MEMORANDUM OPINION
Master Giddins is charged with bank robbery and conspiracy to commit bank robbery. ECF No. 1. Pending are Gid-dins’s motions: (1) to suppress custodial statements (ECF No. 14), and (2) to suppress historical cell site location data (ECF No. 20). A hearing was held on September 29, 2014. For the following reasons, Giddins’s motions will be denied.
I. Background
A. Facts
1. The Crimes and Arrest
On September 25, 2013, someone entered the M & T Bank at 329 W. Baltimore Street, Baltimore City, Maryland wearing women’s clothing and a black wig. ECF
On September 26, 2013, Giddins lent his Ford Focus to Fludd and another female, Ashley Fitz, which they used to rob the 1st Mariner Bank at 4800 Painters Mill Road, Owing Mills, Maryland. Id. Before entering the bank, Fludd drove the Ford Focus to an Exxon station near the bank and obtained blank lottery tickets. Id. Fludd and/or Fitz wrote a note similar to the note used in the September 25 robbery on a ticket. Id. Fitz went into the bank wearing the black wig and using the black and white polka dot cosmetic bag that had been used in the September 25 robbery; she handed the bag to the teller with the note. Id. The teller gave cash to Fitz, who then ran from the bank. Id. A nearby construction worker saw Fitz and Fludd get into Giddins’s Ford Focus. Id. They were also recorded on video at the Exxon station where Fludd obtained the blank lottery tickets. Id. Proceeds from the robbery were allegedly split between Fitz, Fludd, and Giddins. Id.
On September 27, 2013, Giddins again lent his automobile to Fitz and Fludd, and another female co-conspirator Alexis Chandler. Id. Fludd drove Fitz and Chandler to the Baltimore County Savings Bank, 515 Eastern Avenue, Baltimore County, Maryland. Id. Fitz and Chandler, wearing wigs, entered the bank, produced notes saying they had a bomb, and demanded money. Id. The tellers provided them with cash, and Fitz was given a dye pack. Id. at 2-3. Fitz and Chandler left the bank and got into the Ford Focus driven by Fludd. Id. at 3. The dye pack exploded, and Fitz threw the handbag with the exploded dye pack out the car window. Id. The wigs and some other items were also discarded. Id. Police stopped the car after receiving a broadcast description of the suspects and the silver Ford Focus. Id. Police recovered evidence from the car and the scene. Id.
Fitz and Chandler provided statements to investigators after being advised of their rights. Id. Fitz and Chandler admitted the robberies and their involvement. Id. All three banks were FDIC insured. Id. An arrest warrant was issued for Gid-dins. ECF No. 32 at 2.
2. Giddins’s Statement
On October 4, 2013, Giddins went to Baltimore County police headquarters to obtain his car. ECF No. 19 at 3. Officers placed Giddins in an interrogation room. Id. Giddins asked Detective Morano, “Am I in trouble?” and Detective Morano replied, “No, you’re here getting your car, right?” ECF No. 32 at 2; Interview Tr. at 3. Detective Morano left the room. ECF No. 32 at 2.
A few minutes later, Detective Taylor entered the interview room. Id.
At 10:28:15 (on the recorded video interview), Detective Taylor told Giddins that before the police could return his car, they had to explain his rights. ECF No. 32 at 3. Detective Taylor stated:
[OJbviously your car was used in a crime which sucks for you since it puts you in the middle of stuff ... we are going to ask you some things about your car, but legally, since it is your car, before we speak to you about it we have to read you your rights, it doesn’t mean you’re under arrest, it doesn’t mean you’re being charged with anything. This is, we are asking you questions, by law we have to read you your rights.
ECF Nos. 33 at 3, 32 at 3; Interview Tr. at 8-9. Giddins read aloud from the Miranda waiver and stated that he understood his rights. Interview Tr. at 9. When asked if he had any questions, the following exchange occurred:
Det. Taylor: You don’t have any questions about us asking about your car, do you?
Giddins: Yes. Is this the procedure for getting my car back? Cause I feel like....
Taylor: Yeah, we do, but like I said, your car was used in crimes, that we need to dig in and find out what’s going on with your, with these three girls, what your relationship with them is, how they came in contact with your car, all that stuff. Understand that?
Giddins: I understand that.
Taylor: OK-Do you mind explaining all that stuff to us?
Giddins: I don’t know any of that stuff.
Taylor: Well we don’t know that until I ask you, right?
Giddins: Right, but I just told you. That’s what I’m asking, like. Is this the procedure to get my car back?
Taylor: Yes, in order for us to ask you questions because the vehicle was used in a crime, by law we have to go over these rights.
Giddins: Right.
Taylor: If we start asking you stuff and you don’t want to talk to us, then don’t talk to us. But we’re just trying to figure out some issues.
Giddins: But I still get my car?
Taylor: Before I release the car to you I would like to know some answers. I would like to know some answers before we release your car back.
Giddins: That’s what I’m asking. I’m not in trouble or anything, am I?
Taylor: Not at this point, no. We’ll find out what’s going on. So long as you don’t ... sit there and tell me you were hiding in the trunk and you escaped when the police pulled them over, no.
Interview Tr. at 9-11.
At 10:31, Giddins told the detectives that he thought he was being “interrogated.” He observed that he was “in a closed room, two guys are here, they locked the door_” ECF No. 32 at 4; Interview Tr. at 11. The recorded video interview shows Detective Taylor stated that one of the two interview doors was “wide open.” ECF No. 19-1; see also Interview Tr. at 11. Giddins was not handcuffed. Id. No weapons are visible in the recorded interview.
Detective Taylor questioned Giddins about his “relationship with the three young women, his loaning of the car to them, his work schedule, and other topics relating to the bank robberies.” Id. Then, Detective Taylor showed Giddins a surveillance photograph and told him he was a suspect in the bank robberies. ECF No. 32 at 4. Giddins asked for a lawyer; questioning stopped, and Giddins was arrested. ECF Nos. 19 at 3, 19-1. After his arrest, Giddins’s cellphone and other items in his pockets were seized. ECF No. 19-1. The cellphone was locked, and police officers did not search the contents of the cellphone. ECF No. 19 at 5.
3. Cellphone Location Data
During the October 4, 2013 interview described above, Giddins provided the investigator with his cellphone number. ECF No. 23 at 3. On December 20, 2013, agents applied for a court order under 18 U.S.C. § 2703(d) (2012) for subscriber information, historical call records, and historical GPS/cell site information. Id.; see also ECF No. 23-1.
B. Procedural History
On March 12, 2014, Giddins was indicted on three counts of bank robbery in violation of 18 U.S.C. § 2113(a),£0 (2012),
On April 8, 2014, Giddins moved to suppress custodial statements. ECF No. 14. On August 4, 2014, Giddins moved to suppress historical cell site location data and its fruits. ECF No. 20. On August 1, 2014, the government opposed Giddins’s motion to suppress statements. ECF No. 19. On August 7, 2014, the government opposed Giddins’s motion to suppress historical cell site location data. ECF No. 23. On September 24, 2014, Giddins replied to the government’s opposition to his motion to suppress statements. ECF No. 32. On September 25, 2014, the government supplemented its opposition to Giddins’s motion to suppress statements. ECF No. 33.
II. Analysis
A. Motion to Suppress Statements
1. Fifth Amendment/Mmmda v. Arizona
Giddins contends that his statements were obtained in violation of the Fifth and Sixth Amendments to the United States Constitution, and were involuntary. ECF
Miranda v. Arizona,
A suspect is “ ‘in custody’ for Miranda purposes either if he has been arrested or if his freedom of action has been curtailed to a degree associated with arrest.” United States v. Pope,
When a suspect in custody has invoked his right to counsel, he “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona,
However, “routine booking question[s]” securing “the biographical data necessary to complete booking or pretrial services” are exempt from Miranda. Pennsylvania v. Muniz,
A waiver of Miranda rights must be voluntary, knowing, and intelligent. Moran v. Burbine,
The Court engages “in the same inquiry when analyzing the voluntariness of a Miranda waiver as when analyzing the voluntariness of statements under the Due Process Clause,” Cristobal,
Police deception, standing alone, does not render a suspect’s statements involuntary. See Frazier v. Cupp,
Here, before providing Miranda warnings, Detective Taylor only asked Giddins routine, booking-type questions, ECF No. 19 at 3; Interview Tr. at 3-8, that did not require warnings. Thus, Giddins’s pre-warning statements are admissible.
Further, Giddins voluntarily entered the police station to obtain the return of his car. ECF No. 19 at 3. Giddins was not in handcuffs, and one door was unlocked. ECF No. 19-1. Two investigators were present; one asked questions while the other remained silent. Id. No weapons are visible in the recorded interview. Id. Detective Taylor’s tone was nonthreatening. Id. Although an arrest warrant had issued, ECF No. 32 at 2, Giddins was apparently unaware of this fact and, thus, it does not alter the objective inquiry.
Giddins’s waiver of his Miranda rights was voluntary. He read his rights aloud, signed his name and initials, and responded that he understood his rights. Interview Tr. at 9. That Giddins waived his rights under the apparent belief it would aid in the return of his car was not the police coercion necessary to overbear Giddins’s will or seriously impair his capacity for self-determination.
Accordingly, Giddins voluntarily waived his Miranda .rights and, thus, his post-warning statements are admissible.
2. Sixth Amendment Right to Counsel
In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. The Sixth Amendment right to counsel “attaches only at or after the initiation of adversary judicial proceedings against the defendant.” United States v. Gouveia,
Here, Giddins’s Sixth Amendment right to counsel had not attached when he was questioned by police. Thus, no Sixth
B. Motion to Suppress Historical Cell Site Location Data
Giddins contends that the government’s warrantless gathering of cell site location data violated Giddins’s Fourth Amendment right to privacy. ECF No. 20 ¶ 3.
1. Privacy Interest
The government obtained the court order under the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2703(c) and (d). Section 2703(c) provides, inter alia:
(c) Records concerning electronic communication service or remote computing service.—
(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer' of such service (not including the contents of communications) only when the governmental entity—
(A)obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure ... by a court of competent jurisdiction;
(B) obtains a court order for such disclosure under subsection (d) of this section; [or]
(C) has the consent of the subscriber or customer to such disclosure;....
18 U.S.C. § 2703(c)(1) (2012). Section 2703(d) provides, inter alia:
(d) Requirements for court order.—A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and ar-ticulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation....
Id. § 2703(d) (emphasis added).
Giddins cites the U.S. Supreme Court’s recent decision in Riley v. California, — U.S. -,
In Riley, the Court stated that “[m]od-ern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” and held that police must obtain a search warrant before searching a cellphone’s contents,
Riley did not address the constitutionality of using 18 U.S.C. § 2703(d) to obtain historical cell site location data from third-party cellphone providers when there are “specific and articulable facts showing that there are reasonable grounds to believe that the ... records or other information sought, are relevant and material to an ongoing criminal investigation.” Riley does not resolve the issue.
The Fourth Circuit Court of Appeals has not addressed whether aggregated GPS surveillance implicates the Fourth Amendment warrant requirement. In United States v. Graham,
Because the collection of data did not involve physical trespass to private property, Graham analyzed the gathering of cell site location data under Katz v. United States,
i. United States v. Miller
As the U.S. Supreme Court has repeatedly held,
the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
Miller,
In Miller, the Court held that the defendant, Mitch Miller, did not have a protected privacy interest in business records kept by a bank about accounts in his name. Id. at 440,
Miller argued that the bank records implicated the Fourth Amendment because they were copies of his personal records— checks and deposit slips—that he made available to the bank. Id. at 442,
ii. Smith v. Maryland
In Smith, the Court affirmed “that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith,
Most courts addressing this issue have relied on the business records/third-party doctrine to affirm the government’s acquisition of cell site location data under § 2703(d)’s “specific and articulable facts” standard. See Graham,
The Fifth Circuit, in the context of overturning a magistrate judge’s denial of a court order under § 2703(d), held that “[c]ell site data are business records.” In re U.S. for Historical Cell Site Data,
Some courts have held otherwise.
The Eleventh Circuit found instructive the U.S. Supreme Court’s opinion in Jones. In distinguishing Jones in favor of the defendant, the Court explained:
One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those*494 whereabouts. Therefore, while it maybe the case that even in light of the Jones opinion, GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy-
Davis,
The Fourth Circuit has applied the business records/third-party doctrine to affirm the issuance of administrative subpoenas against a Fourth Amendment challenge. See United States v. Bynum,
The Fourth Circuit held that the defendant did not have a subjective expectation of privacy in internet and telephone subscriber information because he voluntarily conveyed that information to third-parties. Id. at 164. Even if he did, “such an expectation would not be objectively reasonable.” Id. “Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.” Id. (quoting United States v. Petrine,
Here, the records were not Giddins’s “private papers,” but were business records made and maintained by Sprint. Giddins voluntarily transmitted a signal to a cell tower upon making a call or sending a text message. Although one may argue that a cellphone user, like Giddins, receiving a call or text message “hasn’t voluntarily exposed anything at all,” Davis,
In light of U.S. Supreme Court precedent, and the application of the business records/third-party doctrine by the Fourth Circuit, the Court finds that Giddins’s Fourth Amendment rights were not violated when the government obtained his cell site location data pursuant to a court order under § 2703(d).
Further, although the government is not required to obtain a warrant supported by probable cause, the government must, at a minimum, support its application with “specific and articulable facts showing that there are reasonable grounds to believe
2. Good Faith Reliance
When a Fourth Amendment violation occurs, suppression of evidence is not automatic. The purpose of the exclusionary rule is to deter law enforcement from violating the Fourth Amendment. Illinois v. Krull,
Here, it was objectively reasonable for investigators to rely on § 2703(d) to obtain Sprint’s records. Section 2703(c)(1) requires a provider to disclose “a record or other information pertaining to a subscriber to or a customer of [its] service” when the government obtains a court order under § 2703(d). Cell site location data is “a record ... pertaining to” Giddins, as a subscriber/customer of Sprint’s services.
Accordingly, the officer’s good faith reliance on a federal statute cures any Fourth Amendment violation that may have occurred. Accordingly, the Court will deny Giddins’s motion to suppress historical cell site location data.
III. Conclusion
For the reasons stated above, the Court will deny Giddins’s motions to suppress custodial statements and historical cell site location data.
Notes
. By agreement of the parties, the facts are taken from the government’s opposition, supplement to its opposition, and supporting exhibits, ECF Nos. 19, 23, 33, Giddins’s reply, ECF No. 32, the recorded video interview submitted by the government, ECF No. 19-1, and the transcript of that interview.
. Another officer joined Detective Taylor but did not ask questions. ECF No. 19-1.
. Giddins responded that he wore contacts, and answered "yes” in response to whether he was wearing them. Interview Tr. at 5-6.
. The government’s application stated that surveillance photographs taken during the September 25, 2013 M & T Bank robbery “strongly resemble[d]" Giddins. ECF No. 23-1 ¶ 4. The application described the September 26, 2013 robbery of the 1st Mariner Bank, which involved a female suspect "wearing the same or similar wig as utilized in the September 25 robbery,” and utilizing an identical polka dot bag. Id. ¶ 5. The application also described the police apprehension of Fitz, Chandler, and Fludd after the September 27, 2013 Baltimore County Savings Bank' robbery; Fludd was driving a silver Ford Focus registered to Giddins. Id. ¶ 6. Officers recovered “several long dark wigs and a man’s dark green sweater” matching the sweater Giddins allegedly wore during the September 25 robbery. After being advised of their Miranda rights, Fitz and Chandler waived their rights and admitted to their participation in the robberies. Id. ¶ 7. Chandler implicated Giddins in the September 25, 2013 robbery and stated that Giddins was Fitz’s boyfriend and had a relationship with Fludd. Id.
The Order issued on the basis of the above facts stated that the government had provided "specific and articulable facts showing that there are reasonable grounds to believe that the ... records ... sought, are relevant and material to an ongoing criminal investigation.” ECF No. 23-1 at 6; see also 18 U.S.C. § 2703(d). However, the facts stated in the application arguably provided “probable cause to believe that the information to be obtained [was] evidence of a crime.” In re Application of U.S. for an Order Authorizing Disclosure of Location Info, of a Specified Wireless Tel.,
"Probable cause is a flexible standard that simply requires ‘a reasonable ground for belief ... ’ and ‘more than bare suspicion.’ " United States v. Ortiz,
. The Order required Sprint Spectrum ("Sprint”) to provide subscriber information, historical local and long-distance call records, and historical GPS/cell site information for Giddins’s cellphone from September 1-30, 2013. ECF No. 23-1 at 6-7.
. According to Giddins, the government gathered data on more than 2600 cellphone calls over the course of the month. ECF No. 20 ¶ 3. The data covered unanswered and answered inbound calls, outbound calls, and inbound and outbound text messages. Id. ¶ 2. Data for the calls sometimes show a single cell site (indicating a stationary call), and sometimes different sites (indicating movement during the call). Id. According to the government, Giddins "voluntarily transmitted] a signal to a cell tower for his call to be connected, and the provider thereby create[d] a record[ ] ... regarding which of its cell towers it used to complete the call.” ECF No. 23 at 6. The government mapped calls using the longitude and latitude of each site to track and locate Giddins’s cellphone at specific times. Id. The government stated that the records do not reflect the content of any conversation or the cellphone’s specific location. ECF No. 23 at 4.
. Under § 2113(a),
[w]hoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan 'association^] ... [s]hall be fined under this title or imprisoned not more than twenty years, or both.
18 U.S.C. § 2113(a). Section 2113(f) defines “bank” as:
any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, ... and any institution the deposits of which are insured by the Federal Deposit Insurance Corporation.
Id. § 2113(f).
. Under §371,
[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
18 U.S.C. § 371.
. On September 24, 2014, Giddins withdrew his motion to suppress tangible and derivative evidence, ECF No. 18. See ECF No. 32.
. See also Holland v. McGinnis,
. Had Giddins been aware that the arrest warrant had issued, then "a reasonable man in the suspect’s position would have understood” that he was not free to leave. Hashime,
. When Detective Taylor stated that because "your car was used in crimes, [w]e need to dig in and find out what’s going on with your, with these three girls. What your relationship with them is, how they came in contact with your car, all that stuff. Understand that?,” Giddins responded, "I understand that.” ECF No. 32 at 3; Interview Tr. at 10. Thus, Giddins apparently believed that he was there to answer questions to obtain his car and, on' that basis, voluntarily waived his rights.
. To support his contention that his Miranda waiver was invalid, Giddins cites United States v. Lall,
Giddins cites Lall to support the notion that when police tell a defendant he is not in trouble, any subsequent Miranda waiver may be involuntary. He cites Beale to support the notion that Miranda warnings must not be misleading. ECF No. 32 at 4-5.
Besides not being controlling authority, Lall and Beale .are distinguishable. Here, Detective Taylor did not promise Giddins that he would not pursue charges against him in exchange for Giddins’s statement and did not state that Giddins was not in any trouble. Giddins was advised that anything he said may be used against him. Interview Tr. at 9. When Giddins asked if he was in trouble, Detective Taylor responded, "Not at this point, no. We’ll find out what’s going on. So long as you don’t ... sit there and tell me you were hiding in the trunk and you escaped when the police pulled them over, no.” Id. at 11. Detective Taylor essentially told Giddins he was not in trouble provided he had not done anything wrong, thus leaving open the possibility that if Giddins had participated in the robberies, he may be "in trouble,” and his statements may be used against him.
. In Giddins’s (withdrawn) motion to suppress tangible and derivative evidence, Gid-dins also argues that 18 U.S.C. § 2703(c) does not, by its terms, authorize disclosure of cell site location data. ECF No. 18 ¶ 11. Thus, Giddins does not apparently argue that § 2703(c) is facially unconstitutional, but that, as applied here, Giddins's Fourth Amendment rights were violated when the government used § 2703(c) to obtain his cell site location data without a warrant.
. Graham is on appeal to the Fourth Circuit, where it has been pending for almost two years. See United States v. Herevia, No. RDB-13-639,
. Cf. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov't,
. See, e.g., In re U.S. for an Order Authorizing the Release of Historical Cell-Site Info.,
. But see Graham,