United States v. Banks
52 F. Supp. 3d 1201
D. Kan.2014Background
- Federal prosecutors sought 18 U.S.C. § 2703(d) orders directing Sprint, Verizon, and T-Mobile to produce historical cell-site location information (CSLI) for phones that were wiretapped during a long narcotics investigation.
- Earlier state-court wiretap orders (issued by Judge Platt under Kansas law) were provisionally suppressed by this Court because monitoring occurred outside the issuing judge’s judicial district; the Court required evidence that tapped phones were within the Eighth Judicial District when intercepted.
- The government now seeks CSLI for the interception periods to establish phone locations and thereby cure the suppression problem.
- Defendants moved to block the 2703(d) orders, arguing (1) § 2703(d)’s "reasonable grounds" standard is unconstitutional under the Fourth Amendment, (2) CSLI is not "relevant and material to an ongoing criminal investigation," and (3) the request is untimely under pretrial scheduling orders.
- The Court concluded CSLI is a business record voluntarily conveyed to providers, upheld the constitutionality of § 2703(d) under Tenth Circuit analogues, found the requested CSLI relevant to an ongoing prosecution, and denied the timeliness/sanction arguments; it granted the government’s motion and ordered proposed 2703(d) orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of § 2703(d) "reasonable grounds" standard for obtaining CSLI | § 2703(d) is constitutional; CSLI may be obtained under the statute | § 2703(d) violates the Fourth Amendment; probable cause and a warrant required for CSLI (relying on Davis/Jones privacy theory) | Court rejects Davis reasoning; follows Fifth Circuit approach — CSLI is business records voluntarily conveyed, so § 2703(d) is constitutional here |
| Whether CSLI is "relevant and material to an ongoing criminal investigation" | Government: prosecution and related investigative activity continue through trial; Brady obligations and reopened investigation qualify as ongoing | Defendants: investigation ended with prosecution; CSLI is only relevant to resolving a suppression motion, not to an "ongoing investigation" | Court finds prosecution activity qualifies as an ongoing investigation; CSLI is relevant and material to prosecution and admissibility of other evidence |
| Sufficiency of probable cause / alternative Fourth Amendment concern | Even if § 2703(d) were insufficient, affidavits supporting wiretaps and search warrants establish probable cause for CSLI | Defendants contend Fourth Amendment requires warrant-level showing and oath/affirmation | Court finds existing wiretap and search-warrant affidavits satisfy "oath or affirmation" and probable cause for location evidence |
| Timeliness of government's 2703(d) request and prejudice / sanctions | Government had no CSLI at scheduling deadline and acted without bad faith; prejudice curable by briefing/continuance | Defendants: late production deprives them of time to prepare suppression motions and warrants sanctions (exclusion) | Court denies sanctions; timing not a violation because government did not possess CSLI earlier and will allow reasonable time or continuance for suppression challenges |
Key Cases Cited
- United States v. Davis, 754 F.3d 1205 (11th Cir. 2014) (CSLI privacy theory; Eleventh Circuit held probable-cause requirement for CSLI)
- United States v. Jones, 565 U.S. 400 (2012) (GPS tracking as Fourth Amendment search; trespass and privacy opinions discussed)
- In re United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) (CSLI treated as third-party business records; no Fourth Amendment search)
- Illinois v. Rodriguez, 497 U.S. 177 (1990) (probable-cause/search-warrant foundational principles)
- SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735 (1984) (limits on privacy expectation in information conveyed to third parties)