Case 4:17-cr-00007 Document 229 Filed in TXSD on 11/02/18 Page 1 of 19

STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

UNITED STATES OF AMERICA § CRIMINAL NO. H-17-007

§
v. §
§ JUDGE EWING WERLEIN, Jr.
NELSON ALEXANDER POLK, §
Defendant. §

GOVERNMENT’S RESPONSE TO DEFENDANT’S

MOTION TO SUPPRESS EVIDENCE RESULTING FROM USE OF ILLEGAL
SEIZURE OF CELL SITE INFORMATION

Now comes the United States of America, by and through the United States Attorney for

the Southern District of Texas, Ryan K. Patrick, and Assistant United States Attorneys Richard D.

Hanes and Heather Rae Winter, and in response to defendant’s Motion to Suppress Evidence

Resulting from Use of Illegal Seizure of Cell Site Information, (Dkt. 228), offers the following as

justification for denial of said motion without hearing.

DEFENDANT’S CLAIM

The motion to suppress filed by the defendant seeks to suppress the admission of historical

cell site location information (CSLI) at trial, which was obtained by the government pursuant to

judicial order under Title 18, United States Code, § 2703(d). Defendant further seeks to suppress

evidence obtained through the use of the CSLI, arguing that such evidence is fruit of the poisonous

tree. Defendant relies on the Supreme Court’s recent decision in Carpenter v. United States, 138

S. Ct. 2206 (2018), which held that the seizure of more than seven days of CSLI is a search for

which a search warrant will be generally required.

As will be demonstrated below, the obtaining and subsequent use of CSLI through court

order pursuant to Title 18, United States Code, § 2703(d), et seq., did not violate the 4th
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Amendment to the United States Constitution, and the evidence derived therefrom is not subject

to suppression.

RELEVANT FACTS

On August 29, 2016, at approximately 5:58pm, outside of the Wells Fargo Bank at 13201

Northwest Freeway, in Houston, Texas, in the Southern District of Texas, David Guzman, a

Loomis armored transport security courier, was murdered while replenishing an ATM with United

States currency. Surveillance video revealed that the shots which killed Guzman were fired from

some distance by a .223 AR style rifle. Immediately after Guzman was shot, a blue Toyota sedan

pulled up and a black male exited the vehicle. The black male grabbed the container with the

currency in it, re-entered the Toyota, and the vehicle exited the area. The container had

approximately $120,000 inside of it.

On September 1, 2016, detectives with the Houston Police Department Homicide Division

met with a confidential source of information (CS) who stated that he/she believed the person

identified as Redrick Jevon BATISTE was involved in the August 29, 2016 murder/robbery based

upon BATISTE’s accounts of similar robberies he had been involved in. The CS also indicated

that BATISTE owned a white SUV he/she believed to be a Nissan Pathfinder. According to the

CS, BATISTE parked that vehicle at The Meadows on Blue Bell, 1400 Blue Bell, Houston, Texas.

The CS did not know the identities of any of the others involved in the murder/armed robbery other

than BATISTE.

On or about September 3, 2016, HPD officers obtained a state court order allowing them

to place a tracking device on BATISTE’s black Jeep Wrangler. Additionally, video surveillance

on his Tarberry residence was established by ATF and HPD at that time.

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In an effort to both corroborate the account of the CS, and to investigate the murder and

armed robbery occurring on August 29, 2016, a search of surveillance videos from surrounding

businesses was conducted. Agents’ attentions were drawn to the video of the Extended Stay

America located directly across the street from the scene of the robbery and Guzman’s murder.

Depicted in the video was a white Toyota 4-Runner which arrived at approximately 2:54pm, and

left at approximately 5:57pm, immediately after the murder/robbery took place. 1 During the three

hour period that the vehicle was parked in the Extended Stay America lot, the video shows that no

one exited or entered the vehicle.

On September 7, 2016, officers with the HPD North Tactical unit located a white Toyota

4-Runner in the parking lot of The Meadows on Blue Bell. The vehicle matched the vehicle seen

in the Extended Stay America video, and was similar in appearance to the Nissan Pathfinder

described by the CS. The license plate on the rear of the vehicle was stolen. The license plate on

the front of the vehicle was stolen. Moreover, these license plates did not match. Based upon the

vehicle identification number, officers learned that the vehicle was listed as stolen. Officers noted

that in the rear hatch door of the vehicle, adjacent to the license plate, an aftermarket port hole had

been cut out. This port hole was large enough to accommodate a rifle with a scope.

On September 7, 2016, agents obtained a court order allowing them to conduct a tower

dump of the cell towers in the vicinity of the bank at the time of the murder/robbery. Agents

thereafter received court orders pursuant to Title 18, United States Code, § 2703(d) in order to

locate and identify the users of the phones in the area of the Wells Fargo Bank during the time of

the murder/robbery. Phone record analysis revealed that number 281-630-0305, subsequently

identified as being used by BATISTE, was in close proximity to the bank on the morning of the

1
The times on the bank surveillance video and the Extended Stay America video are approximate. The white SUV
left the parking lot immediately after the robbery was concluded.

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robbery. Analysis also showed that phone to be in contact with numbers 832-891-6015,

subsequently identified as being used by Nelson POLK, and 713-835-4575, subsequently

identified as being used by Marc HILL, during that time. Moreover, telephone devices in the area

identified as being utilized by POLK and HILL were in contact with each other. On the afternoon

of the murder/robbery both of these telephone devices were in contact with number 281-220-7383,

subsequently identified as being BATISTE’s BURNER PHONE. 2 There was a thirty-two minute

call between POLK and BATISTE’s BURNER PHONE from 5:32pm to 6:04pm, the time period

during which the robbery/murder was committed.

On November 29, 2016, in case number 4:16-MC-2777, United States District Judge Keith

P. Ellison, of the Southern District of Texas, signed an order authorizing the interception of a

cellular device bearing phone number 281-630-0305, BATISTE’s phone.

Based on surveillance, phone records and wire interceptions, it was determined that POLK,

HILL, BATISTE, Bennie PHILLIPS and John SCOTT were planning another robbery/murder

of an armored car guard at the Amegy Bank, located at 400 North Sam Houston Freeway East,

Houston, Texas. On the morning of December 7, 2016, surveillance was established at the Amegy

Bank by agents and officers. At approximately 9:30am, members of BATISTE’s robbery crew

began to take positions around the bank. POLK occupied the Toyota 4-Runner in an adjacent

parking lot with a clear line of sight to the bank’s ATMs. At the same time, the vehicle occupied

by BATISTE was parked in the parking lot of an adjacent apartment complex with a clear line of

sight to the bank’s ATMs.

At approximately 11:00am, officers and agents moved in to apprehend the robbery crew.

2
On the afternoon of August 29, 2016, including during the time of the armed robbery and murder, the 281-630-0305
was not in use. Cell site data revealed that the device was in the vicinity of 1351 Tarberry Road during that time.
However, 281-220-7383 was in close proximity to the bank and in contact with phones associated to both HILL and
POLK on that afternoon.

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POLK saw police and attempted to flee on foot. He was apprehended after a short foot chase. A

semi-automatic pistol was recovered from a trash bin located along the route that POLK ran.

POLK was also found in possession of his cellular phone, bearing telephone number 832-891-

6015.

When BATISTE saw officers approaching, he began shooting at them and officers

returned fire. BATISTE was struck in the leg and in the chest and died after being removed from

the scene. Recovered from the scene, where BATISTE had thrown it, was a .223 caliber AR-15

with a scope.

II. ARGUMENT

A. The good faith exception

The defendant’s motion to suppress rests entirely upon the Supreme Court’s June 22, 2018,

decision in Carpenter v. United States, 138 S.Ct. 2206 (2018), which held, for the first time, that

the government “must generally obtain a warrant supported by probable cause” before acquiring

cell site location information (CSLI) for a period of longer than seven days. Id. at 2221. The Court

reasoned that CSLI allows thorough tracking of a person’s movements that “is detailed,

encyclopedic, and effortlessly compiled,” invading the cell phone user’s privacy interests. Id. at

2216. The defendant urges the Court to apply this ruling retroactively to his case and asks this

Court to suppress the government’s cell site evidence on that basis.

The defendant is correct that Carpenter applies to any pending case, and holds that the

seizure of long-term CSLI without a warrant ordinarily violates the Fourth Amendment. Here, the

CSLI was obtained through a judicial order under Title 18, United States Code, § 2703(d), which

required a showing less than probable cause. But that does not resolve the defendant’s motion. The

Supreme Court declared: “The fact that a Fourth Amendment violation occurred—i.e., that a

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search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies. .

. . Indeed, exclusion ‘has always been our last resort, not our first impulse,’ Hudson v. Michigan,

547 U.S. 586, 591 (2006), and our precedents establish important principles that constrain

application of the exclusionary rule.” Herring v. United States, 555 U.S. 135, 140 (2009); see also

United States v. Wallace, 885 F.3d 806, 810 (5th Cir. 2018).

Notably, the exclusionary rule does not apply where the investigating agents acted in “good

faith.” The purpose of the exclusionary rule is not to benefit the defendant, but to deter future

violations by law enforcement. That goal is not served where the investigators acted in good faith

as opposed to “deliberate, reckless, or grossly negligent conduct, or in some circumstances

recurring or systemic negligence.” Herring, 555 U.S. at 144.

The present matter involves “triple good faith”: the agents relied on a statute, case law, and

the approval of a federal judge in obtaining CSLI based on a showing required by Section 2703(d).

For any one of these reasons, the exclusionary rule should not be applied in this case. See United

States v. Gould, 326 F.3d 651, 659 (5th Cir. 2003) (recognizing “[s]everal types of good faith

exceptions” to the exclusionary rule, such as when an officer relies “upon a statute which is later

ruled unconstitutional, a warrant which is later invalidated, or a court precedent which is later

overruled”).

First, while the agents did not obtain a warrant for seizure of the CSLI, they acted pursuant

to a judicial order, issued under the Stored Communications Act, 18 U.S.C. § 2703(d) (“SCA”).

That statute allowed the government to obtain a court order directing a provider of electronic

communication service to disclose customer information “if the governmental entity offers specific

and articulable facts showing that there are reasonable grounds to believe that the contents of a

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wire or electronic communication, or the records or other information sought, are relevant and

material to an ongoing criminal investigation.” (emphasis added).

In Carpenter, to be sure, the Supreme Court held, in essence, that this statute is

unconstitutional in permitting the seizure of cell site location information on a showing of

“reasonable grounds,” which is less than the probable cause threshold applicable under the Fourth

Amendment. 138 S. Ct. at 2221. But the magistrate judge authorized the action, under the explicit

terms of the statute that existed prior to Carpenter, and therefore the exclusionary rule may not

apply.

In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court first established the good

faith rule, holding that the exclusionary rule is inapplicable where a search was not based on

probable cause, but the officers relied on a neutral judge’s conclusion otherwise and the judge’s

issuance of a warrant. The Supreme Court reasoned that the exclusionary rule was historically

designed “to deter police misconduct rather than to punish the errors of judges and magistrates.”

Id. at 916; see United States v. Jackson, 825 F.2d 853, 866 (5th Cir. 1987). Thus, in this case,

where a magistrate judge explicitly authorized the agents’ reliance on the 2703(d) order, the

exclusionary rule may not apply.

Indeed, the reliance on the statute itself provides a second basis for a finding of good faith

in this case, barring application of the exclusionary rule. In Illinois v. Krull, 480 U.S. 340 (1987),

the Court recognized a similar exception to the exclusionary rule where officers acted in

objectively reasonable reliance on a statute, even if that statute is later found unconstitutional. In

Krull, a state statute required licensed motor vehicle and vehicular parts sellers to permit state

officials to inspect certain required records on demand. Pursuant to the statute, a police detective

entered the defendants’ automobile wrecking yard and asked to see records of vehicle purchases,

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an inspection which led to charges of violations of the motor vehicle law. The state trial court

granted the defendant’s motion to suppress the evidence seized from the yard, agreeing with a

federal court ruling, issued the day after the search, that the state statute violated the Fourth

Amendment because it permitted officers unbridled discretion in their warrantless administrative

searches.

The Supreme Court disagreed and held that the exclusionary rule did not apply, stating:

The approach used in Leon is equally applicable to the present case. The application
of the exclusionary rule to suppress evidence obtained by an officer acting in
objectively reasonable reliance on a statute would have as little deterrent effect on
the officer’s actions as would the exclusion of evidence when an officer acts in
objectively reasonable reliance on a warrant. Unless a statute is clearly
unconstitutional, an officer cannot be expected to question the judgment of the
legislature that passed the law. If the statute is subsequently declared
unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial
declaration will not deter future Fourth Amendment violations by an officer who
has simply fulfilled his responsibility to enforce the statute as written. To
paraphrase the Court’s comment in Leon: “Penalizing the officer for the
[legislature’s] error, rather than his own, cannot logically contribute to the
deterrence of Fourth Amendment violations.” Ibid.

Illinois v. Krull, 480 U.S. at 349-50.

Thus, the exclusionary rule does not apply here, where the agents’ action was directly

authorized by Section 2703(d), even if that provision is now deemed unconstitutional to the extent

that it allows seizure of CSLI upon a showing less than probable cause. Krull observed: “A statute

cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly

abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be

said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable

officer should have known that the statute was unconstitutional.” Id. at 355.

Those circumstances do not exist here. That is made clear by the fact that, prior to

Carpenter, the Fifth Circuit, and four other Circuits upheld the constitutionality of Section

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2703(d). In that circumstance, it cannot be successfully argued that the legislature “wholly

abandoned” its responsibility, or that any officer could have known that, contrary to the view of

numerous federal judges, the statute would ultimately be abridged. “In particular, the Supreme

Court has held that the exclusionary rule does not apply when police officers ‘act[ed] in objectively

reasonable reliance upon a statute’ even if ‘the statute is ultimately found to violate the Fourth

Amendment.’” United States v. Wallace, 885 F.3d 806 (5th Cir. 2018) (quoting Krull, 480 U.S. at

342).

In Wallace, just three months before Carpenter was decided, the Fifth Circuit affirmed a

district court’s ruling of the Stored Communication Act’s constitutionality. Public safety officers,

after consulting with state prosecutors, interpreted the plain language of 18 U.S.C. § 2703(c) to

mean that accessing geological coordinates, or “E911” data, by way of a court order from a state

district judge fell within the scope of the SCA. Id. at 810-811. Following Krull, the Fifth Circuit

held that because there was “no evidence that the officers acted in bad faith or adopted an

objectively unreasonable interpretation” of the statute, the exclusionary rule did not apply. Id. at

811. Finding no error, it went on to reason that “[g]iven the ‘strong presumption of constitutionality

due to an Act of Congress,’ and the absence of controlling case law that prohibits the government

from obtaining . . . data under the SCA, it [was] reasonable for officers to rely on the text of the

statute.” Id. (quoting United States v. Watson, 423 U.S. 411, 416 (1976)).

The facts, as recited above, reveal yet a third independent ground for finding that the agents

here acted in good faith: their conduct was directly authorized by binding appellate precedent in

this Circuit. In Davis v. United States, 564 U.S. 229 (2011), the Court stated: “The question here

is whether to apply [the exclusionary] sanction when the police conduct a search in compliance

with binding precedent that is later overruled. Because suppression would do nothing to deter

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police misconduct in these circumstances, and because it would come at a high cost to both the

truth and the public safety, we hold that searches conducted in objectively reasonable reliance on

binding appellate precedent are not subject to the exclusionary rule.” Id. at 232.

The Fifth Circuit applied Davis in United States v. Andres, 703 F.3d 828 (5th Cir. 2013).

That case concerned the application of United States v. Jones, 565 U.S. 400 (2012), which held

for the first time that installation of a GPS device on a vehicle on a public street, in order to then

track the vehicle, was a search subject to the Fourth Amendment. Agents in Andres relied on

United States v. Michael, 645 F.2d 252, 257 (5th Cir. 1981) (en banc), which held that a lesser

standard of “reasonable suspicion” was sufficient to install a warrantless “electronic tracking

device” on a suspect’s car parked in a public place. Incident to an ongoing drug trafficking

investigation, agents observed the defendant driving a truck that had been installed with a

warrantless GPS electronic tracking device. The defendant was stopped and questioned, and later

arrested after an agent searched the truck, with defendant’s consent, and found over twenty

kilograms of cocaine in a hidden compartment inside the truck. Rejecting a motion to suppress

evidence gathered prior to Jones, the Court found that the agents acted in good faith because it was

“objectively reasonable for agents operating within the Fifth Circuit to believe that warrantless

GPS tracking was permissible under circuit precedent.” Andres, 703 F.3d at 834-835.

Here, as in Wallace, federal prosecutors were involved in the matter and presented the

2703(d) request to the magistrate judge. And, as in Davis, there was directly applicable precedent

in the Fifth Circuit permitting the issuance of a 2703(d) order for CSLI based on the “reasonable

grounds” standard set forth in the statute. Furthermore, direct Fifth Circuit precedent permitted

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reliance on Section 2703(d) to obtain CSLI without a warrant. Under Davis, the agents acted in

good faith in relying on that judicial precedent.

Specifically, in In re U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013),

the Court vacated the order of a district judge declining to issue a 2703(d) order absent a showing

of probable cause consistent with the warrant requirement set forth in Federal Rule of Criminal

Procedure 41. The Court held, “where a third party collects information in the first instance for its

own purposes,” the government “can obtain this information later with a § 2703(d) order, just as

it can subpoena other records of a private entity.” Id. at 610.

The Fifth Circuit considered historical CSLI to be a business record under this framework,

rejecting the district court’s treatment of CSLI data as tracking information and its wrongful

application of a probable cause standard in determining the constitutionality of 2703(d) orders. Id.

at 615. Instead, the standard is governed by the text of § 2703(d), i.e., “specific and articulable

facts showing that there are reasonable grounds to believe that the contents of a wire or electronic

communication, or the records or other information sought, are relevant and material to an ongoing

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

“Moreover,” the Court stated, “as long as the Government meets the statutory requirements

[under § 2703(d)], the SCA does not give the magistrate judge discretion to deny the Government’s

application for such an order.” In re U.S., 724 F.3d at 615. This is directly applicable precedent of

the Fifth Circuit that the agents in this case relied upon in 2016 in seeking orders consistent with

the requirements of Section 2703(d).

In fact, to gild the lily, we observe that, prior to the Supreme Court’s June 2018 decision

in Carpenter, every Circuit to address the issue agreed that the Constitution did not require a

warrant or a showing of probable cause to obtain CSLI. See United States v. Thompson, 866 F.3d

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1149, 1154 (10th Cir. 2017) (“our analysis is guided by the Supreme Court’s business records

cases and the opinions of the four other circuit courts of appeals that have considered this precise

question. Those circuits held, as we do today, that cellphone users lack a reasonable expectation

of privacy in their historical CSLI, because they voluntarily convey CSLI to third parties who

create records of that information for their own business purposes.”), vacated in light of Carpenter,

-- U.S. --, 2018 WL 3148282 (June 28, 2018); United States v. Graham, 824 F.3d 421, 426 (4th

Cir. 2016) (en banc) (“This holding accords with that of every other federal appellate court that

has considered the Fourth Amendment question before us. Not one has adopted the Defendants’

theory.”); United States v. Carpenter, 819 F.3d 880, 887 (6th Cir. 2016), rev’d in Carpenter, 138

S. Ct. 2206 (2018).

It is thus clear that there was no way for any reasonable officer to be aware at the time of

search here that a demand based on a 2703(d) order and not a warrant was infirm. A finding of

good faith, precluding application of the exclusionary rule, is required. The defendant does not

contend that the application in this case failed to meet the “reasonable grounds” test; he simply

asserts, in essence, the 2703(d) orders were sought and ordered on less than a probable cause

finding. However, pursuant to federal statute under 18 U.S.C. § 2703(d), a federal judge’s court

order, and direct precedent from the Fifth Circuit, the Government obtained its order in “triple

good faith,” and in accordance with the Fourth Amendment. Application of the exclusionary rule

in these circumstances would have absolutely no impact on future law enforcement conduct in a

similar situation, and thus the dramatic remedy of exclusion of evidence is impermissible.

“[T]he exclusionary rule is not an individual right and applies only where it ‘result[s] in

appreciable deterrence’” of “violations in the future.” Herring v. United States, 555 U.S. 135, 141

(2009) (quoting Leon, 468 U.S. at 909). Further, “the benefits of deterrence must outweigh the

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costs,” id., specifically, the “principal cost of . . . letting guilty and possibly dangerous defendants

go free—something that ‘offends basic concepts of the criminal justice system.’” Herring, 555

U.S. at 141 (quoting Leon, 468 U.S. at 908. As a result, “[t]o trigger the exclusionary rule, police

conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently

culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases,

the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some

circumstances recurring or systemic negligence.” Herring, 555 U.S. at 145.

The present circumstances do not remotely qualify for application of the exclusionary rule

under this doctrine. Indeed, even before Carpenter was decided, courts recognized that if the

statutory scheme of Section 2703(d) were upset, the good faith rule would bar exclusion of

evidence obtained in previous reliance on the statute. See, e.g., United States v. Pembrook, 876

F.3d 812, 823 (6th Cir. 2017) (after the grant of certiorari in Carpenter, the court affirmed the

denial of a motion to suppress on the grounds that even if there were a constitutional violation, the

good faith exception applied, as no authority at the time of the 2703(d) order established that the

collection of CSLI under the statute was a Fourth Amendment search); United States v. Davis, 785

F.3d 498, 518 n.20 (11th Cir. 2015) (en banc) (same).

The Fourth Circuit, the first appellate court to address the issue since Carpenter was

decided, recently and readily agreed. That appellate court, like the Fifth Circuit, had previously

upheld the issuance of a 2703(d) order for production of CSLI without a showing of probable

cause. See United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc). Following Carpenter,

it stated:

While Carpenter is obviously controlling going forward, it can have no effect on

Chavez’s case. The exclusionary rule’s “sole purpose . . . is to deter future Fourth
Amendment violations.” Davis v. United States, 564 U.S. 229, 236-37 (2011).
Thus, when investigators “act with an objectively ‘reasonable good-faith belief’

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that their conduct is lawful,” the exclusionary rule will not apply. Id. at 238 (quoting
United States v. Leon, 468 U.S. 897, 909 (1984)). Objectively reasonable good faith
includes “searches conducted in reasonable reliance on subsequently invalidated
statutes.” Id. at 239. Chavez does not, and cannot, deny that investigators in this
case reasonably relied on court orders and the Stored Communications Act in
obtaining the cell site records. Without question, then, the good-faith exception to
the exclusionary rule applies to investigators’ actions here.

United States v. Chavez, -- F.3d --, 2018 WL 3215914, *9 (4th Cir. July 2, 2018).

Moreover, the defendant’s assertion that the exclusionary rule also reaches any evidence

derived from a Fourth Amendment violation, known as “fruit of the poisonous tree” doctrine, is

incomplete. To address this contention, the Fifth Circuit, in United States v. Massi, 761 F.3d 512,

525 (5th Cir. 2014), described a two-step process of review to determine “whether the good faith

exception can permit the admissibility of evidence” seized “in violation of the Fourth Amendment

that would otherwise warrant exclusion as fruit of the poisonous tree.” See also United States v.

Pena-Rodriguez, 110 F.3d 1120, 1129 (5th Cir. 1997). The two-step review requires the court to

first determine “whether the good faith exception to the exclusionary rule applies,” and second,

“to ensure that the magistrate judge had a substantial basis for…concluding that probable cause

existed.” Massi, 761 F.3d at 525. The Court continued: “[i]f the good faith exception applies, the

court need not reach the question of probable cause.” Id. The good faith exception applies in the

present case, and therefore, even if the Court finds the Government’s 2703(d) order to be invalid

under Carpenter, the good faith exception can permit the admissibility of any evidence derived

from it.

Lastly, the defendant also suggests that suppression is the foremost remedy for a Fourth

Amendment violation. Again, while the defendant is correct that suppression can be a remedy to

some Fourth Amendment violations, it does not apply to all Fourth Amendment violations—

especially of those “where Congress has both established a right and provided exclusive remedies

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for its violation.” United States v. Wallace, 885 F.3d 806, 809 (5th Cir. 2018). Because Congress

prescribes a specific procedure for the government to follow to obtain data pursuant to the Stored

Communications Act, Congress has also set forth a “narrow list of remedies…and suppression is

not among them.” United States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014); see also 18 U.S.C.

§ 2707(b).

B. The Attenuation Doctrine

As a secondary corollary to the well established law of the good faith exception to the

exclusionary rule, the Court in this case can also consider the equally well established law

commonly referred to as the attenuation doctrine. Under the Supreme Court’s precedents, the

exclusionary rule encompasses both the “primary evidence obtained as a direct result of an illegal

search or seizure” and, relevant here, “evidence later discovered and found to be derivative of an

illegality,” the so-called “ ‘fruit of the poisonous tree.’ ” Segura v. United States, 468 U.S. 796,

804, 104 S.Ct. 3380 (1984). But, as stated previously, the significant costs of this rule have led

courts to deem it “applicable only ... where its deterrence benefits outweigh its substantial social

costs.” Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159 (2006) (internal quotation marks

omitted). Noting that, “[s]uppression of evidence ... has always been our last resort, not our first

impulse,” Ibid, the Supreme Court has recognized three exceptions to the rule for situations where

an unconstitutional act is followed by the discovery of evidence.

First, the independent source doctrine allows trial courts to admit evidence obtained in an

unlawful search if officers independently acquired it from a separate, independent source. See

Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529 (1988). Second, the inevitable

discovery doctrine allows for the admission of evidence that would have been discovered even

without the unconstitutional source. See Nix v. Williams, 467 U.S. 431, 443–444, 104 S.Ct. 2501

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(1984). Third, and at issue here, is the attenuation doctrine, that is, evidence is admissible when

the connection between unconstitutional police conduct and the evidence is remote or has been

interrupted by some intervening circumstance, so that “the interest protected by the constitutional

guarantee that has been violated would not be served by suppression of the evidence obtained.”

Hudson, 547 U.S. at 593.

In Utah v. Strieff, 136 S.Ct. 2056 (2016), the Supreme Court considered whether the illegal

detention of Strieff by police, which resulted in the seizure of illegal narcotics, could be attenuated

by the subsequent discovery of a valid pre-existing arrest warrant for Strieff. In considering this,

the Supreme Court relied on the test they had established in Brown v. Illinois, 422 U.S. 590, 95

S.Ct. 2254 (1975), to guide their analysis. First, the Court looked to the “temporal proximity”

between the unconstitutional conduct and the discovery of evidence to determine how closely the

discovery of evidence followed the unconstitutional search. Id. at 603. Second, they considered

“the presence of intervening circumstances.” Id. at 603–604. Third, and “particularly” significant,

the Court we examined “the purpose and flagrancy of the official misconduct.” Id. at 604. In

evaluating these factors, the Court recognized that the officer lacked reasonable suspicion to

initially stop Strieff because the point had been conceded by the prosecution. The Court also

recognized that it had no need to decide whether the warrant’s existence could directly cure the

constitutional infirmity in the stop. This was done because ultimately, the Court was going to

conclude that the warrant broke the causal chain, even if the officer was unaware of its existence.

In considering the first Brown factor, temporal proximity between the initially unlawful

stop and the search, the Court noted that the facts in Strieff favored suppressing the evidence,

relying on prior precedents which declined to find in favor of attenuation unless “substantial time”

elapses between an unlawful act and when the evidence is obtained. Kaupp v. Texas, 538 U.S. 626,

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633, 123 S.Ct. 1843 (2003) (per curiam). As in Brown, a short time interval between the

constitutional violation and the attenuating circumstance counsels in favor of suppression. 422

U.S. at 604.

In considering the second Brown factor, the presence of intervening circumstances, the

Strieff Court found that the facts strongly favored the prosecution, applying the principle that the

existence of a valid warrant favors finding that the connection between unlawful conduct and the

discovery of evidence is “sufficiently attenuated to dissipate the taint.” Strieff, 136 S.Ct. at 2062

(citing Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380 (1984)).

In considering the third Brown factor, the purpose and flagrancy of the official misconduct,

the Strieff Court again found that the facts of the case favored the prosecution, finding that the

officer was at most negligent and that his actions were undertaken in good faith. Id. at 2063. That

being the case, the Court determined that the outstanding arrest warrant for Strieff was a critical

intervening circumstance, wholly independent of any claimed constitutional violation occurring

during the initial stop. The discovery of that warrant broke the causal chain between the

unconstitutional stop and the discovery of evidence by compelling the officer to arrest Strieff. Id.

In so ruling, the Court attached special significance to the fact that there was no evidence that the

officer’s illegal stop reflected flagrantly unlawful police misconduct. Id.

Strieff is controlling in the case at bar in its application of the attenuation doctrine.

Following the ruling in Carpenter, agents obtained search warrants for the exact information

previously obtained in the 2703(d) orders for CSLI. While the United States does not concede that

the ruling in Carpenter should be applied retroactively, the issuance of a search warrant brings this

case within the attenuation doctrine. Despite the facts that Title 18, United States Code, § 2703(d)

was a valid statute at the time that the orders granting agents the authority to collect CSLI without

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the issuance of a warrant and that agents relied upon those orders in good faith, the subsequent

issuing of search warrants granted since Carpenter has allowed agents to obtain the identical

information in conformity with the dictates of that case.

As such, under both the good faith exception and the attenuation doctrine, the motion to

suppress filed the defendant in this case must necessarily fail.

WHEREFORE, the United States respectfully requests that defendant’s Motion to

Suppress Evidence Resulting from Use of Illegal Seizure of Cell Site Information, (Dkt. 228), be

denied.

Respectfully yours,

RYAN K. PATRICK
United States Attorney

/s Richard D. Hanes
RICHARD D. HANES
Assistant United States Attorney

/s Heather Rae Winter

HEATHER RAE WINTER
Assistant United States Attorney

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CERTIFICATE OF SERVICE

I hereby certify that this pleading has been served on the Filing User identified below

through the Electronic Case Filing (ECF) system:

/s Richard D. Hanes
RICHARD D. HANES
Assistant United States Attorney