824 F.3d 421 (4th Cir. 2016), 12-4659, United States v. Graham

Docket Nº:12-4659, 12-4825
Citation:824 F.3d 421
Opinion Judge:DIANA GRIBBON MOTZ, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AARON GRAHAM, Defendant - Appellant. ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; DOWNSIZEDC.ORG; DOWNSIZE DC FOUNDATION; GUN...
Attorney:: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellants. Rod J. Rosenstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Ap...
Judge Panel:Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS, Circuit Judges. Judge Motz wrote the majority opinion, in which Chief Judge Traxler and Judges Wilkinson, Niemeyer, King, Gregory, Shedd, Duncan, Agee, K...
Case Date:May 31, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 421

824 F.3d 421 (4th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

AARON GRAHAM, Defendant - Appellant.

ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; DOWNSIZEDC.ORG; DOWNSIZE DC FOUNDATION; GUN OWNERS FOUNDATION; GUN OWNERS OF AMERICA, INC.; INSTITUTE ON THE CONSTITUTION; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; UNITED STATES JUSTICE FOUNDATION; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND, Amici Supporting Appellant.

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

ERIC JORDAN, Defendant - Appellant.

ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND; DOWNSIZEDC.ORG; DOWNSIZE DC FOUNDATION; GUN OWNERS OF AMERICA, INC.; GUN OWNERS FOUNDATION; INSTITUTE ON THE CONSTITUTION; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; UNITED STATES JUSTICE FOUNDATION, Amici Supporting Appellant

Nos. 12-4659, 12-4825

United States Court of Appeals, Fourth Circuit

May 31, 2016

Argued March 23, 2016.

Page 422

[Copyrighted Material Omitted]

Page 423

Appeals from the United States District Court for the District of Maryland, at Baltimore. (1:11-cr-00094-RDB-1; 1:11-cr-00094-RDB-2). Richard D. Bennett, District Judge.

AFFIRMED.

ARGUED:

Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellants.

Rod J. Rosenstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

ON BRIEF:

James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant Aaron Graham; Ruth Vernet, RUTH J. VERNET, ESQ., LLC, Rockville, Maryland, for Appellant Eric Jordan.

Nathan Judish, Computer Crime & Intellectual Property Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sujit Raman, Chief of Appeals, Greenbelt, Maryland, Benjamin M. Block, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Nathan Freed Wessler, Catherine Crump, Ben Wizner, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; David R. Rocah, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland; Kevin S. Bankston, Gregory T. Nojeim, CENTER FOR DEMOCRACY & TECHNOLOGY, Washington, D.C.; Thomas K. Maher, Vice-Chair, 4th Circuit Amicus Committee, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Durham, North Carolina; Hanni Fakhoury, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amici American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Maryland, Center for Democracy & Technology, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers.

Michael Connelly, Ramona, California, for Amicus United States Justice Foundation; Robert J. Olson, Herbert W. Titus, William J. Olson, Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici DownsizeDC.org, Downsize DC Foundation, United States Justice Foundation, Gun Owners of America, Inc., Gun Owners Foundation, Conservative Legal Defense and Education Fund, and Institute on the Constitution.

Bruce D. Brown, Gregg Leslie, Hannah Bloch-Wehba, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C., for Amicus Reporters Committee for Freedom of the Press.

Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS, Circuit Judges. 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.

OPINION

Page 424

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

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Supreme 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 part[y]." 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 (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

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necessity." 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 articulable facts showing...

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