a person has deposited his
correspondence in the mail; a pen register “tracks” every call a
person makes and allows the government to know precisely when he
is at home; credit card records “track” a consumer’s purchases,
including the location of the stores where he made them. Of
course, CSLI is not identical to any of these other forms of
routing information, just as cell phones are not identical to
other modes of communication. But it blinks at reality to hold
that CSLI, which contains no content, somehow constitutes a
communication of content for Fourth Amendment purposes.
8
In addition to being firmly grounded in the case law, the
content/non-content distinction makes good doctrinal sense. The
intended recipient of the content of communication is not the
third party who transmits it, but the person called, written,
emailed, or sent texts. The routing and addressing information,
by contrast, is intended for the third parties who facilitate
such transmissions.
125
That the majority attempts to blur this clear distinction 9
further illustrates the extent to which its holding is a
constitutional outlier -- untenable in the abstract and bizarre
in practice. Case in point: As I understand the majority’s
view, the government could legally obtain, without a warrant,
all data in the Sprint/Nextel records admitted into evidence
here, except the CSLI. If that is so, then the line in this
case between a Fourth Amendment “search” and “not a search” is
the literal line that, moving left to right across the
Sprint/Nextel spreadsheets, separates the seventh column from
the eighth. See J.A 2656; see also J.A. 1977-79. The records
to the left of that line list the source of a call, the number
dialed, the date and time of the call, and the call’s duration -
9I note that my concurring colleague’s concern about a
general “erosion of privacy” with respect to cell phones rests
on a similar misapprehension of this distinction. My friend
worries about protecting the large quantity of information
“stored on the phone and on remote servers.” And if all that
information were indeed at risk of disclosure, I would share her
concern. But the Supreme Court has already made clear that
police must “get a warrant” to search a cell phone for content
stored on the phone -- even for a call log listing the phone
numbers a suspect has dialed. Riley v. California, 134 S. Ct.
2473, 2492, 2495 (2014). Moreover, the Riley Court suggested
this rule would also apply to content stored on remote servers,
i.e., the “cloud,” given that “the same type of data may be
stored locally on the device for one user and in the cloud for
another.” Id. at 2491. These are clear limiting principles.
Holding, as I would, that the government may acquire, without a
warrant, non-content routing information (including historical
CSLI) would not send us down any slippery slope.
126
- all of which the government can acquire without triggering
Fourth Amendment protection. The records to the right of that
line list the cell phone towers used at the start and end of
each call -- information the majority now holds is protected by
the Fourth Amendment. Constitutional distinctions should be
made of sturdier stuff.
III.
Technology has enabled cell phone companies, like
Sprint/Nextel, to collect a vast amount of information about
their customers. The quantity of data at issue in this case --
seven months’ worth of cell phone records, spanning nearly
30,000 calls and texts for each defendant -- unquestionably
implicates weighty privacy interests.
At bottom, I suspect discomfort with the amount of
information the government obtained here, rather than any
distinction between CSLI and other third-party records,
motivates today’s decision. That would certainly explain the
majority’s suggestion that the government can acquire some
amount of CSLI “before its inspection rises to the level of a
Fourth Amendment search.” 10 But this concession is in fatal
10
It is unclear from my concurring colleague’s opinion,
which simply asserts that “cell site location information . . .
cannot be obtained without a warrant,” whether she agrees that
the government can acquire a small quantity of CSLI without
engaging in a Fourth Amendment “search.”
127
tension with the majority’s rationale for finding a Fourth
Amendment violation here. 11 After all, the majority maintains
that every piece of CSLI has the potential to “place an
individual . . . at the person’s home,” that no piece of CSLI is
voluntarily conveyed, and that the government can never know
before it acquires CSLI whether the information “will detail the
cell phone user’s movements in private spaces.” If all of this
is true (and I doubt it is) 12, then why does a cell phone user
have a reasonable expectation of privacy in only large
quantities of CSLI?
The majority’s answer appears to rest on a misunderstanding
of the analysis embraced in the two concurring opinions in
11The lack of a bright line between permissible and
impermissible amounts of CSLI also stands at odds with the
Supreme Court’s “general preference to provide clear guidance to
law enforcement through categorical rules.” Riley v.
California, 134 S. Ct. 2473, 2491 (2014). I do not envy the law
enforcement officers and district courts in this circuit who now
must attempt to divine this line.
12
Contrary to the majority’s suggestion, and unlike the
information in Karo and Jones, CSLI does not enable the
government to “place an individual” at home or at other private
locations. Each of the cell sites at issue here covers an area
with a radius of up to two miles, and each data point of CSLI
corresponds to a roughly 120-degree sector of a cell site’s
coverage area. That translates to an area of more than four
square miles in which it would be possible to “locate” a cell
phone user. Although I do not think the applicability of the
Fourth Amendment hinges on the precision of CSLI, it is
premature to equate CSLI with the far more accurate forms of
surveillance the majority cites.
128
Jones. There, the concurring justices recognized a line between
“short-term monitoring of a person’s movements on public
streets,” which would not infringe a reasonable expectation of
privacy, and “longer term GPS monitoring,” which would. Jones,
132 S. Ct. at 964 (Alito, J., concurring in the judgment); see
also id. at 955 (Sotomayor, J., concurring). But Jones involved
government surveillance of an individual, not an individual’s
voluntary disclosure of information to a third party. And
determining when government surveillance infringes on an
individual’s reasonable expectation of privacy requires a very
different analysis.
In considering the legality of the government surveillance
at issue in Jones, Justice Alito looked to what a hypothetical
law enforcement officer or third party, engaged in visual
surveillance, could reasonably have learned about the defendant.
He concluded that four weeks of GPS monitoring constituted a
Fourth Amendment “search” because “society’s expectation” had
always been “that law enforcement agents and others would not --
and indeed, in the main, simply could not -- secretly monitor
and catalogue” an individual’s movements in public for very
long. Id. at 964 (Alito, J., concurring in the judgment)
(emphasis added). In other words, when a defendant has not
disclosed his location to any particular third party, the
government may nonetheless surveil him, without a warrant, for
129
as long as a hypothetical third party could reasonably “monitor
and catalogue” his movements in person.
When, however, an individual has voluntarily conveyed his
location to an actual third party, as Defendants did here, a
court need not resort to hypotheticals to determine whether he
justifiably expected that information to remain private. Here,
we know that Defendants had already disclosed all the CSLI at
issue to Sprint/Nextel before the government acquired the phone
company’s records. And the very act of disclosure negated any
reasonable expectation of privacy, regardless of how frequently
that disclosure occurred. The majority ignores these critical
facts, applying the same constitutional requirements for
location information acquired directly through GPS tracking by
the government to historic CSLI that has already been disclosed
to a third party.
I recognize the appeal -- if we were writing on a clean
slate -- in holding that individuals always have a reasonable
expectation of privacy in large quantities of location
information, even if they have shared that information with a
phone company. But the third-party doctrine does not afford us
that option. Intrinsic to the doctrine is an assumption that
the quantity of information an individual shares with a third
party does not affect whether that individual has a reasonable
expectation of privacy. Although third parties have access to
130
much more information now than they did when the Supreme Court
decided Smith, the Court was certainly then aware of the privacy
implications of the third-party doctrine. Justice Stewart
warned the Smith majority that “broadcast[ing] to the world a
list of the local or long distance numbers” a person has called
could “reveal the most intimate details of [that] person’s
life.” Smith, 442 U.S. at 748 (Stewart, J., dissenting). That
is, in essence, the very warning that persuades the majority
today. But the Supreme Court was unmoved by the argument then,
and it is not our place to credit it now. If individuals lack
any legitimate expectation of privacy in information they share
with a third party, then sharing more non-private information
with that third party cannot change the calculus.
Application of the third-party doctrine does not, however,
render privacy an unavoidable casualty of technological
progress. After all, Congress and state legislatures are far
better positioned to respond to changes in technology than are
the courts. See Jones, 132 S. Ct. at 964 (Alito, J., concurring
in the judgment) (“A legislative body is well situated to gauge
changing public attitudes, to draw detailed lines, and to
balance privacy and public safety in a comprehensive way.”); see
also In re Application (Fifth Circuit), 724 F.3d at 615
(explaining that that the proper “recourse” for those seeking
131
increased privacy is often “in the market or the political
process”). 13
The very statute at issue here, the Stored Communications
Act (SCA), demonstrates that Congress can -- and does -- make
these judgments. The SCA imposes a higher burden on the
government for acquiring “the contents of a wire or electronic
communication” than for obtaining “a record . . . pertaining to
a subscriber . . . or customer” of an electronic communication
service. 18 U.S.C. §§ 2703(a), (c). And the SCA is part of a
broader statute, the Electronic Communications Privacy Act of
1986 (ECPA), which was enacted in the wake of Smith. See Pub.
L. No. 99-508, 100 Stat. 1848. In the ECPA, Congress responded
directly to Smith’s holding by requiring the government to
obtain a court order before installing a pen register or “trap
13 The majority posits that it is our responsibility to
ensure that “a technological advance alone cannot constrict
Fourth Amendment protection for private matters that would
otherwise be hidden or inaccessible.” But this is simply an
incorrect statement of Fourth Amendment law. As the Supreme
Court explained in Kyllo, “[i]t would be foolish to contend that
the degree of privacy secured to citizens by the Fourth
Amendment has been entirely unaffected by the advance of
technology.” 533 U.S. at 33-34. The “technology enabling human
flight,” for example, “has exposed to public view . . .
uncovered portions of the house and its curtilage that once were
private.” Id. at 34. And yet the Court held in California v.
Ciraolo, 476 U.S. 207, 215 (1986), and again in Florida v.
Riley, 488 U.S. 445, 450 (1989), that police observations of the
curtilage from an aircraft do not implicate the Fourth
Amendment. See Kyllo, 533 U.S. at 34.
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and trace” device. See 18 U.S.C. § 3121(a). Although Congress
could undoubtedly do more, it has not been asleep at the switch.
Ultimately, of course, the Supreme Court may decide to
revisit the third-party doctrine. Justice Sotomayor has
suggested that the doctrine is “ill suited to the digital age,
in which people reveal a great deal of information about
themselves to third parties in the course of carrying out
mundane tasks.” Jones, 132 S. Ct. at 957 (Sotomayor, J.,
concurring). Indeed, although the Court formulated the third-
party doctrine as an articulation of the reasonable-expectation-
of-privacy inquiry, it increasingly feels like an exception. 14 A
per se rule that it is unreasonable to expect privacy in
information voluntarily disclosed to third parties seems
unmoored from current understandings of privacy.
The landscape would be different “if our Fourth Amendment
jurisprudence cease[d] to treat secrecy as a prerequisite for
privacy.” Id. But until the Supreme Court so holds, we are
14Seizing on the word “exception,” my colleagues suggest
that I advocate “an expansion” of the third-party doctrine.
They misinterpret my statement as to what the third-party
doctrine has become for a statement as to what the doctrine
should be. This mistake is puzzling given my colleagues’
reliance on Justice Sotomayor’s opinion in Jones. It is clear
from her opinion, though not from the majority’s retelling, that
tailoring the Fourth Amendment to “the digital age” would, in
Justice Sotomayor’s view, require the Supreme Court to
“reconsider” the third-party doctrine. See Jones, 132 S. Ct. at
957 (Sotomayor, J., concurring).
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bound by the contours of the third-party doctrine as articulated
by the Court. See, e.g., Agostini v. Felton, 521 U.S. 203, 237
(1997) (reversing the Second Circuit but noting that it had
correctly applied then-governing law, explaining that “if a
precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls” (internal quotation marks, alteration, and
citation omitted)). Applying the third-party doctrine,
consistent with controlling precedent, I can only conclude that
the Fourth Amendment did not protect Sprint/Nextel’s records of
Defendants’ CSLI. Accordingly, I would hold that the government
legally acquired those records through § 2703(d) orders.
* * *
Time may show that my colleagues have struck the proper
balance between technology and privacy. But if the majority is
proven right, it will only be because the Supreme Court revises
its decades-old understanding of how the Fourth Amendment treats
information voluntarily disclosed to third parties. Today the
majority endeavors to beat the Supreme Court to the punch.
Respectfully, I dissent.
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