United States v. Carpenter

• Decision Date: 13 April 2016
• Docket Number: 14–1805.,Nos. 14–1572,s. 14–1572
• Citation: 819 F.3d 880
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Timothy Ivory CARPENTER (14–1572); Timothy Michael Sanders (14–1805), Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

819 F.3d 880

UNITED STATES of America, Plaintiff–Appellee,

v.Timothy Ivory CARPENTER (14–1572); Timothy Michael Sanders (14–1805), Defendants–Appellants.

Nos. 14–1572

14–1805.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 14, 2015.

Decided and Filed: April 13, 2016.

ARGUED:Nathan Freed Wessler, American Civil Liberties Union Foundation, New York, New York, for Amicus Curiae. Harold Gurewitz, Gurewitz & Raben, PLC, Detroit, Michigan, for Appellant in 14–1572. Evan Howard Caminker, United States Attorney's Office, Detroit, Michigan, for Appellee. ON BRIEF:Harold Gurewitz, Gurewitz & Raben, PLC, Detroit, Michigan, for Appellant in 14–1572. S. Allen Early, Law Office of S. Allen Early, Detroit, Michigan, for Appellant in 14–1805. Evan Howard Caminker, United States Attorney's Office, Detroit, Michigan, for Appellee. Nathan Freed Wessler, American Civil Liberties Union Foundation, New York, New York, Daniel S. Korobkin, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, Michigan, Rachel Levinson–Waldman, Michael W. Price, Brennan Center for Justice at New York University School of Law, New York, New York, for Amicus Curiae.

Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges.

KETHLEDGE

, J., delivered the opinion of the court in which GUY, J., joined. STRANCH, J., joined the opinion in part and the result in part. STRANCH, J. (pp. 893–97), delivered a separate opinion joining in Parts II.B and III of the majority opinion and concurring in the judgment only with respect to Part II.A.

OPINION

KETHLEDGE

, Circuit Judge.

In Fourth Amendment cases the Supreme Court has long recognized a distinction between the content of a communication and the information necessary to convey it. Content, per this distinction, is protected under the Fourth Amendment, but routing information is not. Here, Timothy Carpenter and Timothy Sanders were convicted of nine armed robberies in violation of the Hobbs Act. The government's evidence at trial included business records from the defendants' wireless carriers, showing that each man used his cellphone within a half-mile to two miles of several robberies during the times the robberies occurred. The defendants argue that the government's collection of those records constituted a warrantless search in violation of the Fourth Amendment. In making that argument, however, the defendants elide both the distinction described above and the difference between GPS tracking and the far less precise locational information that the government obtained here. We reject the defendants' Fourth Amendment argument along with numerous others, and affirm the district court's judgment.

I.

In April 2011, police arrested four men suspected of committing a string of armed robberies at Radio Shacks and T–Mobile stores in and around Detroit. One of the men confessed that the group had robbed nine different stores in Michigan and Ohio between December 2010 and March 2011, supported by a shifting ensemble of 15 other men who served as getaway drivers and lookouts. The robber who confessed to the crimes gave the FBI his own cellphone number and the numbers of other participants; the FBI then reviewed his call records to identify still more numbers that he had called around the time of the robberies.

In May and June 2011, the FBI applied for three orders from magistrate judges to obtain "transactional records" from various wireless carriers for 16 different phone numbers. As part of those applications, the FBI recited that these records included "[a]ll subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones from December 1, 2010 to present[,]" as well as "cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls[.]" The FBI also stated that these records would "provide evidence that Timothy Sanders, Timothy Carpenter and other known and unknown individuals" had violated the Hobbs Act, 18 U.S.C. § 1951

. The magistrates granted the applications pursuant to the Stored Communications Act, under which the government may require the disclosure of certain telecommunications records when "specific and articulable facts show[ ] that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d).

The government later charged Carpenter with six counts, and Sanders with two, of aiding and abetting robbery that affected interstate commerce, in violation of the Hobbs Act, and aiding and abetting the use or carriage of a firearm during a federal crime of violence. See 18 U.S.C. §§ 924(c)

, 1951(a). Before trial, Carpenter and Sanders moved to suppress the government's cell-site evidence on Fourth Amendment grounds, arguing that the records could be seized only with a warrant supported by probable cause. The district court denied the motion.

At trial, seven accomplices testified that Carpenter organized most of the robberies and often supplied the guns. They also testified that Carpenter and his half-brother Sanders had served as lookouts during the robberies. According to these witnesses, Carpenter typically waited in a stolen car across the street from the targeted store. At his signal, the robbers entered the store, brandished their guns, herded customers and employees to the back, and ordered the employees to fill the robbers' bags with new smartphones. After each robbery, the team met nearby to dispose of the guns and getaway vehicle and to sell the stolen phones.

FBI agent Christopher Hess offered expert testimony regarding the cell-site data provided by Carpenter's and Sanders's wireless carriers, MetroPCS and T–Mobile. Hess explained that cellphones work by establishing a radio connection with nearby cell towers (or "cell sites"); that phones are constantly searching for the strongest signal from those towers; and that individual towers project different signals in each direction or "sector," so that a cellphone located on the north side of a cell tower will use a different signal than a cellphone located on the south side of the same tower. Hess said that cell towers are typically spaced widely in rural areas, where a tower's coverage might reach as far as 20 miles. In an urban area like Detroit, however, each cell site covers "typically anywhere from a half-mile to two miles." He testified that wireless carriers typically log and store certain call-detail records of their customers' calls, including the date, time, and length of each call; the phone numbers engaged on the call; and the cell sites where the call began and ended.

With the cell-site data provided by Carpenter's and Sanders's wireless carriers, Hess created maps showing that Carpenter's and Sanders's phones were within a half-mile to two miles of the location of each of the robberies around the time the robberies happened. Hess used MetroPCS call-detail records, for example, to show that Carpenter was within that proximity of a Detroit Radio Shack that was robbed around 10:35 a.m. on December 13, 2010. Specifically, MetroPCS records showed that at 10:24 a.m. Carpenter's phone received a call that lasted about four minutes. At the start and end of the call, Carpenter's phone drew its signal from MetroPCS tower 173, sectors 1 and 2, located southwest of the store and whose signals point north-northeast. After the robbery, Carpenter placed an eight-minute call originating at tower 145, sector 3, located northeast of the store, its signal pointing southwest; when the call ended, Carpenter's phone was receiving its signal from tower 164, sector 1, alongside Interstate 94, north of the Radio Shack. See Carpenter App'x at 11. Hess provided similar analysis concerning the locations of Carpenter's and Sanders's phones at the time of a December 18, 2010 robbery in Detroit; a March 4, 2011 robbery in Warren, Ohio; and an April 5, 2011 robbery in Detroit. See Carpenter App'x at 12–15.

The jury convicted Carpenter and Sanders on all of the Hobbs Act counts and convicted Carpenter on all but one of the § 924(c)

gun counts. Carpenter's convictions on the § 924(c) counts subjected him to four mandatory-minimum prison sentences of 25 years, each to be served consecutively, leaving him with a Sentencing Guidelines range of 1,395 to 1,428 months' imprisonment. The district court sentenced Carpenter to 1,395 months' imprisonment and Sanders to 170 months' imprisonment. Carpenter and Sanders now appeal their convictions and sentences.

II.

A.

Carpenter and Sanders challenge the district court's denial of their motion to exclude their cell-site data from the evidence at trial. Those data themselves took the form of business records created and maintained by the defendants' wireless carriers: when the defendants made or received calls with their cellphones, the phones sent a signal to the nearest cell-tower for the duration of the call; the providers then made records, for billing and other business purposes, showing which towers each defendant's phone had signaled during each call. The government thereafter collected those records, and hence these cell-site data, for a range of dates (127 days of records for Carpenter, 88 days for Sanders) encompassing the robberies at issue here. The government did so pursuant to a court order issued under the Stored Communications Act, which required the government to show "reasonable grounds" for believing that the records were "relevant and material to an ongoing investigation." 18 U.S.C. § 2703(d)

. Carpenter and Sanders argue that the Fourth Amendment instead required the government to obtain a search warrant, pursuant to a showing of probable cause, before collecting the data. The district court rejected that argument, holding that the government's collection of cell-site records created...