                                        PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                ________________

                      No. 15-4094
                   ________________


            UNITED STATES OF AMERICA

                            v.

             JAY GOLDSTEIN a/k/a Yaakov

                  JAY GOLDSTEIN,

Appellant
                   ________________

      On Appeal from the United States District Court
               for the District of New Jersey
               (D. C. No. 3-14-cr-00287-003)
       District Judge: Honorable Freda L. Wolfson
                    ________________

               Argued on January 25, 2017
       Panel Rehearing Granted on August 30, 2018

   Before: CHAGARES, RESTREPO and ROTH, Circuit
                      Judges
              (Opinion filed: January 22, 2019)


Aidan P. O’Connor [Argued]
Pashman Stein Walder Hayden
21 Main Street
Court Plaza South, Suite 200
Hackensack, NJ 07601
                Counsel for Appellant

Mark E. Coyne
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

Norman Gross [Argued]
Glenn J. Moramarco [Argued]
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
Camden, NJ 08101
                Counsel for Appellee


                    ________________

                        OPINION
                    ________________


ROTH, Circuit Judge




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                            I.

       We granted Appellant Jay Goldstein’s petition for
rehearing to address the effect of the Supreme Court’s recent
decision in Carpenter v. United States1 on our prior panel
decision, United States v. Stimler.2 In Stimler, we held that
the District Court properly denied Goldstein’s motion to
suppress his cell site location information (CSLI) because
Goldstein had no reasonable expectation of privacy in his
CSLI, and, therefore, the government did not need probable
cause to collect this data.3 Carpenter sets forth a new rule
that defendants do in fact have a privacy interest in their
CSLI, and the government must generally obtain a search
warrant supported by probable cause to obtain this
information.4 However, we still affirm the District Court’s
decision under the good faith exception to the exclusionary
rule because the government had an objectively reasonable
good faith belief that its conduct was legal when it acquired
Goldstein’s CSLI.

                           II.

     We recited a comprehensive factual background in our
previous decision.5 The facts relevant to this decision follow.

1
  138 S. Ct. 2206 (2018).
2
  864 F.3d 253 (3d Cir. 2017).
3
  Id. at 263. Carpenter does not affect our other holdings in
Stimler. Those remain as written and are not addressed in or
changed by this decision.
4
  Carpenter, 138 S. Ct. at 2217, 2222.
5
  Stimler, 864 F.3d at 259-61.




                                 3
Goldstein was arrested for his involvement in a kidnapping
scheme. Hoping to find evidence placing Goldstein at the
scene of the kidnapping, the prosecutors obtained a court
order under the Stored Communications Act (SCA)—
specifically 18 U.S.C. § 2703(d)—compelling Goldstein’s
cell phone carrier to turn over 57 days’ worth of his CSLI.
CSLI is a type of metadata that is generated every time a
user’s cell phone connects to the nearest antenna. The user’s
cell phone service provider retains a time-stamped record
identifying the particular antenna to which the phone
connected. Because most people constantly carry and
frequently use their cell phones, CSLI can provide a detailed
log of an individual’s movements over a period of time.

       The legal question in this case centers on whether
Section 2703(d), the statutory provision under which the
government obtained Goldstein’s CSLI, complies with the
Fourth Amendment. The Fourth Amendment protects against
unreasonable searches. In order for the acquisition of CSLI to
be a “search” under the Fourth Amendment, an individual
must have a reasonable expectation of privacy in his CSLI.6
In order for a search to be “reasonable,” it generally must be
conducted pursuant to a search warrant supported by probable
cause, unless an exception to the warrant requirement
applies.7 Consequently, if there is no reasonable expectation
of privacy as to CSLI, then its acquisition does not require a
search warrant; if there is, then a warrant is generally
required. Section 2703(d) does not require a showing of

6
   See United States v. Knotts, 460 U.S. 276, 281 (1983)
(explaining what constitutes a reasonable expectation of
privacy).
7
  See Riley v. California, 134 S. Ct. 2473, 2482 (2014).




                              4
probable cause to obtain CSLI. Rather, it calls for a more
lenient standard, requiring “specific and articulable facts
showing that there are reasonable grounds to believe” that the
CSLI is relevant and material.8

        Before trial, Goldstein moved to suppress the CSLI,
arguing that this provision violates the Fourth Amendment
because it authorizes disclosure of CSLI without a warrant
supported by probable cause. The District Court rejected this
argument and denied the motion. Through the testimony of
an FBI agent, the government introduced the CSLI at trial,
which placed him in the vicinity of the kidnapping site.
Goldstein was convicted and sentenced to 96 months in
prison.

       In our previous decision, we affirmed the District
Court’s denial of Goldstein’s motion to suppress, holding that
Section 2703(d) complied with the Fourth Amendment
because cell phone users have no reasonable expectation of
privacy in their CSLI.9 We relied on our decision in In re
Application of the United States for an Order Directing a
Provider of Electronic Communication Service to Disclose
Records to the Government (In re Application),10 which also
found no reasonable expectation of privacy in CSLI,11 and we




8
  18 U.S.C. § 2703(d).
9
  Stimler, 864 F.3d at 263.
10
   620 F.3d 304 (3d Cir. 2010).
11
   Id. at 312-13 (holding that CSLI is obtainable without “the
traditional probable cause determination” because
individuals’ privacy interests do not extend to CSLI).




                              5
reasoned that there were no intervening changes in law
undermining In re Application.12

       Goldstein petitioned for rehearing, and we held the
petition curia advisari vult pending the Supreme Court’s
decision in Carpenter, which was set to address essentially
the same question we answered in Stimler: whether obtaining
CSLI without a warrant supported by probable cause under
Section 2703(d) violates the Fourth Amendment’s protection
against unreasonable searches. The Supreme Court decided
Carpenter, and we granted Goldstein’s petition for panel
rehearing.13 Carpenter came to the opposite conclusion that
we came to in In re Application and Stimler and held that “an
individual maintains a legitimate expectation of privacy in the
record of his physical movements as captured though CSLI”
and that the government’s collection of CSLI requires a
showing of probable cause under the Fourth Amendment.14
Consequently, Section 2703(d) may not be used to access
CSLI because it requires less than probable cause.

       Applying Carpenter to Goldstein’s case, we find that
the government did violate Goldstein’s Fourth Amendment
rights when it acquired his CSLI under Section 2703(d) of the
SCA. However, we will still affirm the District Court’s
admission of Goldstein’s CSLI because the government was
acting under an objectively reasonable good faith belief that


12
   Stimler, 864 F.3d at 264-67.
13
    Appellants Stimler and Epstein also petitioned for
rehearing, but we denied those petitions because the
government did not collect their CSLI.
14
   Carpenter, 138 S. Ct. at 2217, 2222.




                              6
obtaining CSLI under Section 2703(d) was constitutional at
the time.


                                   15
                            III.

       It is clear that under Carpenter, acquiring Goldstein’s
CSLI was an unconstitutional search under the Fourth
Amendment because the government did not obtain a warrant
supported by probable cause.16 However, evidence obtained
in violation of a defendant’s Fourth Amendment rights is not
automatically suppressed. Evidence will be suppressed under
the exclusionary rule when suppression would further the
exclusionary rule’s primary objective: to deter Fourth
Amendment violations.17 One instance where suppressing
evidence will not encourage deterrence is where the
government acted “upon an objectively reasonable good faith
belief in the legality of [its] conduct” when conducting a


15
   The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction pursuant to 28 U.S.C. § 1291. “In
reviewing a motion to suppress, ‘we review a district court’s
factual findings for clear error, and we exercise de novo
review over its application of the law to those factual
findings.’” United States v. Katzin, 769 F.3d 163, 169 n.4 (3d
Cir. 2014) (en banc) (quoting United States v. Pavulak, 700
F.3d 651, 660 (3d Cir. 2012)).
16
   A warrantless search is still reasonable under the Fourth
Amendment if an exception to the warrant requirement
applies, but the parties do not argue, and we do not find, that
any exception applies here. Carpenter, 138 S. Ct. at 2222-23.
17
   Katzin, 769 F.3d at 170-71.




                               7
search.18 Indeed, “applying the exclusionary rule would not
‘yield appreciable deterrence’” when government actors have
a reasonable belief that their conduct conforms with the law.19
This is known as the good faith exception, and where it
applies, the illegally-obtained evidence will not be suppressed
under the exclusionary rule.

      The Supreme Court has applied this exception across a
number of cases where suppressing evidence would not have
any deterrent value—three of which are relevant here. In
Illinois v. Krull,20 the Court held that the good faith exception
applies when a search is executed pursuant to a statute that
was valid at the time of the search but later declared
unconstitutional.21 Except in instances where a statute is
obviously unconstitutional, suppressing evidence obtained by
a law enforcement officer “acting in objectively reasonable
reliance on a statute would have . . . little deterrent effect on
the [government’s] actions.”22 Under Davis v. United
States,23 this exception also applies when a search is
conducted based upon reasonable reliance on then-binding
appellate precedent because exclusion in this context would
not deter improper government conduct.24 And under United


18
   Id. at 182.
19
   United States v. Vasquez-Algarin, 821 F.3d 467, 482-83 (3d
Cir. 2016) (quoting Davis v. United States, 564 U.S. 229, 237
(2011)).
20
   480 U.S. 340 (1987).
21
   Id. at 349-50.
22
   Id.
23
   564 U.S. 229 (2011).
24
   Id. at 241.




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States v. Leon,25 the exclusionary rule will not apply when
law enforcement conducts a search pursuant to a judicial
order later found invalid.26

      The good faith exception applies to the government’s
search in this case because the government acted upon an
objectively reasonable, good faith belief that obtaining
Goldstein’s CSLI under Section 2703(d) was legal. At the
time the search was executed, it was authorized under Section
2703(d). The government complied with all requirements of
Section 2703(d) and obtained a valid judicial order to collect
Goldstein’s CSLI. Moreover, the government had no reason
to question the constitutionality of obtaining CSLI through
Section 2703(d) because that question had been answered by
this Court in In re Application—which was binding appellate
precedent.27 Thus, because the government relied on a
properly-obtained valid judicial order, a then-valid statute,
and then-binding appellate authority, it had an objectively
reasonable, good faith belief that its conduct was legal.
Indeed, the conduct was legal at the time. Excluding
evidence obtained through methods that complied with the
law at the time of the search cannot serve any deterrent
purpose. Under Krull, Davis, and Leon, the good faith
exception applies, and the District Court’s denial of the
motion to suppress is affirmed. Our holding puts us in good
company, as many of our sister circuits have also found that

25
   468 U.S. 897 (1984).
26
   Id. at 922.
27
   In re Application, 620 F.3d at 313 (“[W]e hold that CSLI
from cell phone calls is obtainable under a § 2703(d) order
and that such an order does not require the traditional
probable cause determination.”).




                              9
the good faith exception applies when the government
obtained CLSI data without a warrant prior to Carpenter.28
      Goldstein contends that the good faith exception does
not apply because the government’s reliance on Section
2703(d) was unreasonable for two reasons, both of which fail.
First, he argues that, at the time of the search, the Eleventh
Circuit had held that collecting CSLI without a warrant
supported by probable cause violated the Fourth

28
   See, e.g., United States v. Joyner, 899 F.3d 1199, 1204-05
(11th Cir. 2018) (“Here, the Government complied with the
requirements of the SCA in obtaining the orders to compel
cell site records, and when they did so in June 2015, that
warrantless procedure was, under this Court’s precedent,
within the bounds of the Fourth Amendment.”);
United States v. Chavez, 894 F.3d 593, 608 (4th Cir. 2018)
(Carpenter does not affect cases where investigators acted
pursuant to court orders and the SCA); United States v.
Curtis, 901 F.3d 846, 849 (7th Cir. 2018) (“We conclude,
therefore, that even though it is now established that the
Fourth Amendment requires a warrant for the type of cell-
phone data present here, exclusion of that information was
not required because it was collected in good faith.”); United
States v. Chambers, No. 16-163-CR, 2018 WL 4523607, at
*3 (2d Cir. Sept. 21, 2018) (“Thus, we conclude that even
after Jones, but before Carpenter, it was objectively
reasonable for authorities to think that if they complied with
the SCA, no warrant based on probable cause was
constitutionally required to obtain cell-site information from a
third party.”). Judge Restrepo’s concurrence in Stimler also
concluded that the good faith exception applied here in light
of In re Application. See Stimler, 864 F.3d at 279-80
(Restrepo, J., concurring).




                              10
Amendment.29 But, under Davis, only binding appellate
precedent is relevant to the good faith exception, and In re
Application was binding in this Circuit at the time. Second,
he contends the government could not have reasonably relied
on In re Application because it had been undermined by two
subsequent Supreme Court cases—United States v. Jones30
and Riley v. California.31 As discussed in Stimler, neither
case undercuts In re Application because neither addresses
the long-term collection of metadata from cell phones.32
Jones addressed long-term collection of GPS location data
from a car—not a cell phone.33 Riley involved the contents of
a cell phone, not the metadata transmitted from a cell phone
to a third party.34 Indeed, Carpenter itself recognizes that the
collection of CSLI does “not fit neatly under existing


29
   See Appellant’s Supplemental Letter at 3-4. The case that
Goldstein refers to was reversed on rehearing and upheld the
constitutionality of CSLI obtained on less than probable
cause. See United States v. Davis, 785 F.3d 498, 513 (11th
Cir. 2015).
30
   565 U.S. 400 (2012) (holding that placing a GPS tracker on
a defendant’s car for 28 days without a warrant violated the
Fourth Amendment).
31
   134 S. Ct. 2473 (2014) (holding that a warrantless search of
the contents of a cell phone violated Fourth Amendment).
32
   Stimler, 864 F.3d at 264-67.
33
   Jones, 565 U.S. at 412-13. Carpenter explains that cars
cannot be analogized to cell phones in this context because
cell phones can provide law enforcement with more
information than a car about an individual’s movements.
Carpenter, 138 S. Ct. at 2218.
34
   Riley, 134 S. Ct. at 2494-95.




                              11
precedents.”35 The government could not have predicted the
outcome of Carpenter and the overruling of In re Application
from two Supreme Court cases that the Supreme Court itself
said are not directly applicable.

        Goldstein also argues that the good faith exception
applies only to police officers and other investigators, not the
government attorneys who obtained the Section 2703(d) order
here. Goldstein cites nothing in support of his proposed
limitation on the good faith exception, and we see no reason
to limit its applicability in this case. The relevant inquiry
here is not who the state actor is, but rather, whether the state
actor had a reasonable, good faith belief that his actions were
legal. The prosecutors relied on a then-valid statute whose
constitutionality had been confirmed by this Circuit. The
good faith exception applies.

                            IV.

     For the foregoing reasons, we affirm the District Court’s
denial of Goldstein’s motion to suppress.




35
     Carpenter, 138 S. Ct. at 2214-16.




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