United States v. Davis, No. 12-12928, from SDFla
Senior Circuit Judge Sentelle (D.C. Cir.) joined by Circuit Judge Martin and Senior Circuit Judge Dubina.
Summary: The defendant was convicted of Hobbs Act robbery, conspiracy, and knowing possession of a firearm in furtherance of a crime of violence and was sentenced to approximately 162 years in prison. The defendant appealed challenging the admission of cell phone location information in violation of the Fourth Amendment, prosecutorial misconduct, evidentiary sufficiency, and his sentence.
First, with respect to the Fourth Amendment issue, the defendant argued that the prosecution should not have been permitted to introduce records obtained from cell phone providers which evidenced that he had placed and received phone calls in close proximity to the sites of many of the robberies.
The panel began its discussion of this section by noting that this was an issue of first impression in this circuit which had not been definitively decided in other circuits either. The evidence sought to be admitted consisted of records obtained from cell phone service providers under the Stored Communications Act, which allows the government to obtain these cell phone records from subscriber services when the government has either a warrant or a court order. The court order does not require a showing of probable cause.
The evidence obtained consisted of cell site location information which includes a record of calls made by the cell phone owner and shows which cell tower carried the call to or from the customer, which will normally be the cell tower closest to the customer. This allows the extrapolation of the location of the cell user at the time of the call.
The panel began by reviewing opinions from other courts. In In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to disclose Records to Gov’t, 620 F.3d 304 (3d Cir. 2010), the Third Circuit vacated a magistrate judge’s order declining to order a service provider to furnish information by court order and instead directing the government to seek a warrant to obtain the information (although the Third Circuit did indicate that in appropriate circumstances a magistrate might require a warrant showing probable cause). Meanwhile, the Fifth Circuit in In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 612 (5th Cir. 2013), reversed a district court order denying the government’s request for an order furnishing cell phone records, while holding that the compelled production of records on statutory grounds was not per se unconstitutional. Nevertheless, the panel declined to engage with the reasoning of these cases because the context was different and because one was decided before Jones.
The panel next turned to a discussion of Jones and two competing views of the Fourth Amendment. The older theory is that the Fourth Amendment protects property rights (the trespass theory). The newer theory is that the Fourth Amendment guarantees the privacy rights of the people without respect to whether the alleged search constituted a trespass against property rights.
The panel traced the newer theory to Olmstead v. United States, 277 U.S. 438 (1928), which held that wire-tapping did not constitute a search within the meaning of the Fourth Amendment. This view was overturned in Katz v. United States, 389 U.S. 347 (1967), which relied upon a privacy theory to hold that interception of a conversation in the absence of a physical trespass was unconstitutional, since the Fourth Amendment extended to the recording of oral statements overheard without any technical trespass.
Turning to Jones itself, the panel noted that Jones involved the legality of introducing information from a GPS tracking device that had been attached to a car without a warrant (the warrant had authorized installation during a period of ten days, and the device was installed on the eleventh day). All nine members of the Court agreed that the introduction of this evidence violated the Fourth Amendment, although their rationales differed. A five member majority resolved the case under the older trespass analysis finding that because the agents committed a trespass when they installed the device, there was no need to determine whether any reasonable expectation of privacy had been violated. The four-Justice concurrence written by Justice Alito resolved the case under the privacy analysis, finding that a reasonable expectation of privacy was violated by the long-term monitoring of vehicle movements.
Based on language in both opinions, the panel concluded that the privacy theory applied to the search and seizure of electronic information in the absence of a trespass.
The panel then concluded that the warrantless gathering of cell site location data violated the defendant’s reasonable expectation of privacy. First, the panel noted that a single point of cell phone location data was more private than multiple points of location information provided by a GPS attached to a car, because a car is visible to the public, but a person can assume that their movements to various locations are relatively private even if not conducted in a public way. The panel reasoned that because a cell phone can accompany its owner anywhere, even when the owner’s whereabouts are not public, even one point of cell site location data can be within a reasonable expectation of privacy and that cell site data is therefore more like communications data (i.e. telephone conversation) than like GPS information.
The panel rejected the argument that because the cell site location data was not “precise” in terms of the location it disclosed, it was not private information. The panel stated that while it would perhaps be possible that information could be sufficiently imprecise to be outside the zone of a reasonable expectation of privacy, that was not the case here. The panel concluded that a person has a reasonable privacy interest in being near a variety of locations.
The panel also gave short shift to the argument that the cell phone owner abandoned a reasonable expectation of privacy in his cell site location when he placed a call. The panel distinguished Smith v. Maryland, 442 U.S. 735 (1979), which authorized the use of a pen register to record numbers dialed from a defendant’s telephone, because the cell site location data—unlike a phone number—was not voluntarily turned over to third parties and because most persons would not know that their cell phone provider was collecting location data.
Based on all of this reasoning, the panel concluded that a Fourth Amendment violation occurred when the cell site location data was introduced. However, the panel concluded that the good faith exception to the exclusionary rule applied.
Second, the defendant challenged several “questionable” statements made by the prosecutor in his closing argument, specifically statements that there was blood in the getaway car and statements that improperly bolstered the government’s witnesses. The panel found only the bolstering troubling—specifically the statement that the government witness had told the prosecutor the same story 100 times since his confession. The panel found that the comments did not have any prejudicial effect.
Third, he raised challenges to his sentence enhancements, specifically an enhancement for brandishing a weapon. United States v. Alleyne, 133 S. Ct. 2151 (2013), requires that every fact which increases a mandatory minimum sentence must be submitted to the jury. Since the “brandishing” enhancement was not submitted to the jury, it could not be used at sentencing to enhance the mandatory minimum. Under a plain error analysis, the panel concluded that the error in this case affected the defendant’s substantial rights because the jury found only that the defendant possessed a firearm, only one witness testified that a gun was pointed at her, and there was no evidence that the defendant was the one who did so.
Fourth, the panel rejected a proportionality challenge to his 162 year sentence and his challenge to the sufficiency of the evidence. In rejecting the latter challenge, the panel applied Rosemond v. United States, 134 S. Ct. 1240 (2014), which held that a defendant may be convicted of aiding or abetting the offense of using or carrying a firearm during a crime of violence if it proves that the defendant actively participated in the underlying violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.
The defendant’s conviction and most of his sentence were affirmed, although the portion of his sentence attributable to the brandishing enhancement was vacated.
Note: The panel here applied to the plain error analysis to the Alleyne “brandishing” claim because it was not raised below. However, earlier in the week, an opinion authored by Judge Hull held that plain error review always applies to after-the-fact claims of Alleyne error, even when the error is preserved.
Note: This case might be a candidate for en banc review. The Fourth Amendment analysis laid out is somewhat shaky, and there is only one active Eleventh Circuit judge who joined this opinion (given the importance of this issue, I find it somewhat surprising that the opinion was assigned to a visiting senior circuit judge!).
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