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United States v. Curtis

United States Court of Appeals, Seventh Circuit

August 24, 2018

United States of America, Plaintiff-Appellee,
v.
Eric Curtis, Defendant-Appellant.

          Argued March 27, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 952-2 - Charles P. Kocoras, Judge.

          Before Wood, Chief Judge, and Bauer and Kanne, Circuit Judges.

          WOOD, CHIEF JUDGE.

         Eric 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.

         Curtis 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.

         I

         "CSLI 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.

         The 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.

         The 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 further proceedings.

         Our 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).

         Curtis's 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.

         Experience 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.

         The 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 Amendment ...


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