     16-163-cr
     United States v. Chambers


                                      UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
     ANY PARTY NOT REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held
 2   at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 21st day of September, two thousand eighteen.
 4
 5   PRESENT: REENA RAGGI,
 6                    RAYMOND J. LOHIER, JR.,
 7                    CHRISTOPHER F. DRONEY,
 8                                    Circuit Judges.
 9   -----------------------------------------------------------------------
10   UNITED STATES OF AMERICA,
11                                             Appellee,
12
13                               v.                                            No. 16-163-cr
14
15   ANTOINE CHAMBERS, AKA “Sealed Defendant 1,”
16   AKA “Twizzie,”
17                         Defendant-Appellant,
18
19   STEVEN GLISSON, AKA “D,” AKA “Sealed Defendant
20   1,” TYRONE BROWN,
21                                                   Defendants.
22         -----------------------------------------------------------------------
23   APPEARING FOR APPELLANT:                        JOSHUA L. DRATEL (Whitney G. Schlimbach,
24                                                   on the brief), Joshua L. Dratel, P.C., New York,
25                                                   New York.



                                                              1
 1
 2   APPEARING FOR APPELLEE:                       NEGAR TEKEEI, Assistant United States
 3                                                 Attorney (Amy Lester, Michael Ferrara,
 4                                                 Assistant United States Attorneys, on the brief),
 5                                                 for Geoffrey S. Berman, United States Attorney
 6                                                 for the Southern District of New York, New
 7                                                 York, New York.

 8          Appeal from a judgment of the United States District Court for the Southern District

 9   of New York (Lorna G. Schofield, Judge), and on remand from the Supreme Court of the

10   United States.

11          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

12   DECREED that the judgment entered on December 21, 2015, is AFFIRMED.

13          This case comes before the court on remand from the United States Supreme Court.

14   See Chambers v. United States, 138 S. Ct. 2705 (2018). Defendant Antoine Chambers was

15   convicted after a jury trial of conspiratorial and substantive Hobbs Act robbery, see 18

16   U.S.C. § 1951, and kidnapping, see 18 U.S.C. § 1201. Chambers appealed his conviction,

17   arguing, inter alia, that the district court erred in failing to suppress cell-site location

18   information (“CSLI”) obtained pursuant to a Stored Communications Act (“SCA”) order.

19   See 18 U.S.C. § 2703(d). He argued that (1) the evidence did not support the SCA’s

20   requirement of “specific and articulable” facts, 18 U.S.C. § 2703(d), and (2), even if it did,

21   the Fourth Amendment requires officers to obtain a warrant meeting the higher standard of

22   probable cause to obtain the data at issue.




                                                         2
 1          Finding that both these arguments “fail[ed] on the merits,” we affirmed the district

 2   court without deciding whether Chambers demonstrated “a reasonable expectation of

 3   privacy” in his cell-site data. United States v. Chambers, 681 F. App’x 72, 79 (2d Cir.

 4   2017) (“Chambers I”). Chambers successfully petitioned the Supreme Court for a writ of

 5   certiorari, resulting in vacatur of this court’s judgment and remand for reconsideration of

 6   Chambers’s claims in light of Carpenter v. United States, 138 S. Ct. 2206 (2018), decided

 7   while Chambers’s certiorari petition was pending. See Chambers v. United States, 138

 8   S. Ct. at 2705. We assume the parties’ familiarity with the facts and record of prior

 9   proceedings, which we reference only as necessary to explain our decision to affirm.

10          Carpenter recognizes that individuals have a reasonable expectation of privacy in

11   cell-site data, and holds that the acquisition of that data from wireless carriers who maintain

12   it constitutes a search that, under the Fourth Amendment, requires “a warrant supported by

13   probable cause.” Carpenter v. United States, 138 S. Ct. at 2220–21. An SCA order, issued

14   on a showing of “reasonable grounds” for believing that the records were “relevant and

15   material to an ongoing investigation,” falls short of this requirement. Id. at 2221 (quoting

16   18 U.S.C. § 2703(d)). Applying Carpenter to the facts of this case, we are obliged to

17   conclude that to the extent the government relied on an SCA order, issued on a showing of

18   “reasonable grounds” to procure the data at issue, that procurement did not comport with

19   the Fourth Amendment.




                                                       3
 1          The identification of Fourth Amendment error, however, does not necessarily mean

 2   that Chambers was entitled to suppression of the data at issue. As the Supreme Court has

 3   held, the exclusionary rule must be the judiciary’s “last resort, not [its] first impulse” upon

 4   identification of Fourth Amendment error. Hudson v. Michigan, 547 U.S. 586, 591 (2006).

 5   The exclusionary rule serves “to deter future Fourth Amendment violations,” Davis v.

 6   United States, 564 U.S. 229, 236–37 (2011), and thus, the harsh remedy of suppression is

 7   warranted only “where it results in appreciable deterrence,” Herring v. United States, 555

 8   U.S. 135, 141 (2009) (internal quotations and alterations omitted).

 9          That is not the case where evidence was “obtained during a search conducted in

10   reasonable reliance on binding precedent.” Davis v. United States, 564 U.S. at 241. In

11   United States v. Zodhiates, No. 17-839-cr 2018 WL 3977030 (2d Cir. Aug 21, 2018), this

12   court invoked the good faith exception to hold that the suppression of cell phone records

13   subpoenaed pursuant to the SCA was unwarranted because at the time the request for the

14   phone records was made, i.e. pre-Carpenter, Supreme Court precedent — “the third-party

15   doctrine — permitted the government [to proceed] by subpoena as opposed to by warrant.”

16   Id. at *4 (discussing Smith v. Maryland, 442 U.S. 735 (1979); United States v. Miller, 425

17   U.S. 435 (1976)); see also United States v. Ulbricht, 858 F.3d 71, 97 (2d Cir. 2017)




                                                       4
 1   (pronouncing court bound by the third-party doctrine “unless it is overruled by the Supreme

 2   Court”). 1

 3          Here, too, the authorities sought information from third parties by complying with

 4   the SCA—specifically, the statute’s order requirement, see 18 U.S.C. § 2703(d), rather

 5   than the lesser subpoena requirement, see id. § 2703(c)(2), at issue in Zodhiates. Reliance

 6   on a federal statute gives rise to a presumption of good faith unless the statute is “clearly

 7   unconstitutional.” Illinois v. Krull, 480 U.S. 340, 349 (1987). This presumption applies

 8   even if “the statute is subsequently declared unconstitutional, [because] excluding evidence

 9   obtained pursuant to [the statutory scheme] prior to such a judicial declaration will not

10   deter future Fourth Amendment violations by an officer who has simply fulfilled his

11   responsibility to enforce the statute as written.” Id. at 350.

12          When the government obtained the order here, the SCA was not “clearly

13   unconstitutional” in light of the third-party doctrine, as explained in Zodhiates. See also

14   United States v. Chavez, 894 F.3d 593, 608 (4th Cir. 2018) (holding that searches




     1
       Prior to Carpenter, all six courts of appeal to have considered the question had held that
     the government acquisition of electronic data from third parties was not subject to the
     Fourth Amendment warrant requirement. See United States v. Ulbricht, 858 F.3d 71 (2d
     Cir. 2017); United States v. Thompson, 866 F.3d 1149 (10th Cir. 2017); United States v.
     Graham, 824 F.3d 421 (4th Cir. 2016) (en banc); United States v. Carpenter, 819 F.3d 880
     (6th Cir. 2016), rev’d, 138 S. Ct. 2206 (2018); United States v. Davis, 785 F.3d 498 (11th
     Cir. 2015) (en banc); In re Application of the United States for Historical Cell Site Data,
     724 F.3d 600 (5th Cir. 2013).


                                                       5
 1   conducted pursuant to pre-Carpenter SCA orders are subject to good faith exception and,

 2   therefore, no suppression is warranted).

 3          In urging otherwise, Chambers attempts to distinguish this case from Zodhiates by

 4   arguing that the subpoena there was issued in 2011, i.e., before United States v. Jones, 565

 5   U.S. 400 (2012), whereas the SCA order here was issued after Jones. He argues that Jones

 6   put law enforcement officers on notice that acquiring cell-site data required a warrant,

 7   thereby precluding their claim to the good faith exception. We are not persuaded. The

 8   warrantless GPS tracking in Jones was unconstitutional because placement of the tracker

 9   on defendant’s vehicle constituted a physical trespass: the “[g]overnment physically

10   occupied private property for the purpose of obtaining information.” Id. at 404. Here, the

11   government did not trespass onto any property, and certainly not onto Chambers’s

12   property. It obtained the data at issue by requesting it from the third party in possession of

13   the data.    This crucial difference means that, even after Jones, officers could have

14   reasonably believed that the third-party doctrine meant a warrant was not required to obtain

15   cell-site data.

16          That conclusion finds support in Justice Sotomayor’s concurring opinion in Jones.

17   Although she questioned the continued viability of the third-party doctrine in a digital age,

18   Justice Sotomayor conceded that “[r]esolution of these difficult questions in this case is

19   unnecessary” precisely because “the [g]overnment’s physical intrusion” onto defendant’s

20   vehicle — the majority’s trespass theory — “supplies a narrower basis for decision.” Id. at


                                                      6
 1   418 (Sotomayor, J., concurring). In short, nothing in Jones clearly alerted reasonable

 2   officers that where, as here, they sought cell-site information from a third party, compliance

 3   with the SCA requirements was no longer constitutionally sufficient and that a warrant

 4   supported by probable cause was required.

 5          Indeed, in Carpenter itself, when the Supreme Court held cell-site data

 6   “qualitatively different” from the “telephone numbers and bank records” to which the third-

 7   party doctrine applied, it acknowledged that such cell-site data “does not fit neatly under

 8   existing precedents.” Carpenter v. United States, 138 S. Ct. at 2214–16. Thus, we conclude

 9   that even after Jones, but before Carpenter, it was objectively reasonable for authorities to

10   think that if they complied with the SCA, no warrant based on probable cause was

11   constitutionally required to obtain cell-site information from a third party. See, e.g., United

12   States v. Ulbricht, 858 F.3d at 97 (explaining that, “in light of [third-party doctrine,] no

13   reasonable person could maintain a privacy interest in that sort of information”).

14   Accordingly, we conclude that the good faith exception applies to any Fourth Amendment

15   violation here, such that the district court was not required to suppress the challenged cell-

16   site records.

17          That conclusion is only reinforced by our earlier determination that the facts

18   asserted in the SCA application were, in any event, sufficient “to demonstrate probable

19   cause to think that the sought information would be evidence of a crime.” Chambers I, 681




                                                       7
1   F. App’x at 80.2 Chambers did not dispute this finding in his certiorari petition, and in

2   subsequent briefing to this court, he makes only a conclusory assertion that the SCA

3   application “failed to meet even the reduced [requirements] set forth in the SCA,”

4   Appellant’s Aug. 13, 2018 letter at 10, an argument that fails for the reasons stated in

5   Chambers I, 681 F. App’x at 79–80. Thus, given both the state of the law prior to

6   Carpenter, and the content of the SCA order application, we conclude, as we did in

7   Zodhiates, that the good faith exception applies here so that suppression of the cell-site

8   records at issue was not constitutionally required.




    2
     The facts presented in the application, which we held constituted probable cause, were:
          (1) the police were investigating Chambers’s possible involvement in a Hobbs Act
          robbery occurring on March 25, 2013, in an apartment at 1338 Croes Avenue in the
          Bronx;
          (2) a consent search of another suspect’s cellphone (identified at trial as Brown)
          revealed two phone numbers associated with the name “Twizie,” a nickname used
          for Chambers;
          (3) the only calls of duration made or received by the suspect (Brown) on the night
          of the robbery were to one of the Twizie cellphones;
          (4) the other Twizie phone had been used some time earlier to make a 911 call by a
          man who provided the name “Antoine,” which is Chambers’s first name, and who
          placed the call from 4782 Barnes Avenue in the Bronx;
          (5) the landlord of that Barnes Avenue address identified Antoine Chambers as the
          resident; and
          (6) a vehicle parked outside 4782 Barnes Avenue registered to Chambers’s
          girlfriend bore a license plate, six of the seven digits/letters of which matched those
          provided by one of the robbery victims as on the license plate of the car driven by
          the robbers.
    See Chambers I, 681 F. App’x at 80.


                                                     8
1         As to all other arguments raised by Chambers on this appeal, for which the Supreme

2   Court did not order reconsideration, we conclude they are without merit for the reasons

3   stated in our March 1, 2017 summary order. See Chambers I, 681 F. App’x at 79–80.

4   Accordingly, we AFFIRM the judgment of the district court.

5

6                                           FOR THE COURT:
7                                           Catherine O’Hagan Wolfe, Clerk of Court




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