March 27, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 13 CR 952-2 -
Charles P. Kocoras, Judge.
Wood, Chief Judge, and Bauer and Kanne, Circuit Judges.
Curtis led a crew that robbed five cell-phone stores located
in suburban Chicago. He was arrested following the last of
the heists and eventually stood trial on ten criminal
charges: four counts for robbery, four counts for aiding in
the brandishing of a firearm in relation to a crime of
violence, a count for conspiracy, and a count for being a
felon in possession of a firearm. A jury convicted him on all
counts save two: one for robbery and one for aiding in the
brandishing of a firearm. Each acquittal was on a charge
related to a robbery of a store in Joliet.
raises two issues on appeal. First, he argues that the
district court should have excluded evidence of his cell-site
location information ("CSLI"), which he alleges was
obtained in violation of the Fourth Amendment. Second, he
complains that the district court prohibited him from
cross-examining witnesses about a potential source of bias,
and thereby violated the Sixth Amendment's Confrontation
Clause. Neither of these alleged errors is enough to disturb
the judgment against him, which we affirm.
is location information generated by cellular phone providers
that indicates which cell tower a particular phone was
communicating with when a communication was made." Orin
S. Kerr, The Effect of Legislation on fourth Amendment
Protection, 115 Mich. L. Rev. 1117, 1128 (2017). It is
capable of "pinpointing] a phone's location within
50 meters." Carpenter v. United States, 138
S.Ct. 2206, 2219 (2018). Because cell phones are in constant
communication with the nearest cell site-often affixed to a
cell tower-they can collect CSLI as frequently as several
times a minute. Id. at 2211-12. In this case, the
government obtained historical CSLI for Curtis's cell
phone for a span of 314 days. The data placed Curtis in the
vicinity of four of the five stores at the time each was
robbed. There was no CSLI evidence for the Joliet robbery.
government relied on the procedures set forth in the Stored
Communications Act (SCA), 18 U.S.C. § 2703, to obtain
Curtis's CSLI. The type of data it sought is considered
to be non-content information for SCA purposes. See 18 U.S.C.
§ 2703(c). That part of the SCA authorizes courts to
order cellphone providers to disclose non-content information
if the government "offers 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(c)(1)(B), (d). Curtis did not dispute the
government's compliance with the SCA, but he took the
position that SCA compliance was not enough and moved to
suppress the evidence. He argued that collecting CSLI without
a search warrant violates the Fourth Amendment because there
is a reasonable expectation of privacy in CSLI. The district
court denied the motion, ruling that a cell-phone user
voluntarily discloses CSLI to his phone provider, and that
the Fourth Amendment does not protect voluntarily disclosed
information. See Smith v. Maryland, 442 U.S. 735,
743-44 (1979); United States v. Miller, 425 U.S.
435, 442-44 (1976). Curtis appeals that ruling.
Supreme Court resolved Curtis's Fourth Amendment argument
in Carpenter v. United States, 138 S.Ct. 2206
(2018). There it decided that a person in Curtis's
position, for whom data was collected for a substantial time,
maintains a legitimate expectation of privacy for Fourth
Amendment purposes in the records of his physical movements
disclosed by CSLI. See id. at 2217. It declined to
say whether there was "a limited period for which the
Government may obtain an individual's historical CSLI
free from Fourth Amendment scrutiny," deciding only that
accessing seven days' or more worth of information was
enough. Id. at 2217 n.3. In Carpenter, as
here, the prosecutors had obtained court orders under the
SCA, and those court orders purported to authorize the
collection of the target's cell phone records.
Id. at 2212. The Court said that SCA compliance did
not matter, because the showing required by the SCA
"falls well short of the probable cause required for a
warrant." Id. at 2221. The Court also rejected
the applicability of the "third-party doctrine, ”
which (when it applies) allows the collection of business
records collected by a third party in the ordinary course of
operations. Id. at 2217. It remanded the case for
case stands in the same position as the Carpenter
remand. The Court has resolved the question whether an SCA
order obviates the need for the warrant, but it has not
spoken to what should happen next. We must decide whether
this conceded error automatically results in relief for
Curtis, for whom records covering 314 days were collected. We
conclude that it does not. A different part of Fourth
Amendment jurisprudence is, in our view, dispositive:
evidence obtained in good-faith reliance on a statute later
declared unconstitutional need not be excluded. Illinois
v. Krull, 480 U.S. 340, 349-50 (1987); see also
United States v. Pembrook, 876 F.3d 812, 823 (6th
Cir. 2017), vacated on other grounds by Johnson v. United
States, 138 S.Ct. 2676 (2018) (applying the good-faith
exception to CSLI obtained under the SCA); United States
v. Graham, 796 F.3d 332, 363 (4th Cir. 2015),
reversed on other grounds by United States v.
Graham, 824 F.3d 421 (4th Cir. 2016) (en banc)
(same); United States v. Davis, 785 F.3d 498, 511,
518 n.2O (11th Cir. 2015) (same).
proposed path around Krull is ambitious. He does not
argue that officers obtained his CSLI in bad faith. Far from
it: his motion to suppress seemingly concedes that there
would have been probable cause to seek a search warrant. It
is Krull itself that he attempts to push out of the
picture. He argues that Krull applies only to
statutes authorizing administrative searches. His logic
proceeds in three steps. First, he urges, the good-faith
exception to the exclusionary rule cannot be applied so as to
insulate statutes from constitutional challenge. To do so
would "destroy all incentive on the part of individual
criminal defendants to litigate the violation of their Fourth
Amendment rights." Krull, 480 U.S. at 369
(O'Connor, J., dissenting). Second, he suggests
that the Krull majority could sidestep that concern
because the target of an administrative search necessarily
knows that a search is impending. A forewarned target still
has reason to "bring an action seeking a declaration
that the statute is unconstitutional and an injunction
barring its implementation" notwithstanding the
good-faith exception. Id. at 354 (majority opinion).
Third, he points out that the target of an SCA order issued
under section 2703(d) has no knowledge of the order until the
CSLI has been collected and used in a criminal proceeding. At
that late hour, a defendant has no incentive to challenge the
statute because the good-faith exception permits admission of
the fruits of an unconstitutional search.
has shown that the good-faith exception has not had the
chilling effect that Curtis fears. Curtis, like many others,
has challenged section 2703(d) of the SCA on Fourth Amendment
grounds notwithstanding the risk that the exception may
apply. See, e.g., Carpenter, supra; United States v.
Graham, 824 F.3d 421, 425 (4th Cir. 2016) (en banc);
United States v. Daniels, 803 F.3d 335, 351-52 (7th Cir.
2015); Davis, 785 F.3d at 511; In re U.S. for
Historical Cell Site Data, 724 F.3d 600, 608 (5th Cir.
2013). This is just what the Krull majority
predicted: defendants will still "contest the validity
of statutes [even] if they are unable to benefit directly by
the subsequent exclusion of evidence ... ."
Krull, 480 U.S. at 353.
exclusionary rule is designed primarily to deter
unconstitutional conduct. Id. at 349. Nothing
substantiates the fear that when passing laws such as the SCA
"legislators are inclined to subvert their oaths and the
Fourth Amendment." Id. at 351. Even if there
were a need to deter legislators, "there is nothing to
indicate that applying the exclusionary rule to evidence
seized pursuant to the statute prior to the declaration of
its invalidity will act as a significant, additional
deterrent." Id. at 352. We conclude, therefore,
that even though it is now established that the Fourth