United States v. Thousand
558 F. App'x 666
7th Cir.2014Background
- Investigation of bank robberies in Dane County, Wisconsin led to Tara Thousand and Miguel Benike.
- Surveillance linked a suspect resembling Thousand’s then-boyfriend to a silver Toyota Corolla with a sunroof.
- Authorities obtained a § 2703(d) order to gather call records and cell-site data for location analysis.
- Thousand was interrogated after a motor-vehicle stop; she signed a waiver and confessed after Miranda warnings.
- Thousand pled guilty to one count of bank robbery, reserving challenges to suppression rulings, including Franks and confession.
- Appeal attorney–appointed under Anders moved to withdraw; court limited review and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Franks hearing required for § 2703(d) order? | Thousand asserted a Franks hearing was needed due to misstatements. | Government contends no Franks issue; Fourth Amendment privacy not implicated here. | No Franks hearing required; misstatement deemed non-material to probable cause. |
| Is cell-site data protected by the Fourth Amendment requiring probable cause? | Thousand argues Fourth Amendment protection for historical cell-site data. | Government argues no Fourth Amendment search, as § 2703(d) applies to business records. | Court declines to decide on probable-cause standard; panel would not express view on this point. |
| Admissibility of Thousand’s confession given challenges to coercion or counsel invocation? | Argues interrogation tainted by coercion or failure to honor counsel request. | Agents credibly testified no coercion; Thousand’s invocation insufficient to require counsel. | Confession admissible; credibility largely resolves the issue in the district court. |
| Effective application of § 2B3.1(b)(2)(F) and § 3B1.2 adjustments on sentence? | Argues the death threat increase or minimal-role cut were misapplied. | No substantive challenge; district court’s adjustments supported by record. | Arguments frivolous; no plain-error reversal found. |
| Reasonableness of the below-guidelines sentence? | Requests reversal of sentence as unreasonable given guidelines. | Sentence is presumptively reasonable under Rita and related Seventh Circuit authority. | Sentence deemed presumptively reasonable; no basis to disturb. |
Key Cases Cited
- Smith v. Maryland, 442 U.S. 735 (U.S. 1979) (pen register doctrine; no privacy in dialing records before modern data protections)
- In re Application of U.S. for Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d 283 (4th Cir. 2013) (probable cause not required for § 2703(d); cell-site data context)
- In re Application of U.S. for Order Directing Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304 (3d Cir. 2010) (§ 2703(d) no probable cause requirement; court may demand warrants in some cases)
- United States v. Hicks, 650 F.3d 1058 (7th Cir. 2011) (coextensive use of foreseeability in co-defendant conduct for adjustments)
- Rita v. United States, 551 U.S. 338 (U.S. 2007) (presumption of reasonableness for below-guidelines sentences)
- United States v. Knope, 655 F.3d 647 (7th Cir. 2011) (credibility determinations given deference on appeal)
- United States v. Wysinger, 683 F.3d 784 (7th Cir. 2012) (equivocal invocation of right to counsel; required unambiguous request)
- United States v. Gonzalez, 462 F.3d 754 (7th Cir. 2006) (plain-error standard for re grand adjustments in sentencing)
- United States v. Robinson, 724 F.3d 878 (7th Cir. 2013) (Franks materiality and probable-cause considerations in challenges)
- United States v. Currie, 739 F.3d 960 (7th Cir. 2014) (Franks hearing standard in Seventh Circuit)