UNITED STATES OF AMERICA, Plаintiff - Appellee v. WILLIAM CHANCE WALLACE, Defendant - Appellant
No. 16-40701 Consolidated with: 16-40702
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
May 22, 2017
Lyle W. Cayce, Clerk
Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
William Chance Wallace is a confirmed member of Tango Blast, a Texas crime syndicate. As of 2015, Wallace had been convicted of five violent felonies: one count of possession of a controlled substance with intent to distribute, two counts of aggravated assault with a deadly weapon, one count of possession of a controlled substance, and one count of unlawful delivery of a controlled substance. Wallace violated his probation for the unlawful delivery charge and a warrant was issued for his arrest on January 15, 2015. In two separate cases, Wallace was charged with and pleaded guilty to: (1) being a felon in possession of a firearm, in violation of
I.
A. Firearm Case
In May 2015, a confidential informant approached Shawn Hallett, a Special Agent with the Texas Department of Safety (“DPS”). The informant gave Wallace’s phone number to Hallett and informed him that Wallace was a gang member and a wanted fugitive living in Austin. When Hallett verified this information, he discovered an outstanding arrest warrant. He then passed this information to DPS’s gang unit in Austin.
DPS Agent Jose Rodriguez (with the help of an assistant district attorney) then sought a Ping Order for authorization under both federal and state law to (among other things) obtain the “locations of cell site towers being accеssed by” the cellular device linked to the number given by the confidential informant. This information is referred to as “E911” or prospective cell site data. A state district court judge granted the requested Ping Order for a period of sixty days going forward. As a result, DPS discovered that Wallace’s phone had been turned off.
Hallеtt reached out to his confidential informant and received a new telephone number for Wallace within a few days. Rodriguez then applied for and was granted a second Ping Order for this new cell phone number. With this Ping Order, DPS obtained the approximate, real-time GPS location of Wallace’s cell рhone from AT&T. Using this information, Hallett located Wallace near a pond on private property off U.S. Highway 87 north of Victoria, Texas. Officers arrested Wallace, discovering a Winchester Super X .22 magnum
Once charged, Wallace moved to suppress the evidence obtained during the execution of the arrest warrant, including the pistol, ammunition, and relevant testimony. He argued that the Ping Order used to locate him was invalid because “1) the information provided to the State District Judge was ambiguous, overbroad and conclusory and 2) law enforcement was not engaged in an ‘ongoing criminal investigation’ of the Defendant.” He also argued that thе statutes authorizing the Ping Order were unconstitutional. The district court denied Wallace’s motion, finding that suppression was not a cognizable statutory remedy under Fifth Circuit precedent. The district court also upheld the statutes as constitutional. Wallace timely appealed.1
B. Aiding and Abetting Charge
Approximately five months after Wallace was indicted for the firearms charge, Wallace and two accomplices posted a photograph of the firearms complaint and revealed the individual they believed to be the “snitch.” As a result, that individual, who may or may not have been the actual confidential informant, was threatened. Wallace was charged with and pleaded guilty to aiding and abetting retaliation against a witness in a federal investigation, a violation of
C. Sentencing
The cases were consolidated for sentencing. The district court sentenced Wallace to two concurrent 180-month sentences, followed by three years of supervised release. At the sentencing hearing, Wallace’s attorney noted that the Guidelines range for the aiding and abetting charge would have been much lower had Wallace not been classified an armed career criminal, a threshold he would not have reached if he not been convicted on the firearms charge. Wallace therefore requested—and the district court agreed—to reconsider his sentence should the firearms conviction be overturned on appeal.
II.
“When examining a district court’s ruling on a motion to suppress, we review questions of law de novo and factual findings for clear error.” United States v. Turner, 839 F.3d 429, 432 (5th Cir. 2016) (quoting United States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009)). The evidence is viewed “in the light most favorable to the prevailing party.” Id. We may “affirm the district cоurt’s ruling on a motion to suppress based on any rationale supported by the record.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005).
The party seeking suppression “has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights.” United States v. Smith, 978 F.2d 171, 176 (5th Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 133-34 (1978)).
Wallace maintains that the district cоurt erred in denying his motion to suppress because “[t]he Government failed to show that it sought an order to find information relevant to an ongoing criminal investigation” as required by the federal pen-trap statute and the Texas Code of Criminal Procedure. Wallace concedes that the Ping Order was issued pursuant to a valid arrest warrant for violating the conditions of his probation, but he argues that the plain meaning of the phrase “ongoing criminal investigation” implies “new criminal activity” and does not encompass “technical violations of . . . probation” or “conduct other than new crime.” Neither the relevant stаtutes nor binding precedent define the term “ongoing criminal investigation.”
But Wallace’s ultimate problem is that suppression is not a remedy for a violation of either the federal pen-trap statute or the Texas Code of Criminal Procedure. United States v. German, 486 F.3d 849, 654 (5th Cir. 2007) (holding that suppression is not a remedy for a violation of the fеderal pen-trap statute); see also United States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014).2 “Where Congress has both established a right and provided exclusive remedies for its violation, we would encroach upon the prerogatives of Congress were we to authorize a remedy not provided for by the statute.” German, 486 F.3d at 853 (alteration omitted) (quoting United States v. Frazin, 780 F.2d 1461, 1466 (9th Cir. 1986)). Unlike the wire-tap statute which “specifiсally provides for an exclusionary remedy when the statutory requirements are not met,” the pen-
trap statute provides only for fines and imprisonment for knowing violations. Id. at 842. Accordingly, it is clear that “Congress has determined that the benefits of an exclusionary rule do not outweigh its substantial social costs.” Id.
The same is truе with respect to the parallel state statute in
IV.
Alternatively, Wallace argues that the district court should have granted his motion to suppress because the government violated his Fourth Amendment rights when it accessed his phone’s E911 location information—or prospective cell site data—pursuant to a court order supported by “specific and articulable facts” rather than a warrant supported by probable cause. Ordinarily, “evidenсe obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search or seizure. This prohibition applies as well to the fruits of the illegally seized evidence.” United States v. Calandra, 414 U.S. 338, 347 (1974) (internal citations omitted). “[A] Fourth Amendment search occurs when the government violatеs a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring)). Whether obtaining prospective cell site data constitutes a search within the meaning of the Fourth Amendment is still an open question in this Circuit.
The Sixth Circuit—the only appellate court to address the subject so far—held that obtaining prospective cell site data is not a search. United States v. Skinner, 690 F.3d 772 (6th Cir. 2012). The Sixth Circuit reasoned that when an individual “voluntarily use[s]” a cellular device, he has no “reasonable expectation of privacy in the GPS data and location of his cell phone.” Id. at 781. “When criminals use modеrn technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them.” Id. at 774. A number of district courts have reached a similar conclusion. See, e.g., United States v. Booker, No. 1:11-CR-255-1-TWT, 2013 WL 2903562, at *4 (N.D. Ga. June 13, 2013). Other courts have disagreed. See, e.g., In re U.S. for an Order Authorizing the Release of Prospective Cell Site Info., 407 F. Supp. 2d 134, 135 (D.D.C. 2006).
We have already grappled with the constitutionality of judicial orders based on less than probable cause authorizing government access to historical cell site data. In re U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) (hereinafter Historical Cell Site Data). In Historical Cell Site Data, the government filed three applications under
We reversed, concluding that the “question of who is recording an individual’s information initially is key.” Historical Cell Site Data, 724 F.3d at 610. “[W]hether an intrusion constitutes a search” depends “on whether it is the Government collecting the information or requiring a third party to collect and store it, or whether it is a third party, of its own accоrd and for its own purposes recording the information.” Id. When a “third party collects information in the first instance for its own purposes,” the information constitutes a business record. Id. Applying this framework, we concluded that:
cell site information is clearly a business record. The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use. The Government does not require service providers to record this information or store it. The providers control what they record and hоw long these records are retained . . . . [T]he Government merely comes in after the fact and asks a provider to turn over records the provider has already created.
Id. at 611-12.
There is little distinction between historical and prospective cell site data. As in
That said, even if accessing prospective cell site data did constitute a Fourth Amendment search, DPS’s actions are covered by the good-faith exception to the exclusionary rule. “[T]he exclusionary rule is a judicially fashioned remedy whose focus is not on restoring the victim to his rightful position but on detеrring police officers from knowingly violating the Constitution.” United States v. Allen, 625 F.3d 830, 836 (5th Cir. 2010). As such, courts have carved out exceptions for police conduct “pursued in complete good faith” because the rule’s “deterrence rationale loses much of its force” in such circumstances. United States v. Leon, 468 U.S. 897, 919 (1984) (quoting Michigan v. Tucker, 417 U.S. 433, 447 (1974)). In particular, the Supreme Court has held that the exclusionary rule does not apply when police officers “act[ed] in objectively reasonable reliance upon a statute” even if “the statute is ultimately found to violate the Fourth Amendment.” Illinois v. Krull, 480 U.S. 340, 342 (1987).
The plain language of
V.
In conclusion, we AFFIRM the district court’s denial of Wallace’s motion to suppress the evidence supporting his conviction