United States v. Aaron Graham

824 F.3d 421, 2016 WL 3068018
CourtCourt of Appeals for the Fourth Circuit
DecidedMay 31, 2016
Docket12-4659, 12-4825
StatusPublished
Cited by136 cases

This text of 824 F.3d 421 (United States v. Aaron Graham) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Aaron Graham, 824 F.3d 421, 2016 WL 3068018 (4th Cir. 2016).

Opinions

Affirmed by published opinion. Judge MOTZ wrote the majority opinion, in which Chief Judge TRAXLER and Judges WILKINSON, NIEMEYER, KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, DIAZ and HARRIS joined. Judge WILKINSON wrote a separate concurring opinion. Judge WYNN wrote a dissenting opinion in which Judges FLOYD and THACKER joined.

ON REHEARING EN BANC

DIANA GRIBBON MOTZ, Circuit Judge:

In United States v. Graham, 796 F.3d 332 (4th Cir. 2015), a panel of this court affirmed the convictions of Defendants Aaron Graham and Eric Jordan arising from their participation in a series of armed robberies. The panel opinion sets out the facts of this case in great detail. Id. at 339-43. The only facts now relevant concern the portion of the Government’s investigation during which it obtained historical cell-site location information (CSLI) from Defendants’ cell phone provider. This historical CSLI indicated which cell tower — usually the one closest to the cell phone — transmitted a signal when the Defendants used their cell phones to make and receive calls and texts. The Government used the historical CSLI at Defendants’ trial to place them in the vicinity of the armed robberies when the robberies had occurred.

A majority of the panel held that, although the Government acted in good faith in doing so, it had violated Defendants’ Fourth Amendment rights when it obtained the CSLI without a warrant. The majority directed that henceforth the Government must secure a warrant supported by probable cause before obtaining these records from cell phone providers. The Government moved for rehearing en banc, which we granted, vacating the panel opinion. See United States v. Graham, 624 Fed.Appx. 75 (4th Cir. 2015); 4th Cir. R. 35(c). We now hold that the Government’s acquisition of historical CSLI from Defendants’ cell phone provider did not violate the Fourth Amendment.1

[425]*425Supreme Court precedent mandates this conclusion. For the Court has long held that an individual enjoys no Fourth Amendment protection “in information he voluntarily turns over to [a] third partly].” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). This rule — the third-party doctrine — applies even when “the information is revealed” to a third party, as it assertedly was here, “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.” United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). All of our sister circuits to have considered the question have held, as we do today, that the government does not violate the Fourth Amendment when it obtains historical CSLI from a service provider without a warrant. In addition to disregarding precedent, Defendants’ contrary arguments misunderstand the nature of CSLI, improperly attempt to redefine the third-party doctrine, and blur the critical distinction between content and non-content information.

The Supreme Court may in the future limit, or even eliminate, the third-party doctrine. Congress may act to require a warrant for CSLI. But without a change in controlling law, we cannot conclude that the Government violated the Fourth Amendment in this case.

I.

The Fourth Amendment ensures that “[t]he right of the people to be secure in their persons, houses, papers, and effects,- against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV. Broadly, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). The issue that confronts us here is whether the Government’s acquisition of the historical CSLI records constituted a Fourth Amendment search.

In assessing whether such a search has occurred, “it is important to begin by specifying precisely the nature of the state activity that is challenged.” Smith, 442 U.S. at 741, 99 S.Ct. 2577 (emphasis added). Here, that “activity” is the Government’s acquisition from a phone company, Sprint/Nextel, of historical CSLI’ records — i.e., the records of the phone company that identify which cell towers it used to route Defendants’ calls and messages. The Government did not surreptitiously view, listen to, record, or in any other way engage in direct surveillance of Defendants to obtain this information. Rather, as the Sprint/Nextel custodian of the CSLI records testified at trial, CSLI is created and maintained in the normal course of Sprint/Nextel’s business. Defendants themselves acknowledge that service providers, like Sprint/Nextel, maintain CSLI records “[b]y technical and practical [426]*426necessity.” Defendants’ Br. at 13.2

Moreover, to obtain the CSLI from Sprint/Nextel, the Government had to apply to a federal court for an order directing the company to disclose the records. The Stored Communications Act (SCA or the Act) provides that, to gain access to even these non-content records, the Government must demonstrate either probable cause for a warrant or “specific and articu-lable facts showing that there are reasonable grounds to believe that ... the records ... are relevant and material to an ongoing criminal investigation” for a court order. 18 U.S.C. § 2703(c), (d) (2012). The Government followed the second route and Defendants do not contend that in doing so it failed to meet the requirements of the Act. What Defendants do contend is that in permitting the Government to obtain the Sprint/Nextel records in this way, the Act violates the Fourth Amendment. According to Defendants, the statute permits the Government to unconstitutionally collect their private information.

This argument ignores the nature of the governmental activity here, which critically distinguishes this case from those in which the government did unconstitutionally collect private information. In United States v. Karo, 468 U.S. 705, 714-15, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), for instance, the Drug Enforcement Agency placed a beeper within a can of ether and received tracking information from the beeper while the can was inside a private residence. Similarly, in Kyllo, 533 U.S. at 34-35, 121 S.Ct. 2038, the Department of the Interior used a thermal imager to gather “information regarding the interior of the home.” And in United States v. Jones, — U.S. -, 132. S.Ct. 945, 948-49, 954, 181 L.Ed.2d 911 (2012), the FBI and local law enforcement secretly installed a GPS tracking device on a suspect’s vehicle and monitored the vehicle’s movements for four weeks.3

On the basis of these cases, Defendants contend that the government always invades an individual’s reasonable expectation of privacy when it employs technological devices to track an individual’s moves. Perhaps so. But that question is not before us. No government tracking is at issue here. Rather, the question before us is whether the government invades an individual’s reasonable expectation of privacy when it obtains, from a third party, the third party’s records, which permit the government to deduce location information.

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Cite This Page — Counsel Stack

Bluebook (online)
824 F.3d 421, 2016 WL 3068018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-aaron-graham-ca4-2016.