United States v. Aaron Graham

itself.”)- First, Court expressly Foundation; Jones Electronic Frontier Na- waives her constitutional against claims tional Association of Criminal De- appeal. Lawyers; SEPTA on Jones Br. 62 n. 4. fense American Civil Liber- Second, support her Maryland; constitutional ties Union Foundation of Outlaw, against claims Democracy she makes no affir Technology; Center for & argument mative distinguishable American Civil Liberties Union Foun- statutory dation, from her arguments pro Supporting Appellant. Amici vides no coherent why reason her evidence America, United States of § succeeds under 1983 even if it un fails Plaintiff-Appellee, der Title VII. In the absence of such argu ment, we will not disturb the District v. summary judgment Court’s for SEPTA Jordan, Defendant-Appellant. Eric Dunkel,

and Outlaw. See United v. States (7th Cir.1991) Foundation; F.2d (per cu- Electronic Frontier Na- riam) (“A ‘argument,’ skeletal really noth tional Association Of Criminal De- ing assertion, more than an Lawyers; does pre fense American Civil Liber- serve a Especially claim. Maryland; not when ties Union Foundation of presents brief a passel Democracy of other argu Technology; Center for & -Judges ments pigs, are not like hunt American Civil Liberties Union Foun- (citation ing dation, for truffles buried in Supporting Appellant. briefs.” Amici omitted)). 12-4659, Nos. 12-4825.

[*] ^{[*] [*]} United States Court of Appeals, stated, For the reasons we hold that Fourth Circuit. suspension

Jones’s with pay did not con- Argued: Dec. stitute an employment adverse action un- Aug. Decided: der the provision substantive of Title VII. any

And adverse actions Jones did suffer

were sufficiently linked to alleged support

misconduct to a claim of discrimi-

nation or retaliation. Accordingly,

District Court did not err in entering sum-

mary judgment SEPTA, and we will

affirm that order. America,

UNITED STATES

Plaintiff-Appellee, GRAHAM,

Aaron Defendant-Appellant. by published opinion.

Affirmed Senior Judge majority opinion, DAVIS wrote the joined. Judge Judge which THACKER separate concurring wrote a THACKER opinion. Judge opinion MOTZ wrote an dissenting part concurring judgment.

DAVIS, Judge: Senior Circuit Appellants Aaron Graham and Erie Jor- appeal dan their convictions for several arising offenses from a series of armed Specifically, robberies. Appellants chal- Skelton, Meghan ARGUED: Suzanne lenge the district court’s admission of testi- Defender, Office of the Federal Public documentary monial and evidence relating Greenbelt, Vernet, Maryland; Ruth J. (“CSLI”) to cell site location information Vernet, LLC, Rockville, Ruth Esq., J Ma- recorded their cell pro- service Rosenstein, ryland, for Appellants. Rod J. government’s vider. We conclude that the Attorney, Office United States Balti- procurement warrantless of the CSLI was more, Maryland, Appellee. for ON Ap- unreasonable search in violation of Wyda, BRIEF: James Federal Public De- pellants’ Fourth rights. Amendment Nev- fender, Office of the Federal Public De- ertheless, because the relied fender, Baltimore, Maryland, Appellant for in good faith on court orders issued Judish, Aaron Graham. Nathan Computer accordance with Title II of the Electronic Section, Property Crime & Intellectual Act, Privacy Communications Justice, Department United States (“SCA”), Stored Communications Act we D.C.; Block, Washington, Benjamin M. hold the court’s chal- admission Attorney, Assistant United States Balti- lenged evidence must be sustained. more, Raman, Maryland, Sujit Chief of separately Jordan challenges restric- Appeals, Office of the United States Attor- Greenbelt, ney, testimony imposed by tions on his own Maryland, Appellee. Wessler, court, Nathan Freed district Catherine the court’s denial of his mo- Crump, Wizner, severance, Ben American tion Civil Liberties Un- the exclusion of certain Foundation, York, York; ion New New out-of-court statements attributed to Gra- Rocah, David R. American ham, Civil Liberties the admission of evidence seized dur- Baltimore, Maryland, Union Foundation of ing residence, a of search his and the Bankston, Maryland; Kevin Gregory S. T. sufficiency supporting of the evidence sev- Nojeim, for Democracy Center & TECH- eral of his Finding convictions. no revers- NOLOGY, D.C.; Washington, Thomas K. ible error in respects, these we affirm the Maher, Vice-Chair, 4th Circuit Amicus judgment of the district court. Committee, National Association of Crimi- Lawyers, Durham,

nal Defense North Car- I. olina; Hanni Fakhoury, Electronic Fron- prosecution This arose from a series of Foundation, Francisco, California, tier San six armed robberies of several business for Amici Curiae. City establishments located in Baltimore THACKER, County, Before MOTZ and and Baltimore Maryland. Circuit After a DAVIS, Judges, and Judge. nine-day joint Senior Circuit trial District Graham, jury evening, again a Later that wear- Maryland, for the District Court clothes, on all counts sub- guilty ing the same entered a 7-Eleven Appellants found Baltimore, was convicted to it. Aaron Graham mitted store in walked behind the firearm, of a being possession a felon counter, clerk, grabbed the and demanded robbery, conspiracy to commit Hobbs Act register. open he the cash The clerk robbery, brandishing Act Hobbs gun did not see a but saw Graham’s hand with all six robber- firearm in connection jacket inside his and later testified that “it conspir- ies. Eric Jordan was convicted weapon, felt like there was some kind of ” robbery, brandishing a acy, Hobbs Act some kind of material there.... J.A. with three of the firearm in connection emptied registers 1600. Graham two cash robberies. go and then ordered the clerk to into a back room inside the store. After Graham A. left, the clerk observed Graham enter the permitted adduced at trial The evidence depart. driver’s side of an F150 truck and jury following to find the facts. pull- The clerk recorded video of the truck robbery evening occurred the The first ing away appearance and its matched that 17, 2011, January at a Dollar Tree store truck used Mondawmin Mall ear- County. in Baltimore Graham entered the evening. lier that store, gun, black brandished small robbery The fourth occurred on Febru- open register. a cashier to a cash directed 1, 2011, gas station in Balti- ary at Shell regis- removed cash from the The cashier County. more Graham and a masked indi- it to Graham. Graham gave ter and booth, vidual entered the cashier’s where grab addition- reached over the counter floor, pushed the clerk to the be- Graham fleeing al cash before the store. him, gan kicking and then punching occurred The second and third robberies gun, placing a small it near the brandished evening January days five later. On the Meanwhile, a clerk’s ear. third individual individuals, 22, 2011, including five Gra- to the store with a stood near the door ham, in Balti- arrived at Mondawmin Mall shotgun. a customer at- sawed-off When pickup in a Ford F-150 more dark colored leave, third blocked tempted to robber vehicle, truck, exited the and entered the exit, the customer forced pulled mall before the truck shopping him in the head with ground, and beat Graham, away. seen on video surveillance shotgun. After and the second Graham during wearing clothing the same worn booth, the cash from the robber removed earlier, days en- robbery Dollar Tree five departed. robbers three jewelry tered the Milan Gold & Diamonds robberies occurred The fifth and sixth (“Milan Gold”) inside the mall with a store 5, 2011, at days February later. On four second individual. After two other individ- entered approximately p.m., 3:29 Graham store, a fifth leaving uals entered the in Baltimore Burger King restaurant door, standing pointed outside the Graham during the jacket the same worn wearing demanded, a at a clerk “Don’t be gun and Gold, Tree, 7-Eleven Milan and Dollar give everything.” me smart with me. Just robberies, gun a small black carrying and persons The three with. Gra- J.A. 1522. handle. Graham brandished with a white jewelry clerk picked up ham the as the money. The and demanded weapon removed it from a case. Graham display cash several manager opened restaurant separate from a specific demanded a watch before emptied Graham and, registers, which display gave after the clerk it to case entering seen him, departing. Graham was he and the others left the mall. Jordan, passenger open truck on the ham and and from an console dark colored F-150 away. pulled side before the truck truck. inside the later, forty About five minutes Graham B. approxi- entered a McDonald’s restaurant During ensuing, post-arrest investi- Burger mately King, two miles from the counter, recog- gation, went behind the and demanded Detective Chris Woerner money, brandishing gun a small black with nized between the restaurant similarities man- a white handle. After the restaurant robberies and the Milan Gold and 7-Elev- ager opened registers, three cash Graham prepared search en robberies. Woerner jacket it into removed cash and stuffed his warrants for Graham’s and Jordan’s resi- departing. manager before saw Gra- pickup proba- dences and the truck. The passenger ham enter the side of a dark portion ble cause of each of the warrant truck, away pickup pulled rapidly. which affidavits what was known at the described Gold, 7-Eleven, investigating Burger King While time about the Milan robbery, Officer Joshua Corcoran of the Burger King, and McDonald’s robberies. Department Police Baltimore received re- by a The search warrants were issued robber, ports describing clothing, his judge Maryland of the Circuit Court of thereafter, pickup Shortly and the truck. City. Baltimore regarding he heard a radio call the Mc- seeking warrant While Woerner was robbery indicating Donald’s that the residence, other officers con- Graham’s pickup possibly truck was headed toward apartment, ducted a search of Jordan’s his location. recovering shotgun, a sawed-off a match- leaving Burger King, After Corcoran shell, ing shotgun .357 caliber Rossi re- spotted a truck pickup matching the de- volver, cartridges, caliber .357 other scriptions he received and observed that a items. Woerner executed searches of Gra- passenger jacket inside the vehicle wore a truck, pickup ham’s residence and the re- matching description reportedly of that covering gun rings holster several by Burger King During worn robber. residence, and watches from the and two truck, pursuit Corcoran’s the driver phones from the truck. After Woer- up drove it onto a sidewalk and accelerat- phones, ner obtained warrants for the just ed. continued pursuit Corcoran be- numbers associated with each fore the truck trapped became between respec- was determined and matched the traffic, heavy barrier, a construction and a by tive numbers disclosed Graham and it, moving train front of and was forced their Jordan after arrest. stop. contacted the Baltimore Woerner Coun- Corcoran another officer conducted ty Department Police to determine wheth- felony stop, directing car orders to Gra- they investigating any potentially er were driver, ham and the Jordan. Gbaham and robberies, sending photos of Gra- related non-compliant Jordan were with some of ham from the photos and Jordan and the officers’ instructions but were eventu- Kelly searches. Detective Marstellar rec- ally scene, secured and arrested. At the ognized similarities to the Dollar Tree and employees Burger King and McDonald’s robberies, including the simi- Shell station identified Graham as the A robber. black larity jacket worn Jordan between .25 caliber pistol pearl Taurus with a han- time of his and that worn arrest dle was passen- recovered under the station, $1,100 ger Nearly seat. the masked robber of Shell cash bundles person were recovered from the of Gra- who the cashier booth. The had entered offenses. See 18 U.S.C. pre- § a-firearm County Department Police 2. Baltimore executed a second round of pared charged and Graham was with connection all and Jordan’s robberies, search warrants Graham’s charged six and Jordan was February During residences Shell, Burger connection with the King, apartment, the second search Jordan’s and McDonald’s robberies. clothing officers recovered matched Appellants pre-trial filed number of during the Shell

that worn Graham motions, including motions for severance robbery. station under Rule of the Federal Rules of sought infor- government The sup- Criminal Procedure and motion to Sprint/Nextel, mation from service press Sprint/Nex- obtained from CSLI phones for two recovered provider grounds. tel on Fourth Amendment Jor- Sprint/Nextel truck. identified from the separately suppress dan filed a motion to subscribed to Graham’s Graham’s as during evidence seized the search of his County Baltimore ad- wife at their shared apartment, arguing that the first search phone as subscribed to dress and Jordan’s warrant was The district court defective. proxy. an alias or The then motions, Appellants’ denied all of and the sought and obtained two court orders for proceeded case to trial. for calls and text mes- disclosure CSLI trial, During Appellants objected pro- to and from both sages transmitted posed testimony regarding CSLI from a applica- initial phones. government’s The Sprint/Nextel records custodian and from for four sought tion for court order CSLI case, agent an FBI who investigated 10-15, 2010; periods: August Sep- time arguing testimony 18-20, 2010; 21-23, 2011; proposed January tember 4-5, February appli- impermissible expert opinion. 2011. A The district and second followed, seeking cation information for a disagreed proposed court and admitted the July much broader timeframe: testimony. Jordan also filed a motion February govern- through seeking limine to admit a handwritten ment used the court order to obtain from purportedly statement written Graham Sprint/Nextel listing records telephone and a recorded call in which 221-day period. time participated. Graham The court denied the motion, excluded the handwritten state- C. unauthenticated, hearsay ment as and government charged Graham and as irrelevant. The excluded the call multiple being Jordan with counts of felons scope court also ordered that the of Jor- see 18 U.S.C. firearm, possession of a testimony dan’s be limited to exclude cer- (2011); 922(g)(1) robbery affecting § com- topics potentially tain irrelevant that were 1951(a) (Hobbs see 18 U.S.C. merce, § prejudicial Graham. Act); conspiracy to commit Hobbs Act case, government’s At of the the close id.; see robbery, brandishing a firearm moved to dismiss the violence, see 18 U.S.C. during a crime of a firearm conspiracy possess count of 924(c); § conspiracy to brandish a violence. during a crime of Graham violence, see during firearm a crime of judgment acquittal Jordan moved 924(o). charged § U.S.C. Jordan was also insufficiency of remaining to all counts for possession unregistered with of an sawed- 29(a) Federal evidence under Rule 5861(d). See 18 U.S.C. § shotgun. off The court of Criminal Procedure. Rules charged aiding The indictment also 29(a) motions, Rule denied defendants’ abetting felon-in-possession, Hobbs felon-in-posses- robbery, brandishing- except respect Act with to the conspiracy, and to to^. count, sur-reply. Accordingly, as to need for a we granted the court

sion which strike, deny gov- the grant Jordan. the motion to request, and do not consider the ernment’s consisted of his Jordan’s defense case in government’s content of the letter dis- that of four testimony own as well as of this position appeal. investi- private character witnesses and a testify to and of- gator. Graham declined E. no

fered evidence. 26, 2012, and parties April present The rested on and Jordan several is- Graham following closing arguments the delivered appeal, arguing on that the district sues jury day. the returned April On government’s in admitting court erred the remaining counts. guilty verdicts on all testimony evidence and certain motions for Graham and Jordan submitted Sprint/Nextel and the rec- agent the case trials, court denied. new which the district regarding custodian the CSLI. Jor- ords appeal This followed. argues separately dan the district committed error court also constitutional D. in restricting testimony his and erred During pendency appeal, pri- of this motion, excluding denying his severance argument, this directed or to oral Court the out-of-court statements attributed to party supplemental each to file a brief Graham, admitting evidence seized addressing Supreme re Court’s argues fur- apartment. from his Jordan , — v. Riley cent decision California presented at trial ther the evidence U.S.-, 189 L.Ed.2d 430 support convictions for was insufficient (2014), permitted Appellants to file a conspiracy, robbery, Act or brand- Hobbs reply Dkt. No. 135. supplemental brief. ishing during a firearm a crime of violence. supplemental brief Appellants filed their in turn. We consider these issues 138; July gov on Dkt. No. supplemental response filed its ernment II. 4, 2014, 142; August on Dkt. No. brief During investigation of the robberies Appellants supplemental reply filed a brief case, charged government se- 8, 2014, August Dkt. No. 144. court orders under the cured SCA 21, 2014, August On days’ worth historical CSLI requesting filed a letter with the Court filed a motion Sprint/Nextel. Appellants permission identify what it called “erro- trial, suppress argu- use of the CSLI Appellants’ neous factual assertions” in acquisition of ing government’s supplemental reply seeking to rebut a warrant based on the records without in that several assertions made brief. probable cause was an unreasonable day, Dkt. Appellants No. 145. The next search in violation of the Fourth Amend- government’s filed a motion to strike the ment. The district court denied the mo- sur-reply, letter as a Dkt. No. tion, respond. which the did not holding government’s con- and, duct was not unreasonable search is, government’s submission ef- was, good-faith exception even if it fect, sur-reply brief the form of justified exclusionary rule admission generally per- letter. This Court does not generally the CSLI. See United States mit filing sur-reply briefs without (D.Md.2012). Graham, F.Supp.2d granting filing. first leave for such the CSLI government ultimately used Moreover, government’s letter fails to adequate Appellants’ make an at trial to establish locations demonstration single times before and after most of the course of a call phone various as the travels charged robberies. through the coverage area. When phone network, connects the service Appellants appeal now the denial of provider automatically captures and re- suppress. their motion to We review a tains certain information about the com- evidentiary rulings court’s for district munication, including identification of the discretion, v. abuse of United States Riv specific cell site and through sector which (4th era, Cir.2005), 412 F.3d but the connection is made. any legal we review de novo conclusions as to whether certain law enforcement con By identifying the nearest cell tower and infringes rights, duct Fourth Amendment sector, can approximate CSLI be used to Brezo, United States v. 308 F.3d 433 the phone whereabouts of the cell at the (4th Cir.2002). particular points in time in which transmis- below, explained For the reasons we sions are made. The cell sites listed can government’s procurement hold that the interpolate be used to path the cell the historical at issue in CSLI this case phone, person carrying phone, and the an unreasonable search. Notwith- during travelled a given period. time The conclusion, standing that we affirm the precision of depends this location data on suppression district court’s denial of the geo- size of the identified cell sites’ because, records, obtaining motion graphical coverage ranges. Cell sites in government good-faith acted in reli- areas, urban which greatest have the den- ance on the and the court SCA orders sity sites, of cell tend to have smaller radii issued under statute. operability than those in rural areas. The cell sites identified in the CSLI A. issue this case covered areas with a sites, Historical CSLI identifies cell miles, maximum radius of two each divided stations,” “base to and from which a cell 120-degree into three sectors. phone signals, sent or has received radio particular points time at which B. occurred, given these transmissions over a Appellants’ The obtained placed timeframe. Cell sites are at vari- through use of court orders issued throughout provid- ous locations a service directing Sprint/Nextel under the SCA coverage er’s area are placed often “pro- disclose the information. The SCA arranged towers with antennae in sectors an en vid[es] avenue law enforcement facing multiple directions to better facili-. compel provider tities to of electronic A tate radio transmissions. cell communication services to disclose the provider’s connects to a service cellular contents and records of electronic commu through network with cell communications re Application nications.” In sites, occurring whenever call or text Order Pursuant U.S.C. Section message phone.1 is sent or received 2703(d) (Fourth (In Application re Cir will connect to the cell site with (4th cuit)), Cir.2013); 707 F.3d which it strongest signal, shares the which (2010). §§ see also 2701-2711 typically cell site. con- 18 U.S.C. nearest necting change procedures govern cell site can over the The statute outlines updates “smartphone,'' type ple, 1. A of cell with a to email inboxes and automatic computer operating system, may communi- operations applications in- other of software frequently cate more with the network than phone. stalled on the types phones through, other for exam- disclosed days. Sprint/Nextel infor dered 14 entity procure mental must follow days’ worth provider, treating the total mation from a service differently than account records Appellant’s phone. subscriber of CSLI for each electronic communications. the content of Clenney, 631 F.3d States United C. Cir.2011) (4th (citing 18 U.S.C. argue govern that the Appellants 2703). § in the Fourth Amendment ment violated consent, notice and Absent subscriber inspecting the CSLI issue seeking and a warrant or must secure government probable without a warrant based on here account rec- subscription a court order agree. cause. We 2703(c)(1). A § warrant ords. 18 U.S.C. court for the disclo-

from a federal district protects The Fourth Amendment records must be issued sure of subscriber searches against individuals unreasonable Rules of Criminal pursuant to the Federal States, v. 389 and seizures. Katz United 2703(c)(1)(A), which, Procedure, § id. 347, 353, 507, 19 L.Ed.2d 576 U.S. 88 S.Ct. Amendment, accordance with the Fourth (1967). meaning of A “search” within the by an finding probable cause require the Fourth Amendment occurs where 41(d); impartial magistrate, Fed.R.Crim.P. a matter in which a government invades York, 573, Payton v. New 445 U.S. see also expectation privacy has an person 1371, 26, 639 n. 100 S.Ct. 63 L.Ed.2d 588 recognize as reason society willing (1980). States, 27, 533 Kyllo able. v. United 2703(d) require- sets out the (2001) Section 2038, 33, 94 121 S.Ct. 150 L.Ed.2d ments for a court order for service Katz, (citing 389 U.S. at account provider to disclose subscriber J., (Harlan, person’s A ex concurring)). government The must “offer[] records. privacy is considered reason pectation showing that specific and articulable facts standards when derived able societal “ grounds to believe there are reasonable personal prop of real or ‘concepts ... other information the records or understandings that are erty law or ... ” an sought[] are relevant and material to society.’ recognized permitted and investigation.” ongoing criminal Carter, 83, 88, 525 U.S. Minnesota 2703(d). essentially a § “This is U.S.C. (1998) (quoting 142 L.Ed.2d 373 S.Ct. standard[,]” suspicion In re reasonable Illinois, 128, 143 n. Rakas v. 439 U.S. (Fourth Circuit), 707 Application F.3d (1978)). 421, L.Ed.2d War- substantially high- in contrast to the are, mat general “as a rantless searches probable securing er cause standard for ter, ... unreasonable under the per se express warrant. The statute offers no Amendment,” are although Fourth “there government to when the direction as well-de specifically a few established and 2703(d) §a should seek a warrant versus rule.” exceptions general lineated order. (Earl Davis, Whittley) States v. United 2703(d) § government two obtained (4th Cir.2012) (quot 241-42 690 F.3d court orders for the CSLI at issue Ontario, Quon, City Cal. v. ing appeal. order directed first 746, 760, 177 L.Ed.2d 216 130 Sprint/Nextel to disclose records for omitted). (2010)) (internal quotation marks days, periods amounting four time hold that We and the second order directed disclosure the Fourth conducts a search under 221-day records for a much broader time inspects it Amendment when obtains and period previously included the or- historical CSLI for an this information cell user’s to the any- n period Second, of time. Examination of a extended one else. studies have shown that historical CSLI can enable the person’s users of electronic communications ser- government to trace the movements of the vices often do not read or understand their its user across public and providers’ privacy policies.3 There is no spaces thereby private discover the evidence that Appellants here read or un- private personal activities habits of the Sprint/Nextel derstood the policy. objectively user. Cell users have an expectation privacy

reasonable in this The Supreme Court has recognized an inspection by govern- information. Its individual’s ment, therefore, compre- interests warrant, requires a unless movements, hensive accounts of her her exception established to the warrant location, the location of requirement personal her applies.2

property private spaces, particularly when such information only is available 1. through matter, technological means use persuad- As an initial we are not that, general public. stated, ed as the district court SprinVNextel’s privacy policy disproves a.

Appellants’ they claim that had an actual expectation privacy in the their of location Knotts, In 276, United States v. 460 U.S. privacy policy movements. The 1081, 103 (1983), S.Ct. 75 L.Ed.2d 55 law effect at the SprinVNextel time disclosed enforcement officers used combination of government CSLI to the stated as follows: visual surveillance and monitoring of a ra Information provide we collect when we dio transmitter installed a container of you with your Services includes when chloroform to track the container’s move on, wireless device is your turned how ments automobile to the defendants’ device is functioning, signal device 278-79, 103 homes. 460 U.S. at S.Ct. 1081. located, strength, where it is what device In holding that practice did not in you are using, you purchased what have fringe upon a expectation reasonable device, it, your you with how using are privacy, emphasized the Court the “limit you and what sites visit. government’s ed” nature of the electronic First, policy only effort, J.A. 957. states that surveillance which was confined to Sprint/Nextel collects tracking information about pub container’s movement on phone’s location—not that it discloses lic roads from its place purchase to its 2. The en recently banc Eleventh Circuit held rule so well established in the context of crim- that, assuming government acquisition investigations. inal 2703(d) through § use of a order is search, See, Fourth Commission, Amendment such a search e.g., 3. Federal Trade Mobile would be reasonable under the Fourth Privacy Building Through Disclosures: Trust require (Feb. 2013), Amendment a warrant. Unit- Transparency http://www.ftc. 10 (Quartavious) Davis, 498, ed v. States 785 F.3d gov/sites/default/files/documents/reports/ (11th Cir.2015) (en banc). 516-18 mobile-privacy-disclosures-building-trust- Section orders, 2703(d) noted, previously through-transparency-federal-trade- do not require showing probable commission-staff-report/13020 cause and do lmobile (saved not fit within privacyreport.pdf opinion of the "well delineated as ECF at- exceptions" tachment); general to the rule that a search Aleecia M. McDonald & Lorrie Cranor, requires probable Reading Privacy warrant based on cause. Faith The Cost of Quon, 760, Policies, 543, 560 Pol’y Soc’y U.S. at 130 S.Ct. We 2619. J.L. & Info. I/S: (2008). exception decline here to create a new ato possession is in the 284, residence and private 103 S.Ct. Id. at ultimate destination. residence persons whose person tracked Although 715, at 104 S.Ct. private Id. being a defendant’s watched.” the container monitoring prop- home, was no indication “Indiscriminate there public the container to monitor withdrawn erty continued that has been officers public space after its a threat private far too serious inside would present view 285, 103 S.Ct. had ended. journey escape in the home to interests Ciraolo, 476 1081; see also Amendment entirely sort of Fourth some California 90 L.Ed.2d Id. at oversight.” (1986) (“The pro Amendment Fourth omitted). (footnote never been extend the home has tection of States, v. United Kyllo officers to law enforcement require ed to (2001), 150 L.Ed.2d by a home eyes passing when shield their the use of again considered whether Court thoroughfares.”). public information hidden technology to discover questions unanswered two Knotts left Fourth constituted a private in a home constitutionality of assessing the critical to search. Amendment present conduct government’s imaging device aimed a thermal (1) tracking the location whether case: public from a street petitioner’s home inside a property and her an individual home, infrared radiation inside detect a Fourth Amend- space constitutes private identify the loca allow it to which would (2) search; whether locational and ment and cer persons and movements of tions property an individual and her tracking of 29-30, 121 objects Id. at S.Ct. tain inside. continuously period an extended over ... that “[w]here 2038. The Court held Courts have a search. time constitutes a that is not uses device Government questions of these answered each use, explore details of general public in affirmative. previously have been the home that would intrusion, the physical unknowable without b. presump a ‘search’ and is surveillance is Karo, 705, 104 468 U.S. States United without a warrant.” tively unreasonable (1984), 3296, L.Ed.2d 530 ad- 82 S.Ct. 40, 121 at S.Ct. 2038. Id. Knotts, in question. As dressed the first in Karo challenged Like the searches used a agents surreptitiously examination of historical CSLI Kyllo, and to track the movements radio transmitter place an indi- can allow the resi- private container to a of a chemical personal property specifi- her vidual and — dence, continued to agents here the but person’s home cally, her cell the—at it was inside the container while monitor specific at private other locations Karo, 709-10, at 468 U.S. the residence. home, “In the ... all points in time. that this 3296. The Court held 104 S.Ct. details, because the are intimate details the Fourth Amend- practice “violate[d] gov- prying safe from entire area is held justifiable a of those who have rights ment 2038; at 121 S.Ct. eyes.” ernment Id. of the residence.” interest Karo, at 104 S.Ct. 468 U.S. see also govern- at 104 S.Ct. 3296. (“[Pjrivate places are residences beeper “re- monitoring ment’s normally expects pri- the individual which critical fact about the interior a vealed] intrusion vacy governmental free of government] ... premises [the warrant, expecta- and that authorized obtained without could not otherwise have society prepared plainly tion is one particular article is a warrant”: “that justifiable.”). The Karo recognize as time actually particular located at Kyllo recognized agreement Courts the location full as to the basis for this person of a property Jones, her within a 954; decision. See at S.Ct. id. particular home at a time (Alito, “critical” J., at 964 concurring in the judg- private protected govern- ment). detail from the The entire agree Court did howev- technology. ment’s intrusive use of See er that explicitly Knotts had left unan- Kyllo, 2038; 533 U.S. at swered the constitutionality of “dragnet Karo, 468 U.S. at 104 S.Ct. 3296. type law practices” enforcement like the form of “twenty-four hour surveillance” Inspection long-term CSLI invades employed Knotts, in Jones. 460 U.S. at greater privacy even interest than the 283-84, 1081; Jones, see because, challenged search in Karo unlike (Scalia, J., S.Ct. at 952 n. 6 writing for the a cell phone, tracking device Karo * majority); id. at n. (Sotomayor, J., was not anyone’s person carried on concurring); id. at (Alito, J., 963 n. 10 therefore was capable tracking concurring in judgment). Justice Sca- location of Additionally, individual. majority lia’s opinion, expressing the views private location information discovered Justices, of five held that government’s in this case covered a remarkable 221 installation of the GPS device on the sus- days, potentially placing each Appellant at pect’s vehicle constituted a search under occasions, home on specific several dozen the traditional trespass-based theory of far more than single instances discov Fourth protection, Amendment bypassing Kyllo. ered Karo and Kyllo, See 2038; Karo, reasonable-expectation-of-privacy anal- ysis 709, 714, 104 established in Katz. See id. at 949-52. S.Ct. 3296.

While acknowledging that “[situations in- c. volving merely the transmission of elec- tronic signals trespass without would re- Supreme Court long- considered subject main analysis,” Katz Justice term electronic location surveillance in — Scalia declined to Jones, question. address this U.S.-, United States v. 953; (“It Id. at see also 945, (2012). may id. be 181 L.Ed.2d 911 In that that achieving the case, through same result government, acting without a means, electronic warrant, without an accompany- a installed Global Positioning (“GPS”) ing trespass, is an System inva- device on a unconstitutional suspect’s vehi sion of privacy, present cle to track but the case does movements of the vehicle Jones, require over us to answer that 28-day period. question.”). a 132 S.Ct. at 948. The D.C. Circuit had decided that concurring opinions, two five Justices (1) practice was a search because a question confronted the Katz agreed reasonable individual would not expect that “longer term in in- monitoring GPS the sum of her movements over a vestigations of most impinges offenses on month would be observed stranger (Soto- expectations privacy.” Id. at 955 (2) public, and this information could re J., mayor, (Alito, J., concurring); id. at 964 “an picture” veal intimate of her life not concurring in judgment). Justice So- by any disclosed one of her movements tomayor echoed the D.C. Circuit’s con- viewed individually. United States v. cerns government’s ability about the (D.C.Cir. Maynard, 615 F.3d 561-64 record an individual’s ag- movements and — 2010), Jones, sub. nom. aff'd gregate the information “in a manner that -, 945, 181 132 S.Ct. L.Ed.2d 911. ascertain, enables Government more Supreme

The unanimously will,” Court or private af- less at facts about the firmed the individual, D.C. Circuit without reaching “political such her and reli- but all such person, fact about a habits, one such on.” beliefs, and so sexual

gious 561-62; compare facts.” 615 F.3d indicated concurrence at 956. Neither Id. J., Jones, (Sotomayor, at 955 could occur surveillance long location how (“GPS monitoring generates a concurring) pro- Fourth Amendment triggering before per- record of a comprehensive precise, investigation tection, but, considering the reflects a movements Jones, public son’s AJito stated Justice challenged in familial, political, her detail about wealth of before surely crossed line that “the sexual associa- religious, and professional, at 964. 4-week mark.” Earls, 214 N.J. tions.”), v. with State by long- affected interests (2013) (“[CSLI] reveal can 70 A.3d monitoring, as identified term GPS doctors, just people go where —-which concurrences, ap- and the Jones Maynard sendees, they visit— religious stores to historical greater force equal ply with they choose people groups but also See period. time for an extended CSLI actually they do and when to affiliate with Mass. Augustine, 467 Commonwealth so.”). . (“CSLI (2014) im- 4 N.E.3d may pro- of historical CSLI Inspection privacy con- nature of the same plicates about device.”). private information more vide even tracking “[Citi- a GPS cerns as monitor- than the locational an individual country largely expect of this zens Maynard/Jones. challenged anonym- ing in relative move about freedom to limit- in that case was at issue an surveillance keeping ity without pub- of an automobile individualized, itinerary of ed movements turn-by-turn Jones, at 948. lic See Mc- roads. Renée comings goings.” our automobile, a cell Quite Hutchins, in Knotts? unlike Up Tied Donald that is often hid- hand-held device Amend- a small the Fourth Technology and GPS (2007). and seldom user person its ment, den on L.Rev. 55 UCLA previously dis- presence. As monitoring, leaves her GPS long-term Much like carry cussed, regularly cell users information disclosed long-term location into their homes and other devices a com- these can reveal both records to which automobiles have private spaces specific view and details prehensive Augustine, 4 access at best. See the D.C. Circuit limited daily life. As individual's Thus, unlike GPS moni- at 861.4 knows person “A who N.E.3d Maynard, stated vehicle, of histori- examination toring can deduce whether all another’s travels permit cal can heavy drink- weekly goer, he is church pub- between person’s track movements an er, regular gym, unfaithful at at spaces, impacting once private lic husband, receiving medical and outpatient an of her privacy in both the her treatment, indi- interests particular an of associate her home.5 privacy of just and not movements political groups viduals or —and inspection even while personal effects from subject to "lesser phones Cell not 4. are vehicle,” in their owners’ hidden from view a motor themselves expectation of privacy Riley, Knotts, pockets, 134 S.Ct. at purses see which, capacity "has as noted in little 2489-91. scrutiny.” at public U.S. escaping 460 for Lew- (quoting Cardwell v. S.Ct. 103 1081 583, 590, Indeed, is, survey by 41 the Pew Re- a recent (1974) Additionally, adults of feel (plurality)). Center revealed that 82% L.Ed.2d 325 search re- reposi- location physical details of their serves ... as while a car "seldom id., effects[,]” tracking is at by phone least phones cell GPS tory personal cell vealed of sensitive,” half of adults con- with "somewhat provide to substantial collections access often records, "very sidering sensitive.” this information hiding private and these information, those historical in location like "third-party” doctrine as discussed in Part (Quartavious) that at in issue this case. See II.C.4 Davis, infra. 10; Graham, F.3d at 509 n. Skinner, F.Supp.2d In United at 391. We States see no constitutional F.3d (6th Cir.2012), types the Sixth Circuit held distinction between the two that the data. A person's expec expectation privacy defendant "did have a not reasonable in information privacy tation of given the data in his about where she has been off is no less reason- able, voluntarily procured pay-as-you-go deserving respect, cell less or than that phone.” regarding 690 F.3d at 777. This case going. involved where she is or she where is have ob- would government the calls—then the cellular or no connections few made historical stream of cannot a tained continuous the But network. this informa- that of obtaining approaching in advance information know location it or whether revealing it will be of conti- greater degree tion how A similar GPS. movements user’s the will detail Appel- if been achieved nuity would have Earls, at 70 A.3d See private spaces. in automatically smartphones had lants therefore, hold, govern- the 642. We every few cell site nearest to the connect Amendment in a Fourth engages ment minutes or seconds. historical to examine it seeks search when out, did records the CSLI As it turns peri- time to an extended pertaining CSLI 29,659 data location impressive reveal days.8 14 or 221 od like Jordan, 28,410 for Graham points points for over 100 data amounting well average. This day on Appellant per each court concluded district enough to is substantial of data quantum from Karo distinguishable is case account of reasonably detailed a provide of loca- type the because Maynard/Jones 221-day during the movements Appellants’ cases in those at issue tional surveillance to and including movements period, time greater tracking with real-time permits in which their cell-site sectors from the the examina- continuity than precision and reject therefore were located. We homes Graham, 846 See of historical CSLI. tion suggestion that district court’s 391-92, use of GPS 404. The F.Supp.2d at sufficiently continuous Maynard/Jones in CSLI technology challenged track the concerns. enforcement law raise reasonable permitted mo- continuously every suspect’s vehicle questioned the court also The district ” “ days[,]’ id. day a for 28 ’24 hours ment itself, con- the location data precision of 558), F.3d at Maynard, 615 (quoting at 392 identify the CSLI did cluding that only disclose while, here, CSLI records invade a locations to sufficiently precise points for finite of location data number Unlike privacy expectation. reasonable in points time. certain found, only data, “can court GPS insig- constitutionally This distinction vicinity which cellu- general reveal chal- Fourth Amendment nificant. The Graham, is used.” lar government’s toward lenge is directed F.Supp.2d at 392. i.e., conduct, its decision investigative identifying of CSLI precision records without inspect CSLI seek and depends part a cell location of way is no There warrant. coverage associated area the size obtaining known before could have rec- each cell-site sector listed with the location granular how CSLI records begun to have providers Service ords.9 Appel- If would be. in the records data gaps capacity to fill increase network their use of had constant lants been low-pow- coverage by installing in network waking each they moved about phones as and “femto- as er cells such “microcells” terminating starting and day constantly — at trial testified Sprim/Nextel’s custodian require us to draw does not 8. This case each listed in records that the cell sites had, long period for bright time line to how most, operability. a two-mile radius inspection before its CSLI can be historical therefore, site, greater covered no Each cell Amendment level of a Fourth rises to the miles, square divided approximately 12.6 than search, do and we decline to so. square approximately 4.2 into three sectors miles or less. cells,” which cover areas as small as 40 proposition novel that inference insulates ” competition feet.10 The intense among cel- search.... Id. at 121 S.Ct. 2038 lular provides ample networks reason to Karo, (citing and, anticipate increasing use of small cells 3296). We reject therefore govern- result, as a increasing precision. CSLI of argument ment’s that the CSLI was not We must such take into ac- developments adequately precise infringe upon Appel- Kyllo, count. See 533 U.S. at expectations lants’ privacy of in their loca- (“While technology used tions and movements. present crude, relatively case was the rule adopt we must take account more so-

phisticated systems that already in are use We also disagree with the district in development.”). court’s and the dissent’s conclusion that event, any the CSLI at issue here Appellants lacked expectation reasonable precise minimum, was enough, at sup- in their CSLI because port reasonable inferences Appel- about records were kept by Sprint/Nextel in the lants’ at specific points locations in time. ordinary Graham, course business. See Otherwise, the information would have 403; F.Supp.2d post at 380-81. lacked probative value at trial. The argues dissent first that na- “[t]he very reason that the government obtained ture of governmental activity” at issue and introduced the evidence was to estab- in this apart Karo, case it sets from Kyllo, Appellants’ lish locations during times and Jones. Post at Karo, 379-80. While surrounding charged In- robberies.11 Kyllo, and Jones each direct involved vestigators prosecutors must have be- contemporaneous surveillance by govern- lieved, analyzing CSLI, after it agents, ment the locational tracking chal- sufficiently was precise to Appel- establish lenged here was achieved through govern- lants’ whereabouts. The fact infer- ment inspection of records by a held third required ence was glean Appellants’ party. past locations the CSLI does not ameliorate or in any lessen This manner the inconsequential. distinction is Indeed, invasion of privacy. Supreme The precedents of this Court and others Court, Kyllo, rejected specifically “the show that a Fourth Amendment search Commission, 10. See Federal Communications ham was within few miles of the Dollar Tree Femtocells, Safety Public Topic Tech # robbery 23— before and January after http://www.fcc.gov/help/public-safety-tech- topic-23-femtocells; 2011; Graham was within a few miles of the Newswire, PR Small 7-Eleven robbery and after the before of Jan- Femtocell, Picocell, Cells Market 20142019: & uary 2011; robbery minutes after the LTE, SONs, Prospects Microcell Wireless (Nov. 6, 1, 2011, February Shell on Jordan was near Offloading Heterogeneous & Networks the Shell and then both he and Graham were 2014), http://www.pmewswire.com/news- apartment; near Jordan’s Appellants were releases/small-cells-market-2014-2019- both apartment near approximately Jordan's femtocell-picocell-microcell-prospects-for- robbery Burger King minutes before lte-sons-wireless-offloading-heterogeneous- 5, 2011; February Graham near networks-281857341.html; Nancy Gohring, Burger King robbery; within minutes of the Way Femtocells Make Enterprises, Into Com- Appellants puterWorld 2011), together (May a few were north of http://www. miles computerworld.com/ Burger King robbery; minutes after the article/2550032/mobile- wireless/femtocells-make-way-into- and Graham was near ap- the McDonald's enterprises.html. proximately one half hour before the Mc- robbery. Donald's Specifically, used the show, CSLI to among things, other that Gra- 352 fact that the upon the dissent seizes in Yet through an achieved certainly be

may Appellants’ obtained government the See, e.g., records. third-party of spection provider service third-party from 440, Broderick, F.3d 450-52 225 Doe v. our placed have that we and maintains Cir.2000) ex detective’s (4th (holding that of Instead wrong question. the focus on aby held metha patient file of amination Appel- of assessing the reasonableness and, prob without a search clinic was done “loca- in their privacy of expectation lants’ Fourth cause, patient’s violated the able time,” our dis- over movements tion and Nunez, v. DeMassa rights); Amendment question frame the would senting colleague Cir.1985) (9th (holding 1505, 1508 F.2d 770 has a reasonable an individual as “whether legiti have a attorney’s clients that “an party’s in a third privacy of expectation client in their privacy of expectation mate to de- government the permit records City v. Charles files”); Ferguson of cf. But at 380. Post information.” duce this 1281, 149 67, 78, ton, 121 S.Ct. 532 U.S. upon which the cases analyses in the even (2001) (holding patients L.Ed.2d 205 on focused foremost relies the dissent privacy of expectation enjoy a reasonable Katz, expecta- whether, privacy the under tests will diagnostic results of that the ob- certain information tions asserted without to law enforcement be disclosed legitimate. were government the tained consent).12 govern That the 435, Miller, patient’s the States v. United See (1976) private 1619, informa 71 Appellants’ L.Ed.2d acquired 48 ment S.Ct. 96 par- the (“We nature third-party of the of inspection an must examine through tion protected to be sought their Fourth ticular documents dispose of records cannot is a there whether in to determine order claim. Amendment Karo, Kyllo, challenged in the activities proper like to a most the sense crucial Kyllo, nature In Karo and the Jones. analysis, "[t]he nature Fourth Amendment activity was the challenged governmental challenged this activity” in governmental 379-80, private technology case, acquire certain not unlike post was use of Karo, physical invasion Kyllo, Jones. The than the challenged rather information property or constitutionally protected language apparently drawn is dissent’s Karo, S.Ct. U.S. at Maryland, 442 U.S. spaces. See Smith 34-35, (1979), 3296; Court where the Kyllo, U.S. at 61 L.Ed.2d identify challenged activity "the nature important governmental deemed it challenged” in order activity is of a sorts: installation the state was of in Jones both through nature of Smith’s precise a tres- tracking effected determine device GPS 442 U.S. at claim. and use of Fourth Amendment pass property, onto Jones' inqui- Specifically, this initial lo- 99 S.Ct. 2577. Jones' about to obtain information device peri- determine whether ry was order to made an over extended and movements cation property noted, an invasion of his majority claim Smith could previously time. As od of constitutionally protected into a trespass intrusion without analysis to the its confined area, trespass-based the- the traditional under considering of the information the nature Be- protection. ory of Amendment Fourth acquired. subsequently activity governmental challenged concurrences, cause the five In the at 949-54. register pen "on of a the installation acquisi- government’s focused Justices telephone company property at the telephone and whether location information tion offices,” could make Smith company’s central legitimate expectation of invaded a conduct Instead, Smith claimed no such claim. activity challenged privacy. Because the legitimate expectation of invasion of case, those present like considered dialed, (Continued) which he concurrences, in the numbers Karo, Kyllo, and the Jones through use obtained acquisition non-trespassoiy government’s S.Ct. 2577. pen register. Id. at information, properly inquiry is our of certain ex- Appellants’ legitimacy of sense, on the focused governmen- In this nature information. privacy in this pectation of un- challenged this case is not activity tal legitimate ‘expectation privacy’ concern- not betrayed.” Miller, be 443, 425 U.S. at ing added)); their (emphasis contents.” 96 S.Ct. 1619.13 735, Maryland, 742, Smith v. 442 99 U.S. Miller, In used defec- 2577, (1979) (“peti- S.Ct. 61 L.Ed.2d 220 tive subpoenas to obtain financial records argument tioner’s that [the] installation from the defendant’s bank. 425 U.S. at and use a pen register] [of constituted a 436, 96 S.Ct. 1619. The Court determined ‘search’ necessarily upon rests a claim that first that the defendant could not claim an he had a ‘legitimate expectation privacy’ unconstitutional invasion of his “private regarding the numbers he dialed on his papers” because he had ownership neither added)). phone.” (emphasis In answering possession nor of the transactional records that question, the fact that the information at 440-41, issue. Id. at 96 S.Ct. 1619 at issue Miller and Smith was contained (citation omitted). Next, the Court turned records held parties third became to the claim defendant’s that govern- relevant insofar only as the defendant in ment violated his privacy interests each “voluntarily case conveyed” had contents of the bank 442, records. Id. at information party to the third in the first 96 S.Ct. 1619. Because such documents Miller, place. 442, See 425 U.S. at 96 “contain only information voluntarily con- 1619; Smith, S.Ct. 743-44, 442 U.S. at 99 veyed to the exposed banks and to their S.Ct. 2577. employees in ordinary course of busi- ness,” the Court held that depositor us, It is clear explained below, “any legitimate lacks expectation of priva- do not voluntarily convey users cy” in this 442, information. Id. at 96 their CSLI their providers. service S.Ct. 1619. revealing “[I]n his affairs to third-party doctrine of Miller and Smith is another,” the defendant assumed the risk therefore inapplicable here. “that the information be conveyed [would] person to the Government.” Id. at a. 443, 96 S.Ct. 1619. The Supreme Court held in Miller and Smith, telephone at company, Smith that person “a legitimate has no request police, utilized a pen register expectation privacy in information he device to record the numbers dialed from voluntarily turns over to parties.” third home Smith, of Michael Lee Smith, 743-44, 442 at 2577; U.S. 99 S.Ct. man suspected robbing a woman and Miller, see 442, also 425 U.S. at 96 S.Ct. then harassing her through anonymous 1619. This so even if “the information is phone 737, 442 calls. U.S. at 99 S.Ct. revealed on assumption that it will be 2577. argued Smith that the warrantless only used for a purpose limited and the installation pen register was an placed confidence party third will 737-38, unreasonable search. Id. at "third-party” This illegal doctrine finds its roots her activities another bears the risk involving cases consensual disclosures to that this will be reported information to law informants agents. or undercover enforcement, White, 752, see 401 U.S. at White, 745, See United v. States 401 U.S. 751- 1122, S.Ct. and introduced as evidence 752, (1971); 91 S.Ct. 28 L.Ed.2d 453 her, against Lopez, see States, 293, 302-303, v. United 385 U.S. Hoffa Any S.Ct. expectation she holds that (1966); 87 S.Ct. 17 L.Ed.2d Lopez this information will be held in confidence is States, 427, 439, United 1381, not one entitled protec- to Fourth Amendment (1963). White, Hoffa, L.Ed.2d 462 White, tion. See 401 U.S. at Lopez, generally and similar cases establish 1122; Hoffa, 385 U.S. at 87 S.Ct. 408. person that a who confides information about had ei- that he therefore, not show first, could determined, 2577. The Court reasonable objectively they ther an actual understand generally people in this information. dial they expectation the numbers must communicate compa- and that the company Id. to the storing recording and

ny has facilities categorically do not precedents These permanently. information from Fourth records third-party exclude actu- an if had Even Smith 2577. simply hold They protection. Amendment numbers he in the privacy of expectation al ex- legitimate can claim no person that “legitimate” be dialed, this would she vol- in information of pectation “voluntarily con- he expectation because It party. is conveys to a third untarily to the information the numerical veyed” mere the conveyance voluntary that —not ” “ the infor- ‘exposed’ and company phone in up the information winds fact the and recording company’s mation to the demonstrates records —that party’s third 744, 99 S.Ct. at Id. equipment. storage and disclosure of risk of assumption the “assumed doing, Smith so 2577. expec- any lack of reasonable therefore the this disclose company that the would risk” apply to the decline privacy. We tation Id. to law enforcement. information case present doctrine third-party doc- third-party the recently applied We not “con- does phone user cell because States United Miller and Smith trine of all-—at provider service vey” to her CSLI (4th Cir.2010), 161 F.3d Bynum, 604 v. therefore voluntarily or otherwise—and administra- served the where of disclosure to any risk not assume does to operator aon website subpoenas tive law enforcement.14 604 account information. obtain user’s automatically gen- provider The service the Specifically, at 162. F.3d connections response to erates CSLI address, name, email obtained user’s pro- phone cell and made between address, number, physical and telephone network, -without the with and vider’s the user information that at all id. Augustine, See participation. active user’s opened his when he the website entered on (“CSLI a func- purely 4 N.E.3d at 862 Smith, we de- account, Citing id. at 162. tech- telephone of cellular product tion and “voluntarily conveying] that, in termined system by provider’s nology, created com- to the Internet information” all this time that á cellular tele- at the network risk’” “‘assumed the the user pany, site.”); id. at to a call phone connects to law be revealed information would “location-identify- (describing CSLI Smith, 863 (quoting at 164 enforcement. technology). 2577). of cell user, by-product” ing at exposed and untarily conveyedto the banks third- argument that the of its At the outset ordinary course here, employees in the their dissent insists applies party doctrine Smith, added)); 442 (emphasis U.S. business” to their “exposed” Appellants their ("When he used his 99 S.Ct. 2577 assumed provider and therefore service voluntarily conveyednumer- phone, petitioner Post at law enforcement. risk of disclosure company telephone ical information language is derived "exposure” This equip- to its Smith, ‘exposed’ that information clear in each but it is Miller business.” ordinary course ment "exposure” cases that of those added)). goes on to (emphasis The dissent party’s em- to the issue third information at voluntarily did argue Appellants indeed through only occurred ployees or facilities location data convey wealth of cell site conveyance that in- voluntary defendant's provider Miller, service here to their points at issue party. See third formation carry generally operate by choosing (noting that the U.S. at reject We this contention. phones. their “vol- had been issue financial information “Unlike the bank id.; records Miller or the viders. Augustine, See 4 N.E.3d at Smith, numbers dialed cell-site 862-63; Tracey, 525; 152 So.3d at see also data tangible is neither nor visible to a cell Earls, 214 N.J. 70 A.3d at 641-42 In Application user.” re (categorically rejecting third-party doc- Data, Historical Cell Site 747 F.Supp.2d trine). (S.D.Tex.2010), vacated, 724 F.3d (5th Cir.2013). A user is not b. required to actively submit any location-identifying Circuit, The Fifth in In re Application information when making a call or sending (In U.S. Historical Cell Site Data re a message. Such information is rather Application (Fifth Circuit)), 724 F.3d “quietly automatically calculated (5th Cir.2013), and the en banc Eleventh network, without unusual or overt in- Circuit in (Quartavious) United States tervention that might be detected the Davis, (11th 785 F.3d 498 Cir.2015), have target user.” at 833. We cannot im- reached the opposite conclusion. While pute to a phone cell user the risk that acknowledging that cell phone user information about her location by created “does not directly inform his pro- service her provider service will be disclosed to vider of the location of the cell nearest law enforcement when she herself has not phone tower[,]” the Fifth Circuit decided actively disclosed this information. that users voluntarily convey to CSLI Notably, the CSLI at issue in this ap- their providers service through general peal details location only information not use of their phones. cell In Application re for transmissions those Appel- which (Fifth Circuit), 724 F.3d at 614.15 In actively lants participated i.e., messages — reaching conclusion, the court relied or they calls made or answered —but also on the proposition, by gov- advanced for messages and calls their phones re- ernment, that “users know that they con- ceived they but did not answer. When a vey information about their location to phone cell a call receives or message and their providers service they when make a the user does not respond, phone’s call.” Id. at 612. The Eleventh Circuit location is identified without affirma- suit, followed suggesting that because tive by act its less, user at all—much generally users are aware that their calls “voluntary conveyance.” See re Appli- In are through towers, connected cell their cation U.S. an Order Directing a of use of phones their amounts to voluntary Provider Electronic Communication conveyance of “their general location with- Service to Disclose Records to the Govern- in that (Quartavi- cell range[.]” tower’s (In (Third ment re Application Circuit)), ous) Davis, 785 F.3d at 511. (3d Cir.2010) (“[W]hen 620 F.3d accept We proposition cannot phone cell call, user receives he hasn’t phone cell users to all.”). convey volunteer their voluntarily exposed anything at We location conclude, by information agreement simply choosing to with analysis activate Third Circuit and use their phones cell to Application re (Third Circuit) carry the and that person. devices their several state Cell supreme courts, phone only use is not third-party ubiquitous doc- in our trine of Smith society but, Miller does apply at today for an increasing least generated CSLI by cell pro- portion service society, our it has become essen- Guerrero, 15. In United States v. affirming 768 F.3d 351 suppress denial of a motion to (5th Cir.2014), the Fifth Circuit reaffirmed its evidence. See F.3d at 358-61. holding (Fifth Circuit) in In re Application question pertinent more point. partic- economic cultural and tial to full of what aware generally are users 130 whether Quon, ipation. See their when utilized are cell sites specific (“Cell message and text Af- network. a cellular connect phones that some pervasive are so communications which CSLI all, with specificity it is ter to be essential may consider them persons loca- users’ that allows cell sites self- identifies necessary instruments means con- raises tracked self-identification.”); tion to be Ri- even expression, suppose reason have no (“[Mjodern We cerns. ley, 134 S.Ct. trans- cell sites what generally know and users pervasive now such ... are phones those or where communications mit their prover- that the daily life part insistent user A cell located. are they cell sites might conclude Mars visitor bial convey” to “voluntarily said cannot be human anato- feature important were she information provider service have her deemed People cannot be my.”). instead generated but held never pri- expectations of to forfeit volunteered itself without provider service participation seeking active simply vacy by involvement.17 phones. user’s their cell through use of society majority of the that the vast “The fiction Circuits and Eleventh the Fifth Both to warrant- consents population American main providers that service emphasized aof the records access to less business for their own records tain CSLI movements share of their significant law enforcement than for rather purposes be phone must carry a ‘choosing’ cell on this basis concluded purposes (E.D.N.Y.), Application re rejected.” In priva legitimate no can have a subscriber 127, Tracey, quoted at F.Supp.2d these information expectation in cy at 523.16 152 So.3d Application In re See contain. records 611-12; (Quar Circuit), F.3d at (Fifth of how cellular understanding Users’ tavious) Davis, at 511-12. CSLI 785 F.3d is beside generally function networks here, Appel- Similarly do believe argu- we that similar points out dissent 16. expec- legitimate privacy a could claim dissenting opinions in lants made in ments were their they specifically identified rejected by had ultimately tation Smith and Miller and to their closest cell tower or the location financial We do not doubt the Court. time a transmission was provider each telephone service implicated in Miller or services phones. cell from their to or any made less were implicated in Smith service participation and economic to social crucial Davis, (Quartavious) Cir- the Eleventh But the become. 17. In phone service has than cell informa- pen register pointed out those cases that each cuit determination of disclos- had the effect at issue in Smith risk of disclosure tion assumed the had defendant phone precise about rely upon the information ing law did enforcement at 511-12. Pen 724 F.3d location. user’s general to avail himself choice defendant’s place be used could register information was assumption of risk these services. specific address at a phone user at the defen- voluntary which acts based phone at is- lines specific time “because to third conveyed specific information dant stationary land- Smith, corresponded to in Smith sue using services. party these while Id. The physical at known addresses.” instance, spe- voluntarily lines actively turned present at issue information company, location to his over cific numbers tracking "stationary” permits but is not was case numbers he aware of surely what private and across person's over, movements calls. specific placed he turning when great- way, raises spaces. this public Smith, 2577. 99 S.Ct See any loca- than privacy concerns locational no er could he claim conceded that Smith even through use of a revealed information same tion expectation privacy in the legitimate Karo, 468 U.S. at stationary See through landline. placed the calls he numbers had 104 S.Ct. operator. Id. at live are, however, records wholly unlike busi information by securing locational data ness records such as “credit card state OnStar, Lojac, a cellular phone pro- ments, statements, bills, bank hotel pur vider, or ‘apps’ number of that gather orders, invoices,” chase and billing which and use locational information part as the government “routinely” obtains from their added)). (emphasis services.” third-party businesses subpoena. This is not a Moffo, case like where a at 506. These sorts of business records person assumes the risk that an associate merely capture voluntary commercial or confidante will disclose her communica- transactions to which the business and its tions to enforcement, law see 385 U.S. at individual client or parties. customer are 302-03, 408; nor is this a case like Miller, See 96 S.Ct. 1619. Miller, person where a assumes the risk CSLI, hand, on the other records trans that a bank will disclose her financial missions of radio signals in which the cell transactions to government, see 425 phone service may subscriber or may not U.S. at 96 S.Ct. 1619. Cell be an and voluntary active participant. users not actively do or knowingly commu- We agree with our sister circuits that a nicate or “trade” their location information provider’s service business interest in to their providers service part maintaining CSLI records is a relevant consideration for provided, the services consideration determining whether a say nothing of the documentation of such subscriber can legitimate have a expecta- in reproducible information formats. That tion privacy in this information. But it this information up in provider’s winds only not the consideration. Courts con- hands as a consequence of how cellular sider not only such “concepts of real networks function does not and should not personal property law” making de- affect “ users’ expecta- reasonable but termination also ‘understandings that tions of in this information ” or soci- recognized are permitted by society.’ ety’s respect for that expectation. Carter, (cita- 525 U.S. at 119 S.Ct. 469 omitted). tion As we explained, have soci- c. ety recognizes an individual’s in- privacy Courts have recognized that pri- all terest in her over an movements extended vate information entrusted to third-party period time as well as her movements in providers of communications services is private spaces. The provider fact that a subject to government inspec- warrantless captures this information its account tion. 1877, As far back as the Supreme records, without the subscriber’s involve- recognized Court Fourth pro- Amendment ment, not extinguish does the subscriber’s tection against warrantless inspection of expectation reasonable privacy. of Apply- the contents of mail entrusted to postal the ing the third-party doctrine in this context for delivery. Jackson, service parte Ex 96 permit would simply government the to 727, 733, U.S. 727, 6 Otto 24 L.Ed. 877 convert an individual’s cell phone into a (1877). In holding, so the tracking by recog- Court device examining the massive between, nized a distinction hand, bank of on location one information by retained protected her matter “intended to provider, kept service be and to do so free without probable from inspection, cause. See such as Gray David & and ] Dan- letters! Citron, ielle Right Quantitative and, The sealed packages[,]” hand, to on the other Privacy, (2013) unprotected Minn. 98 L.Rev. 140 matter “purposefully left in a (“If government legal lacks authority condition to be examined” as well as the to install and a monitor GPS-enabled “outward form weight” of sealed arti- device, tracking then it get can the same cles. Id.

358 to com information entrusted to tection recognize to continued Court intended but intermediaries munications a in Katz: “What years later 90 distinction inspec from and free private remain to public, to the exposes knowingly

person have, example; deemed Courts office, a tion. is not home or own in his even contents inspection protec- Amendment Fourth subject but Amendment search a Fourth emails preserve to what he seeks tion .... But email to do the same declined have to accessible in an area private, even transmit to used information address constitutionally protected.” may be public, v. Wars States Compare United (citations emails. 351-52, 507 S.Ct. 88 at Cir.2010) (6th hak, 287-88 631 F.3d Fourth Amend- omitted). involved Katz enjoy subscribers that email (holding re- of an electronic to use challenge ment privacy expectation reasonable of a outside attached cording device though such even their emails content peti- recorded that phone booth public service Internet is accessible content conversation. phone of a side tioner’s Forres States with United providers), Applying 348-49, S.Ct. 507. Cir.2008) (hold (9th ter, F.3d pro- Amendment Fourth that principle aof surveillance ing. pre- “seeks to person that which tects infor email address to discover computer S.Ct. id. at as private,” serve addresses, amount data mation, IP occupies [a who that “[o]ne held the Court not constitute does email transmitted behind booth], the door shuts phone public search). Amendment him to Fourth permits him, the toll pays to assume surely entitled is a call place that, essentially like argues dissent the mouth- into he utters words at issue information of address the forms world[,]” to the not be broadcast will piece Forrester, information simply CSLI shutting Although S.Ct. 507. id. routing of communica facilitates the inade- proved phone door booth content, protected than tions rather petitioner’s private prevent quate like Wars cases distinguishes this basis overheard, and indeed being words course is of Post at 385-86. hak. prevent inadequate been have would information; it routing simple than more pe- company, the monitoring across location user’s a cell tracks expectation titioner demonstrated previous And as in time.18 points .specific accept as reasonable. society would consid generally noted, users ly 746-47, Smith, 442 U.S. at See sensi no less location information er their Katz, J., dissenting); (Stewart, of emails than the contents tive (Harlan, J., con- 361, email a of web-based Like user calls.19 curring). of her privacy intends maintain who however, nothing there is messages, con- age, courts digital

In the current to hide can do user cell typical pro- Amendment Fourth to accord tinue We do card transaction. gages in a credit types of argues informa- that 18. The dissent for may protection claim person that a hold unworthy of Fourth Amendment tion deemed " information long-term because this her activity of form protection 'track[ ]’ some a the movements practically all of may track at 386. Post over time.” aggregated when period of an extended person over makes may sure, person a that we do not hold To be apart from the sets CSLI This feature time. protection rec- for Amendment claim Fourth routing informa- sorts of address various hap- that just any type information of of ords in the dissent. cited tion i.e., location, her location pens to disclose supra 4. note 19. See or en- article of mail deposits an when she upon be used to intrude cher lance] from her will about her location information citizens.”); law-abiding In the absence of privacy ished of provider.20 service Appellants N.Y., 41, 62, that Berger evidence v. State 388 U.S. of location for their generally (1967) intend 1873, users 18 L.Ed.2d 1040 inspection open to be information (“ advances in the field of ‘[T]he fantastic fact that CSLI others, cannot treat the we constitute electronic communication and is to route communications is used danger privacy to the of the individ great dispositive as by intermediaries recorded ual; ... indiscriminate use of such devices Amendment claim of Fourth Appellants’ of grave enforcement raises constitu law this information. for protection the Fourth and questions tional under Amendments....’”) (quoting Lopez, Fifth d. (Warren, 427, 83 S.Ct. at 1389 373 U.S. result)). Fourth well settled C.J., Our review of concurring in the That is that, teaches us jurisprudence Amendment say expectations that societal of evolves, protections technology even time, privacy change cannot over but the should re intrusion against government ma technology advent of new alone—even privacy expec those main consistent with jor technological advances—is not a suffi See, society deems reasonable. tations an upon equally cient basis which to infer Dist. Court e.g., States U.S. United for people’s privacy expectat dramatic shift in Mich., Div., E. Dist. S. ions.21 (1972) 32 L.Ed.2d proliferation It out that turns (“There is, understandably, deep-seated providers networks has left service cellular [govern that apprehension uneasiness and continuing increasingly with a stream of electronic surveil capability ment’s that, here, corollary principle to this Appellants took what The natural It seems possible might have con- technological action was that little advance alone cannot personal location information cealed their protection for constrict Fourth Amendment provider. their Graham’s ser- service private otherwise be matters would name, and vice was subscribed in his wife's Confronting inaccessible. hidden or account, proxy used an alias or on his Jordan upon question of "what limits there are although the record does not indicate technology power of to shrink [the] pro- specifically to actions were taken these Kyllo, guaranteed privacy” realm of Appellants' privacy interests. tect 34, 121 S.Ct. Justice Scalia U.S. at Smith, instance, majority that the use of Supreme concluded for Court rejected technology explore the notion that different constitution- details of the new "to technologi- apply to different al rules should previously have been un- home that would engaging in form of cal communication, the same means physical con- without intrusion” knowable crazy quilt” lest "a be made search, id. at 121 S.Ct. 2038. stitutes a 442 U.S. at of the Fourth Amendment. degree preservation "This assures claim no Just as a caller could 99 S.Ct. 2577. against government that existed privacy expectation telephone legitimate Amendment when Fourth operator, personally connections made adopted.” 2038. As Id. at 121 S.Ct. privacy expectation no in Smith could claim explained, the prominent commentator one his calls numbers he dialed to connect only "permit[s] ac- not Fourth Amendment company's through phone' automatic technology hides” but cess to that which switching equipment. technology ex- "protects] that which also Smith, way, princi- in this reflects Kerr, poses.” S. The Case Orin technology ple new to hide that the use of Doctrine, L.Rev. Third-Party 107 Mich. exposed be from view what would otherwise (2009). by expand Amendment cannot itself Fourth rights otherwise exist. where none would information that the of precise question about locations declared whether an movements of network users. Prior to individual has a expectation reasonable development, people generally privacy this no in a had matter searched is “[t]he cause for concern that their analy- movements ‘touchstone’ of Fourth Amendment omitted). (citation could be tracked to this extent. That new 604 F.3d 164 sis[.]” views, technology happened generate Contrary has to her current the third- permit party retention of this information cannot doctrine was not devised to side-step by rather, displace privacy question; itself our reasonable the doctrine aids the expectations; justify inspection precisely nor can it court in deciding whether certain by of this information in privacy expectations by are reasonable so- Smith, judicially proba- the absence of determined cietal standards. See 442 U.S. at 743-44, 2577; Bynum, ble cause. 604 F.3d at 164; Davis, (Quartavious) 785 F.3d at 527 years Courts and commentators have for (Rosenbaum, J., concurring) (“Supreme begun acknowledge increasing ten- precedent fairly may Court be read to sion, wrought by technological our age, suggest third-party that the doctrine must the third-party between doctrine and the be subordinate to expectations privacy primacy Fourth Amendment doctrine society historically recognized has grants society’s expectations our of priva- reasonable.”). Smith and Miller do not Jones, cy. concurring opinion In her in application endorse blind the doctrine Sotomayor Justice assump- declared the cases where information which there are people privacy tion that lack reasonable clearly privacy expectations reasonable is expectations by in information held third generated and recorded a third party parties digital “ill suited to the age, through an technology. accident of people which a great reveal deal of infor- third-party doctrine is intended to delimit parties mation about themselves to third Fourth protections pri- Amendment where carrying course of out mundane tasks.” vacy claims are not reasonable —not Jones, J., (Sotomayor, 132 S.Ct. at 957 diminish Fourth protections Amendment concurring). technology provides where new new means now, It concerning during a time for acquiring private information. See viability and context which the Kerr, Orin S. An Equilibrium^-Adjust- doctrine, third-party “the Lochner of Amendment, Theory ment the Fourth law,” Kerr, search and seizure Orin S. (2011) (“[I]f 125 Harv. L.Rev. Doctrine, Third-Party Case new technology permits (2009) (footnote Mich. L.Rev. previously access information that it could omitted), doubt, graver has never been in warrant, using access without a tech- the dissent’s treatment of the doctrine niques regulated preexisting under expand exception would it into a full-on predate technology, rules that the ef- legitimate-expectation-of-privacy in- fect will be that the Fourth Amendment quiry. dissenting Post 389. Our col- time.”). matters less and less over league reads into a rule Miller Smith *$$$$$ preclude that would virtually any Fourth reasons, For challenge against government apply

Amendment these we decline to inspection third-party just But the third-party records. doctrine here and hold that years ago, writing a few Appellants expectation for the Court in have a reasonable Bynum, our dissenting colleague rightly in their long-term Spe- CSLI.22 Echoing any privacy govern- the sentiments of the Fifth and concerns raised Circuits, suggests Eleventh the dissent (1998)). 2014, 141 L.Ed.2d 344 govern- 118 S.Ct. cifieally, we conclude the justice society Ap- system But our inspection procurement ment’s “ ” search, and ‘heavy was a incur costs’ when courts large CSLI historical pellants’ Appellants’ violated required disregard are to reliable evi ” “ in rights by engaging dence, Amendment the truth’ about crimi ‘suppress Fourth judicial securing conduct, community first without nal and release to the search If the probable on cause.23 subject based be might warrant a criminal otherwise who (Willie Century Fourth Amendment Twenty-First (quoting Id. imprisonment. to — one, dissent Gene) States, as the to be a shrunken is Davis v. United task leave that solemn 2419, 2427, 180 we should proposes, -, L.Ed.2d 285 building majestic superiors (2011)). to our pur “sole Considering complete to presume and not First Street exclusionary rule “is to deter pose” of ourselves. violations!,]” task future Amendment Fourth Gene) (Willie Davis, D. rule to exclude evidence apply courts govern- conclude that the Although we benefits of deterrence out only where the Fourth Amend- Appellants’ violated ment at 2427. weigh suppression, id. costs their with- rights procuring CSLI ment cause, the probable based on out a warrant assessing the deterrent value subject suppression were not records properly suppression, our focus is good- government acted because culpable police conduct and placed on under on court orders issued faith reliance judi legislators on the actions of not the SCA. at 2432-33. law cial officers. Where objectively acts “with enforcement exclusionary ‘gener “The rule good-faith belief ‘reasonable their criminal the introduction at ally prohibits lawful,” there is no need for a ” conduct is in violation of trial of evidence obtained justify the exclu rights[.]’ deterrence sufficient Fourth Amendment defendant’s Id. at 2427 sion of evidence. 764 F.3d reliable Stephens, States v. United Leon, (4th Cir.2014) 468 U.S. (quoting United States (quoting Bd. Pa. (1984)). Scott, 357, 359, 897, good-faith excep- This 524 U.S. Prob. & Parole v. objections Moving beyond her theoretical acquisition of CSLI should warrantless merit’s legis- Congress colleague presented holding, dissenting and addressed be our de- to our latively, the courts for constitu- rather than to citing practice,” holding clares the "bizarre We think protection. Post at 388-89. tional cell service records admitted the fact argument might be made same just but CSLI also in this case included technological means or in which a new case we have not deemed Fourth information employed investigative practice is to obtain protected. at 386. The Amendment Post must de- personal information and the court 2703(d) specifically § in this case re- orders question. In each of these cide the Katz Appellants’ with quested the associated cases, making an is tasked with court holding, today’s After cell service accounts. society of what interests assessment to secure a government will need warrant might deem reasonable. This is task requirement This would for this information. legislative might argue the branch which one whether, response to such affect is, suited, a matter of but one that is warrant, produces provider rec- the service interpretation, nonetheless im- constitutional Marbury for which upon v. Madi- information posed son, the courts. See ords that include 137, 177, (1 Cranch) 2 L.Ed. 60 required. It is specifically warrant is not ("It (1803) emphatically pfovince and practice makes this "bi- what unclear us say duty judicial department what zarre.” is.”). the law 2703(d) exclusionary § tion to the applies Sprint/Nextel rule issued orders to reasonably where law enforcement relies for the of Appellants’ disclosure account (1) statute, on an enacted unless that records. There nothing is the record to unconstitutional, clearly statute is Illinois suggest magistrate either “aban- Krull, 340, 349-50, 480 U.S. 107 S.Ct. doned” or her his “detached and neutral” (2) (1987); 94 L.Ed.2d 364 a role a such that well trained officer’s reli- search warrant or other court order is- ance on either order would have been un- magistrate, sued a neutral is- unless reasonable. defective, suance of the clearly order is Appellants do not attack the facial valid- Leon, 922-23, 926, 2703(d) ity Instead, § of the they orders. (3) 3405; or “binding appellate prece- argue government that the cannot reason- (Willie Gene) dent,” Davis, 131 S.Ct. at because, § ably rely on the 2703 orders 2429. offering law a enforcement choice between

Here, government 2703(d) is entitled § seeking warrant and a court because, to the good-faith exception records, order to obtain subscriber CSLI, seeking Appellants’ government internally statute is Appel- inconsistent. procedures relied on the established that, point lants out while a warrant re- SCA and two court orders issued quires cause, a showing probable magistrate judges in accordance with the 2703(d) § requires order significantly 2703(d) government’s § ap SCA. first showing lesser standard akin to reason- —a plication requested regarding data calls suspicion.24 able messages Appellants’ to and from We find no “inherent contradiction on phones during periods four time and de the face of the Appellants’ SCA.” Br. 46. scribed investigation robberies under 2703(c) Section unambiguously offers law during occurred some of peri those time enforcement a choice specific between ave- learning ods. After about other similar nues obtain records from provid- service robberies, submitted ers. “Unless a clearly statute is unconsti- second application request records for tutional, an officer cannot be expected to 221-day the much broader time frame. question the judgment legislature of the application second included the same Krull, that passed the law.” 480 U.S. at provided facts application first but 349-50, 107 S.Ct. 1160. That the statute descriptions added of additional robberies provides options require- set different investigation. Appellants under do not ments on law enforcement does not claim that the was “dishonest amount to a contradiction or render the or preparing reckless” in applica either facially statute unconstitutional. Leon, tion. 468 U.S. at Upon Appellants argue consideration of each of the next that the SCA can- government’s applications, justify magistrate government’s two unconstitu- judges of the district court respectively tional use of granted discretion under the (Third Appellants Application cite re underlying Cir- an omission.” Id. at 319. The cuit), wherein the specifically Third Circuit reviewed a identify any court did not contra- 2703(d) § district applica- court’s denial of presume diction in the statute. We that the tions for CSLI. 620 F.3d at 305-06. In seek- court's comment is based on the statute’s lack ing magistrate to determine clarity scope whether a magistrate’s has as to the authority deny 2703(d) under the appli- grant deny § statute to an applica- discretion to cation that requirements satisfies appear tions. That does not to be the “inher- 2703(d), stated, § the court "There upon Appellants in- ent contradiction” which herent contradiction rely. in the statute or at least

CO05CO that, 2703(d) time the recognize we the § court order And a to seek statute for historical CSLI. at issue a warrant obtained CSLI instead P.2d 415 Thompson, 810 Citing here, v. rulings State court outside of this Circuit (Utah 1991), argue Appellants constitutionality in conflict as to the were where exception inapplicable is good-faith obtaining this information without a statutory to exercise fails prosecutor conduct in government’s warrant. But the within consti- discretionary power grant by disagree not governed this case was prior to In a related case tutional bounds. of courts outside among ments a handful of Utah Supreme Court Thompson, Circuit, no decisional and there was and use of that issuance had determined suggesting that authority in this Circuit attorney by the state subpoenas certain 2703(c) § un choice presented Subpoena Powers under Utah’s general from cell applied constitutional as in sev- Constitution Act violated Utah conclude, providers. service We attorney gener- respects for which eral therefore, government reasonably that the Inves- In re Criminal responsible. al was exercising option its relied on the SCA CS-1, 754 P.2d 7th Dist. Ct. No. tigation, 2703(d) § rather than- a to seek a order (Utah 1988), 633, Thomp- cited in 658-59 exception app good-faith warrant. The son, Thompson, P.2d at 416. 810 Appellants’ affirm denial of We lies.25 excep- “a faith good court determined suppress. motion to exclusionary ... rule] tion Utah’s [to illegal subpoenas inapplicable be would III. attorney general, who ... issued court’s ad- Appellants appeal the district and there- illegality[,]” for the chargeable testimony of Jeff of certain mission through use of the obtained fore evidence Strohm, Sprint/Nex- custodian for records subject suppres- illegal subpoenas was tel, of the Special Agent Colin Simons 420. The constitutional sion. 810 P.2d at FBI, constitute ex- arguing portions .that and use of defects the issuance guise lay opinion. in the pert testimony enough for the attor- were clear subpoenas Subpoena to concede that the ney general stated, review the dis- previously As we unconstitutionally Act had Powers been rulings for abuse evidentiary court’s trict id. at applied. See Johnson, v. States of discretion. United (4th Cir.2010). “A dis- 617 F.3d 292 infirm decision of constitutionally if discretion its court has abused its case to seek trict present prosecution 2703(d) legal prin- guided of warrants was ‘is erroneous § orders instead decision clear, today’s prior clearly erroneous upon at least or ‘rests ciples’ so ” Sec., today, nei- ruling to our decision. Prior finding.’ Morris Wachovia factual Supreme Cir.2006) (4th nor the U.S. ther this Court Inc., F.3d con- government’s deemed the Court had Gummi Westberry v. Gislaved (quoting in this case unconstitutional. duct Cir.1999)). (4th If AB, 178 F.3d discretion, we find such an abuse we that, Appellants when agree with We stan- the harmless-error it under review doubt, government should “err on 52(a) Federal Leon, in Rule dard stated behaviorf.]” side of constitutional Johnson, Procedure. (Brennan, J., of Criminal dissenting). Rules at 926 2703(c) § is constrained. determined that law 25. Now that we have justify rely may longer on the statute no Amendment enforcement violates the Fourth this infor- a warrant for election not to secure to obtain an when it acts without warrant CSLI, mation. long-term its choice under individual's ” Perkins, 617 F.3d at 292. find the district We witnesses.’ United States v. (4th Cir.2006) court’s if “say error harmless we can with (quoting F.3d Unit- assurance, fair pondering after all that (7th Santos, ed States v. 201 F.3d happened without stripping the erroneous Cir.2000)). whole,

action judgment from the that the B. substantially swayed by was not the er- (quoting ror.” United States v. Appellants challenge testimony Strohm’s Brooks, (4th Cir.1997)) 365, 111 F.3d 371 regarding phones how cell connect with (internal omitted). quotation marks operations cell sites and the and radio below, For explained frequency the reasons range we of cell sites. Strohm tes- that, find no abuse of discretion in the district tified in seeking receiving or a con- court’s testimony admission of Simons’ network, and nection to the cellular a cell portions of testimony. Strohm’s Insofar phone connects to the cell emitting tower as the court erred in admitting por- other strongest signal, and that cell in sites of testimony tions Strohm’s as that a lay urban areas have a two-mile maximum witness, we find such error harmless. range connectivity. He testified further that, proximity, aside from factors such as

A. sight line of and volume call may traffic The admission of expert testimony ability particular affect the of a cell tower governed by is Rule 702 of the Federal but, case, phone, any to connect to a in Evidence, Rules of permits which one phone must be located within two miles of “who qualified expert” as an to offer at any cell tower in the Baltimore area opinion testimony “scientific, trial based on order to connect to it. technical, or specialized other knowledge.” testimony that signal Strohm’s Prior to admitting any expert testimony, strength determines which cell tower will judge the trial must act as a gatekeeper, phone connect to a and that cell towers conducting preliminary assessment of urban areas have a two-mile maximum whether the expert’s proffered testimony range of opinion was not testi operability is both relevant and reliable. Kumho Tire mony. These statements were not conclu Carmichael, 137, v. Co. 119 sions Strohm any drew based on special (1999) 143 L.Ed.2d (citing 238 assessment, reasoning ized or and were Pharm., Inc., Daubert v. Merrell Dow not presented the form opinion of an or 579, 592, 125 L.Ed.2d They inference. were facts based on (1993)). experience Strohm’s employee as an 701, lay Under Rule witnesses are Indeed, trial, Sprint/Nextel. defense “ ‘not permitted] ... to express opin an counsel specifically declined challenge ion as to beyond matters which are testimony Strohm’s phone that a cell con realm experience of common and which nects to the tower emitting strongest require special skill and knowledge of signal. testimony Strohm’s ” as to cell sites’ expert an witness.’ Certain Underwriters range of operability required greater no Sinkovich, Lloyd’s, London v. 232 F.3d than the same minimal technical knowl (4th Cir.2000) (quoting Randolph edge. The district court did not abuse its Collectramatic, Inc., v. 590 F.2d in admitting testimony by discretion (10th Cir.1979)). bottom, “At ... Rule 701 lay witness. forbids the expert admission of testimony in lay Similarly, dressed clothing, testimony witness but it Strohm’s that fac- ‘does not interdict all drawing by lay inference including proximity, sight, tors line of (“The testimony concerning how agent’s ability phone’s may affect traffic call operate constituted ex tower did towers cell cell particular to a connect expert opinion. testimony special because it involved pert to the level rise instance, not, engage readily accessible to knowledge did Strohm ized the factors or seek comparing analysis any ordinary person.”); United States (N.D.Ill. factors resulted how these Evans, determine F.Supp.2d connection, would which any particular 2012) testimony as to “how (holding that technical, scientific, spe- required have i.e., operate, process cellular networks merely presented He knowledge. cialized given connects to a which a cell exist, which factors these the fact expert qualified to requires an tower” into misled jury being prevented demands of Rule 702 and Dau- “meet the is a matter strength believing signal ”). bert will or that alone proximity however, conclude, We tower. to the always connect nearest testimony of this the admission error its abused if the district court Even aspects technical harmless. The was testimony admitting Strohm’s discretion have completed cell calls are how factors, was any such error these about establishing with the location to do little as evidence government’s The harmless. on site information. based cell cell Appellants’ phones cell locations of to the matters is that the cell site really All solely in time based points various was at range connectivity particular had listed in of the cell towers locations on the at a connected to a cell site that the each tower’s records and SprinVNextel’s through' time—facts established particular operability. range of maximum two-mile and admissible SprinVNextel’s records phones cell to Appellants’ In order for testimony. portions of Strohm’s in Sprint/Nex- to the towers listed connect records, to been located they had have tel’s C. towers, even of the listed two miles

within affected which or call traffic sight if line of challenge testimony offered Appellants ultimately con- within two miles cell sites regarding his creation by Agent Simons mere fact that phones. The nected by on the CSLI disclosed based maps exist, therefore, could factors these the loca- maps plot The SprinVNextel. as- jury’s substantially have affected in the CSLI cell sites listed of certain tions evidence government’s sessment records, establishments business verdict. the resultant The robbed, apartment. and Jordan’s aspects of of other The admission and times identify the dates maps also testimony more concern- lay is Strohm’s Ap- by made calls and outbound inbound of how explanations provided ing. Strohm cell through plotted phones pellants’ network to a phones connect cellular sites. times, calls, going, completion of for the testimony did not amount Simons’ operations per- details about into technical maps, To create the opinion. expert to an are how calls by cell sites and formed mapping software utilized Simons Such through network switches. routed and re general public to the marketed scientific, clearly on testimony was “based more than identification little quired technical, knowledge within specialized He plot. he intended locations various Fed.R.Evid. of Rule 702.” scope the businesses the locations of entered Yeley- v. 701(c); see also United States Cir.2011) ad (10th physical their apartment by Davis, Jordan’s 632 F.3d cretion, dresses and the cell sites latitude and deems irrelevant or immaterial.” longitude, SprinVNextel. disclosed Prince-Oyibo, United States v. 320 F.3d minimal technical knowledge or skill 494, (4th Cir.2003); Taylor see also v. required complete this task was not so Illinois, 400, 410, 484 U.S. “specialized” as to constitute a matter of (1988) 98 L.Ed.2d 798 (holding that com expertise meaning within the of Rule 702. pulsory process give clause does not de Henderson, See United States 564 Fed. right fendant “an unfettered to offer testi (10th Cir.2014) Appx. (unpub mony incompetent, privileged, or lished) (holding testimony that agent’s re otherwise inadmissible under standard garding review of cell phone records and evidence”); rules of Egelhoff, Montana v. map creation of of cell tower locations “did 37, 42, require expertise”). The district court (1996) L.Ed.2d 361 (applying same rule in did admitting not abuse its discretion in context). process due testimony. Simons’ exercising defendant her , IV. right testify comply “must with estab appeals Jordan the district court’s lished rules of procedure and evidence decision to set certain restrictions his designed to assure both fairness and reli testimony, arguing that these restrictions ability in the guilt ascertainment of arid infringed upon his right constitutional Chambers, innocence.” in testify his own defense. We review the Thus, S.Ct. 1038. under Rule 403 of the district evidentiary court’s rulings for Evidence, Federal Rules of even relevant abuse of discretion but review constitution testimony by the “may defendant be ex questions al de novo. United States v. if probative cluded its value is substan Dinkins, (4th Cir.2012). 691 F.3d tially outweighed by danger of unfair We find no constitutional error or abuse of prejudice, issues, confusion of the or mis discretion in the challenged restrictions. leading jury[J”

A. B. A criminal defendant has a right testify constitutional to on her own The district court set certain restrictions behalf derived from compulsory pro on Jordan’s testimony prevent unfair cess clause of the Sixth Amendment and prejudice to Graham. Specifically, Jordan process the due clause of the Fourteenth precluded was from [redacted]. Arkansas, Amendment. Rock v. 483 U.S. object Jordan did not to these restric 44, 52, 97 L.Ed.2d 37 trial, at any tions so error committed (1987); United Midgett, States v. 342 F.3d imposing district court in the restric (4th Cir.2003). 321, 325 right to testi “ subject plain-error tions is review. fy absolute, however, ‘may, Godwin, United States v. 272 F.3d cases, appropriate bow to accommodate (4th Cir.2001); see also Fed.R.Crim.P. legitimate other interests in the criminal ” 52(b). only upon We will reverse a show Rock, trial process.’ at 483 U.S. ing by Jordan that an error the district (quoting S.Ct. 2704 Chambers v. Missis obvious[,]” court was “clear or affected 284, 295, sippi 410 U.S. “ rights, Jordan’s substantial (1973)). ‘seriously L.Ed.2d pre This Court has fairness, held, integrity viously instance, public affect[s] that “criminal ” reputation judicial defendants do right present proceedings.’ not have a God court, win, evidence that the district in its dis- (quoting F.3d 672-73 United communicated at cer- 725, 732, together and Olano, 113 were States (1993)). than to com- for reasons 1770, 123L.Ed.2d 508 tain times other only expla- alternative mit robberies. The C. in Jordan’s brief is nation disclosed testify error sought find no constitutional We Jordan also [redacted]. on placed court the district that, restrictions [redacted]. restric testimony because Jordan’s by the district imposed The restrictions present prevent Jordan tions did arbitrary appro- but were court were not n in his defense. Jordan full narrative ing a purpose their tailored to suit priately indeed testify did permitted —and to Graham. prejudice unfair preventing January or ear late testify follows: In —as Testimony poten- had [redacted] group Graham and February of ly no bearing while prejudice tial to Graham home coming1to Jordan’s began friends Specifi- value Jordan. exculpatory real socialize Jordan would regular basis. and his associates cally naming Graham asking before a little while” with them “for probative value have had minimal would like “I don’t live because them to leave court did not favor. The Jordan’s district Friends of Gra J.A. 2303. they live[.]” determining that the abuse its discretion on the apartment at Jordan’s ham were out- prejudice unfair to Graham risk of 5, 2011, Graham February morning of of this probative weighed value and Graham later. After Jordan arrived testimony. See Fed.R.Evid. 403. together, Graham liquor store visited home, and then off his dropped Jordan D. aunt’s home on the to visit his Jordan went in Balti Street of North Strieker 300 block testimony about argues [re- Jordan through neigh more. Graham came in- prior would have explained dacted] him to borhood, arranged for Jordan used consistent statement the their person to “do an unidentified meet him. impeach to J.A. 2310. When Graham little business.” records ob- The cell phone [redacted] Jordan, to he asked Jordan returned to disproved this by tained purchase to him to a store take Wal-Mart events, call showing that the last version drove Graham’s a television set. Jordan was much earlier made to Jordan Graham eventually stopped po and was truck Jordan’s and then both that afternoon arrested. When lice, the two were other, each were near phones Graham’s weapons recovered asked about away from Jordan’s miles but several arrest, testified his Jordan his home after apartment. they got there how that he did know left friends that but believed Graham’s also of events initial version Jordan’s there.26 them trial, testimony at wherein his contradicted up him from that picked he stated Graham the court’s restric- argues Jordan a ride —not from to ask for Strieker Street explaining him from prevented tions by the incon- his home. When confronted He with Graham. basis of his association authorities, Jor- made to sistent statement relationship his a full account of avers that lied, but stated that he had they dan admitted shown that would have with Graham stated, Jordan The court admonished Graham. Specifically, “I think Jordan house], statement, boys stay my instructing him “to confine day [in I let his home 2314. Viewed they them in there.” J.A. [he] left to what did.” Id. remarks [his] context, implicitly referred the statement (“CAD”) that he did so because he was Dispatch reports “scared.” showing it J.A. 2343. Jordan avers that his would not have been possible Graham initial account was not accurate because he picked up to have Jordan from the 300 was afraid to inform the authorities about block of North during Strieker Street However, preclud- [redacted]. Jordan was period brief time between the McDonald’s explaining ed from the basis for his fear at robbery point and the at which Jordan and against trial due to the court’s restriction apprehended Graham were Baltimore testifying During about [redacted]. its record, police. On this we cannot conclude closing argument, government disput- government’s impeachment of purported ed whether Jordan’s fear was by prior Jordan inconsistent statement authorities, the reason for the lies he told necessary jury was for the to determine stating jury, to the “he didn’t mislead the that Jordan’s version events was untrue. police because he was afraid. He misled sum, Jordan fails show that police get away with what he had against restriction testimony about [re- done.” J.A. 2444. dacted] the date of the Burger King that, agree We with Jordan and McDonald’s plain robberies was er- government’s context of the efforts to im ror.27 We affirm. him, peach it was an abuse discretion prevent for the court to Jordan from re V. butting through these efforts a full expla appeals Jordan the district court’s prior nation of his inconsistent statement. severance, denial of his motion for arguing counsel, however, object Jordan’s did not joint trial of him and Graham to the restriction and thus forfeited the compromised right testify his fully in his issue. The only forfeited error warrants own defense. “We review a district court’s reversal if it was “clear or obvious” and denial of a motion for severance for an affected Jordan’s rights. substantial God- abuse of discretion.” United States win, 272 F.3d at objection 672. Absent an (4th Cir.2010) Lighty, 616 F.3d that would have brought the issue to the (citation omitted). The district court has attention, district court’s the court’s abuse “broad discretion” deny a motion for of discretion was not “clear or obvious.” severance. Id. To establish abuse of dis Further, Jordan fails to show that the cretion, “a defendant must show that he error affected his rights. substantial At prejudiced by the denial of a sever trial, introduced substan- (citation omitted). ance motion....” tial evidence tending disprove to Jordan’s 8(b) version of events. Such evidence included Under Rule of the Federal data from test Computer drives and Procedure, Aided Rules of Criminal multiple de- apparent agreement 27. Based on the implicated between restriction personal his constitu counsel, government, defense, right Jordan’s the testify the tional to in his own district court about the restrictions on Jor- which cannot be waived defense counsel testimony, government argues dan’s or the court. United States v. Flores-Mar tinez, 699, (5th Cir.2012); Jordan waived the plain- issue and that even 677 F.3d 711 Unit Olano, 1525, (11th error review is not warranted. See Teague, ed States v. 953 F.2d 1532 ("Waiver Cir.1992); 507 113 S.Ct. 1770 Midgett, is see also 342 F.3d 327 different (agreement from forfeiture. Whereas forfeiture between court and defense coun timely is the failure to make the assertion of sel did not effect waiver of defendant's consti right, relinquish- waiver is the right testify). 'intentional tutional to We need not decide ”) right.’ ment or abandonment of a known whether Jordan waived the issue because (citation omitted). argues plain Jordan there is no error. (4th Cir.1986)). 1267, 1271 As F.2d in the same 800 charged “may be fendants IV, ‘par- permit- have in Part Jordan was alleged explained to they if are indictment transaction, or act or a full narrative his de- present same ted to ticipated transactions, acts or against in the same series him. The charges to the fense ” Id. or offenses.’ constituting an offense sought provide to testimony that Jordan 8(b)). is a “There Fed.R.Crim.P. (quoting exculpatory held little Graham inculpating joint system for in the federal preference The restrictions did value for Jordan. to- are indicted who trials of defendants prevent did not Jordan and prejudice ef- “promote trials such because gether ]” making judgment. a reliable jury from justice the interests ficiency and ‘serve in Najjar, As we stated inequity scandal avoiding the finger more than requires 14] ” [Rule v. inconsistent verdicts.’ United Zafiro must be such a stark There pointing. States, 506 U.S. by the defenses presented contrast (1993) Richard- (quoting L.Ed.2d 317 proposi- jury presented is with 200, 210, Marsh, son v. of one de- to believe the core tion that (1987)). “According- L.Ed.2d core of the fense it must disbelieve the war- only Rule ly, severance under unjustifi- jury or “that the will other ... that a is a serious risk when ‘there ranted demon- ably that this conflict alone infer specific tri- compromise a joint trial would guilty.” are strates both defendants, pre- right al of one of judg- making rehable jury vent the (citations omitted). Id. ” or innocence.’ United guilt ment about summary, Graham’s defense (4th 466, 473 Najjar, 300 F.3d v. States was not of the individuals was that he Cir.2002) Zafiro, 506 U.S. at (quoting the armed surveillance seen video 933). seeking The defendant case; charged witnesses’ robberies “ preju- ‘that actual must severance show dubious; of Graham were identifications trial, ... joint from a dice would result records was in the cell the CSLI separate trial would merely that and not to show imprecise; failed ” acquittal.’ offer a better chance and Jordan’s association that Graham’s Reavis, F.3d (quoting United States commit agreement to to amounted Cir.1995)). (4th 763, 767 crime; clothing vehi and items joint trial com- argues that Jordan robber to used link Graham various cle provide exculpatory right his promised Sim and not distinctive. ies common were behalf and testimony on his own resulted that he at trial contended ilarly, Jordan Part As discussed in to him. prejudice truck to flee pickup not drive Graham’s did placed some court supra, IV district visiting a rela any robbery; that he testimony pre- restrictions Jordan’s King and Burger tive’s home when permit to Graham and prejudice vent occurred; that de robberies McDonald’s the defendants. joint trial fair between committed who scriptions of individuals contends, again, that these restric- Jordan Jordan; robbery did match the Shell provide right testimo- impaired tions his that his failed to show that the to him but tend exculpate ny that would to a amounted with Graham association previ- has This Court inculpate Graham. impre and that the CSLI conspiracy; however, held, that a defendant’s ously in his Additionally, asserted Jordan cise. by incul- himself exculpate ... to “desire Graham’s he did not sanction defense to grounds insufficient another pating [is] weap store apartment to using his friends F.3d Najjar, trials.” require separate little, any, if clothing. There is Spitler, ons States v. (quoting at 474 United defenses, Appellants’ reads, contrast between and ment “I pick Aaron Graham I did certainly no contrast so stark as to neces- up Eric prior my Jordan 10-15 minutes sitate severance. We cannot conclude that being' pulled truck over and he had no the district court abused its broad discre- knowledge of I’m anything accused of.” tion and therefore affirm denial of Jordan’s call, asks, jail Tony J.A. 2638. On the motion for severance. “Remember, you didn’t write a statement or something saying you he wasn’t with or

VI. something like that?” responds, Graham challenges Jordan the district court’s de- “Oh,' yeah, yeah, yeah, yeah, yeah.” J.A. cision to exclude from evidence two out-of- 2218. Exercising his Fifth Amendment court statements of an unavailable declar- right trial, testify not to at Graham was ant, i.e., Graham. We review the district testify unavailable to as the declarant of court’s decision for abuse of discretion. the statements issue. See United Bumpass, United States v. 60 F.3d (4th Dargan, States v. 738 F.3d (4th Cir.1995). Cir.2013). Hearsay generally is not admissi We conclude that the district evidence, ble in given Fed.R.Evid. court did not abuse its discretion in exclud “dangers” insincerity, misperception, ing First, the statements from evidence. misremembrance, ambiguity present the written statement genuinely was not statements, ed in out-of-court Williamson penal adverse Graham’s interest. The States, 594, 598, v. United 114 statement wrongdoing by admits no (1994). 129 L.Ed.2d 476 Rule Graham but rather casts the charges 804(b)(3), however, provides exception against Graham allegations. as mere hearsay to the rule for statements made Second, Jordan fails to show corroborat- interest, against the including declarant’s ing clearly circumstances that indicate that that, statements they at the time were the written statement trustworthy. is made, “had great tendency so ... recognizing While precise “the nature expose the declarant to civil or criminal required by corroboration Rule liability” that a person reasonable in her 804(b)(3) described,” cannot fully be position would not have made the state Court has identified several factors that ments unless believing them to be true. courts consider in “determining whether 804(b)(3). Fed.R.Evid. “[HJearsay may be sufficient justify corroboration exists to ad- (1) admitted under this exception if mitting a statement under the rule[J” (2) unavailable, declarant is the statement Bumpass, 60 F.3d at 1102. These factors genuinely adverse to the pe declarant’s (3) include interest, nal ‘corroborating circum clearly (1) stances indicate the trustworthi whether the declarant had at ”

ness of the statement.’ Bumpass, 60 F.3d making time of pled the statement guilty Satisfying requirements these exposed or was still prosecution presents a “formidable burden” par to the (2) making statement, the declar- ty offering the statement. ant’s motive in making the statement and whether there was a reason for the argues

Jordan the district court (3) lie, declarant to whether should the declar- have admitted a written statement repeated ant bearing the the statement and signature “Aaron did so Graham” (4) recording jail consistently, and the of a the party parties call between Graham (5) and an Tony. made, individual called whom the statement was 9, 2011, February Dated the written state- relationship of the declarant with the invalid based argues were (6) strength warrants Jordan and accused, the nature probable to in the affidavit relevant defects evidence on independent the first warrant question. submitted to obtain conduct cause the first warrant after return dispute does not was executed. Jordan were and Jordan that Graham fact pro- for both warrants the affidavits that a Graham likely gave associates friends or finding -for a a substantial vided basis reason and a to exonerate Jordan motive Instead, argues Jordan probable cause. Further, there is purpose. to lie (1) were invalid because the warrants that that the content in the record no indication the first warrant supporting affidavit repeated ever statement was of the written while in- information Graham; any independent exculpatory is there omitted nor own testimo- robberies evidence, cluding from Jordan’s information about aside not with was ultimately charged; that Jordan ny, to show Jordan was not which Graham during the robberies. (2) falsely Graham certified in the the affiant the date at- facing prosecution was warrant. We that he executed the return statement, but he to the written tached no reversible error. find greater exposed have himself not could liability ór of conviction risk criminal A. statement, non-in- given its making of defects sets Jordan identifies two criminating character. first warrant: supporting affidavit sum, the district court agree with we (1) facts the robberies it included about corroborating not sufficient that there are 22, 2011, with which Jordan January “clearly” indicate circumstances (2) it omitted ultimately charged; and statement. trustworthiness written robberies that would facts about these in the dis- no abuse of discretion

We find Jordan, including the exculpate tend the hear- to exclude court’s decision trict the robbers did descriptions fact say statement. lack of forensic match and the Jordan court district agree also with the We claims Jordan linked Jordan. evidence to establish jail call is insufficient that the by these additions prejudiced he was a was indeed the written statement and omissions. See Fed.R.Evid. by Graham. statement a supporting An affidavit call, af- appears to Graham 901. On presump “a search warrant entitled he, a state- point, at some wrote firm Delaware, 438 validity[,]” Franks tion of iden- ment, comment falls short but his 154, 171, 57 L.Ed.2d authenticating the tifying or otherwise (1978), may “attack a defendant but to admit sought statement Jordan written nar “in certain facially affidavit” sufficient abuse of discre- find no evidence. We into circumstances[,]” United rowly defined to ex- decision in the district court’s tion (4th F.2d Colkley, 899 States v. Fed. See jail call as non-relevant. clude Cir.1990) Franks, 154, 98 (citing R.Evid. 2674). making preliminary After

VII. may demand under showing, defendant to deter hearing Fourth Amendment de- challenges the court’s district Jordan (1) “knowingly has whether affiant mine evidence suppress motion to nial of his disre reckless intentionally, or with conducted of his home obtained searches truth,” a false state for the included gard February his arrest after (2) affidavit; and wheth- in a warrant to two ment pursuant were conducted searches er the necessary false statement “is to the any omitted information would in event Franks, finding probable cause[.]” supported have been probable 155-56, atU.S. 98 S.Ct. 2674. here, Similarly cause....” Jordan has not shown that the affiant intended to “[T]he search warrant must be magistrate by mislead the omitting, or was if perjury disregard voided” or reckless omitting, reckless in information that tend- by preponderance established of the evi exculpate ed to Jordan as to the robberies dence, and, “with the affidavit’s false mate January side, rial set to one the affidavit’s remain ing content is insufficient to establish We find no reason to set aside our probable Id. at cause[.]” 98 S.Ct. presumption challenged that the warrant case, In such a “the fruits of the affidavit was valid and therefore find no search [must excluded to be] the same reversible error the district court’s de- probable extent as if lacking cause was on cision to admit during evidence seized the face of the affidavit.” Id. This rule searches of Jordan’s home. applies “also when affiants omit material make, facts ‘with the intent to or in reck B. disregard they less of whether thereby 41(f)(1) Citing Rule of the Federal Rules ” made, the misleading.’ affidavit Colkley, Procedure, of Criminal argues Jordan next 899 F.2d at 300 (quoting United States that the first search warrant was defective Reivich, (8th Cir.1986)). 793 F.2d affiant, Woerner, because the Detective request Jordan did not a Franks falsely certified in the return that he exe- hearing before the district court and has 41(f)(1) cuted the warrant. provides Rule made no showing before this Court that present officer during “[a]n the execu- the affiant challenged on the affidavit in tion of the warrant must prepare and veri- any statement, cluded false whether fy inventory any property seized” “knowingly intentionally, ... with and that officer executing “[t]he the war- truth,” disregard reckless for the or other rant promptly must return together it— Franks, wise. 438 U.S. at 98 S.Ct. with a copy inventory of the mag- the—to 2674. Jordan also has not shown that any judge istrate designated on the warrant.” complained-of statements included By terms, however, its own Rule 41 in the affidavit “necessary were to the applies only to federal search warrants finding probable cause” or that requested by “a federal law enforcement the excluded facts would prevented have attorney officer” or “an govern for the finding of probable cause. Id. at ment^]” Fed.R.Crim.P. 41. This Court S.Ct. 2674. has held that “a warrant proceeding must reject We also Jordan’s with challenge particulars meet the only of Rule 41 where respect to the potentially exculpatory in- application the warrant made formation he complains was not included in direction urging of a federal officer.” the first warrant affidavit. Colkley, United v. Clyburn, States 24 F.3d Court affirmed denial of a defendant’s mo- (4th Cir.1994) (citations quota and internal tion to suppress fruits of an arrest warrant omitted). tion marks We have also held that “did not contain certain potentially that “[n]on-constitutional violations of Rule exculpatory information known to the affi- 41 warrant suppression only when the de ant.” 899 F.2d 298. The defendant prejudiced by fendant is showing “made no the violation ... the affiant intend- magistrate ed to mislead the or when by omitting ‘there is evidence of intentional information, and because the warrant with disregard provision deliberate of a ” Simons, being possession a felon in One for 206 Count v. States United Rule[.]’ the Cir.2000) (citations (4th omit firearm but denied the motion as to 392, of a 403 F.3d ted). jury ultimately remaining the The counts. guilty verdicts as to each of returned these challenges Jordan warrants The argues that the evidence offenses. Jordan by local law and executed prepared were trial not to presented at was sufficient officers, agents. federal enforcement a guilty beyond the verdicts rea- support return cannot Thus, any defect disagree. sonable doubt. We if Even suppression. for as a basis serve however, Jordan has Rule 41 applied, A. intentionally or officers the shown that challenges review We the requirements disregarded the deliberately de novo. United 41(f) by sufficiency of evidence prejudiced or that he was Rule of (4th context, 405, 676 F.3d 419 Engle, In this v. in the return. States the defect — denied, U.S.-, Cir.2012), show a 133 be established cert. prejudice would (2012). taken 179, not have search would L.Ed.2d 90 ing the 184 S.Ct. if had way the officers if, the same place “viewing verdict must the Court sustain respect to the Rule with the complied with inferences the reasonable the evidence and Pangburn, v. States See United return. light therefrom the most to be drawn Cir.1993) (“[T]here (2d 449, 455 F.2d 983 Government, ‘... favorable evi because to Salcido prejudice was no support at trial could dence adduced locker would have storage his of search guilty beyond of a rational determination ” if way same exactly place taken v. doubt.’ United States Bur reasonable regard followed with 41 been Rule had (4th Cir.1996) 849, (quot 863 gos, 94 F.3d has entry....”). Jordan notice Powell, 57, v. 469 U.S. ing United States certifi showing. The false no made such (1984)). 471, L.Ed.2d 461 83 for provides no basis return cation assessing challenge, we focus In “ affirm the in this case. We suppression picture that the evidence complete ‘the chal to admit the decision district court’s considering] the evidence ... presents[,]’ lenged evidence. than context’ rather ‘in ‘in cumulative ” United States piecemeal fashion[.]’ VIII. Cir.2014), (4th 917, 921-22 F.3d Strayhom, 743 denial the district court’s appeals Jordan — denied, -, 134 rt. ce acquittal respect with motion for of his (2014) (quot L.Ed.2d rob- Hobbs Act charges conspiracy, for 863). Burgos, 94 F.3d at ing during a brandishing a firearm bery, and “may not overturn This Court in connection with crime violence merely be substantially supported verdict Shell, rob- King, and McDonald’s Burger unpalatable the verdict cause it finds 29(a) Federal Rules beries. Rule another, reasonable ver determines that the district requires Procedure Criminal Burgos, preferable.” dict would be judgment acquittal court “enter Rather, “reversal insuffi at 862. F.3d insuf- the evidence is any offense for which to eases where ciency confined [is]’... At the conviction.” to sustain a ficient ” Engle, clear[.]’ failure is prosecution’s case-in-chief, Jordan government’s close of Burks v. United (quoting at 419 676 F.3d to all acquittal as motions submitted States, in the indictment. charged offenses (1978)). asserting A defendant L.Ed.2d the motion as to granted district court bears a challenge therefore sufficiency § in a 922(g)(1) 18 U.S.C. charge under “ ” ‘heavy robber, (quoting United his weapon, getaway burden[.]’ and the vehi- (4th Hoyte, States v. 51 F.3d cle. A 911 call placed reporting Cir.1995)). robbery McDonald’s and described the getaway vehicle a pickup truck. CAD

B. reports confirm approximately five presented The evidence at trial included call, minutes after the spotted Corcoran following: the speeding F-150 truck on the road and saw that passenger jacket the wore a matching Three individuals were seen on video description the of the using Burger King surveillance firearms to rob Shell on robber. February 2011. Clothing matching pursued that Corcoran the vehicle and activat- by individuals, worn one of the who the ed the siren on patrol his car. The driver Graham, sought prove truck, of the who Jordan, turned out to be weapons matching those seen in the responded by driving up on a sidewalk video by and described victims were later becoming trapped before heavy between recovered from different locations inside traffic, barrier, a construction and a mov- apartment, Jordan’s among personal his ing train in front of the truck. Jordan was belongings. Photographs showed that dis- initially noncompliant with instructions tinctive clothing Jordan wore at the time given by Officer Corcoran but was eventu- closely his arrest resembled that worn ally secured and arrested. Graham was by a masked robber seen the video arrested from passenger side of the robbery, the Shell which was confirmed in vehicle. testimony police two detectives. Bundles of folded and crumbled cash that, CSLI in cell records showed Graham, were recovered from Jordan and minutes after robbery the Shell on Febru- including more than recovered from $200 1, 2011, ary Jordan was near Shell and Jordan’s person and stuffed in the $83 then both he and Graham were near Jor- console inside the truck. A .25 caliber apartment. dan’s pistol Taurus with a pearl handle was Cell records also showed that nu- found under the passenger seat of the merous calls were made between Jordan truck and matched the description of the and Graham between February and Feb- gun used in Burger King and Mc- ruary that, 2011. CSLI showed on Feb- Donald’s robberies. The truck was owned ruary 2011, Jordan and Graham were by Graham and matched the description of both near apartment Jordan’s approxi- the truck used getaway as the vehicle after mately 45 Burger minutes before the King- each Burger of the King and McDonald’s robbery and that Graham Burg- was near A fingerprint robberies. belonging to Gra- er King within robbery. minutes of the ham was Burger found at King after the date, On that according eyewitness tes- robbery. timony, an individual later identified as Graham used a black pistol with a white Test drives were conducted of the route handle to Burger King rob and then Mc- between McDonald’s and the location on Donald’s. Graham was fleeing seen each North Strieker Street where Jordan testi- robbery by entering passenger side of picked fied he was up by Graham on a dark colored pickup Ford F-150 truck February 2011. The tests showed that was driven another individual. trip would take more than seven min- that,

Officer utes to travel at highest possible Corcoran testified during rate his investigation traffic, Burger King speed using rob- emergency lights bery, he reports describing received and sirens. This evidence tended to show Cir.1996) (cita- (4th at 858 Burgos, 94 F.3d possible have been it would omitted). tion up North picked been to have Jordan the time between Street Strieker agree conspirators’ “Like the pursuit robbery and McDonald’s in the participation ment, a defendant’s Corcoran. Officer may be explicit; not be it ‘need conspiracy ” evidence, foregoing to the In addition evidence.’ from circumstantial inferred businesses stipulated parties con held that “once This Court has commerce in interstate operated robbed established, slight con even spiracy interstate affected that the robberies con and the a defendant between nection commerce. in the to include him is sufficient spiracy (internal Ellis, F.3d at 922 plan.” light a whole Viewed omitted). citation marks and quotation a rea government, favorable most evidence accept the juror could sonable could fact finder A reasonable and suffi adequate “as at trial presented presented from evidence the conclude guilt be conclusion of a support to cient with Graham conspired that Jordan trial of the on each doubt[ ]” Shell, a reasonable yond Burger of armed robberies commit convicted. Jordan was of which offenses Circumstantial King, and McDonald’s. F.3d Engle, 676 showing that Jordan evidence direct and the performing in cooperated Graham and “ C. a ‘tacit reflects robbery of Shell armed ” as to his sufficiency challenges Jordan’s the understanding’ between mutual and proceed convictions firearm robbery and a reasonable inference supports two and guilty was found that he assumptions agreement commit they had an theory of solely on (citation these offenses Ellis, of at 922 121 F.3d crime. robberies abetted armed aided and having omitted). involve pair’s of the Evidence These by Graham. committed principally com robbery, ongoing in the Shell ment dubious, considering that are assumptions and Graham Jordan between munications conspiracy of guilty Jordan jury follow, the found and days course of over Four. in Count Gra after getaway driver role as Jordan’s Mc King and Burger of ham’s robberies gov conspiracy, prove To evidence circumstantial provide Donald’s “(1) be agreement an must show ernment cooper agreed and Graham that Jordan to commit people two or more tween in roles respective assuming their ate (2) crime, overt act furtherance an sum, the evidence robberies. these Ellis, v. States conspiracy.” United support sufficient to at trial was presented Cir.1997). (4th “The 121 F.3d conviction. conspiracy Jordan’s or mutual understand of a ‘tacit existence with Graham co-conspirator evi As is sufficient conspirators ing’ between rob- McDonald’s Shell, King, and Burger agreement.” a conspiratorial dence rea- beries, liable for Graham’s Chorman, Jordan v. States (quoting United acts furtherance Cir.1990)). foreseeable sonably (4th an Such 102, 109 F.2d Ash- States See United conspiracy. through cir may established be agreement Cir.2010) (4th 135, 142-43 F.3d evidence, ley, defen such as the cumstantial “ States, 328 United Pinkerton v. (citing members with other ‘relationship dant’s 640, 647, L.Ed. associ U.S. length of this conspiracy, that the (1946)). dispute does Jordan con attitude ation, [and] defendant’s] [the ” evi- substantial presented government conspiracy.’ duct, of the and the nature er, (4th responsible Cir.2003)). dence that Graham was 328 F.3d Shell, Act robbery Burger Hobbs King, government may “prove pos- constructive McDonald’s, and used a firearm in session of item in instances when hold, each of those robberies.28 We there- has defendant dominion and control over fore, that Jordan’s convictions for Hobbs premises or vehicle where the item is robbery Act brandishing a firearm located.” Id. at 435 n. *. 924(c) §

under 18 U.S.C. supported by are multiple asserted theo- substantial evidence. ries of the felon-in-possession charge against Jordan, including theory D. Jordan was possession constructive Jordan contends that the district court pistol through operation Taurus ruling made a failed truck it was located. The which district prove knowledge Jordan’s that Graham rejected court government’s each of the brought a firearm into the truck pickup theories. As to the constructive-posses- after the robbery. McDonald’s Without theory, sion the district court stated two evidence, such Jordan argues, there was (1) grounds for its decision: “all of the not sufficient evidence to convict him on evidence introduced to date indicates the robbery Hobbs Act and firearm of- firearm was complete under the individual arising fenses from the Burger King and control Graham[;]” of the co-defendant McDonald’s robberies. The record dis- (2) there was “no tending evidence to show closes no clear ruling from the district that Jordan’s alleged constructive posses- court any as to evidence of Jordan’s knowl- sion of voluntary the firearm was as re- edge about the Taurus pistol in the truck. quired the Scott case.” J.A. 2213. Jordan directs our attention to persuaded that, We are not ruling, so the district court’s to grant decision Jor implied district court that there was 29(a) dan’s Rule motion acquittal insufficient evidence that Jordan knew One, Count charged which Jordan with gun about the Graham brought into the being a felon in possession of a firearm truck. Bustamonte, Schneckloth v. 412 Cf. § under 18 U.S.C. 922(g)(1). Liability un 218, 224, 2041, U.S. 36 L.Ed.2d § 922(g)(1) der may arise from a felon’s (1973) (“[Voluntariness] 854 cannot tak be voluntary and intentional possession of a literally choice.”). en to mean a ‘knowing’ firearm, whether the possessed felon From larger context of the court’s weapon actually or constructively, exclu colloquy with counsel sively regarding felon- jointly or with others. See United in-possession Gallimore, charge, apparent States v. it is 247 that F.3d 136-37 “ (4th Cir.2001). skepticism court’s possession’ constructive- ‘Constructive possession ... theory occurs when a person ‘exercise[s], was based on the view Jordan, power exercise, ha[s] the as “the alleged getaway dominion and driv er,” control over item’ [an] of property.” Unit- J.A. could not have assumed Scott, (4th ed States v. joint F.3d possession a weapon sole was Cir.2005) (quoting United ly States v. Short- within the control of Graham simply A conviction under requires the Hobbs (3) Act right”; color under of official proof way coercion occurred in such a as to (1) adversely that the defendant affect coerced the victim interstate commerce. part (2) property; with Buffey, that the United coercion States 899 F.2d (4th through Cir.1990) (citation occurred "wrongful omitted); use of ac- see also force, tual or threatened violence or fear or § U.S.C. 1951. from proverbial visitor daily that the life bring it into chose Graham because impor they were an might conclude sense, Mars any possession Jor In that vehicle. (cid:127) —(cid:127) anatomy.” human U.S. of his by virtue tant feature weapon had of the dan 2473, 2484, 189 “voluntary.” -, L.Ed.2d 430 was not vehicle control of the (2014). was adult owns Nearly every mean that Jordan American that does But present.29 Technology was weapon Mobile phone.* See unaware that Ctr., Sheet, http:// Pew Fact Research case, of the district our review www.pewinternet.org/fact-sheets/mobile- is de sufficiency determination court’s (last July visited technology-fact-sheet was indeed novo, that there hold and we attachment) 2015) (saved opinion as ECF knew the that Jordan evidence sufficient that, “90% January (reporting as truck after the pistol Taurus phone”). a cell adults own of American robberies. King and McDonald’s Burger adults of American More than three-fifths sufficiency reject Jordan’s Accordingly, we Smith, Pew Aaron smartphone. See own these rob- to his convictions challenge Ctr., Smartphone Use in U.S. Research offenses. firearm and associated beries (2015), http://www.pewinternet.org/ IX. files/2015/03/PI_Smartphones_0401151.pdf attachment) (re (saved opinion ECF reasons, Appellants’ foregoing For the now adults that “64% American porting Sur-Reply of the to Strike Motion kind”). And some smartphone own judg- granted, States United rely decide more Americans year each court is of the district ment from untethering phones, solely on cell AFFIRMED. See, Blumberg e.g., Stephen J. landlines. Luke, Health & Dept, of & Julian V. THACKER, concurring: Judge, Circuit Early Res., Substitution: Human Wireless Judge Davis’s with agreement I am National; Estimates Release informa- cell site location conclusion Survey, July Health Interview —December (“CSLI”) obtained without cannot be tion (2015), http://www.cdc.gov/nchs/data/ ease, that, in admission but warrant (saved nhis/earlyrelease/wireless201506.pdf pur- sustained must be the evidence attachment). As of opinion as ECF exception to the faith” “good to the suant only had homes of American almost half separately I requirement. write warrant (“More two in than See id. phones. cell erosion of about the concern express my (45.4%) had homes American every five technological rapid era of in this privacy (also as known telephones only wireless development. or mobile phones, telephones, cell cellular privacy right between The tension half during the second phones) itas technology, particularly emerging 2014....”). all Ameri phones, impacts to cell relates so- far more than phones are And cell Indeed, not Supreme Court cans. a walk- Unlike walkie-talkies. phisticated phones “are California, Riley ined a eonver- facilities ie-talkie, merely which part and insistent pervasive now such Ctr., Messaging, Research Pew Text cans Use of wheth- question to reach 29. We decline expressed http://www.pewinternet.org/2011/09/19/how- the correct court er the district (last visited americans-use-text-messaging a firearm possession of view of constructive which 23, 2015) (saved it through opinion of the vehicle attach- control as ECF July year ment) located. to 24 of 18 (reporting that 95% * among higher ownership is even phone). Cell a cell olds own Smith, How Ameri- Aaron young See adults. sation, “a cell collects in one place As the march of technological progress many types distinct of information ... continues to upon advance our zone of reveal much inmore any combination than privacy, each step forward should be met isolated record” or conversation. Riley, with judgment considered that errs on the 134 S.Ct. at This information— protecting side of privacy and accounts for stored on and on remote ser- practical realities modern life. vers—makes reconstructing day bottom, At this decision continues a any life of See, a simple individual task. time-honored American tradition —obtain- (“The e.g., id. sum of an pri- individual’s ing rule, a warrant is the excep- vate life can be through reconstructed tion. photographs dates, thousand labeled with locations, ”). descriptions.... fact, MOTZ, DIANA GRIBBON Circuit gathering storing location information Judge, dissenting part concurring “is a standard feature on many smart judgment: phones and can reconstruct spe- someone’s cific minute, movements down to the I concur in judgment affirming De- only around town also within particu- but fendants’ But, convictions and sentences. lar building,” including in of with respect, I dissent from the holding his or her own home. Id. at 2490. This is violated Defendants’ the reality of modern life. “The fact that Fourth rights. Amendment majority technology now allows an individual to car- concludes did so ry such information in his hand does not obtained, when it pursuant to 18 U.S.C. make the any information less worthy of 2703(d) § orders, court but without war- protection for which the Founders rants, records of the cell phone towers (2014). fought.” Id. at 2495 Defendants used to make and receive calls It is particularly disturbing one and text messages. holding That flies in of us can be tracked from afar regardless the face of the Supreme Court’s well-es- of whether or not we are actively using our tablished third-party doctrine.1 phones. just alone, Even sitting home The Court has long held that an individ your phone may data, relaying be includ- enjoys, ual “no legitimate expectation of ing your location This data. data is trans- privacy,” and so no Fourth Amendment mitted to the your remote servers of ser- protection, in information he “voluntarily provider, vice where the data is stored. turns over to part[y].” [a] third Smith v. According Government, to the it does not Maryland, 743-44, need a warrant your to force service pro- 2577, (1979). 61 L.Ed.2d 220 This rule vider to turn over this information. By applies even when “the information is re doing nothing, you your disclosed location vealed,” assertedly here, as it “on the information to a party. third Per the Gov- assumption that it theory, only ernment’s in will be used doing you so for a have foregone your right purpose limited privacy such the placed that and confidence a warrant is not necessary. in ap- party I cannot' the third will not betrayed.” be (or prove thereof). of such a process Miller, lack United 435, States v. 443, 425 U.S. majority’s Given the affirmance of Defen- ture cases in the Fourth Circuit. For unlike dants’ grounds, convictions alternate its arising every in cases in other circuit to con- rejection third-party matter, of the doctrine makes government no sider the the will have to difference to the result in this case. But the supported by obtain a search proba- warrant majority's third-party disavowal of the doc- ble cause obtaining before even historical profound trine will have consequences in CSLI fu- in this circuit.

379 Rather, it was (1976). information. Ac 71 L.Ed.2d 48 96 S.Ct. in- the that obtained alone SprinVNextel of acquisition government’s the cordingly, rec- formation, the business generated information location cell site historical con- claim are ords, now Defendants that pro (CSLI) Defendants’ from violate, stitutionally protected. less much implicate, not vider did Fourth Amendment. the activity governmental The nature this case critically distinguishes here thus

I. majority relies— the on which those from that ensures Amendment surrep- Fourth did government which the cases in in to be secure people the right of In “[t]he information.2 titiously private collect effects, houses, papers, persons, Karo, their 714- 468 U.S. v. States United and sei (1984), searches against unreasonable L.Ed.2d 530 82 Const, U.S. violated.” zures, be Agen- shall not instance, Enforcement Drug the Amend Broadly, “a Fourth IV. can of ether amend. a beeper a within cy placed government the when occurs tracking ment search information from and received privacy expectation subjective private a was inside a violates the can beeper while reasonable.” as society recognizes Similarly, Kyllo, that residence. 27, 33, 121 States, U.S. Department 533 34-35,

Kyllo v. United S.Ct. (2001). 2038, 150 imager S.Ct, L.Ed.2d thermal used a the Interior interior regarding “information gather oc- a search such assessing whether v. And United States the home.” by speci- begin curred, important “it is — 945, 949, U.S.-, Jones, ac- the state nature of precisely fying (2012), FBI local 181 L.Ed.2d Smith, 442 U.S. challenged.” tivity that a secretly GPS installed law enforcement added). (emphasis suspect’s vehicle on a device tracking government’s Here, “activity” is the movements the vehicle’s monitored company, acquisition four weeks. i.e., the Sprint/Nextel, records — cases, majority of these created the basis company On records invades “the government route used to contends it cell towers identify which it when privacy expectation gov- reasonable messages. calls and Defendants’ use general not in view, technology upon listen relies surreptitiously ernment did an individual the movements in to discover way engage record, other to, Per- of time.” period extended over to obtain of Defendants surveillance direct statutory and common- given long-established acknowledge this distinction My colleagues does third-party doctrine protections, I cannot law "inconsequential.” it as dismiss but matters, patient reveals Amendment apply for Fourth to information agree. It acquires lawyer i.e., infor purposes, client to a how or a doctor — applies a Supreme Court expecta mation. Just reasonable do patient and client have depending on whether analysis conveyed different information tions of trespass, physical engages ain relationships. of these confidential the course - — -, Jones, United see States LaFave, & Sei Wayne Search R. But see (2012), 945, 949-53, so 911 181 L.Ed.2d the Fourth Amendment A Treatise zure: analysis, in applies a different the Court too 2014). (5th Supp. Clear & 2.7(d) 2012 § ed. cases, depending on whether non-trespassory however, already has declined ly, the Court voluntarily dis at issue the information pri expectation of recognize reasonable Smith, 442 party. U.S. See to a third closed cus phone company vacy information 743-44, Perhaps, in accord at company. See phone provides to the tomer majority the court cases lower with the two 743-44, Smith, at U.S. that, cites, someday conclude Court will the haps. question But that is not before us. S.Ct. 2577. The Court held that the de- question we must answer is not fendant could “claim legitimate no expecta- whether, abstract, in the an individual tion of privacy” has in the numbers he had a reasonable expectation privacy in' dialed his because he “voluntarily had con- location and movements over time. veyed” Rath- those phone numbers to the compa- er, question the before us is ny by whether an “‘expos[ing]’ that information to” individual has a expectation reasonable phone company’s “equipment privacy in a party’s third records that ordinary course of business.” Id. at permit the government to deduce this in- 99 S.Ct. 2577. The thereby defendant “as- Karo, Kyllo, Jones, formation. all of sumed the risk that the company would which involve direct surveil- reveal police the numbers he dialed.” lance, tell nothing us about the answer to Id. question. Here, Smith, inas unques- Defendants Instead, the cases that establish tionably “exposed” the information at issue

third-party provide doctrine the answer. phone company’s “equipment in the Under the third-party doctrine, an individ- ordinary course of business.” Id. Each ual can legitimate claim “no expectation of time call, Defendants made or received a privacy” in information he has volun- or sent or received a text message-—activi- tarily over Smith, turned to a party. third ties well within “ordinary course” of 743-44, U.S. at 99 S.Ct. 2577. cell phone ownership Sprint/Nextel gen- — Supreme that, Court has reasoned “re- erated record of the cell towers used. vealing another,” his affairs to an individu- The Sprint/Nexel CSLI that recorded was al “takes risk ... that the necessary information to route Defendants’ cell will conveyed be by that person texts, just calls and as the dialed numbers Miller, Government.” U.S. recorded pen register Smith S.Ct. 1619. The Fourth Amendment were necessary does to route the defendant’s protect information voluntarily dis- landline Having calls. “exposed” the closed to a party third because even a CSLI to Sprint/Nextel, here, Defendants subjective expectation of privacy Smith, such like the defendant “assumed the information is “not one society pre- risk” that company would dis- ” pared to recognize ‘reasonable.’ close their information government. to the Smith, 442 (in- 99 S.Ct. 2577 Id. at 99 S.Ct. 2577. For these rea- quotation ternal marks sons, and citation omit- government’s acquisition of that ted). The government (historical therefore does CSLI) information pursuant engage in a Fourth 2703(d) § Amendment “search” orders, rather than warrants, when it acquires such information from a did not violate the Fourth Amendment. third party. Three federal other appellate courts

Applying third-party doctrine to the have considered the Fourth Amendment case, facts of this I would hold that Defen- question before us. Not one has adopted dants did not have a expecta- reasonable the majority’s holding. Two of our sister tion of the CSLI recorded by courts held, have expressly would, as I Sprint/Nextel. The Supreme Court’s rea- that individuals do not have a reasonable soning There, Smith controls. expectation de- of privacy in historical CSLI fendant challenged the government’s use records obtains from of a pen register device that could rec- service providers through —a ord the outgoing phone 2703(d) § numbers dialed order. See United States v. from his telephone. home Davis, Id. at (11th Cir.2015) 785 F.3d

381 Serv. Elec. Commc’n a Provider recting “ob- had no banc) (en (holding defendant of 304, Gov’t, F.3d 620 Records to Disclose priva- of expectation jective[ly] reasonable Cir.2010) (In (3d Application re 313, 317 show- records business cy in MetroPCS’s Circuit)). (Third wirelessly locations cell tower ing the calls”); Application In re his circuit binding connected of of in the absence Even Data, 724 Cell Site Historical dis- majority of federal U.S. the vast precedent, for Cir.2013) (In (5th Appli- re 600, same 615 F.3d have reached judges court trict Circuit)) (holding govern- (Fifth unanimity of this near cation Given conclusion.3 2703(d) orders majority “[s]ection is authority, can use forced ment federal information” cell site state inapposite holding historical on three obtain its rest Amend- opinions— the Fourth implicating court district without and three cases omitted)). although vacated, And In re (emphasis that has including one been ment Site opined “[a] cell Historical Cell third court U.S. Application of for (S.D.Tex.2010), his ‘voluntarily’ shared Data, F.Supp.2d not 827 has 747 customer Cir.2013), (5th provid- vacated, cellular F.3d 600 with 724 information location only prospective way,” it held that involves meaningful another er U.S. CSLI, Application In re calls obtainable real-time cell “CSLI of Disclosure Authorizing 2703(d) not order,” “does an Order which §a under of for Tel., Wireless Info, Specified de- Location cause probable traditional require the of (D.Md. 4 526, n.& F.Supp.2d 535 849 a warrant. necessary for termination” 2011).4 Di- Order Application re of 8231744, 08-6038, at *9-11 2009 WL No. See, Epstein, No. 14- v. e.g., United States J.); 14, 17, 2009) (Wier, (D.N.J. Mag. In re 1646838, Apr. 287, (E.D.Ky. Apr. at *4 WL 2015 J.); Dorsey, v. 2015) (Wolfson, States Pursuant United Orders Applications U.S. for (C.D.Cal. 847395, 14-328, 2703(d), at *8 WL 18, 2015 509 No. Section U.S.Code Title J.); 23, 2015) v. (Snyder, United (Steams, (D.Mass.2007) Feb. States 76, F.Supp.2d 79-82 834-36, 830, 14-390, F.Supp.3d 78 Lang, No. Cooper, No. 13- J.). v. United States But see 23, 327338, (N.D.Ill. Jan. *3-4 at WL 2015 2015) (St. 881578, (N.D.Cal. 00693, *6-8 at WL 2015 Shah, Eve, J.); No. v. United States J.); 2, 2015) (Illston, Application In re Mar. 72118, (E.D.N.C. 13-328, *7-9 at WL 2015 Authorizing the Release an Order U.S.for J.); 6, 2015) States v. (Flanagan, United Jan. 113, Info., F.Supp.2d 809 Historical Cell-Site 5480686, 13-3560, Martinez, at WL 2014 No. J.). (Garaufis, (E.D.N.Y.2011) 120-27 J.); 28, 2014) (Hayes, (S.D.Cal. Oct. *3-5 13-952, 2014 WL Rogers, No. v. United States Interpret even do not state cases 2014) (Ko 9, 4. Two (N.D.Ill. 5152543, Oct. *3-4 Amendment, rely on Giddins, but instead coras, 57 the Fourth J.); v. United States (Quarles, protections. See 481, (D.Md.2014) constitutional F.Supp.3d 491-94 broader state 230, Banks, F.Supp.3d Augustine, 467 Mass. J.); v. States v. United Commonwealth J.); (Crabtree, (D.Kan.2014) 1201, 846, (2014) (finding need "no 1204-06 4 N.E.3d 13-0058, Serrano, No. v. United States wa- Amendment the[] Fourth wade into 10, 2696569, (S.D.N.Y. June at *6-7 WL rely on article court could ters” when J.); 2014) (Forrest, v. Moreno- States United Rights); Declaration of the Massachusetts 13-0841, Nevarez, WL No. Earls, 70 A.3d 214 N.J. v. State J.); 2, 2013) (Benitez, (S.D.Cal. Oct. *1-2 Jersey (2013) that New (explaining 641-42 08-814, 2013 No. Rigmaiden, v. United States and Miller "departed” from Smith has 8, 2013) (D.Ariz. May at *14 WL doctrine). third-party recognize the does Gordon, J.); No. v. States (Campbell, United case re- state third And court (D.D.C. 09-153-02, at *2 2012 WL consider- it was not pointed out that peatedly J.); 6, 2012) (Urbina, States United Feb. location records”— cell site ing "historical 09-86, at *2- WL Benford, No. time "real at issue here—but those like J.); 26, 2010) (Moody, In re (N.D.Ind. Mar. information," been which had site location an Order the U.S. Authoriz Application order, 2703(d) obtained, but through §a Info., Site Location ing Cell the Disclosure of sum, majority’s holding-lacks sup- does? Perhaps the majority believes that port from all relevant authority places and a because service provider generates a rec- inus conflict with the Supreme Court and -CSLI, ord of provider just conveys three other appellate federal courts. CSLI to But itself. the provider before record, can create a such it must receive

II. information indicating that a phone cell Despite the support posi- lack.of its user relying particular on a cell tower. tion, majority insists that the third- provider only receives that informa- party doctrine does not apply here. The tion phone when cell phone user’s ex- majority maintains that “a phone cell user changes signals with the nearest available ‘convey’ does not CSLI to her pro- service cell tower. A cell phone user therefore vider at voluntarily or otherwise—and all— “conveys” the location of the cell towers therefore does assume risk of dis- his phone connects with whenever he uses closure to law enforcement.” This is the provider’s network. analytical lynchpin my colleagues’ hold- There is similarly little question cell ing.5 By count, my they invoke a cell phone convey users CSLI to their service phone user’s asserted lack of “voluntari- providers “voluntarily.” Davis, See ness” no less twenty than times their (“Cell F.3d at 512 n. 12 phone users volun- discussion of third-party doctrine. But tarily convey cell tower location informa- my colleagues’ holding phone that cell tion to telephone companies in the course users do not voluntarily convey CSLI mis- of making receiving and calls on their cell apprehends CSLI, the nature of attempts phones.”). so, This is as the Fifth Circuit to redefine the third-party doctrine, and explained, even though a phone user rests on a long-rejected argument factual “does not directly inform his pro- service and the protection constitutional afforded a vider of the location of the nearest cell communication’s content. phone tower.” In re Application (Fifth Circuit),

A. 724 F.3d at 614. With respect Logic to the CSLI, compels nature of When conclusion. there can be question little phone that cell individual purchases a cell users “convey” CSLI to their pro- service chooses provider, service expects he all, viders. not, After if they do then provider will, who minimum, at a place outgo- under an only order had authorized are third-party mistaken. The doctrine clear- "pen register” “trap trace ly device.” regarded covers information comparably as State, Tracey 506-08, 152 So.3d information, 515- "sensitive” to location like finan- (Fla.2014). Thus, contrary records, Miller, my cial U.S. colleagues' dissent, charge, it is not the records, Smith, but 442 U.S. at relies, rather cases on majority which the Indeed, 99 S.Ct. 2577. public poll- thát suggested” "have that there are ing study different majority attempt- twice cites in interests "real-time” versus ing "his- "sensitivity” establish of CSLI re- id..; torical” location information. See see lates that a similar regard number adults also In re Application an Order they just numbers call to be Authorizing Info, Disclosure Location "sensitive” as location Pew data. Research of 526, Tel., Specified Ctr., Wireless F.Supp.2d Perceptions Public Privacy and Secu- (D.Md.2011). 535-39 rity in the (2014), Post-Snowden Era 34-35 014/11/PI_ http ://www.pewinternet. org/fíles/2 My colleagues emphasize general also PublicPerceptionsof Privacy_111214.pdf. This "sensitivity]” of location information. But to though is so even data location that the the extent they argue do so to study (GPS) the third- asked about precise is far more party CSLI, doctrine does not apply they than the at issue here. See id. at 34. Rath- party.6 a conveys to third individual route and messages, calls, text send ing the third- that clear er, make cases cell these As most messages. calls incoming an when however, apply not well, does doctrine party all too know users phone conveys informa- ¿«voluntarily necessary to tower individual a cell to proximity conducts who has Anyone when tasks. tion'—as these complete or has signal,” a third or when “get to a surveillance surreptitious outside stepped of ser- loss potential aof information. a caller private warned party steals elevator, under- entering an before vice if case be a different Thus, would level, mat- that location stands, on some to access its misused had SprinVNextel (“Cell users phone at 613 id. ters. See recorded, secretly phones Defendants’ pick cannot that, phone if their recognize behest, information government’s at bars’), are out (or they no ‘has signal up a cell of ser- provision unnecessary to the provider’s service of their range of the risk that not assume did Defendants vice. towers.”). of network messages. sent calls or made they when voluntarily enters thus user phone A cell Smith, 442 U.S. in the defendant like But provider service his with arrangement an here did Defendants maintain he must that knows he in which company phone that the risk” “assume cell towers provider’s to the proximity the information of a record make would Whenever to function. phone for his order very tasks accomplish to necessary work, is thus he to phone his expects he perform. to company phone they paid ser- requesting permitting indeed, —his — providing that protest They cannot now be- a connection to establish provider vice involuntary. information this essential tower. nearby a cell phone his tween voluntarily user therefore phone cell A B. necessary for his information conveys the third-party of rejection its justify To identify the to provider service to redefine attempts majority doctrine, the the ser- And whether and texts. his calls the third- that maintains majority it. make actually “elects provider vice to CSLI apply not does doctrine party not “does information of this record” ... “active- need not user a cell because difference.” constitutional any ... make informa- location-identifying ly submit Smith, a mes- sending or a call making when tion may users sure, some beTo believe apparently colleagues My sage.” moment, they that recognize, not “voluntarily con- only an individual pro- service to their “conveying” CSLI are submit[s],” “actively he information vey[s]” (Third Cir- Application In re See vider. found be nowhere rule is such but Supreme But cuit), at 317. F.3d Moreover, this or Smith. Miller either “voluntarily” word Court’s use squared be cannot requirement purported contem- require not and Miller does Smith per- cases of federal myriad with an every detail recognition poraneous would he But address. street store’s otherwise, ap- colleagues my were it If excuse as an use that hardly able to be frequently believe, would courts then pear to pieces those privacy if expectation claim indicia records parse business need to card com- credit appear information conveyed to a he knew an individual what the transaction. resulting records pany’s person example, when party. For third Phibbs, F.2d States United aat cashier to the card credit his Cf. hands Cir.1993) (Defendant "did (6th 1077-78 store, pause consider may he grocery justifiable an actual both have card "conveying” his credit is also he statements.”). card credit ... his interest purchase his date and time company the mit to acquire third-party records included “basic information re records, even when individuals do not “ac- garding incoming and outgoing calls on tively submit” the information contained in line.” United States v. Clen the records. ney, (4th Cir.2011) F.3d 666-67 added).7 (emphasis starters,

For courts have attached no constitutional significance to the distinction Moreover, outside the context of phone between records of incoming versus outgo- records, we have held that third-party in- ing phone calls. The technology police the formation relating to the sending and rout- in used pen Smith —a register —recorded ing of electronic communications does not only the numbers by dialed a suspect’s receive Fourth protection. Amendment phone. (and It not) did not could record United Bynum, v. States 161, 604 F.3d 164 any information about incoming calls. To (4th Cir.2010). Bynum, explained we capture that information, police routinely that it “would not be objectively reason- use a “trap and trace” device. If the able” for a defendant to expect privacy in majority were correct the third-party phone his and records, Internet subscriber applies doctrine only an when individual including name, “his address, email tele- “actively information, submit[s]” then phone number, physical and address.” Id. effort to acquire records of incoming Although we had no in Bynum occasion phone calls would constitute a pro- search consider whether an individual has pro- by tected the Fourth Amendment. After tected privacy interest in his Internet Pro- all, phone the customer never “actively (IP) tocol address, id. at n. 164 several submits” to the phone company—“volun- of our sister circuits have concluded that tarily or otherwise”—the numbers from no such interest exists. See United States incoming telephone calls. Only the user v. Suing, (8th 712 F.3d 1213 Cir. on the other line, end of the who actually 2013); United Christie, States v. 624 F.3d numbers, dials the does so. (3d Cir.2010). 574 But federal courts have not required a And as the majority itself recognizes, warrant supported by probable cause to the Ninth Circuit has held that “e-mail and obtain such information. Rather, they Internet users expectation have no pri routinely permit the to install vacy in ... the IP addresses of “trap web trace” devices without demon- sites they visit.” United strating probable States v. Forres cause or even reasonable ter, (9th Cir.2008). F.3d suspicion, showing required for 2703(d) § See, Forrester court orders. also held e.g., that there is United no States Reed, (9th expectation reasonable F.3d Cir.2009); of privacy in either United Hallmark, States v. F.2d addresses of a to/from user’s emails or (10th Cir.1990). And recently “total amount we held of data transmitted to or that police “did not violate the from [a Fourth user’s] account.” Id. at 510-11. Amendment” when obtaining a defendant’s court found government’s acquisi “cellular phone records,” even though the tion of this information “constitutionally 7. Nor has this court ever suggested that other cally by calculated” the phone company typically information phone contained in rec- "without unusual or overt intervention that date, time, ords—the call, and duration each might be target detected user." If example pro- constitutional —merits individuals "voluntarily convey” all of this tection/ Yet a customer never "active- information to companies, their I see ly submits” this Rather, information either. no drawing basis for line CSLI. Nota- is, this information phrase borrow a from bly, majority provide does not one. majority opinion, "quietly and automati- majority For, doctrine. third-party pen aof the use indistinguishable held be users cannot contends, in cell approved the Court register pri- expectations voluntarily Inter “forfeit “e-mail Smith,” because part in in participation seeking users active telephone simply vacy by users, like net their equipment use of third-party Smith, society through rely on in communication.” engage phones.” order justices Miller dissenting But “actively do course, users computer nearly Of unsuccessfully advanced Smith discussed the information some Miller, submit” Dissenting concerns. identical address cases, the “to” like above dis- that “the contended Brennan Justice information the subscriber email firms or business individuals closure Internet up signing conveyed when is not a bank affairs financial their actively submit not do users But service. to volitional, impossible it is since entirely IP information, like an of pieces other of contem- life in the economic participate transmitted of data amount the or address maintaining a bank society without porary provid service Internet account. to their 451, 1619 at 425 U.S. account.” informa that generate automatically ers (internal quota- J., dissenting) (Brennan, 563; For Christie, F.3d 624 See tion. omitted). dis- And and citation marks tion rester, at 511. F.3d 512 Smith, warned Marshall Justice senting the that correct is majority If the forgo prepared is to person “unless that information protects Amendment Fourth per- become many has of what use to “actively submit” do individuals i.e., a tele- necessity,” professional or sonal my trouble should then it parties, third risk accept help but cannot phone, “he circuits our sister we and that colleagues 750, 99 S.Ct. 442 of surveillance.” recognize to consistently failed have was, in It (Marshall, J., dissenting). opinion in their nowhere Yet protection. of speak view, to “idle Marshall’s Justice grapple attempt colleagues even my do where, aas contexts ‘assuming’ risks in rule to reconcile these cases with realis- have no matter, individuals practical applica- previous with they announce Court Supreme The alternative.” tic Today’s doctrine. third-party of the tions majority’s rejected twice thus has a coher- of in search holding is a decision theory. Until “essential” and “ubiquitous” have colleagues my principle; legal ent otherwise, holdings these says the Court none. offered us. bind

C. on cases relies Second, majority protection Amendment Fourth afford argu- on an rely Instead, my colleagues suggest communications of content Court Supreme by the rejected long ment protection. same warrants CSLI the content involving of cases a series and Jackson, 96 U.S. holding parte Ex their See support of communications (content (1877) Fourth 24 L.Ed. Otto protected is that CSLI v. United Katz packages); letters Amendment. 507, 19 States, emphasize First, colleagues my (content (1967) telephone L.Ed.2d 576 society our “ubiquitous use is Warshak, F.3d calls); States United cultural to full and “essential today” emails). (content Cir.2010) (6th 266, 287 majority, To the participation.” economic is acknowledge fails to majority What use “essential” “ubiquitous” such communication medium for each consequences shields address, these cases there also a case time.” But routing all information expressly withholding Fourth Amendment “tracks” some form of activity when aggre- protection from information, non-content gated over time. postmark on letters i.e., information involving addresses and “tracks” where a person deposited has his routing. Jackson, See 96 U.S. at 96 correspondence mail; in the a pen register (no U.S. 727 warrant needed to examine “tracks” every call a person makes and the outside of letters packages); allows to know precisely Smith, 442 743-44, U.S. at 99 S.Ct. 2577 home; when he is at credit card records (no reasonable expectation in “track” a purchases, consumer’s including dialed); Forrester, numbers 512 the location of the stores where he made (no F.3d at 510 expectation reasonable course, them. Of CSLI is not identical to privacy emails); addresses of to/from any of these other forms of routing infor- Jones, accord 132 S.Ct. at (Sotomayor, mation, just phones as cell are not identical J., concurring) (noting Fourth Amend to other modes of communication. But it ment does currently protect “phone blinks at reality CSLI, to hold that which numbers” disclosed companies content, contains no somehow constitutes and “e-mail addresses” disclosed to Inter communication of content for Fourth net providers). service purposes. Amendment Supreme Court has thus forged a That the majority attempts to blur this clear distinction between the contents of clear distinction9 further illustrates the ex- communications and the non-content infor- tent to which its is a holding constitutional mation that enables pro- communications in outlier—untenable the abstract and bi- viders to transmit the CSLI, content.8 zarre practice. in point: in Case IAs which reveals the equipment used to route understand the majority’s view, gov- the texts, calls and undeniably belongs in the ernment legally obtain, could without non-content category. warrant, all in Sprint/Nextel data the rec- My colleagues apparently disagree with ords admitted into here, evidence except this conclusion. posit They that CSLI is the so, CSLI. If that is then the line “of course more than simple routing infor- case between a Fourth Amendment mation” because “it tracks phone a cell “search” and “not a search” is the literal user’s location specific across points in that, line moving left to right across the being addition firmly grounded the would share her Supreme concern. But the law, case the content/non-content distinction already Court has made police clear that must good makes doctrinal sense. The "get intended a warrant” to phone search a cell for recipient of the content of is communication content phone stored on the for a call —even it, the third party who transmits log but the listing phone the suspect numbers a has person called, written, emailed, or sent texts. Riley dialed. California,-U.S.-, routing The information, addressing and 2473, 2492, 2495, 189 L.Ed.2d 430 contrast, is intended parties for the (2014). Moreover, third who Riley suggested the Court facilitate such transmissions. this rule would also apply to content stored servers, i.e., "cloud,” on remote the given that I my note that concurring colleague’s con- type "the same may of data be locally stored cern general about a privacy" "erosion of on the device one for and user in the cloud for respect with phones to cell rests on a similar another.” Id. at 2491. These are clear limit- misapprehension of this My distinction. ing principles. would, Holding, as I that the friend worries about protecting large the government may acquire, warrant, without a quantity of information phone "stored on the routing non-content information (including and on remote servers.” And if all that CSLI) infor- historical would not send us down mation were disclosure, indeed at risk of I slope. slippery Amend- a Fourth of the level rises to tion the separates spreadsheets, Sprint/Nextel inis concession But this search.”10 J.A. ment See eighth. the column seventh rationale majority’s the with records The fatal tension 1977-79. 2656; also J.A. see violation of a Amendment the source a Fourth finding list line that of the left time majority and maintains dialed, all, the date After call, here.11 the number of potential duration —all has the call, the call’s and of CSLI every piece of acquire without can person’s government ... at the individual which to “place protection. Amendment voluntarily Fourth is triggering of CSLI home,” piece no list line right records can conveyed, at the start used phone towers the cell acquires CSLI it before know never majority call—information of each end detail “will information whether the Fourth protected now holds private movements user’s phone cell distinctions Constitutional Amendment. (and I doubt true this is If all of spaces.” - stuff. of sturdier made be should user a cell is)12, why does then it privacy expectation a reasonable have III. of CSLI? large only quantities com- cell enabled Technology has to rest appears answer majority’s a vast to collect Sprint/Nextel, like panies, analysis em- misunderstanding of on a custom- their about information amount opinions concurring two braced in this issue of data quantity ers. The rec- justices There, concurring Jones. worth months’ case—seven moni- “short-term a line between ognized 30,000 calls nearly records, spanning public movements person’s toring of a unquestionably each texts defendant — a rea- infringe streets,” which would interests. weighty implicates “longer privacy, expectation sonable with bottom, suspect discomfort I At would. which monitoring,” term GPS ob- information amount J., (Alito, concur- Jones, at 964 any distinction here, than rather tained id. at see also judgment); ring in the rec- third-party and other CSLI between But Jones concurring). J., (Sotomayor, That decision. today’s ords, motivates in- of an surveillance government involved sug- majority’s the explain certainly would voluntary dis- dividual, an individual’s acquire can government the that gestion party. to a third of information closure inspec- its “before of CSLI amount some and suggestion, majority’s 12.Contrary to the concurring col- my unclear It Jones, in Karo information the asserts that simply unlike opinion, which league's to government the be enable ... cannot does information CSLI location "cell site warrant,” or at other she whether home at "place a individual” an without obtained acquire at a can cell sites the of that Each agrees the private locations. engaging up a without of of CSLI radius quantity with a area small an covers here issue "search.” miles, point Amendment of Fourth data each two of 120-degree sector roughly to a corresponds permissi- bright line between lack of a translates coverage That area. site's a cell also of CSLI amounts impermissible ble and square miles four than more area of an Supreme Court's the with at odds stands a cell to "locate” possible be it would which guidance provide clear preference to "general think Although I do not phone user. categorical through enforcement to law hinges Amendment of Fourth applicability California,-U.S.-, Riley v. rules.” CSLI, premature it is precision (2014). I L.Ed.2d forms more accurate the far with equate CSLI officers envy law enforcement do not majority cites. surveillance must who now in this circuit courts district this line. attempt to divine And determining when sur- individuals always a have reasonable ex- veillance infringes on an individual’s rea- pectation of privacy in large quantities of sonable expectation of privacy requires a location information, if they even have different, very analysis. shared that information with a company.

In But the third-party considering the legality doctrine gov- does not afford us option. ernment surveillance at Jones, Intrinsic issue to the Justice Alito doctrine is an assumption looked to what hypothetical a that the law quantity of enforcement information officer third an party, en- individual gaged in visual shares surveillance, with a party third could does not reason- affect ably have whether learned about individual has a defendant. reasonable He expectation concluded that four weeks privacy. Although GPS mon- third itoring parties constituted a Fourth have access to Amendment much more infor- “search” “society’s because mation now expectation” they than did when the Su- had always been preme “that law Smith, Court enforcement decided the Court agents and others would indeed, certainly not—and then aware of main, simply implications could secretly of the third-party doctrine. not — monitor and catalogue” an Justice individual’s Stewart warned the majori- Smith movements in public for very long. ty that “broadcasting] to the world a list (Alito, J., concurring in judgment) or long local distance numbers” a added). (emphasis words, other when person has called could “reveal the most defendant has not disclosed his location to intimate details of person’s [that] life.” any particular party, third the government Smith, 442 99 S.Ct. 2577 may him, nonetheless surveil (Stewart, J., without dissenting). is, That in es- warrant, for long as as hypothetical sence, third the very warning that persuades party could reasonably “monitor and cata- the majority today. But Supreme logue” his person. movements in Court was unmoved the argument then, it is not our place When, however, an credit it individual has volun- now. If tarily individuals conveyed lack legitimate his location actual expectation of privacy party, third information they here, Defendants did share with a' third party, court need not resort then sharing to hypotheticals to more non-private determine whether information he with justifiably expected party third cannot change information to remain private. Here, calculus. we know that Defendants had already dis- Application of the third-party doctrine closed all the at issue to Sprint/Nex- not, does however, privacy render an un- tel before government the acquired the casualty avoidable of technological prog- phone company’s records. And the very all, ress. After Congress and state legisla- of act disclosure negated any reasonable tures are far positioned better to respond expectation of privacy, regardless of how to changes technology than are the frequently that disclosure occurred. The Jones, courts. See 132 (Alito, S.Ct. 964 majority ignores these facts, critical apply- J., concurring (“A in the judgment) legisla- ing the same constitutional requirements tive is body well to gauge situated chang- for location acquired information directly ing public attitudes, to lines, draw detailed through GPS tracking by the government and to balance privacy public safety to historic CSLI that has already been a comprehensive way.”); see also In re to a disclosed third party. Application Circuit), (Fifth 724 F.3d at I recognize the appeal we were 615 (explaining that that the proper —if “re- writing on a clean slate—in holding that course” for those seeking priva- increased

389 carrying out of course parties third political the or market the “in cy is often Jones, at 957 tasks.” mundane process”).13 Indeed, al- J., concurring). (Sotomayor, here, the issue statute very The the third- formulated the Court (SCA), though dem- Act Communications Stored of the articulation as an does— doctrine party can—and Congress that onstrates imposes inquiry, SCA The judgments. reasonable-expectation-of-privacy these make for the on A exception.14 burden like an a higher feels increasingly it or elec- of a wire contents “the acquiring to ex- is unreasonable that it rule se per obtaining for than communication” tronic voluntarily dis- in information privacy pect a subscriber to pertaining ... “a record unmoored seems parties to third closed commu- anof electronic customer” ... or privacy. of understandings current from (c). 2703(a), §§ U.S.C. service. nication statute, “if our of a broader part different be landscape the SCA would And Privacy Communications cease[d] Electronic jurisprudence Amendment Fourth was enacted (ECPA), which Act of priva- for prerequisite as a secrecy to treat No. 99- Pub.L. See Smith. of the wake Court so Supreme But until cy.” ECPA, Con- 1848. 508, 100 Stat. of the contours holds, by the bound we are hold- Smith’s directly to responded gress by the articulated as doctrine third-party obtain to requiring ing Felton, 521 See, Agostini e.g., Court. regis- pena installing before order court L.Ed.2d See 18 device. trace” “trap or ter Circuit the Second (1997) (reversing Congress 8121(a). Although § U.S.C. correctly applied had noting that it but been more, it has undoubtedly do could “if a that law, explaining then-governing at the switch. asleep applica- direct has this Court precedent course, Supreme Ultimately, of rest on to case, appears yet in a tion third-party revisit may decide Court of deci- line other in some rejected reasons suggest- Sotomayor has Justice doctrine. follow Appeals should sions, the Court suited is “ill doctrine ed that (internal directly controls” case which great reveal people in which age, digital alteration, citation marks, quotation themselves about information deal (1989), police ob- 102 L.Ed.2d responsi- it is our posits that majority 13. do an aircraft curtilage servations advance technological "a bility to ensure See Amendment. the Fourth implicate Amendment Fourth constrict cannot alone atU.S. Kyllo, oth- that would matters private protection this is But inaccessible.” be hidden erwise my col- "exception,” word Seizing Fourth statement incorrect simply an expan- "an I advocate suggest ex- Supreme leagues Court As the law. Amendment They misin- doctrine. third-party be foolish would Kyllo, sion” "[i]t plained in the third- what as to my statement terpret secured degree contend statement has become party has been doctrine Amendment by the Fourth citizens mistake be. This should doctrine technol- what the advance of entirely unaffected colleagues’ reliance my 33-34, given puzzling 2038. S.Ct. 121 U.S. at ogy.” 533 It is in Jones. opinion Sotomayor’s flight,” for Justice enabling "technology human though not from opinion, her view ... clear public exposed "has example, tailoring the Fourth retelling, that majority’s its curti- portions of the house uncovered would, in age” digital to “the Amendment private.” were lage once view, require the Su- Sotomayor’s Justice held yet the Court And 2038. S.Ct. Califor- third-party to "reconsider” 207, 215, preme Court S.Ct. Ciraolo, U.S. v. nia (Sotoma- Jones, at 957 doctrine. See (1986), again 90 L.Ed.2d J., concurring). yor, Riley, v. Florida omitted)). Applying the third-party doc- Randolph Scott, Individually and on trine, with consistent controlling prece- Behalf of All Similarly Persons dent, I can only Situated, conclude the Fourth Plaintiff-Appellant, Amendment protect did not Spi'int/Nex- v. tel’s records of Defendants’ CSLI. Accord- Nuvell Services, LLC; Financial Nuvell I ingly, would hold National Finance, Auto LLC, d/b/a legally acquired those records through Nuvell Finance, National Auto Defen 2703(d) § orders. dants Third-Party Plaintiffs-Ap

pellees, may Time show that my colleagues v. have struck proper balance between Manheim Remarketing, Inc., technology privacy. But if major- Third-Party Defendant. ity is proven right, it only will be because 14-1048, Nos. 14-1049.

the Supreme Court revises its decades-old understanding of how the Fourth Amend- United States Court of Appeals, ment treats information voluntarily dis- Fourth Circuit. closed third parties. Today the majori- Argued: May ty endeavors to beat Supreme Court punch. Respectfully, I dissent. Aug. Decided: Gladys GARDNER, Individually and on

Behalf of All Similarly Persons

Situated, Plaintiff-Appellant,

v.

GMAC, INC., now Ally known as Fi-

nancial Incorporated, Defendant and

Third-Party Plaintiff-Appellee, Remarketing,

Manheim Inc.,

Third-Party Defendant. of notes 349 (In Considering multiple privacy inter Application (E.D.N.Y.)), re 809 stake, surprising (E.D.N.Y.2011) (“rea ests at it F.Supp.2d is that we expectation are not court sonable recognize first as of privacy in long-term records”).6 objectively cell-site-location cell users’ ex reasonable Even the Su Court, preme in Riley, pectation privacy of their long-term specifically cited See, “[historic location information” e.g., Augustine, CSLI. as among N.E.3d at (reasonable heightened privacy presented concerns expectation 865-66 of privacy inspection phones, of cell in location as information shown in historical such information details the records); Earls, (rea “specif user’s CSLI 70 A.3d at 632 ic minute, movements down to the only expectation privacy sonable of in location around town but also particular within a State, phones); Tracey of cell 152 So.3d building.” 134 at 2490.7 (Fla.2014) (objectively reasonable expectation of privacy “location sig together, Karo, Taken Kyllo, and phone”); naled one’s cell In re Applica the views expressed in Riley and the Jones tion U.S. an Order Authorizing of for concurrences support our conclusion that Info, Disclosure a Specified Location of invades a reasonable ex Tel., F.Supp.2d Wireless 539 pectation of privacy when it upon relies (D.Md.2011) (“reasonable expectation of not in technology general use to discover [subject’s] both in privacy location as re the movements of an individual over vealed real-time [CSLI] in his extended period of Cell phone time. movement where his location subject is tracking through inspection of CSLI is one tracking continuous over an peri extended such It technology. possible time, thirty od of here days”); In re Appli particular for a cell is not cation an Order Authorizing very revealing because, instance, all the Release Historical the phone Cell-Site has been turned off or it has Info. Center, Pew Perceptions Research Public phones locational surveillance of two Privacy Security in the Era Post-Snowden real time days over the course aof few as the (Nov. 12, 2014), http://www.pewinternet. transported marijuana users along public org/files/2014/1l/PI_PublicPerceptionsof roads. Id. at 776. The Circuit Sixth deter (saved Privacy_111214.pdf opinion as ECF at- Knotts, mined governed by that the case was tachment). percentage This 777-78, rivals that of distinguished id. at Iones based adults who consider their health information "comprehensiveness on the tracking” " conversations, and the content their case, involving in that 'constant monitor ” emails, messages and text at least “somewhat weeks, ing' over the course of id. at four 81%, 81%, 77%, 75%, respec- Jones, J., sensitive”— (Alito, (quoting tively. Id. at 32-34. concurring judgment)). The instant similarly distinguishable. case is out, opinion points 6. As the dissenting a num- ber of courts have addressed the issue courts, including Some the district court in have not reached the same conclusion we case, dissent, as well suggest- as the have today. reach Courts that have reached ed that pro- interests in real-time or conclusion, dissent, opposite like the have spective greater location information are than typically through application done so

Case Details

Case Name: United States v. Aaron Graham

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 5, 2015

Citation: 796 F.3d 332

Docket Number: 12-4659, 12-4825

Court Abbreviation: 4th Cir.