Opposition Brief — Carpenter v. United States, 138 S. Ct. 293 (2017) (No. 16-402)

FILED

AND | JAN 27 2017

BREF - FFICE OF THE CLERK

| No. 16-402 | SOP REMC COURTUS” |

In the Supreme Court of the Hnited States

TIMOTHY IVORY CARPENTER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Acting Solicitor Genera!

Cownsal of Record

KENNETH A. BLANCO

Acting Assistant Attorney

Generali

JENNY C. ELLICKSON

Attorney

Department of Justice

Washington, D.C. 20530-000 !

SupremeCt Briefs@usdoj.guv

(202) 514-2217

QUESTION PRESENTED

Whether the government’s acquisition, pursuant to

a court order issued under 18 U.S.C. 2703(d), of his-

torical cell-site records created and maintained by a

cellular-service provider violates the Fourth Amend-

ment rights of the incividual customer to whom the

records pertain.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Application of the U.S. for an Order Directing a

Provider of Elec. Commc’n Serv. to Disclose

Records to the Gov't, In re, 620 F.3d 304

a eeeisieiienmnnainns 26, 27, 28

Application of the U.S. for Historical Cell Site

Data, In re, 724 F.3d 600 (5th Cir. 2013).............c000 15, 26

Commonwealth v. Augustine, 4 N.E.3d 846

i a cca 29

Davis v. United States, 131 S. Ct. 2419 (2011) ........0...ccc00e 31

Davis v. United States, 136 S. Ct. 479 (2015) ...............c0000 10

Donaldson v. United States, 400 U.S. 517 (1971)...........006 18

Ferguson v. City of Charleston, 532 U.S. 67 (2001)........... 22

Guerrero v. United States, 135 S. Ct. 1548 (2015).............. 10

Illinois v. Krull, 480 U.S. 340 (1987) .2..........:cccccccesscereeeenees 30

Katz v. United States, 389 U.S. 347 (1967) ...........:ccccccceeee 11

Kylio v. United States, 533 U.S. 27 (2001).............. 11, 17, 18

Maryland v. King, 133 S. Ct. 1958 (2013)............... 23, 25, 26

Neder v. United States, 527 U.S. 1 (1999) ..........cccceccceeseeees 31

Oklahoma Press Publ’g Co. v. Walling,

Be ialntecerinienshichibeirieideierieiaeamaiistine 11, 23, 24

Reporters Comm. for Freedom of the Press v.

American Tel. & Tel. Co., 593 F.2d 1030

(D.C. Cir. 1978), cert. denied, 440 U.S. 949 (1979) .......... 28

(IIT)

IV

Cases—Continued: Page

Riley v. California, 134 S. Ct. 2473 (2014).............+. 19, 20, 22

Smith v. Maryland, 442 U.S. T35 (1979) ........00ccnseeee passim

State v. Earls, 70 A.3d 630 (NJ. 2018) ..........cccccceeceeeneenenees 29

Tracey v. State, 152 So. 3d 504 (Fla. 2014).............ccccceseneus 29

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

cert. denied, 136 S. Ct. 479 (2015) .............0000 15, 24, 25, 26

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

petitions for cert. pending, No. 16-6308 (filed

Sept. 26, 2016), and No. 16-6694 (filed Oct. 27,

EE A mvs Ne OC 16, 17, 26

United States v. Jones, 132 S. Ct. 945 (2012)............. passim

United States v. Karo, 468 U.S. 705 (1984)..........ccccrceeneeees 17

United States v. Knotts, 460 U.S. 276 (1983) ..........c-c0000 20

United States v. Leon, 468 U.S. 897 (1984) ...........cccccccceeeees 30

United States v. Maynard, 615 F.3d 544 (D.C. Cir.

2010), aff'd on other grounds sub nom. United

States v. Jones, 132 S. Ct. 945 (2012) ............ccceccsscesseneerees 28

United States v. Miller, 425 U.S. 435 (1976).............. passim

United States v. Salerno, 481 U.S. 739 (1987) ............cc00+ 25

United States v. Watson, 423 U.S. 411 (1976) ............0000000 23

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995)...... 23

Zanders v. State, 58 N.E.3d 254 (Ind. Ct. App.),

vacated and transfer granted, 62 N.E.3d 1202

ac seabbanisenemennaensiniel 28

Constitution and statutes:

CE, Cortel. Be, BY cccccesescncccsssnrsnsvsrresenresevesenneeensevens pass~m

Bank Secrecy Act, 12 U.S.C. 1829b(d) .........0.s:eeseereees 3, 5, 12

Bias Bak, 8B UEC... TBI) ccnccccececennsecovisesercoseescesessnessoene 2,5

Statutes—Continued: Page

Stored Communications Act, 18 U.S.C. 2701 et seq............. 2

a ne pe eee ears 3

Eee me 3

ee Ee ID pancescnesepsicicavesnsaiaczensesoustsenicesiii 3, 27

Oe ee scarcer sctrindaceenbentetienninbanteiciten 3

18 U.S.C. STOBCEHAMA)AC))..cccccccccccssccscccsscccscessscssesees eel

A lah ini alas lnetatceatainnindiahiniie 3, 9, 24, 25

4 L . een ee meer oe. 3

os ccaineeiateninpemniadtiaiedundediaih 2,5

BD , Be) sei cetescecsncoreninnnsennsinernnensscanmnavecnntatsseepeateninesiies 3

In the Supreme Court of the Gnited States

No. 16-402

TIMOTHY IVORY CARPENTER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

32a) is reported at 819 F.3d 880. The opinion of the

district court denying petitioner’s motion to suppress

(Pet. App. 34a-48a) is not published in the Federal

Supplement but is available at 2013 WL 6385838.

JURISDICTION

The judgment of the court of appeals was entered

on April 13, 2016. A petition for rehearing was denied

on June 29, 2016 (Pet. App. 33a). The petition for a

writ of certiorari was filed on September 26, 2016.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Michigan, petitioner

was convicted on six counts of aiding and abetting

(1)

2

Hobbs Act robbery, in violation of 18 U.S.C. 1951(a),

and five counts of aiding and abetting the use or

carrying of a firearm during and in relation to a crime

of violence, in violation of 18 U.S.C. 924(c). Pet. App.

5a-6a. The district court sentenced petitioner to 1395

months in prison. Jd. at 7a. The court of appeals

affirmed. /d. at la-24a.

1. Between December 2010 and December 2012,

petitioner and his co-conspirators committed a string

of armed robberies at Radio Shack and T-Mobile

stores in Ohio and Michigan. Pet. App. 3a, 6a; Presen-

tence Investigation Report (PSR) 11 16-23. Petitioner

organized most of the robberies, often supplied the

guns, and typically acted as a lookout during the rob-

beries. Pet. App. 5a. On petitioner’s signal, a group

of 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.” /bid. After each robbery, the

team disposed of the guns and getaway vehicle and

sold the stolen merchandise. /bid.; PSR 1% 17-23.

2. a. In April 2011, police arrested four of peti-

tioner’s co-conspirators, and one of them confessed

that the group had robbed nine stores in Michigan and

Ohio between December 2010 and March 2011. Pet.

App. 3a. The robber who confessed to the crimes gave

the Federal Bureau of Investigation (FBI) his cellular

telephone number and the cell-phone numbers of

other co-conspirators. Jbid. The FBI reviewed his

call records and identified additional numbers he had

called around the time of the robberies. /b7d.

In May and June 2011, the government applied to

federal magistrate judges for three court orders pur-

suant to the Stored Communications Act (SCA),

3

18 U.S.C. 2701 et seg. See Pet. App. 3a, 49a-55a, 62a-

68a; Gov’t C.A. Br. 9. Those applications sought or-

ders directing certain cellular-service providers, in-

cluding MetroPCS and Sprint, to disclose specified

records for 16 telephone numbers, including a cell-

phone number that petitioner was known to use. Pet.

App. 3a-4a, 49a-55a, 62a-68a; Gov’t C.A. Br. 9.

The SCA generally prohibits communications pro-

viders from disclosing certain records pertaining to

their subscribers to a governmental entity, but per-

mits the government to acquire such records in cer-

tain circumstances. 18 U.S.C. 2510(1), 2702(a), 2703,

2711(1). As relevant here, the government may obtain

“a record or other information pertaining to a sub-

scriber * * * (not including the contents of commu-

nications)” either through a warrant or through “a

court order for such disclosure under [18 U.S.C.

2703(d)].” 18 U.S.C. 2703(c)(1)(A) and (B). To obtain a

court order, the government must “offer[] specific and

articulable facts showing that there are reasonable

grounds to believe that * * * the records or other

information sought{] are relevant and material to an

ongoing criminal investigation.” 18 U.S.C. 27038(d).

The records that the government may obtain under

such an order include a subscriber’s name and address,

“telephone connection records,” and “records of session

times and durations.” 18 U.S.C. 2703(c)(2)(A)-(C).

The records that the government sought for peti-

tioner’s cell phone included “[aJll subscriber infor-

mation, toll records and call detail records including

listed and unlisted numbers dialed or otherwise

transmitted to and from [petitioner’s] telephone[].”

Pet. App. 4a (first set of brackets in original). The

government also sought records known as historical

4

“cell-site” records, which show which cell towers a cell

phone has connected with while in use. /d. at 4a-5a.

Cellular-service providers create and retain cell-site

records in the ordinary course of business for their

own purposes, including to find weak spots in their

cellular networks and to determine whether to charge

customers roaming charges for particular calls. Jd. at

5a, Ta, 10a.

In this case, the government sought “cell site

information for [petitioner’s] telephone[] at call ori-

gination and at call termination for incoming and

outgoing calls.” Pet. App. 4a. As an FBI expert testi-

fied, “cellphones work by establishing a radio connec-

tion with nearby cell towers (or ‘cell sites’).” /d. at 5a.

“(I )ndividual towers project different signals in each

direction or ‘sector,’” with three or six sectors per

tower, “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.” Jbid.;

see id. at 14a. In an urban area like Detroit, the FBI

expert explained, “each cell site covers ‘typically any-

where from a half-mile to two miles.’” /d. at 5a. By

requesting “historical” cell-site records, the govern-

ment sought data pertaining only to past calls and did

not seek to monitor the connections of petitioner’s

phone to cell towers in real time.

The magistrate judges granted the government’s

applications and issued the requested orders. Pet.

App. 56a-61a, 69a-73a. Petitioner’s wireless carrier,

MetroPCS, then produced 127 days of historical cell-

site records for petitioner’s phone number, which

MetroPCS had made in the ordinary course of busi-

ness for billing and other business purposes. /d. at 7a,

10a; see Pet. 5 & n.2. In addition, Sprint produced

5

seven days of historical cell-site records for petition-

er’s phone number for early March 2011, when peti-

tioner’s cell phone was connecting to Sprint cellular

towers in Warren, Ohio, pursuant to a roaming agree-

ment between MetroPCS and Sprint. 12/13/13 Tr. (Tr.)

58-60; Pet. App. 88a; see Pet. 5.

From the historical cell-site records as well as

MetroPCS and Sprint records identifying the loca-

tions of their towers, the government was able to infer

the approximate location of petitioner’s phone at the

time it made and received calls. Pet. App. 6a; Tr. 93-

94. Because the cell-site records “could do no better

than locate [petitioner’s] cellphone[] within a 120- (or

sometimes 60-) degree wedge extending between one-

half mile and two miles in length,” however, the gov-

ernment could determine the location of petitioner’s

phone only “within a 3.5 million square-foot to 100

million square-foot area.” Pet. App. 14a. The gov-

ernment ultimately determined that petitioner’s cell

phone communicated with cell towers in the general

vicinity of the sites of four robberies between Decem-

ber 2010 and April 2011. /d. at 6a.

b. Petitioner was indicted on six counts of aiding

and abetting Hobbs Act robbery, in violation of 18

U.S.C. 1951(a), and six counts of aiding and abetting

the use or carrying of a firearm during and in relation

to a federal crime of violence, in violation of 18 U.S.C.

924(c). Pet. App. 4a; D. Ct. Doc. 119 (June 18, 2013).

Before trial, petitioner moved to suppress the histori-

cal cell-site records, alleging that the government had

obtained them from MetroPCS and Sprint in violation

' The records did not contain any cell-site information for text

messages or for times when petitioner’s cell phone was turned on

but was not making or receiving a call. See Pet. App. 7a.

6

of the Fourth Amendment. Pet. App. 7a-8a. Petition-

er argued that MetroPCS’s and Sprint’s production of

their business records constituted a search of peti-

tioner that could be conducted only pursuant to a

search warrant supported by probable cause. /bid.

The district court denied the motion to suppress.

Pet. App. 34a-48a. The court observed that petitioner

had “not directed the Court to a single decision by any

United States Court of Appeals * * * that supports

[his] position,” and it concluded that “there is no legit-

imate expectation of privacy in cell site data.” Jd. at

38a. The district court ruled in the alternative that,

even if a warrant were required to obtain historical

cell-site data, “the evidence should not be suppressed

* * * because the agents relied in good faith on the

[SCA] in obtaining the evidence.” /d. at 38a n.1.

c. The case proceeded to trial, where seven of peti-

tioner’s accomplices testified about petitioner’s in-

volvement in the robberies. Pet. App. 5a. The wit-

nesses described how petitioner “organized most of

the robberies and often supplied the guns.” /bid. The

government also introduced videotapes and eyewit-

ness testimony placing petitioner near the relevant

robbery scenes. See Gov't ©.A. Br. 45-47 (describing

evidence). In addition, an FBI agent offered expert

testimony about the cell-site data for petitioner’s

phone. Pet. App. 5a-6a. The agent presented maps

showing that petitioner’s phone was within a half-mile

to two miles of the location of four of the robberies

around the time those robberies occurred. /d. at 6a.

The jury convicted petitioner on all the Hobbs Act

counts and all but one of the firearms counts. Pet.

App. 6a. The district court sentenced petitioner to

1395 months in prison. /d. at 7a.

7

3. The court of appeals affirmed. Pet. App. la-24a.

a. As relevant here, the court of appeals rejected

petitioner’s Fourth Amendment challenge to the his-

torical cell-site records, holding that the government’s

acquisition of those business records was not a Fourth

Amendment “search” of petitioner. Pet. App. 8a-17a.

The court of appeals emphasized that petitioner

“lack[s] any property interest in cell-site records

created and maintained by [his] wireless carrier.”

Pet. App. 12a. As the court explained, MetroPCS and

Sprint “gathered (the data] in the ordinary course of

business” to be used for their own purposes, such as

“to find weak spots in their network and to determine

whether roaming charges apply.” /d. at 10a.

The court of appeals further concluded that peti-

tioner had no reasonable expectation of privacy in his

cellular-service providers’ records of their towers’

connections with his cell phone. Pet. App. 7a-13a.

The court observed that “federal courts have long

recognized a core distinction” between “the content of

personal communications,” which “is private,” and

“the information necessary to get those communica-

tions from point A to point B,” which “is not.” /d. at

9a. Historical cell-site records “fall on the unprotect-

ed side of this line,” the court concluded, “because

they contain “routing information” and “say nothing

about the content of any calls.” Jd. at 10a; see id. at

10a-12a.

The court of appeals observed that this Court’s de-

cision in Smith v. Maryland, 442 U.S. 735 (1979),

“confirm[ed] the point” that “[tJhe government’s col-

lection of business records containing [historical cell-

site] data * * * is notasearch.” Pet. App. lla. “[I])n

Smith,” the court explained, “th[is] Court held that

8

the police’s installation of a pen register—a device

that tracked the phone numbers a person dialed from

his home phone—was not a search because the caller

could not reasonably expect those numbers to remain

private.” Jd. at 9a-10a. Because “Smith ‘voluntarily

conveyed numerical information to the telephone

company and exposed that information to its equip-

ment in the ordinary course of business,” the “numeri-

cal information was not protected under the Fourth

Amendment.” Jd. at 12a (quoting 442 U.S. at 744)

(internal quotation marks omitted). The court con-

cluded that the same result should apply “to the loca-

tional information here” because cell-phone users

voluntarily convey that data to their cellular-service

providers “as a means of establishing communication”

when they place or receive calls. /bid. (quoting Smith,

442 U.S. at 741).

The court of appeals distinguished this Court’s de-

cision in United States v. Jones, 132 8. Ct. 945 (2012),

which held that the government’s installation of a

Global-Positioning-System (GPS) tracking device on a

vehicle constituted a “search” under the Fourth

Amendment, id. at 949. See Pet. App. 13a-l5a. The

court of appeals emphasized that “the government

action in this case”—namely, “government collection

of business records”—‘“is very different from the

government action in Jones.” Jd. at 13a, 14a. The

court further observed that the historical cell-site data

here was “as much as 12,500 times less accurate than

the GPS data in Jones” and so could not provide the

same level of detail about petitioner’s location and

movements. /d. at 14a.

The court of appeals also observed that, in enacting

the SCA, Congress “struck a balance that it thinks

9

reasonable,” Pet. App. 16a, by requiring the govern-

ment to “offer[] specific and articulable facts showing

that there are reasonable grounds to believe that”

historical cell-site records “are relevant and material

to an ongoing criminal investigation,” 18 U.S.C.

2703(d). The court stated that “Congress is usually

better equipped than courts are to answer the empiri-

cal questions that [new] technologies present.” Pet.

App. 17a. The court concluded that “[t]hese concerns

favor leaving undisturbed the Congressional judg-

ment” reflected by the SCA’s “middle ground [ap-

proach] between full Fourth Amendment protection

and no protection at all.” Jd. at 15a, 17a.”

b. Judge Stranch filed an opinion concurring in the

judgment on the Fourth Amendment issue. Pet. App.

24a-32a.

Judge Stranch believed that the government’s

acquisition of the historical cell-site records “raise{d]

Fourth Amendment concerns.” Pet. App. 24a; see

id. at 25a-29a. She “f[ound] it unnecessary to reach a

definitive conclusion on the Fourth Amendment

issue,” however, because she concluded that the mo-

tion to suppress was properly denied under the good-

faith exception to the exclusionary rule. /d. at 25a;

see id. at 29a-3la. She observed that no evidence

“suggest[ed| that the FBI agents who obtained the

* Because the court of appeals concluded that the government’s

acquisition of petitioner’s historical cell-site data did not constitute

a search, it did not reach the government’s alternative arguments

that (i) any search that occurred was constitutionally reasonable,

see Gov't C.A. Br. 37-40; (ii) the good-faith exception to the exclu-

sionary rule applies here, see id. at 40-42; and (iii) any error in

admitting the historical cell-site data was harmless, see id. at 44-

47.

10

|cell-site data} * * * pursuant to the SCA engaged

in intentional misconduct.” Jd. at 3la. Because

“[sluppressing the [cell-site data] at trial would not

have the requisite deterrent effect on future unlawful

conduct,” she concluded that the district court cor-

rectly denied the motion to suppress. /bid.

ARGUMENT

Petitioner renews his claim (Pet. 10-34) that the

government’s acquisition of MetroPCS’s and Sprint’s

historical cell-site records pursuant to three SCA

court orders violated his Fourth Amendment rights.

Petitioner further asserts (Pet. 21-26) that the lower

courts are divided on the Fourth Amendment ques-

tion. Those claims lack merit. The court of appeals

correctly concluded that the Fourth Amendment per-

mits the government to obtain historical cell-site data

under the standard set forth in the SCA, and no con-

flict exists on that question. This Court has recently

denied other petitions for a writ of certiorari raising

Fourth Amendment challenges to the government’s

acquisition of historical cell-site data pursuant to SCA

court orders,* and no reason exists for a different

result here.

In any event, this case would be an unsuitable

vehicle to address the Fourth Amendment question

because, as the district court held and as Judge

Stranch concluded in her opinion concurring in the

judgment, the relevant evidence was admissible under

the good-faith exception to the exclusionary rule. In

addition, any error in the admission of the historical

cell-site data was harmless because other evidence

* See Davis v. United States, 136 S. Ct. 479 (2015) (No. 15-146);

Guerrero v. United States, 135 S. Ct. 1548 (2015) (No. 14-7103).

11

conclusively established petitioner’s guilt. Petitioner

thus could not benefit from a ruling in his favor on the

Fourth Amendment question. Further review of that

question is unwarranted.

1. The court of appeals correctly held that the gov-

ernment’s acquisition of MetroPCS’s and Sprint’s cell-

site records pursuant to court orders authorized by

the SCA did not violate petitioner’s Fourth Amend-

ment rights. Petitioner has no Fourth Amendment

interest in those business records. And even if he did

have such an interest, the SCA procedure is constitu-

tionally reasonable.

a. A person has no Fourth Amendment interest in

records created by a communications-service provider

in the ordinary course of business that pertain to the

individual’s transactions with the service provider.

i. The Fourth Amendment’s prohibition on unrea-

sonable searches was originally understood to be “tied

to common-law trespass.” United States v. Jones, 132

S. Ct. 945, 949 (2012). Since this Court’s decision in

Katz v. United States, 389 U.S. 347 (1967), however,

the Court has held that a Fourth Amendment search

may also “occur[] when the government violates a

subjective expectation of privacy that society recog-

nizes as reasonable.” Kyllo v. United States, 533 U.S.

27, 33 (2001).

The Fourth Amendment permits the government

to obtain business records through a subpoena, with-

out either a warrant or a showing of probable cause.

See Oklahoma Press Publ’g Co. v. Walling, 327 U.S.

186, 194-195 (1946); see also United States v. Miller,

425 U.S. 435, 445-446 (1976). In its decisions in Miller

and Smith v. Maryland, 442 U.S. 735 (1979), this

Court further concluded that the acquisition of a busi-

12

ness’s records does not constitute a Fourth Amend-

ment “search” of an individual customer even when

the records reflect information pertaining to that

customer.

In Miller, the government had obtained by sub-

poena records of the defendant’s accounts from his

banks, including copies of his checks, deposit slips,

financial statements, and other business records. 425

U.S. at 436-438. The banks were required to keep

those records under the Bank Secrecy Act, 12 U.S.C.

1829b(d). 425 U.S. at 436, 440-441. The Court held

that the government’s acquisition of those records was

not an “intrusion into any area in which |the defend-

ant] had a protected Fourth Amendment interest.”

Id. at 440. The Court explained that the defendant

could “assert neither ownership nor possession” of the

records; rather, they were “business records of the

banks.” /bid. The Court further rejected the defend-

ant’s argument that he had “a reasonable expectation

of privacy” in the records because “they [were] merely

copies of personal records that were made available to

the banks for a limited purpose.” /d. at 442. As the

Court explained, it had “held repeatedly that the

Fourth Amendment does not prohibit the obtaining of

information revealed to a third party and conveyed by

him to Government authorities, even if the infor-

mation is revealed on the assumption that it will be

used only for a limited purpose.” Jd. at 443. Because

the records obtained from the bank “contained only

information voluntarily conveyed to the banks and

exposed to their employees in the ordinary course of

business,” the Court concluded that the defendant had

“take[n] the risk, in revealing his affairs to another,

13

that the information wiould] be conveyed by that

person to the Government.” Jd. at 442, 443.

In Smith, the Court applied the same principles to

records created by a telephone company. There, the

police requested that the defendant’s telephone com-

pany install a pen register at its offices to record the

numbers dialed from the defendant’s home phone. 442

U.S. at 737. The defendant argued that the govern-

ment’s acquisition of the records of his dialed numbers

violated his reasonable expectation of privacy and

therefore qualified as a Fourth Amendment search.

Id. at 741-742. The Court rejected that contention,

concluding both that the defendant lacked a subjective

expectation of privacy and that any such expectation

was not objectively reasonable. Jd. at 742-746.

The Smith Court first expressed “doubt that peo-

ple in general entertain any actual expectation of

privacy in the numbers they dial,” given that “[a]ll

telephone users realize that they must ‘convey’ phone

numbers to the telephone company, since it is through

the telephone company switching equipment that their

calls are completed.” 442 U.S. at 742. The Court

further emphasized that “the phone company has

facilities for recording this information” and “does in

fact record this information for a variety of legitimate

business purposes.” Jd. at 743.

The Smith Court went on to explain that “even if

[the defendant] did harbor some subjective expecta-

tion that the phone numbers he dialed would remain

private, this expectation is not one that society is

prepared to recognize as reasonable.” 442 U.S. at 743

(citation and internal quotation marks omitted). That

was because “a person has no legitimate expectation

of privacy in information he voluntarily turns over to

14

third parties.” /d. at 743-744 (citing, inter adlia,

Miller, 425 U.S. at 442-444). “When [the defendant]

used his phone,” the Court continued, he “voluntarily

conveyed numerical information to the telephone

company and exposed that information to its equip-

ment in the ordinary course of business.” /d. at 744

(internal quotation marks omitted). The Court found

no more persuasive the defendant’s argument that he

reasonably expected the local numbers he dialed to

remain private because “telephone companies, in view

of their present billing practices, usually do not record

local calls” or include those numbers on their custom-

ers’ monthly bills. Jd. at 745. Because the defendant

“voluntarily conveyed to [the phone company] infor-

mation that it had facilities for recording and that it

was free to record,” the Court concluded that he had

“assumed the risk that the information would be di-

vulged to police.” /bid.

ii. The principles set forth in Miller and Smith re-

solve this case. See Pet. App. 1la-12a, 14a.

Petitioner lacks any subjective expectation of pri-

vacy in phone-company records of historical cell-site

data because they are business records that

MetroPCS and Sprint create for their own purposes.

See Pet. App. 7a, 10a. As with the bank records in

Miller, petitioner “can assert neither ownership nor

possession” of the cell-site records. 425 U.S. at 440.

Rather, the providers created the records for their

own business purposes as part of the process of

providing telephone service to customers. See Pet.

App. 5a-7a, 10a.

As in Smith, moreover, cell-phone users presuma-

bly understand that their phones emit signals that are

conveyed to their service providers, through facilities

15

close to the area of the phone’s use, as a necessary

incident of making or receiving calls. See, e.g., United

States v. Davis, 785 F.3d 498, 511 (11th Cir.) (en

banc), cert. denied, 136 S. Ct. 479 (2015); In re Appli-

cation of the U.S. for Historical Cell Site Data, 724

F.3d 600, 613 (5th Cir. 2013) (Fifth Circuit In re Ap-

plication); Pet. App. 12a. “{AJny cellphone user who

has seen her phone’s signal strength fluctuate must

know that, when she places or receives a call, her

phone ‘exposes’ its location to the nearest cell tower

and thus to the company that operates the tower.”

Pet. App. 12a. That is why, for example, cell phones

often cannot receive a signal in sparsely populated

areas or underground. See Fifth Circuit In re Appli-

cation, 724 F.3d at 613. “Although subjective expecta-

tions cannot be scientifically gauged,” cell-phone us-

ers, like landline users, do not have a “general expec-

tation” that data generated when they use telephone-

company equipment “will remain secret.” Smith, 442

U.S. at 743.

Additionally, any subjective expectation of privacy

in information transmitted to a _ cellular-service

provider by engaging its cellular network would not

be objectively reasonable because “a person has no

legitimate expectation of privacy in information he

voluntarily turns over to third parties.” Smith, 442

U.S. at 743-744. Just as a person who dials a number

into a phone “voluntarily convey(s} numerical

information to the telephone company and expose{[s]

that information to its equipment in the ordinary

course of business,” id. at 744 (internal quotation

marks omitted), a cell-phone user must reveal his

general location to a cell tower in order for the

cellular service provider to connect a call. And a cell-

16

phone user thus “takes the risk, in revealing his

affairs to [the cellular-service provider], that the

information” he transmits in engaging the cellular

network “will be conveyed by [the cellular-service

provider] to the Government.” Miller, 425 U.S. at

443. Because petitioner “voluntarily conveyed to [his

cellular-service providers] information that [they] had

facilities for recording and that [they] wiere] free to

record,” he “assumed the risk that the information

would be divulged to police.” Smith, 442 U.S. at 745.

The court of appeals therefore correctly concluded

that the government’s acquisition of the historical cell-

site data did not constitute a Fourth Amendment

search.

iii. Petitioner’s arguments to the contrary (Pet. 26-

32) lack merit.

Petitioner seeks to avoid (Pet. 28-29) the principles

set forth in Miller and Smith by contending that cell-

phone users do not voluntarily convey cell-site data to

their service providers. But “{a] cell phone user vol-

untarily enters an arrangement with his service pro-

vider in which he knows that he must maintain prox-

imity to the provider’s cell towers in order for his

phone to function.” United States v. Graham, 824

F.3d 421, 430 (4th Cir.) (en banc), petitions for cert.

pending, No. 16-6308 (filed Sept. 26, 2016), and No. 16-

6694 (filed Oct. 27, 2016). Petitioner chose to carry a

cell phone for the purpose of having his wireless pro-

vider route calls to and from him whenever he was in

range of a cell tower. By “expectjing] his phone to

work,” he “permitt{ed|—indeed, request{ed|—his

service provider to establish a connection between his

phone and a nearby cell tower,” and he thus “voluntar-

ily convey[ed] the information necessary for his ser-

17

vice provider to identify the [historical cell-site data]

for his calls.” /bid.

Petitioner also errs in suggesting (Pet. 29) that

Smith and Miller are inapplicable because the records

at issue in this case are “exceedingly sensitive and

private in ways that were not at issue in [those

decisions].”* Petitioner provides no support for his

contention that records of the cell towers to which a

phone connected when placing or receiving a cal! are

more private than, for example, the financial

information contained in the “checks, deposit slips,

* * * financial statements, and * * * monthly state-

ments” the government acquired in Miller. 425 U.S.

at 438. Although the records in Miller were “copies of

personal records that were made available to the

banks for a limited purpose,” this Court nevertheless

concluded that no Fourth Amendment search had

occurred because the records “containjed|] only

information voluntarily conveyed to the banks and

* Petitioner’s reliance for this point (Pet. 29-30) on United States

v. Karo, 468 U.S. 705 (1984), and Kyllo, supra, is misplaced. In

Karo, this Court concluded that police officers conducted a Fourth

Amendment search when they used a beeper device to monitor the

location of a container within a private residence. 468 U.S. at 714.

Similarly, in Kyllo, this Court held that the use of a thermal imag-

ing device “that is not in general public use[] to explore details of

the home that would previously have been unknowable without

physical intrusion” is a Fourth Amendment search. 533 U.S. at 40.

In each case, the use of the device in question permitted the au-

thorities to obtain information from inside a house that had not

already been exposed to the public. See id. at 34-40; Karo, 468

U.S. at 714-716. In this case, however, petitioner had already

exposed the information necessary to create the cell-site records to

MetroPCS and Sprint, and the governmen: obtained that infor-

mation from MetroPCS and Sprint through lawful process.

18

exposed to their employees in the ordinary course of

business.” Jd. at 442. That analysis applies with even

greater force here because, unlike in Miller, the

records at issue here are not even copies of documents

that petitioner submitted to the cellular-service

providers, and the government did not require the

providers to keep those records. See ibid. Peti-

tioner’s argument also overlooks the “core distinction”

between “the content of personal communications”

and “the information necessary to get those com-

munications from point A to point B.” Pet. App. 9a.

“The business records here fall on the unprotected

side of this line” because they “say nothing about the

content of any calls” but instead contain only “routing

information.” /d. at 10a.

Petitioner essentially objects to the fact that law-

enforcement officers could infer from MetroPCS’s and

Sprint’s records that petitioner was within a particu-

lar radius of a cell tower. But “an inference is not a

search.” Kyllo, 533 U.S. at 33 n.4. Law-enforcement

investigators regularly deduce facts about a person’s

movements or conduct from information gleaned from

third parties. Indeed, that is a central feature of crim-

inal investigations. See Donaldson v. United States,

400 U.S. 517, 522 (1971) (explaining that the lack of

Fourth Amendment protection for third-party busi-

ness records was “settled long ago”); id. at 537 (Doug-

las, J., concurring) (“There is no right to be free from

incrimination by the records or testimony of others.”).

For example, law-enforcement officers can infer from

an eyewitness statement that a suspect was in a par-

ticular location at a particular time, from a credit-card

slip that she regularly dines at a particular restaurant

and was there at a particular time, and from a key-

19

card entry log her routine hours at a gym. But merely

because facts about a person can be deduced from

records or other information in the possession of third

parties does not make the acquisition of that infor-

mation a Fourth Amendment search of the person.

Indeed, the pen-register records in Smith allowed a

far more specific inference about the defendant’s

whereabouts—his presence in his home—but the

Court nevertheless concluded that no Fourth Amend-

ment search had occurred.

Petitioner suggests (Pet. 16-18, 27-28) that the

Fourth Amendment principles recognized in Smith

and Miller should not apply to new technologies.

Although petitioner relies (Pet. 16-18) on Jones and

Riley v. California, 134 S. Ct. 2473 (2014), those deci-

sions did not address—much less disavow—this

Court’s precedents recognizing that an individual does

not have a Fourth Amendment interest in a third

party’s records pertaining to him or in information

that he voluntarily conveys to third parties. In Jones,

the Court held that the warrantless installation and

use of a GPS tracking device on a vehicle to continu-

ously monitor its movements over the course of 28

days constituted a Fourth Amendment search. 132

S. Ct. at 948-949. In reaching that conclusion, the

Court relied on the fact that the government had

“physi‘ally intrud[ed] on a constitutionally protected

area”—the suspect’s automobile—to attach the device.

Id. at 950 n.3. In this case, by contrast, petitioner

does not contend that any such physical occupation

occurred. Because the Court in Jones concluded that

the attachment of the device constituted “a classic

trespassory search,” id. at 954, it did not reach the

Katz inquiry or hold that tracking a person’s vehicle

20

on public streets violates a reasonable expectation of

privacy, which would represent a significant qualifica-

tion of the Court’s prior holding in United States v.

Knotts, 460 U.S. 276, 281-282 (1983). See Jones, 132

S. Ct. at 953-954.

This Court’s decision in Riley likewise does not aid

petitioner’s argument. Riley held that a law-enforcement

officer generally must obtain a warrant to search the

contents of a cell phone found on an arrestee. 134

S. Ct. at 2485. No question existed in Riley that the

review of the contents of a cell phone constitutes a

Fourth Amendment search; the question was whether

that search fell within the traditional search-incident-

to-arrest exception to the warrant requirement. See

id. at 2482 (“The two cases before us concern the

reasonableness of a warrantless search incident to

a lawful arrest.”); see also id. at 2489 n.1 (noting that

“(blecause the United States and California agree that

these cases involve searches incident to arrest, these

cases do not implicate the question whether the

collection or inspection of aggregated digital infor-

mation amounts to a search under other circumstanc-

es”). Riley thus presented no occasion for this Court

to reconsider its longstanding view that an individual

has no Fourth Amendment interest in records pertain-

ing to an individual that are created by third parties

or in information he voluntarily conveys to third par-

ties.

Even putting aside the specific holdings of Jones

and Riley, the broader privacy concerns raised in

those cases (and discussed in the concurrences by

Justice Alito and Justice Sotomayor in Jones, see 132

S. Ct. at 954-956 (Sotomayor, J., concurring); id. at

962-964 (Alito, J., concurring in the judgment)) do not

21

justify creating a novel Fourth Amendment rule here.

The GPS tracking 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, accu-

rate to “within 50 to 100 feet.” Jd. at 948 (majority

opinion). The information the government acquired in

this case, by contrast, consisted of records indicating

which of the cellular-service provider’s antennas

communicated with petitioner’s phone only when the

phone was making or receiving calls, not continuously.

See Pet. App. 4a, 6a-7a. And although these records

contained historical cell-site information for a 127-day

period, the information revealed only that petitioner

was somewhere within the specified sector of a cell

tower when he made or received calls. /d. at 7a, 14a.

According to the court of appeals’ calculations, that

information was “as much as 12,500 times less accu-

rate than the GPS data in Jones.” Jd. at 14a-15a. This

case thus presents no occasion to consider the legal

implications of technology capable of “secretly moni-

tor[ing] and catalogling] every single movement” an

individual makes continuously “for a very long peri-

od.” Jones, 132 S. Ct. at 964 (Alito, J., concurring in

the judgment); see id. at 955 (Sotomayor, J., concur-

ring).

Likewise, this case does not touch on a central! con-

cern in Riley: that cell phones may contain “vast

quantities of personal information” that could be used

to discern “(t]he sum of an individual’s private life,”

including information about the user’s health, family,

religion, finances, political and sexual preferences,

and shopping habits, as well as GPS records of the

user’s “specific movements down to the minute, not

22

only around town but also within a particular build-

ing.” 134 S. Ct. at 2485, 2489, 2490. As explained, the

historical cell-site records obtained in this case re-

vealed only that petitioner (or someone using his

phone) was in “a 3.5 million square-foot to 100 million

square-foot area” when placing or receiving a call.

Pet. App. 14a. The records did not (and could not)

reveal any information stored on petitioner’s phone or

permit law-enforcement officers to learn the sort of

detailed personal facts that the Court identified in

Riley.

Petitioner essentially seeks a rule that he has a

personal Fourth Amendment interest in the record of

his transaction with a business from which his location

can be approximately inferred. No recognized Fourth

Amendment doctrine supports that contention.” The

court of appeals therefore correctly held that under

this Court’s precedents, petitioner has no valid Fourth

Amendment interest in records of his calls created by

MetroPCS and Sprint for their own business

purposes.

b. Even if petitioner could establish that he has a

novel Fourth Amendment interest in the records cre-

ated and held by MetroPCS and Sprint, the govern-

® Petitioner cites (Pet. 26-27) a variety of cases that did not in-

volve the third-party doctrine to support his contention that priva-

cy interests may survive even when “another person has access to

or control over private records.” None of those cases involved

business records created by a third party based on information

voluntarily conveyed to the business. For example, Ferguson v.

City of Charleston, 532 U.S. 67 (2001), involved urine tests con-

ducted by state hospital staff that “were indisputably searches

within the meaning of the Fourth Amendment.” /d. at 76. The

other cited cases are equally inapposite.

23

ment’s acquisition of those records was reasonable

and therefore complied with the Fourth Amendment.

“As the text of the Fourth Amendment indicates,

the ultimate measure of the constitutionality of a

governmental search is ‘reasonableness.’” Maryland

v. King, 133 S. Ct. 1958, 1969 (2013) (citation omitted).

A “warrant is not required to establish the reasona-

bleness of all government searches; and when a war-

rant is not required (and the Warrant Clause there-

fore not applicable), probable cause is not invariably

required either.” Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646, 653 (1995). In deciding whether a war-

rantless search is permissible, this Court “balance[s|

the privacy-related and law enforcement-related con-

cerns to determine if the intrusion was reasonable.”

King, 133 8S. Ct. at 1970 (citation omitted). In addi-

tion, in a case that challenges a federal statute under

the Fourth Amendment, this Court applies a “strong

presumption of constitutionality” to the statute, “es-

pecially when it turns on what is ‘reasonable’” within

the meaning of the Fourth Amendment. United

States v. Watson, 423 U.S. 411, 416 (1976) (citation

omitted). In light of those principles, even if the ac-

quisition of MetroPCS’s and Sprint’s records pertain-

ing to petitioner’s calls qualified as a Fourth Amend-

ment search, that acquisition would be constitutionally

reasonable. That follows for two independently suffi-

cient reasons.

First, as discussed above, this Court has held that

subpoenas for records do not require a warrant based

on probable cause, even when challenged by the party

to whom the records belong. See Miller, 425 U.S. at

446 (reaffirming the “traditional distinction between a

search warrant and a subpoena”); see also Oklahoma

24

Press Publ’g Co., 327 U.S. at 209. It follows that the

SCA procedure for obtaining the business records at

issue here is constitutionally reasonable, because the

SCA provides more substantial privacy protections

than an ordinary judicial subpoena. See Davis, 785

F.3d at 505-506 (describing SCA privacy-protection

provisions). In particular, the SCA “raises the bar”

for obtaining historical cell-site records, id. at 505, by

requiring the government to establish “specific and

articulable facts showing that there are reasonable

grounds to believe that * * * the records or other

information sought[ ] are relevant and material to an

ongoing criminal investigation,” 18 U.S.C. 2703(d)

(emphasis added). In contrast, an ordinary subpoena

requires only a “court’s determination that the inves-

tigation is authorized by Congress, [that it] is for a

purpose Congress can order, [that] the documents

sought are relevant to the inquiry,” and that the

“specification of the documents to be produced [is]

adequate, but not excessive, for the purposes of the

relevant inquiry.” Oklahoma Press Publ’g Co., 327

U.S. at 209. Given that “[a] legislative body is well

situated to gauge changing public attitudes, to draw

detailed lines, and to balance privacy and public safety

in a comprehensive way,” Jones, 132 S. Ct. at 964

(Alito, J., concurring in the judgment), Congress’s

considered effort in the SCA to augment the privacy

protections that this Court has found sufficient for

judicial subpoenas complies with the Fourth Amend-

ment. See Pet. App. 15a-17a.

Second, traditional standards of Fourth Amend-

ment reasonableness independently confirm that a

Section 2703(d) court order is a reasonable mechanism

for obtaining a cellular-service provider’s historical

25

cell-site records. As discussed above, under tra-

ditional Fourth Amendment standards, petitioner had

no legitimate expectation of privacy in the third-party

business records at issue here. But even if this Court

were to depart from that settled framework and hold

that an individual can assert a Fourth Amendment

interest in records created by a third party that

pertain to a transaction he engaged in with the third

party, petitioner could at most assert only a dim-

inished expectation of privacy in those records. That

is a factor that this Court has said “may render a

warrantless search or seizure reasonable.” King, 133

S. Ct. at 1969 (citation omitted). And any invasion of

petitioner’s assumed privacy interest was minimal,

given the imprecise nature of the location information

that could be inferred from the historical cell-site

records at issue here, which could not have enabled

law-enforcement officers to pinpoint petitioner’s

location and could not have revealed other personal

facts about him. See Pet. App. 14a-15a (discussing

these factors); Davis, 785 F.3d at 516 (same).

On the other side of the reasonableness balance,

the government has a compelling interest in obtaining

historical cell-site records using a Section 2703(d)

court order, rather than a warrant, because, like other

investigative techniques that involve seeking infor-

mation from third parties about a crime, this evidence

is “particularly valuable during the early stages of an

investigation, when the police [may] lack probable

cause and are confronted with multiple suspects.”

Davis, 785 F.3d at 518. Society has a strong interest

in both promptly apprehending criminals and exoner-

ating innocent suspects as early as possible during an

investigation. See United States v. Salerno, 481 U.S.

26

739, 750-751 (1987); King, 183 S. Ct. at 1974. In addi-

tion, the SCA ensures judicial scrutiny of the govern-

ment’s basis for obtaining an order, so the govern-

ment may obtain such orders only in circumstances

where the asserted governmental interest in acquiring

the records has been examined by a neutral magis-

trate.

In short, “a traditional balancing of interests amply

supports the reasonableness of the [SCA] order{[s] at

issue here.” Davis, 785 F.3d at 518.

2. Petitioner contends (Pet. 21-26) that lower

courts are divided over whether the Fourth Amend-

ment requires the government to obtain a warrant

before acquiring a cellular-service provider’s histori-

cal cell-site records pertaining to a particular user.

That is incorrect. The decision below does not conflict

with any other decision of another circuit or state high

court.

a. All courts of appeals to have considered the

question presented have concluded, in accordance

with the Sixth Circuit below, that no Fourth Amend-

ment violation occurs when the government acquires

historical cell-site data pursuant to an SCA order. See

Graham, 824 F.3d at 425-438 (4th Cir.); Davis, 785

F.3d at 506-516 (11th Cir.); Fifth Circuit In re Appli-

cation, 724 F.3d at 609-615 (5th Cir.); Pet. App. 17a.°

b. Petitioner asserts (Pet. 14, 22-23) that the deci-

sion below conflicts with the Third Circuit’s decision

in In re Application of the U.S. for an Order Direct-

® Petitions for a writ of certiorari from the Fourth Circuit’s deci-

sion in Graham are currently pending. See Nos. 16-6308 (filed

Sept. 26, 2016) and 16-6694 (filed Oct. 27, 2016). Those petitions

raise a similar Fourth Amendment challenge to the government’s

acquisition of historical cell-site data.

27

ing a Provider of Elec. Comme’n Serv. to Disclose

Records to the Gov't, 620 F.3d 304 (2010) (Third Cir-

cuit In re Application). But the Third Circuit ad-

dressed only the statutory standard for obtaining cell-

site records under the SCA. /d. at 308-319. The Third

Circuit “h{eld] that [historical cell-site data] from cell

phone calls is obtainable under a [Section] 2703(d)

order and that such an order does not require the

traditional probable cause determination.” Jd. at 313.

The court further interpreted the SCA to grant judges

discretion “to require a warrant showing probable

cause” pursuant to Section 2703(c)(1)(A), although the

court stated that such an option should “be used spar-

ingly because Congress also included the option of a

[Section] 2703(d) order.” Jd. at 319. But the court did

not consider—let alone adopt—petitioner’s proposed

rule that the Fourth Amendment requires the gov-

ernment to obtain a warrant to acquire historical cell-

site data.

Petitioner emphasizes (Pet. 22-23) the Third Cir-

cuit’s statement that “[a] cell phone customer has not

‘voluntarily’ shared his location information with a

cellular provider in any meaningful way.” Third Cir-

cuit In re Application, 620 F.3d at 317. But the Third

Circuit made that observation simply to support its

interpretation of the SCA. And while the court noted

“the possibility” that the disclosure of historical cell-

site data could “implicate the Fourth Amendment

* * * if it would disclose location information about

the interior of a home,” ibid., that suggestion would

not aid petitioner here, because the evidence he

sought to suppress did not (and could not) disclose

anything about the interior of his home. In any event,

the Third Circuit’s suggestion does not amount to a

28

constitutional holding that would place it in conflict

with the Fourth, Fifth, Sixth, and Eleventh Circuits.’

c. Petitioner also contends (Pet. 24-26) that the

court of appeals’ decision conflicts with the D.C. Cir-

cuit’s decision in United States v. Maynard, 615 F.3d

644 (2010), aff’d in part on other grounds sub nom.

United States v. Jones, i82 S. Ct. 945 (2012). But

Maynard involved the government’s installation and

use of a GPS tracking device on the defendant’s car,

not the acquisition of records that a third party had

created and stored for its own business purposes. See

id. at 555. Indeed, Maynard specifically recognized

the continuing validity of the principles applied in

Smith. See id. at 561; see also Reporters Comm. for

Freedom of the Press v. American Tel. & Tel. Co., 593

F.2d 1030, 1043 (D.C. Cir. 1978), cert. denied, 440 U.S.

949 (1979).

d. Petitioner further errs in contending that “state

high courts are divided” on the question presented in

this case. Pet. 21 (capitalization omitted).* Petitioner

’ The Third Circuit recently heard oral argument in a case that

involves a Fourth Amendment challenge to the government’s

acquisition of historical cell-site data pursuant to an SCA order

under Section 2703(d). See United States v. Stimler, Nos. 15-4053,

15-4094, and 15-4095 (argued Jan. 25, 2017). That case may pro-

vide the Third Circuit with an opportunity to revisit its empirical

assumption from six years ago that “it is unlikely that cell phone

customers are aware that their cell phone providers collect and

store historical location information.” Third Circuit In re Applica-

tion, 620 F.3d at 317 (emphasis omitted).

8 Petitioner also cites (Pet. 14, 23) a decision from the Indiana

Court of Appeals, but that decision was recently vacated when the

Supreme Court of Indiana granted discretionary review. See

Zanders v. State, 58 N.E.3d 254, vacated and transfer granted, 62

N.E.3d 1202 (Ind. 2016). In any event, a conflict with a decision of

29

cites (Pet. 23-24) two decisions in which state courts of

last resort required warrants to obtain cell-site rec-

ords, but both of those decisions relied expressly on

state law. See Commonwealth v. Augustine, 4 N.E.3d

846, 858, 865-866 (Mass. 2014) (Massachusetts Decla-

ration of Rights); State v. Haris, 70 A.3d 630, 644 (N.J.

2013) (New Jersey Constitution). In addition, peti-

tioner cites (Pet. 23-24) the Florida Supreme Court’s

decision in Tracey v. State, 152 So. 3d 504 (2014), but

that case involved the use of prospective, “real time

cell site location information,” and the court made

clear that its decision did not encompass historical

cell-site records like those at issue here. /d. at 515,

525-526 (emphasis added). Petitioner also points to

(Pet. 23-24) several state statutes, but those statutes

do not reflect any judicial conflict over the meaning of

the Fourth Amendment. To the contrary, they fortify

the view that legislatures are best positioned to bal-

ance privacy interests and law-enforcement needs in

light of new technologies, as Congress did in the SCA.

See Jones, 132 S. Ct. at 964 (Alito, J., concurring in

the judgment); see Pet. App. 15a-17a.

3. In any event, this case is not a suitable vehicle to

consider whether the government’s acquisition of

historical cell-site data violated the Fourth Amend-

ment because the district court correctly denied the

motion to suppress based on the good-faith exception

to the exclusionary rule and because any error in

admitting the cell-site data was harmless.

a. As this Court has explained, the exclusionary

rule is a “judicially created remedy” that is “designed

to deter police misconduct rather than to punish the

an intermediate state appellate court does not warrant this Court’s

review.

30

errors of judges and magistrates.” United States v.

Leon, 468 U.S. 897, 906, 916 (1984). “As with any

remedial device, application of the exclusionary rule

properly has been restricted to those situations in

which its remedial purpose is effectively advanced.”

Illinois v. Krull, 480 U.S. 340, 347 (1987). The rule

therefore does not apply “where [an] officer’s conduct

is objectively reasonable” because suppression “can-

not be expected, and should not be applied, to deter

objectively reasonable law enforcement activity.”

Leon, 468 U.S. at 919. For that reason, “evidence

obtained from a search should be suppressed only if it

ean be said that the law enforcement officer had

knowledge, or may properly be charged with know-

ledge, that the search was unconstitutional under the

Fourth Amendment.” Jbid. (citation omitted).

As the district court correctly held, Pet. App. 38a

n.l, and as Judge Stranch recognized in her opinion

concurring in the judgment, id. at 29a-31a, even if the

government’s collection of the historical cell-site data

constituted a search in violation of the Fourth

Amendment, the evidence was properly admitted at

trial pursuant to the good-faith exception to the exclu-

sionary rule. As Judge Stranch emphasized, “there is

nothing to suggest that the FBI agents who obtained

[the historical cell-site data] * * * pursuant to the

SCA engaged in any intentional misconduct.” /d. at

31a. This Court has held that the good-faith exception

applies to “officer[s] acting in objectively reasonable

reliance on a statute,” later deemed unconstitutional,

that authorizes warrantless administrative searches.

Krull, 480 U.S. at 349; see id. at 342. It follows a

fortiori that officers act reasonably in relying on a

31

statute that authorizes the acquisition of records only

pursuant to an order issued by a neutral magistrate.

At the time the records were acquired in peti-

tioner’s case, moreover, no binding appellate decision

(or holding of any circuit) had suggested, much less

held, that the SCA was unconstitutional as applied to

historical cell-site records. Given that, officers were

entitled to rely on the presumption that acts of

Congress are constitutional. Cf. Davis v. United States,

131 S. Ct. 2419, 2429 (2011) (“Evidence obtained

during a search conducted in reasonable reliance on

binding precedent is not subject to the exclusionary

rule.”). Judge Stranch accordingly correctly con-

cluded that “{sluppressing the [historical cell-site

data] at trial would not have the requisite deterrent

effect on future unlawful conduct and application of

the exclusionary rule is therefore inappropriate.” Pet.

App. 3la.

b. In addition, even if the historical cell-site data

should have been suppressed, any error in admitting

that evidence at trial was harmless. See Neder v.

United States, 527 U.S. 1, 18 (1999) (observing that

constitutional error is harmless when it is “clear be-

yond a reasonable doubt that a rational jury would

have found the defendant guilty absent the error”).

The information provided by the historical cell-site

data was merely cumulative of other uncontroverted

evidence at trial that placed petitioner near the rob-

bery scenes. See Gov't C.A. Br. 44-47 (describing

evidence). That evidence included surveillance tape

video showing petitioner near the site of one robbery,

see id. at 45-46, as well as testimony from eyewitness

accomplices who described petitioner’s involvement in

and presence at the scene of the other robberies, see

32

id. at 46-47; see also Pet. App. 5a (describing testimo-

ny from accomplices “that [petitioner] organized most

of the robberies and often supplied the guns”). In

light of the other evidence establishing petitioner’s

involvement. in the robberies and his location at the

relevant times, it is clear that the jury would have

returned a guilty verdict even if the historical cell-site

data had not been admitted at trial. Indeed, the jury

convicted petitioner on two robbery counts for which

the government had not introduced any historical cell-

site data.

Because petitioner would not obtain relief even if

this Court were to rule in his favor on the Fourth

Amendment question, review of that question is not

warranted in this case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Acting Solicitor General

KENNETH A. BLANCO

Acting Assistant Attorney

General

JENNY C. ELLICKSON

Attorney

JANUARY 2017