                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES COURT OF APPEALS October 18, 2018
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
 v.
                                                         No. 15-3313
                                              (D.C. No. 5:13-CR-40060-DDC-10)
 ANTHONY CARLYLE THOMPSON,                                 (D. Kan.)

               Defendant - Appellant.
 _____________________________


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                         No. 15-3324
 v.                                         (D.C. No. 5:13-CR-40060-DDC-1)
                                                          (D. Kan.)
 ALBERT DEWAYNE BANKS,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, MATHESON and MORITZ, Circuit
Judges. **

      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
           After examining the supplemental briefs filed in these matters, this
                                                                       (continued...)
      This matter is before us on remand from the Supreme Court. See Thompson

v. United States, 138 S. Ct. 2706 (2018); Banks v. United States, 138 S. Ct. 2707

(2018).

      Anthony Carlyle Thompson and Albert Dewayne Banks were arrested and

charged with conspiracy to distribute more than 280 grams of cocaine base and

multiple counts of distribution of cocaine base. The government received an

order of disclosure for Thompson’s and Banks’s historical cell-service location

information (CSLI) as part of the process for determining whether certain

intercepted phone calls were admissible at trial. The government received this

order under the Stored Communications Act, 18 U.S.C. § 2703(d), which allowed

the government to obtain a court order for disclosure of CSLI after making a

showing of reasonable suspicion.

      The district court ruled that cell phone users have no reasonable

expectation of privacy in their CSLI, so historical cell-site orders under § 2703(d)

do not violate the Fourth Amendment. Alternatively, the district court ruled that

even if the Fourth Amendment did apply to CSLI, the government had presented

sufficient evidence to support a search warrant based on probable cause.


      **
        (...continued)
three-judge panel has determined unanimously that oral argument would not be of
material assistance in the determination of this appeal. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1(G).

                                         -2-
      On appeal, Thompson and Banks contended the district court erred in

granting the government’s application for historical CSLI and in admitting that

CSLI at a pretrial evidentiary hearing. They argued in their separate appeals that

§ 2703(d) is unconstitutional because collecting CSLI constitutes a search. The

Fourth Amendment, therefore, would require the government to procure a warrant

before obtaining a cell phone user’s historical CSLI.

      In both cases we affirmed the district court’s ruling that cell phone

customers have no reasonable expectation of privacy in CSLI. United States v.

Thompson, 866 F.3d 1149 (10th Cir. 2017); United States v. Banks, 706 Fed.

Appx. 455 (10th Cir. 2017). We read the Supreme Court’s business-record cases

as foreclosing Thompson’s and Banks’s argument, reasoning that a person does

not have a reasonable expectation of privacy in business records he voluntarily

turns over to a third party. We also stated in Thompson, however, that “we

wholeheartedly recognize that Thompson raises valid concerns about the

application of the third-party doctrine in the digital age. But until the Supreme

Court instructs us otherwise, we are bound to follow its third-party doctrine

precedents.” Thompson, 866 F.3d at 1154.

      The Supreme Court has now instructed us otherwise. While petitions for

certiorari were pending in Thompson and Banks, the Supreme Court decided

Carpenter v. United States, 138 S. Ct. 2206 (2018). In that case the Court held


                                         -3-
that “[t]he Government’s acquisition of the cell-site records was a search within

the meaning of the Fourth Amendment,” largely based on “the unique nature of

cell phone location information.” Id. at 2220. The Supreme Court then granted,

vacated, and remanded Thompson and Banks to this court to reevaluate the cases

in light of Carpenter. See Thompson, 138 S. Ct. at 2706; Banks, 138 S. Ct. at

2707.

        We ordered supplemental briefing from the parties to determine the effect

of Carpenter on the two cases. After briefing we are persuaded that Carpenter

supercedes our holding that the historical cell-site orders in Thompson and Banks

did not violate the Fourth Amendment.

        We therefore remand the cases to the district court to determine whether its

a lternative holding survives Carpenter and for further proceedings consistent with

the Supreme Court’s decision. The mandate shall issue forthwith.

                                                ENTERED FOR THE COURT

                                                Timothy M. Tymkovich
                                                Chief Judge




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