Opposition Brief — Blair Thomas, Jr., Petitioner v. United States
Supreme Court briefNov 20, 2017
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No. 17-6025
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
BLAIR THOMAS, JR., PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
KENNETH A. BLANCO
Acting Assistant Attorney General
JAMES I. PEARCE
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTIONS PRESENTED
1.
Whether attempted robbery of a postal employee while
putting the employee’s life in jeopardy by use of a dangerous
weapon, in violation of 18 U.S.C. 2114(a), qualifies as a “crime
of violence” under 18 U.S.C. 924(c).
2.
Whether the district court abused its discretion in
denying petitioner’s motion for a mistrial based on comments made
by the prosecutor in rebuttal closing argument.
3.
obtaining
Whether the government violated the Fourth Amendment by
business
records
pertaining
to
petitioner’s
retail transaction from a third-party merchant.
(I)
online
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 17-6025
BLAIR THOMAS, JR., PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINION BELOW
The opinion of the court of appeals (Pet. App. A1-A14) is not
published in the Federal Reporter but is available at 2017 WL
3028606.
JURISDICTION
The judgment of the court of appeals was entered on July 18,
2017. The petition for a writ of certiorari was filed on September
14,
2017.
The
jurisdiction
28 U.S.C. 1254(1).
of
this
Court
is
invoked
under
2
STATEMENT
Following a jury trial in the United States District Court
for the Eastern District of Pennsylvania, petitioner was convicted
on two counts of attempted robbery of a postal employee while
putting the employee’s life in jeopardy by use of a dangerous
weapon, in violation of 18 U.S.C. 2114(a); one count of bank
robbery, in violation of 18 U.S.C. 2113(a); one count of possession
of a firearm by a felon, in violation of 18 U.S.C. 922(g); one
count of using or carrying a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. 924(c)(1)(A)(i); and
one count of brandishing a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. 924(c)(1)(A)(ii).
Petitioner
was
sentenced
to
a
total
term
of
384
months
of
imprisonment, to be followed by three years of supervised release.
C.A. App. 3-5.
1.
The court of appeals affirmed.
Pet. App. A1-A14.
On January 22, 2014, petitioner entered a post office in
Yeadon, Pennsylvania, wearing a mask with a fake mustache, a hat,
and a pair of glasses.
Pet. App. A2, A5.
Petitioner handed the
postal clerk a note indicating that he had a gun and demanding
$10,000 in money orders.
Id. at A2.
The postal clerk fled the
office, and petitioner left empty-handed.
Ibid.
Later the same day, petitioner entered a post office in nearby
Darby, Pennsylvania.
Pet. App. A3.
Wearing the same mask,
petitioner demanded $10,000 in money orders from the postal clerk.
3
Id. at A3, A5. When the clerk asked for identification, petitioner
pointed a gun at her and told her it was a robbery.
Presentence Investigation Report (PSR) ¶ 13.
Id. at A3;
When a customer and
postal carrier entered the office, petitioner fled.
Pet. App. A3.
The next morning, petitioner entered a Wells Fargo Bank in
nearby Springfield, Pennsylvania, wearing the same mask.
App. A3, A5.
Pet.
Petitioner handed the bank greeter a note announcing
that he was committing a robbery; the greeter took him to a bank
teller.
PSR ¶¶ 16-17.
Petitioner demanded that the teller put
money in his duffel bag and escort him to the bank vault.
App. A3.
Bank employees stuffed nearly $2,000 into the duffel
bag, but refused to take petitioner to the vault.
¶¶ 17-18.
After
Pet.
Petitioner fled with the cash.
law
enforcement
officers
Ibid.; PSR
PSR ¶ 18.
disseminated
surveillance
photos to the media, they received an anonymous tip to contact the
owner of a special effects mask company.
Pet. App. A3; PSR ¶ 20.
Officers contacted the owner, who recognized the mask used in the
robberies
as
a
“Raj”
mask,
internet.
Pet. App. A3-A4.
which
his
company
sold
over
the
The owner provided the officers with
records showing that he had sold a Raj mask to petitioner in late
December 2013, and included the mailing address associated with
the purchase.
Id. at A4; PSR ¶ 21.
Using that information, law enforcement officers obtained a
search warrant for petitioner’s residence.
Pet. App. A4.
As they
4
approached
the
residence
arrived in his vehicle.
to
Ibid.
execute
the
warrant,
petitioner
An officer directed petitioner to
stop and to show his hands, but petitioner did not comply.
Ibid.
Instead, the vehicle moved three to five feet toward the officer
before another officer pulled petitioner from the driver’s seat.
Ibid.
In a search of petitioner’s residence, officers found a U.S.
Postal Service box containing the mask from the special effects
company, a loaded pistol, and $3,000 in cash.
Pet. App. A4; PSR
¶
a
25.
In
petitioner’s
car,
officers
found
notebook
with
imprinted writing on the cover, which read: “This is a robbery.
I have a gun.
Stay calm and print ten money orders, $1,000.”
Pet.
App. A4-A5; PSR ¶ 26.
Upon arrest, petitioner waived his right to remain silent.
In a written confession, petitioner admitted that he had committed
the two attempted robberies at the post offices and the robbery at
the bank; that he had purchased the “Raj” mask online and wore
that mask in all of the robberies; and that he had used a gun at
the two post offices.
2.
Pet. App. A5.
A federal grand jury charged petitioner with two counts
of attempted robbery of a postal employee while putting the
employee’s life in jeopardy by use of a dangerous weapon, in
violation of 18 U.S.C. 2114(a); one count of bank robbery, in
violation of 18 U.S.C. 2113(a); one count of possession of a
5
firearm by a felon, in violation of 18 U.S.C. 922(g); one count of
using or carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. 924(c)(1)(A)(i); and one count
of brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. 924(c)(1)(A)(ii).
C.A. App.
36-42.
A
four-day
trial
petitioner’s
counsel
enforcement
officers
was
held.
In
her
referenced
the
that,
petitioner
when
closing
testimony
was
of
argument,
two
law
arrested,
his
vehicle had rolled toward one of the officers after he disregarded
the officer’s command to stop. Pet. App. A6. Petitioner’s counsel
claimed that “[t]hat’s not what happened” and asserted that the
officers’
testimony
was
“just
irresponsible.”
Ibid.
The
government, which had not referred to the incident in its initial
closing argument, stated on rebuttal that the jury had heard “no
evidence to suggest anything different other than [the officers’]
testimony” and that “the defense ha[d] not presented any evidence.”
Id. at A6-A7 (emphasis omitted).
After a sidebar at which the
court informed the parties that it would instruct the jury to
disregard the prosecutor’s latter statement, the government told
the jury that its point was that defense counsel’s assertions were
mere “argument,” inasmuch as the jury “did not hear evidence
suggesting that that’s not what happened.”
omitted).
Id. at A7 (emphasis
The court then instructed the jury that “any suggestion
6
that the defense needs to put on any evidence should be completely
disregarded” because petitioner “ha[d] zero, and I repeat zero,
obligation to present any evidence on any issue.” Ibid. Following
that instruction, the government stated to the jury that defense
counsel’s assertions in closing were “argument and not evidence”
and that “there was no evidence to show anything other than what
the agents told you about what happened with the car.”
Ibid.
(emphasis
court
omitted).
After
closing
arguments,
the
“emphasize[d] one more time” to the jury that petitioner had “zero
obligation to present any evidence with respect to any element or
any accusation in this case.”
The
district
court
Id. at A8.
instructed
the
jury
that,
to
find
petitioner guilty on the two Section 2114(a) counts for attempted
robbery of a postal employee, it had to find that petitioner “put
the life of a postal employee
dangerous weapon.”
* * *
in jeopardy by use of a
C.A. Supp. App. 399.
The court further
instructed the jury, without objection by petitioner, that “[t]he
offenses alleged in [the two Section 2114(a) counts] are crimes of
violence” within the meaning of Section 924(c).
found petitioner guilty on all counts.
Ibid.
The jury
Pet. App. A8.
Petitioner moved for a mistrial based on the prosecutor’s
statements in rebuttal, and the district court denied the motion.
Pet. App. A8; C.A. App. 20.
Although the court stated that the
prosecutor’s comments had “improperly suggested a shift of the
7
burden of proof from the government to [petitioner],” the court
found it “highly probable” that the comments had not affected the
verdict.
C.A. App. 20 n.1.
In finding the statements harmless,
the court emphasized “the context of the [prosecutor’s] remarks”;
the
court’s
“forceful
curative
instruction[s]”;
“overwhelming” evidence of petitioner’s guilt.
and
the
Id. at 20-21 n.1.
The district court sentenced petitioner to concurrent terms
of 24 months of imprisonment on the non-Section 924(c) counts, a
consecutive term of 60 months on the first Section 924(c) count,
and a consecutive term of 300 months on the second Section 924(c)
count, for a total term of 384 months of imprisonment, to be
followed by three years of supervised release.
3.
The court of appeals affirmed.
C.A. App. 3-5.
Pet. App. A1-A14.
Petitioner argued for the first time on appeal that his
Section
924(c)
convictions
were
invalid
because
he
had
not
committed a predicate offense that qualifies as a “crime of
violence” under 18 U.S.C. 924(c)(3).
Section 924(c)(3) defines a
“crime of violence” as a felony “offense” that (1) “has as an
element the use, attempted use, or threatened use of physical force
against the person or property of another,” 18 U.S.C. 924(c)(3)(A);
or (2) “by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the
course
of
committing
the
offense,”
18
U.S.C.
924(c)(3)(B).
Petitioner argued that attempted robbery in violation of 18 U.S.C.
8
2114(a) does not qualify as a crime of violence under Section
924(c)(3)(A) and that Section 924(c)(3)(B) is unconstitutionally
vague in light of Johnson v. United States, 135 S. Ct. 2551 (2015).
Pet. C.A. Br. 35-52.
The
court
Following
of
circuit
appeals
precedent,
rejected
the
petitioner’s
court
analyzed
argument.
whether
the
“jury’s determination of the facts” established that petitioner
committed a predicate offense involving the use, attempted use, or
threatened use of physical force under Section 924(c)(3)(A).
Pet.
App. A13 (quoting United States v. Robinson, 844 F.3d 137, 141 (3d
Cir. 2016), cert. denied, No. 17-5139 (Oct. 2, 2017)).
The court
noted that, under the jury instructions, the jury specifically
found that petitioner had “put the life of a postal employee . . .
in jeopardy by use of a dangerous weapon.”
Ibid.
The court
therefore concluded that the jury “had an adequate factual basis”
to determine that petitioner’s offense qualified as a crime of
violence under Section 924(c)(3)(A) and did not reach petitioner’s
arguments concerning Section 924(c)(3)(B).
Ibid.
The court of appeals also rejected petitioner’s claim that
the district court abused its discretion in declining to declare
a mistrial based on the prosecutor’s rebuttal comments.
A9-A11.
Pet. App.
The court of appeals expressed doubt about whether the
prosecutor’s
shifting.”
comments
Id. at A10.
“even
constituted
impermissible
burden
And it determined that even if they were
9
improper, a new trial was not required because the “remarks
pertained to a collateral issue”; the district court had given
appropriate
curative
instructions;
and
the
evidence
against
petitioner, which included “extensive witness testimony, physical
evidence, and a written confession,” was “‘overwhelming.’”
Id. at
A10-A11 (quoting C.A. App. 21 n.1).
Finally, the court of appeals rejected petitioner’s claim
that the search warrant for his residence was invalidly premised
on information obtained from the owner of the mask company without
a warrant.
Pet. App. A13-A14.
Noting this Court’s holding in
Smith v. Maryland, 442 U.S. 735, 743-744 (1979), that an individual
has
“no
legitimate
expectation
of
privacy
in
information
he
voluntarily turns over to third parties,” the court reasoned that
petitioner had voluntarily disclosed his name and address when
purchasing the mask.
Pet. App. A14.
ARGUMENT
Petitioner contends (Pet. 11-13) that his Section 924(c)
convictions are invalid because he did not commit a crime of
violence
within
the
meaning
of
18
U.S.C.
924(c)(3)(A).
Petitioner’s claim lacks merit, and he cannot satisfy the plainerror standard applicable to that forfeited claim.
The predicate
offense at issue -- attempted robbery of a postal employee while
putting the employee’s life in jeopardy by use of a dangerous
weapon, in violation of 18 U.S.C. 2114(a) -- necessarily involves
10
“the use, attempted use, or threatened use of physical force
against the person or property of another” and therefore qualifies
as a crime of violence under Section 924(c)(3)(A).
Petitioner
suggests (Pet. 12) that the court of appeals erred by failing to
conduct its analysis using the categorical approach, but his
methodological criticism makes no difference because the same
result would obtain under the categorical approach.
Petitioner’s other arguments also do not warrant review.
The
court of appeals correctly concluded that the district court did
not abuse its discretion in denying petitioner’s motion for a
mistrial and that the government did not violate the Fourth
Amendment by acquiring petitioner’s name and address from the
third-party mask seller.
And those rulings do not conflict with
any decision of this Court or another court of appeals.
1.
a.
As petitioner acknowledged below (Pet. C.A. Br. 3-
4, 50-52), his argument attacking his Section 924(c) convictions
was not raised in district court and thus is reviewable only for
plain error.
To establish plain error under Federal Rule of
Criminal Procedure 52(b), petitioner must demonstrate that (1) the
district court committed an “error”; (2) the error was “plain,”
meaning “clear” or “obvious”; (3) the error “affect[ed] [his]
substantial rights”; and (4) the error “seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings.”
Puckett v. United States, 556 U.S. 129, 135 (2009) (citations
11
omitted).
Petitioner cannot show any error, much less clear or
obvious error, in the district court’s instruction to the jury
that
petitioner’s
Section
2114(a)
offenses
were
crimes
of
violence.
As noted, Section 924(c)(3) defines a “crime of violence” as
including, inter alia, a felony “offense” that “has as an element
the use, attempted use, or threatened use of physical force against
the person or property of another.”
18 U.S.C. 924(c)(3)(A).
This
Court has held that identical language in another statute requires
a categorical approach under which courts “look to the elements
and the nature of the offense of conviction, rather than to the
particular facts relating to [a defendant’s] crime,” to determine
whether the offense fits that definition.
Leocal v. Ashcroft, 543
U.S. 1, 7 (2004) (interpreting 18 U.S.C. 16(a)).
Where, as here,
a defendant is convicted under a statute that enumerates several
offenses with different penalties, the court may look to specified
record materials, including “jury instructions,” to “determine
what crime, with what elements, a defendant was convicted of.”
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).
The predicate offense at issue in this case is attempted
robbery of a postal employee while putting the employee’s life in
jeopardy by use of a dangerous weapon, in violation of 18 U.S.C.
2114(a).
Section 2114(a) provides that “[a] person who
* * *
attempts to rob” any “person having lawful charge, control, or
12
custody of any mail matter or of any money or other property of
the United States” shall be punished as set forth in the statute.
18 U.S.C. 2114(a).
If only those elements are satisfied, the
maximum
ten
sentence
is
years
of
imprisonment.
But
if
the
defendant, in “attempting to effect such robbery,” also “puts [the
employee’s] life in jeopardy by the use of a dangerous weapon,”
the maximum sentence increases to 25 years of imprisonment.
Ibid.
Because a finding that the defendant put an employee’s life in
jeopardy by use of a dangerous weapon increases the penalty for
the crime, that finding “must be submitted to the jury and found
beyond a reasonable doubt.”
Alleyne v. United States, 133 S. Ct.
2151, 2155 (2013); see Apprendi v. New Jersey, 530 U.S. 466 (2000).
Petitioner
was
convicted
of
the
aggravated
version
of
attempted robbery under 18 U.S.C. 2114(a). Consistent with Alleyne
and Apprendi, the district court instructed the jurors that, in
order to “find [petitioner] guilty” on the Section 2114(a) counts,
they had to find that petitioner “put the life of a postal employee
* * *
in jeopardy by use of a dangerous weapon.”
C.A. Supp. App.
399.
Because using a dangerous weapon to place an employee’s life
in jeopardy involves the use, attempted use, or threatened use of
physical
force
necessarily
“has
against
the
as
element
an
employee,
the
petitioner’s
use,
attempted
offense
use,
or
threatened use of physical force against the person or property of
another” within the meaning of 18 U.S.C. 924(c)(3)(A).
See United
13
States v. Enoch, 865 F.3d 575, 580-582 (7th Cir. 2017) (concluding
that same offense categorically qualifies as a crime of violence
under
Section
924(c)(3)(A)).
The
district
court
therefore
correctly instructed the jury that “the offenses alleged in [the
Section 2114(a) counts] are crimes of violence.”
C.A. Supp. App.
399.
b.
Petitioner suggests (Pet. 10-13 & n.2) that the court of
appeals erred in declining to apply the “categorical approach” in
addressing whether petitioner had committed a crime of violence
under Section 924(c).
But petitioner’s methodological criticism
provides no sound reason for this Court’s review.
Although the
court of appeals disclaimed reliance on a categorical approach to
the
application
of
Section
924(c)(3)(A)
in
United
States
v.
Robinson, 844 F.3d 137, 141-143 (3d Cir. 2016), cert. denied, No.
17-5139 (Oct. 2, 2017), and relied on Robinson here, see Pet. App.
A12-A13, any focus on the particular (noncategorical) facts of
petitioner’s own offense did not affect the result. Cf. California
v. Rooney, 483 U.S. 307, 311 (1987) (per curiam) (“This Court
reviews
omitted).
judgments,
not
statements
in
opinions.”)
(citation
As explained above, attempted robbery of a postal
employee while putting the employee’s life in jeopardy by use of
a dangerous weapon categorically qualifies as a crime of violence
under Section 924(c)(3)(A), and petitioner has not shown that any
other circuit would reach a different result on these facts.
This
14
Court
recently
denied
certiorari
in
Robinson
under
similar
circumstances, and the same course is warranted here.1
c.
Petitioner notes (Pet. 11 & n.3) that this Court held in
Johnson v. United States, 135 S. Ct. 2551 (2015), that the residual
clause of the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e),
is unconstitutionally vague, and observes that this Court has
granted certiorari in Sessions v. Dimaya, No. 15-1498 (reargued
Oct. 2, 2017), to consider whether the definition of “crime of
violence” in 18 U.S.C. 16(b) is similarly unconstitutional.
pendency
of
Dimaya
has
no
effect
on
this
petition,
The
because
petitioner does not seek this Court’s review of any constitutional
question.
offenses
Moreover, as explained, petitioner’s Section 2114(a)
qualify
as
“crime[s]
of
violence”
under
Section
924(c)(3)(A), the language of which is not at issue in Dimaya.
Holding this petition for Dimaya is therefore not warranted.
2.
Petitioner’s assertion (Pet. 16-19) that the government
“improperly shifted the burden of proof” during its rebuttal
closing
argument
also
does
not
warrant
this
Court’s
review.
Petitioner does not challenge the legal standard employed by the
court of appeals in reviewing petitioner’s claim, but instead
argues
(Pet.
17)
that
the
court
misapplied
its
standard
in
concluding that the district court did not abuse its discretion in
1
A similar issue is raised in the pending petition in Galati
v. United States, No. 17-5229 (S. Ct.).
15
denying petitioner’s motion for a mistrial.
does not warrant this Court’s review.
That factbound claim
See Sup. Ct. R. 10 (“A
petition for a writ of certiorari is rarely granted when the
asserted error consists of erroneous factual findings or the
misapplication of a properly stated rule of law.”); United States
v. Johnston, 268 U.S. 220, 227 (1925) (“We do not grant
* * *
certiorari to review evidence and discuss specific facts.”).
In any event, the court of appeals correctly determined that
the
district
court
acted
within
its
discretion
in
denying
petitioner’s motion. As an initial matter, as the court of appeals
observed, it is “debatable” whether the prosecutor’s remarks in
rebuttal closing argument were even improper.
Pet. App. A10.
Those
assertions
remarks
were
made
only
in
response
to
by
petitioner’s counsel that law enforcement officers had testified
untruthfully and “irresponsibl[y],” and this Court has recognized
that, if fairly invited by a defendant’s arguments, a prosecutor
may permissibly comment upon a defendant’s failure to tender
evidence.
See United States v. Robinson, 485 U.S. 25, 26, 32
(1988); Lockett v. Ohio, 438 U.S. 586, 594-595 (1978).
Even if
the prosecutor’s comments were improper, the court of appeals
correctly
affirmed
the
denial
of
petitioner’s
motion
for
a
mistrial, reasoning that the prosecutor’s comments “pertained to
a collateral issue”; the district court gave the jury multiple
curative instructions; and the evidence of petitioner’s guilt was
16
“‘overwhelming’”
and
included
“extensive
witness
physical evidence, and a written confession.”
testimony,
Pet. App. A11
(quoting C.A. App. 21 n.1); cf. United States v. Mastrangelo,
172 F.3d 288, 297 (3d Cir. 1999).
That analysis is correct and
consistent with the approach taken by other circuits.
See, e.g.,
United States v. Wilkes, 662 F.3d 524, 537-539 (9th Cir. 2011)
(refusing to direct new trial where government’s rebuttal comments
were “invited” by defense counsel, the district court “admonished”
the jury that “comments by counsel are not evidence,” and the
verdict was supported by “overwhelming evidence”), cert. denied,
566 U.S. 981 (2012); United States v. Simon, 964 F.2d 1082, 10861087 (11th Cir. 1992) (holding that the government’s comments upon
the
defendant’s
failure
to
produce
exculpatory
evidence
were
“probably improper,” but cured by district court instructions),
cert. denied, 507 U.S. 1033 (1993).
3.
Finally,
petitioner
argues
(Pet.
13-16)
that
the
government violated the Fourth Amendment by acquiring petitioner’s
name and address from the owner of the company that sold him the
mask used during the robberies, then using that information to
obtain a search warrant for petitioner’s residence.
is
foreclosed
by
this
Court’s
precedent,
That argument
as
petitioner
acknowledges (Pet. 13).
Nothing in the Fourth Amendment prevents a witness from
voluntarily
providing
information
to
the
government
that
17
implicates wrongdoing by another.
See, e.g., United States v.
Jacobsen, 466 U.S. 107, 117 (1984) (“[W]hen an individual reveals
private information to another, he assumes the risk that his
confidant will reveal that information to the authorities.”). More
generally, “[t]his Court consistently has held that a person has
no legitimate expectation of privacy in information he voluntarily
turns over to third parties.”
743-744 (1979).
Smith v. Maryland, 442 U.S. 735,
Third parties who transact business with a
customer are free to create business records of that transaction,
and the government’s subsequent acquisition of those records does
not constitute a Fourth Amendment search of the customer.
See id.
at 744-745; United States v. Miller, 425 U.S. 435, 443 (1976)
(“[T]he
Fourth
Amendment
does
not
prohibit
the
obtaining
of
information revealed to a third party and conveyed by him to
Government authorities.”).
In Miller, which involved a subpoena
for bank records, this Court reasoned that because the defendant
could assert “neither ownership nor possession” of the banks’
business records, and because those records “contain[ed] only
information voluntarily conveyed to the banks
* * *
in the
ordinary course of business,” no search of the defendant had
occurred.
425 U.S. at 440, 442.
Those principles resolve petitioner’s claim, as the court of
appeals recognized.
See Pet. App. A14.
When petitioner purchased
the mask, he voluntarily provided his name and address.
As with
18
the
bank
records
in
Miller,
petitioner
“can
assert
neither
ownership nor possession” of the mask company’s records of its
transaction with him.
425 U.S. at 440.
And as in Smith, customers
in online retail transactions do not have a “general expectation”
that the information they provide in completing a purchase “will
remain secret.”
442 U.S. at 743.
Petitioner’s
assertion
(Pet.
13)
that
this
Court
should
“overrule[]” the third-party doctrine in light of United States v.
Jones, 565 U.S. 400 (2012), is unsound.
In Jones, the Court
concluded that the surreptitious installation and use of a GPS
tracking device on a vehicle to continuously monitor its movements
over the course of 28 days constituted a Fourth Amendment search.
Id. at 402-404.
In reaching that conclusion, the Court relied on
the fact that the government had “physically intrud[ed] on a
constitutionally protected area” -- the suspect’s automobile -- to
attach the device.
Id. at 407 n.3.
Here, by contrast, petitioner
does not contend that any such physical intrusion occurred.
Nor do the broader privacy concerns discussed in Justice
Sotomayor’s concurring opinion in Jones justify creating a novel
Fourth Amendment rule for the business records of online retail
transactions.
Whereas the GPS device in Jones allowed law-
enforcement officers to use “signals from multiple satellites” to
continuously track the movements of the defendant’s vehicle over
the course of 28 days, accurate to “within 50 to 100 feet,” 565
19
U.S. at 403, the information obtained by the government here
consisted only of merchant records from a single online purchase,
which the mask seller voluntarily provided to law enforcement.2
Petitioner
urges
(Pet.
objectively
reasonable
14)
that
he
had
a
“subjective
and
expectation
of
privacy
regarding
the
information” he provided to the mask seller, but fails to identify
any basis for his assumption that Fourth Amendment principles apply
differently to the records of voluntary retail transactions that
occur via the internet than to records of such transactions
occurring
through
other
channels.
Moreover,
as
petitioner
acknowledges (Pet. 16), “there is no circuit split regarding this
issue.”3
In Carpenter v. United States, No. 16-402 (oral argument
scheduled for Nov. 29, 2017), this Court granted certiorari to
consider whether the government’s acquisition, pursuant to a court
order issued under 18 U.S.C. 2703(d), of historical cell-site
records created and maintained by a cell-service provider violates
the Fourth Amendment rights of the individual customer to whom the
records pertain. The facts here do not warrant holding this case
for Carpenter, and petitioner does not so request.
2
3
Petitioner’s argument would not entitle him to suppression in
any event.
“Evidence obtained during a search conducted in
reasonable reliance on binding precedent is not subject to the
exclusionary rule.”
Davis v. United States, 564 U.S. 229, 241
(2011).
Here, petitioner does not dispute (Pet. 13) that the
officers’ actions in obtaining petitioner’s information from the
mask seller were authorized by precedent and undertaken in good
faith.
20
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
KENNETH A. BLANCO
Acting Assistant Attorney General
JAMES I. PEARCE
Attorney
NOVEMBER 2017
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.