785 F.3d 498 (11th Cir. 2015), 12-12928, United States v. Davis

Docket Nº:12-12928
Citation:785 F.3d 498, 25 Fla.L.Weekly Fed. C 1161
Opinion Judge:HULL, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. QUARTAVIOUS DAVIS, Defendant-Appellant
Attorney:For United States of America, Plaintiff - Appellee: Amit Agarwal, Roy K. Altman, Kevin Quencer, Wifredo A. Ferrer, Amanda Perwin, Kathleen Mary Salyer, Anne Ruth Schultz, U.S. Attorney's Office, Miami, FL. For Quartavious Davis, Defendant - Appellant: Anne Margaret Hayes, Law Office of Anne M. Ha...
Judge Panel:Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges. WILLIAM PRYOR, Circuit Judge, concurring. JORDAN, Circuit Judge, concurring, in which WILSON, Circuit Judge, joins. ROSENBAUM, Circuit Judge, concu...
Case Date:May 05, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
SUMMARY

Defendant appealed the denial of his motion to suppress evidence after being convicted of several counts of Hobbs Act robbery, conspiracy and knowing possession of a firearm in furtherance of a crime of violence. At issue was whether the court order authorized by the Stored Communications Act, 18 U.S.C. 2703(d), compelling the production of a third-party telephone company's business records... (see full summary)

 
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Page 498

785 F.3d 498 (11th Cir. 2015)

25 Fla.L.Weekly Fed. C 1161

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

QUARTAVIOUS DAVIS, Defendant-Appellant

No. 12-12928

United States Court of Appeals, Eleventh Circuit

May 5, 2015

Page 499

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:10-cr-20896-JAL-2.

For United States of America, Plaintiff - Appellee: Amit Agarwal, Roy K. Altman, Kevin Quencer, Wifredo A. Ferrer, Amanda Perwin, Kathleen Mary Salyer, Anne Ruth Schultz, U.S. Attorney's Office, Miami, FL.

For Quartavious Davis, Defendant - Appellant: Anne Margaret Hayes, Law Office of Anne M. Hayes, Cary, NC; Jacqueline Shapiro, Jacqueline E. Shapiro, Esq., Miami, FL; David Oscar Markus, Markus & Markus, PLLC, Miami, FL.

For Aclu of Florida, Amicus Curiae: Benjamin Stevenson, ACLU of Florida, Pensacola, FL; Nathan Freed Wessler, American Civil Liberties Union of New York State (NYCLU), New York, NY; Maria Kayanan, ACLU Foundation of Florida, Inc., Miami, FL.

For Electronic Frontier Foundation, Amicus Curiae: Hanni Meena Fakhoury, Jennifer Lynch, Electronic Frontier Foundation, San Francisco, CA.

For American Civil Liberties Union, American Civil Liberties Union of Florida, Center For Democracy & Technology, Amicus Curiae: Nathan Freed Wessler, American Civil Liberties Union of New York State (NYCLU), New York, NY.

For National Association of Criminal Defense Lawyers, Amicus Curiae: Ricardo Bascuas, University of Miami School of Law, Coral Gables, FL.

For Reporters Committee For Freedom of The Press, Amicus Curiae: Hannah Bloch-Wehba, Student Press Law Center, Arlington, VA.

For At& T Mobility, LLC: Peter Douglas Keisler, Richard D. Klingler, Sidley Austin, LLP, Washington, DC.

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges. WILLIAM PRYOR, Circuit Judge, concurring. JORDAN, Circuit Judge, concurring, in which WILSON, Circuit Judge, joins. ROSENBAUM, Circuit Judge, concurring. MARTIN, Circuit Judge, dissenting, in which JILL PRYOR, Circuit Judge, joins.

OPINION

Page 500

HULL, Circuit Judge:

I. BACKGROUND

Appellant Quartavius Davis1 was convicted by a jury on several counts of Hobbs Act robbery, 18 U.S.C. § 1951(b)(1), (3), conspiracy, id. § 1951(a), and knowing possession of a firearm in furtherance of a crime of violence, id. § § 924(c)(1)(A)(ii), 2. The district court entered judgment on the verdict, sentencing Davis to consecutive terms of imprisonment totaling 1,941 months. In this appeal, we are called on to decide whether the court order authorized by the Stored Communications Act, id. § 2703(d), compelling the production of a third-party telephone company's business records containing historical cell tower location information, violated Davis's Fourth Amendment rights and was thus unconstitutional. We hold it did not and was not.

Therefore, the district court did not err in denying Davis's motion to suppress and we affirm Davis's convictions. We reinstate the panel opinion, United States v. Davis, 754 F.3d 1205 (11th Cir.), reh'g en banc granted, opinion vacated, 573 F.App'x 925 (11th Cir. 2014), with respect to all issues except those addressed in Parts I and II, 754 F.3d at 1210-18, which are now decided by the en banc court.2

A. Seven Armed Robberies in a Two-Month Period

Quartavius Davis committed seven separate armed robberies in a two-month period. From the beginning of August 2010 to the beginning of October 2010, Davis and accomplices, bearing an array of firearms, terrorized a wide range of South Florida businesses, including a pizzeria, a gas station, a drugstore, an auto parts store, a beauty salon, a fast food restaurant, and a jewelry store.

On February 18, 2011, a federal grand jury returned a seventeen-count indictment against Davis and five codefendants. Davis was named in sixteen of the seventeen counts. The indictment charged violations of the Anti-Racketeering Act, 18 U.S.C. § 1951 (Hobbs Act), and conspiracy to violate the Hobbs Act. The indictment specifically charged Davis with conspiracy to engage in Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Counts 1, 15); seven Hobbs Act armed robberies, in violation of 18 U.S.C. § § 1951(a), 2 (Counts 2, 4, 6, 8, 10, 13, 16); and knowingly using, carrying, and possessing a firearm in furtherance

Page 501

of a crime of violence, in violation of 18 U.S.C. § § 924(c)(1)(A)(ii), 2 (Counts 3, 5, 7, 9, 11, 14, 17).

All of Davis's codefendants pled guilty to various counts. Davis alone went to trial. The jury convicted Davis on all charged counts.

At trial, the prosecution offered evidence of two conspiracies to commit Hobbs Act robbery and evidence that Davis took part in each conspiracy and each robbery. The prosecution further presented evidence that the conspirators committed such robberies. One member of each conspiracy testified for the government. Codefendant Willie Smith (" Smith" ) testified as to the first conspiracy, encompassing six robberies at commercial establishments, including a Little Caesar's restaurant, an Amerika Gas Station, a Walgreens drug store, an Advance Auto Parts store, a Universal Beauty Salon, and a Wendy's restaurant. Codefendant Michael Martin (" Martin" ) testified as to the second conspiracy, encompassing the robbery of a Mayors Jewelry store. Smith and Martin testified that Davis was involved in each robbery, where they wore masks, carried guns, and stole items such as cash, cigarettes, and watches.

Separately, an eyewitness, Edwin Negron, testified regarding Davis's conduct at the Universal Beauty Salon and the adjacent martial arts studio. He testified that Davis pointed a gun at his head, pushed both a 77-year-old woman and Negron's wife to the ground, and took several items from Negron and others. Another eyewitness, Antonio Brooks, testified that Brooks confronted Davis and his accomplices outside the Wendy's after that robbery. Brooks testified that Davis fired a gun at Brooks, and that Brooks returned fire towards the getaway car.

Beyond the accomplice and eyewitness testimony, the government produced additional evidence. Surveillance videos showed a man matching Davis's description participating in the robberies at Walgreens, Advance Auto Parts, Wendy's, and Mayors Jewelry. Smith and Martin identified Davis on the videos. DNA shown to be Davis's was recovered from the getaway car used to flee the scene of the Universal Beauty Salon robbery and the Mayors Jewelry store robbery.

In addition, the prosecution introduced telephone records obtained from MetroPCS for the 67-day period from August 1, 2010, through October 6, 2010, the time period spanning the first and last of the seven armed robberies.3 The toll records show the telephone numbers for each of Davis's calls and the number of the cell tower that connected each call. A MetroPCS witness identified his company's cell tower glossary, which lists the physical addresses, including longitude and latitude, of MetroPCS's cell towers. A police witness then located on a map the precise addresses (1) of the robberies and (2) of the cell towers connecting Davis's calls around the time of six of the seven robberies. While there was some distance between them, the cell tower sites were in the general vicinity of the robbery sites.

The location of the cell user, though, is not precise. The testimony tells us (1) the cell tower used will typically be the cell tower closest to the user, (2) the cell tower has a circular coverage radius of varying sizes, and (3) although the tower sector number indicates a general direction (North, South, etc.) of the user from the tower, the user can be anywhere in that sector.

Page 502

Despite this lack of precision as to where Davis's cell phone was located, the cell tower evidence did give the government a basis for arguing calls to and from Davis's cell phone were connected through cell tower locations that were near the robbery locations, and thus Davis necessarily was near the robberies too.

This appeal concerns the introduction of MetroPCS's toll records and glossary as evidence against Davis at trial. We thus review in more detail how the government acquired MetroPCS's records, the types of data in the records, and the witnesses' testimony about the records.

B. Court Order Regarding MetroPCS Business Records

After Davis's arrest, the government acquired MetroPCS's business records by court order. In February 2011, the government applied to a federal magistrate judge for a court order directing various phone companies to disclose stored telephone communications records for four subject telephone numbers that included a number ending in 5642 (the " 5642 number" ). The application requested production of stored " telephone subscriber records" and " phone toll records," including the " corresponding geographic location data (cell site)," for the 5642 number. The government requested only records " for the period from August 1, 2010 through October 6, 2010." The government sought clearly-delineated records that were both historical and tailored to the crimes under investigation.

The government did so following the explicit design of the governing statute, the Stored Communications Act (" SCA" ), 18 U.S.C. § 2701 et seq. Section 2703 of the SCA provides that a federal or state governmental entity may require a telephone service provider to disclose " a record . . . pertaining to a subscriber to or a customer of such service (not including the contents of communications)" if " a court of competent jurisdiction" finds " 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." Id. § 2703(c)(1)(A), (B), (d). The court order under subsection (d) does not require the...

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