United States v. Rosario

• Decision Date: 19 July 2021
• Docket Number: No. 20-2330,20-2330
• Citation: 5 F.4th 706
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joel ROSARIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

5 F.4th 706

UNITED STATES of America, Plaintiff-Appellee,

v.Joel ROSARIO, Defendant-Appellant.

No. 20-2330

United States Court of Appeals, Seventh Circuit.

Argued May 11, 2021

Decided July 19, 2021

Caitlin Walgamuth, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff - Appellee.

Gal Pissetzky, Adam Bolotin, Attorneys, PISSETZKY LAW, Chicago, IL, for Defendant - Appellant.

Before Easterbrook, Ripple, and Kanne, Circuit Judges.

Ripple, Circuit Judge.

Several individuals burglarized a store in Ann Arbor, Michigan, stealing firearms, collector coins, and other goods. Police officers obtained cell-site location information pursuant to the Stored Communications Act, 18 U.S.C. § 2701 et seq. That information led to the arrest of Joel Rosario.

Prior to trial, Mr. Rosario filed a motion to suppress the cell-site location information. He submitted that the Fourth Amendment required the Government to secure a search warrant before obtaining cell-site location information. Applying the law as it existed prior to Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), the district court denied the motion, holding that the acquisition of cell-site location information from third-party service providers did not constitute a Fourth Amendment search.

A jury found Mr. Rosario guilty of one count of transporting stolen goods in interstate commerce, in violation of 18 U.S.C. § 2314, and of one count of unlawful possession of a firearm by a felon, in violation of 18 U.S.C § 922(g)(1). Mr. Rosario filed a motion for a new trial, maintaining that the cell-site location information should have been suppressed because it was obtained without a warrant. While Mr. Rosario's motion was pending, the Supreme Court issued its decision in Carpenter , holding that the acquisition of cell-site location information constitutes a Fourth Amendment search for which law enforcement is generally required to obtain a warrant supported by probable cause. 138 S. Ct. at 2221. The district court nevertheless denied Mr. Rosario's new trial motion, as well as his subsequent motion to reconsider. Mr. Rosario timely appealed, and we now affirm the judgment of the district court.

I

A.

On December 5, 2013, several individuals burglarized a store in Ann Arbor, Michigan, after the store had closed. The burglars stole twenty-four firearms, collector coins, and other goods with a combined value over $208,000. The store's owner told investigating officers that three men had entered the store approximately forty-five minutes prior to closing. The owner had spoken to one of the men about guns in a display case, while the other two browsed the store.

During the investigation, the officers discovered that a private caller, using the *67 code,¹ had placed multiple calls to the store shortly after it had closed for the day. The Stored Communications Act sets out two ways to obtain cell-site location information: (1) voluntary disclosure, or an "exigent request," under 18 U.S.C. § 2702(c) ;² or (2) required disclosure authorized by a court order, under 18 U.S.C. § 2703(d).³ Here, the officers made an exigent request to Comcast, the store's telephone service provider, for the private caller's phone number. After Comcast voluntarily disclosed the number, the officers, using the Internet, determined that Sprint was that caller's provider. The officers then made an exigent request to Sprint for the cell-site location information for that cell phone.

Cell-site location information is the location information generated by a cell phone. When the phone is powered on,⁴ it sends and receives signals from the cell tower with the strongest signal; that cell tower is usually the one closest to the phone. Sprint voluntarily provided the requested cell-site location information, which indicated that on December 3 and 4, 2013, the phone had pinged off various cell towers in Illinois. At 9:26 p.m. on December 4, however, the phone had pinged off of a cell tower in Lansing, Michigan, and at 11:14 p.m., the phone pinged off of a cell tower in Ann Arbor, Michigan. The phone pinged off of cell towers in Ann Arbor until 6:37 p.m. on December 5. The phone then traveled back to Illinois. The officers surveyed hotels in the Ann Arbor area and discovered that the phone number had been provided to a Comfort Inn under Mr. Rosario's name.

Although the officers had obtained cell-site location information directly from Sprint, the officers and the Government later sought court orders for the same and more information. On December 9, 2013, the officers applied for and received a court order pursuant to § 2703(d) to obtain the store's phone records from Comcast. On December 13, 2013, the Government applied for and received another court order pursuant to § 2703(d) to obtain the cell-site location information for Mr. Rosario's phone for the month of December 2013. In February 2017, the Government again sought and received the same information from Sprint in another § 2703(d) order.

B.

A grand jury indicted Mr. Rosario for transporting stolen goods in interstate commerce, in violation of 18 U.S.C. § 2314, and for unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On December 4, 2016, Mr. Rosario filed a motion to suppress the cell-site location information evidence. He argued that the Government had obtained the cell-site location information in violation of his Fourth Amendment rights by failing to first obtain a warrant supported by probable cause. At the time the district court denied Mr. Rosario's motion to suppress, there was not yet any binding Fourth Amendment precedent regarding the propriety of acquiring cell-site location information from third-party service providers. Relying on Smith v. Maryland , 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and applying the third-party doctrine, the court concluded that Mr. Rosario did not have a reasonable expectation of privacy in the information he voluntarily had turned over to his cellular service provider through the use of his cell phone. The court accordingly denied Mr. Rosario's suppression motion. Mr. Rosario proceeded to trial, and the jury convicted him on both counts.

Two months after Mr. Rosario's trial, the Supreme Court issued its decision in Carpenter , 138 S. Ct. at 2206. The Court held that individuals do have a reasonable expectation of privacy in their cell-site location information and that police generally must obtain a warrant supported by probable cause prior to acquiring cell-site location information from a third-party service provider. The Court further held that court orders obtained under § 2703(d) were insufficient. Showing by specific and articulable facts that there are "reasonable grounds" to believe that the information was "relevant and material to an ongoing investigation" is a lower standard than probable cause. Id. at 2221.

The district court nevertheless denied Mr. Rosario's motions to reconsider the motion to suppress and for acquittal; it also concluded that a new trial was not warranted. The court acknowledged that its earlier denial of Mr. Rosario's suppression motion rested on the pre- Carpenter view that obtaining cell-site location information was not a search. The court further acknowledged that Carpenter had "effectively over-turned" that view.⁵ The district court held, nevertheless, that a clear chain of probable cause would have led to the cell-site location information's inevitable discovery and that the officers had followed in good faith the requirements of the existing legal framework of the Stored Communications Act.

II

A.

Mr. Rosario appeals the district court's denial of his motion to suppress the cell-site location information evidence. He contends that the police seized the cell-site location information records without probable cause and that the records are therefore inadmissible against him. The district court erred, he maintains, in denying the motion to suppress and in denying him a new trial.

1.

The procedural and substantive standards that must govern our assessment of Mr. Rosario's submission are well established. In reviewing a district court's denial of a motion to suppress, "we review legal conclusions de novo but findings of fact for clear error." United States v. Edgeworth , 889 F.3d 350, 353 (7th Cir. 2018). We review a district court's ruling on a new trial motion for an abuse of discretion. United States v. Friedman , 971 F.3d 700, 713 (7th Cir. 2020). An error of law constitutes an abuse of discretion. See United States v. Shelton , 997 F.3d 749, 757 (7th Cir. 2021).

"The ‘touchstone’ of the Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ " United States v. Hammond , 996 F.3d 374, 383 (7th Cir. 2021) (quoting Henry v. Hulett , 969 F.3d 769, 776–77 (7th Cir. 2020) ). "If a defendant has the requisite expectation of privacy, the Fourth Amendment generally requires law enforcement to obtain a warrant before executing a search." Id. at 384. "In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement." Id. (quoting Riley v. California , 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ).

To " ‘compel respect for the constitutional guaranty’ of freedom from unreasonable searches," the Supreme Court also has "fashioned the exclusionary rule." Id. (quoting United States v. Martin , 807 F.3d 842, 846 (7th Cir. 2015) ). We have recently made clear, however, that

the exclusionary rule is not a personal constitutional right, and its application exacts a heavy toll on both the judicial system and society at large, as its effect often is to suppress the truth and set the criminal loose in the community without punishment. The exclusionary rule is designed primarily to deter unconstitutional conduct. The exclusionary rule therefore does not apply when law enforcement has relied in

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