     Case: 16-40701   Document: 00514002187        Page: 1   Date Filed: 05/22/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                     United States Court of Appeals

                                    No. 16-40701
                                                                              Fifth Circuit

                                                                            FILED
                                                                        May 22, 2017

Consolidated with: 16-40702                                            Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

WILLIAM CHANCE WALLACE,

             Defendant - Appellant




                Appeals from the United States District Court
                     for the Southern District of Texas


Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      William Chance Wallace is a confirmed member of Tango Blast, a Texas
crime syndicate. As of 2015, Wallace had been convicted of five violent felonies:
one count of possession of a controlled substance with intent to distribute, two
counts of aggravated assault with a deadly weapon, one count of possession of
a controlled substance, and one count of unlawful delivery of a controlled
substance. Wallace violated his probation for the unlawful delivery charge and
a warrant was issued for his arrest on January 15, 2015. In two separate cases,
Wallace was charged with and pleaded guilty to: (1) being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); and
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(2) aiding and abetting retaliation against a witness in a criminal
investigation, in violation of 18 U.S.C. § 1512(b) and 18 U.S.C. § 2. In this
consolidated appeal, we are called on to decide whether the district court erred
in denying Wallace’s motion to suppress. Because we conclude that it did not,
we AFFIRM in part and DISMISS in part as MOOT. In doing so, we expressly
overrule a line of cases coming out of the Southern District of Texas. In re Order
Authorizing Prospective and Continuous Release of Cell Site Location, 31 F.
Supp. 3d 889, 891-900 (S.D. Tex. 2014); In re App. for Pen Register &
Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747, 756-65
(S.D. Tex. 2005).
                                        I.
                                 A. Firearm Case
      In May 2015, a confidential informant approached Shawn Hallett, a
Special Agent with the Texas Department of Safety (“DPS”). The informant
gave Wallace’s phone number to Hallett and informed him that Wallace was a
gang member and a wanted fugitive living in Austin. When Hallett verified
this information, he discovered an outstanding arrest warrant. He then passed
this information to DPS’s gang unit in Austin.
      DPS Agent Jose Rodriguez (with the help of an assistant district
attorney) then sought a Ping Order for authorization under both federal and
state law to (among other things) obtain the “locations of cell site towers being
accessed by” the cellular device linked to the number given by the confidential
informant. This information is referred to as “E911” or prospective cell site
data. A state district court judge granted the requested Ping Order for a period
of sixty days going forward. As a result, DPS discovered that Wallace’s phone
had been turned off.
      Hallett reached out to his confidential informant and received a new
telephone number for Wallace within a few days. Rodriguez then applied for
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and was granted a second Ping Order for this new cell phone number. With
this Ping Order, DPS obtained the approximate, real-time GPS location of
Wallace’s cell phone from AT&T. Using this information, Hallett located
Wallace near a pond on private property off U.S. Highway 87 north of Victoria,
Texas. Officers arrested Wallace, discovering a Winchester Super X .22
magnum caliber round of ammunition in his pocket, a black Bersa Thunder
.380 semi-automatic pistol at the edge of the pond, and a box of ammunition
for that pistol along with an empty holster in Wallace’s truck. Wallace was
charged with being a felon in possession of a firearm.
      Once charged, Wallace moved to suppress the evidence obtained during
the execution of the arrest warrant, including the pistol, ammunition, and
relevant testimony. He argued that the Ping Order used to locate him was
invalid because “1) the information provided to the State District Judge was
ambiguous, overbroad and conclusory and 2) law enforcement was not engaged
in an ‘ongoing criminal investigation’ of the Defendant.” He also argued that
the statutes authorizing the Ping Order were unconstitutional. The district
court denied Wallace’s motion, finding that suppression was not a cognizable
statutory remedy under Fifth Circuit precedent. The district court also upheld
the statutes as constitutional. Wallace timely appealed. 1
                          B. Aiding and Abetting Charge
      Approximately five months after Wallace was indicted for the firearms
charge, Wallace and two accomplices posted a photograph of the firearms
complaint and revealed the individual they believed to be the “snitch.” As a
result, that individual, who may or may not have been the actual confidential
informant, was threatened. Wallace was charged with and pleaded guilty to



      1  Wallace’s plea agreement preserved his right to appeal the district court’s
suppression ruling.
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aiding and abetting retaliation against a witness in a federal investigation, a
violation of 18 U.S.C. § 1513(b) and 18 U.S.C. § 2. Pursuant to his plea
agreement, Wallace waived his right to appeal his conviction and sentence for
any reason other than ineffective assistance of counsel.
                                  C. Sentencing
      The cases were consolidated for sentencing. The district court sentenced
Wallace to two concurrent 180-month sentences, followed by three years of
supervised release. At the sentencing hearing, Wallace’s attorney noted that
the Guidelines range for the aiding and abetting charge would have been much
lower had Wallace not been classified an armed career criminal, a threshold he
would not have reached if he not been convicted on the firearms charge.
Wallace therefore requested—and the district court agreed—to reconsider his
sentence should the firearms conviction be overturned on appeal.
                                       II.
      “When examining a district court’s ruling on a motion to suppress, we
review questions of law de novo and factual findings for clear error.” United
States v. Turner, 839 F.3d 429, 432 (5th Cir. 2016) (quoting United States v.
Hearn, 563 F.3d 95, 101 (5th Cir. 2009)). The evidence is viewed “in the light
most favorable to the prevailing party.” Id. We may “affirm the district court’s
ruling on a motion to suppress based on any rationale supported by the record.”
United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005).
      The party seeking suppression “has the burden of proving, by a
preponderance of the evidence, that the evidence in question was obtained in
violation of his Fourth Amendment rights.” United States v. Smith, 978 F.2d
171, 176 (5th Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 133-34
(1978)).




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                                            III.
       Wallace maintains that the district court erred in denying his motion to
suppress because “[t]he Government failed to show that it sought an order to
find information relevant to an ongoing criminal investigation” as required by
the federal pen-trap statute and the Texas Code of Criminal Procedure.
Wallace concedes that the Ping Order was issued pursuant to a valid arrest
warrant for violating the conditions of his probation, but he argues that the
plain meaning of the phrase “ongoing criminal investigation” implies “new
criminal activity” and does not encompass “technical violations of . . .
probation” or “conduct other than new crime.” Neither the relevant statutes
nor binding precedent define the term “ongoing criminal investigation.”
       But Wallace’s ultimate problem is that suppression is not a remedy for a
violation of either the federal pen-trap statute or the Texas Code of Criminal
Procedure. United States v. German, 486 F.3d 849, 654 (5th Cir. 2007) (holding
that suppression is not a remedy for a violation of the federal pen-trap statute);
see also United States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014). 2 “Where
Congress has both established a right and provided exclusive remedies for its
violation, we would encroach upon the prerogatives of Congress were we to
authorize a remedy not provided for by the statute.” German, 486 F.3d at 853
(alteration omitted) (quoting United States v. Frazin, 780 F.2d 1461, 1466 (9th
Cir. 1986)). Unlike the wire-tap statute which “specifically provides for an
exclusionary remedy when the statutory requirements are not met,” the pen-




       2  DPS also sought the Ping Order pursuant to § 2703(d) of the federal Stored
Communications Act (SCA). Like the federal pen-trap statute and the parallel state
provision, the SCA requires the government to show that the “information sought, [is]
relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). Wallace
does not argue that the government failed to comply with the requirements of the SCA. Even
if he did, we have held that suppression is not a remedy for violations of the SCA. Guerrero,
768 F.3d at 358.
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trap statute provides only for fines and imprisonment for knowing violations.
Id. at 842. Accordingly, it is clear that “Congress has determined that the
benefits of an exclusionary rule do not outweigh its substantial social costs.”
Id.
       The same is true with respect to the parallel state statute in Article 18.21
of the Texas Code of Criminal Procedure. It specifically states that the
“remedies and sanctions described” therein—namely “injunctive relief,” “a
reasonable attorney’s fee and other litigation costs,” and “actual damages”—
“are the exclusive judicial remedies and sanctions for a violation of this article.”
Tex. Code. Crim. Proc. art. 18.21, §§ 12-13. Suppression is not an available
recourse. As such, even if the Ping Order were issued in violation of federal or
state law, Wallace is not entitled to suppression. The district court did not err.
                                        IV.
       Alternatively, Wallace argues that the district court should have granted
his motion to suppress because the government violated his Fourth
Amendment rights when it accessed his phone’s E911 location information—
or prospective cell site data—pursuant to a court order supported by “specific
and articulable facts” rather than a warrant supported by probable cause.
Ordinarily, “evidence obtained in violation of the Fourth Amendment cannot
be used in a criminal proceeding against the victim of the illegal search or
seizure. This prohibition applies as well to the fruits of the illegally seized
evidence.” United States v. Calandra, 414 U.S. 338, 347 (1974) (internal
citations omitted). “[A] Fourth Amendment search occurs when the
government violates a subjective expectation of privacy that society recognizes
as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing Katz v.
United States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring)). Whether
obtaining prospective cell site data constitutes a search within the meaning of
the Fourth Amendment is still an open question in this Circuit.
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      The Sixth Circuit—the only appellate court to address the subject so
far—held that obtaining prospective cell site data is not a search. United States
v. Skinner, 690 F.3d 772 (6th Cir. 2012). The Sixth Circuit reasoned that when
an individual “voluntarily use[s]” a cellular device, he has no “reasonable
expectation of privacy in the GPS data and location of his cell phone.” Id. at
781. “When criminals use modern technological devices to carry out criminal
acts and to reduce the possibility of detection, they can hardly complain when
the police take advantage of the inherent characteristics of those very devices
to catch them.” Id. at 774. A number of district courts have reached a similar
conclusion. See, e.g., United States v. Booker, No. 1:11-CR-255-1-TWT, 2013
WL 2903562, at *4 (N.D. Ga. June 13, 2013). Other courts have disagreed. See,
e.g., In re U.S. for an Order Authorizing the Release of Prospective Cell Site
Info., 407 F. Supp. 2d 134, 135 (D.D.C. 2006).
      We have already grappled with the constitutionality of judicial orders
based on less than probable cause authorizing government access to historical
cell site data. In re U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir.
2013) (hereinafter Historical Cell Site Data). In Historical Cell Site Data, the
government filed three applications under § 2703(d) of the SCA requesting a
court order to compel a cell phone service provider “to produce sixty days of
historical cell site data” for certain cell phone numbers, revealing “the antenna
tower and sector to which the cell phone sends its signal.” Id. at 602. The
magistrate judge denied each of the government’s applications and held that
“warrantless disclosure of cell site data violates the Fourth Amendment.” In re
U.S. for Historical Cell Site Data, 747 F. Supp. 2d 827, 846 (2013).
      We reversed, concluding that the “question of who is recording an
individual’s information initially is key.” Historical Cell Site Data, 724 F.3d at
610. “[W]hether an intrusion constitutes a search” depends “on whether it is
the Government collecting the information or requiring a third party to collect
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and store it, or whether it is a third party, of its own accord and for its own
purposes recording the information.” Id. When a “third party collects
information in the first instance for its own purposes,” the information
constitutes a business record. Id. Applying this framework, we concluded that:
      cell site information is clearly a business record. The cell service provider
      collects and stores historical cell site data for its own business purposes,
      perhaps to monitor or optimize service on its network or to accurately
      bill its customers for the segments of its network that they use. The
      Government does not require service providers to record this information
      or store it. The providers control what they record and how long these
      records are retained . . . . [T]he Government merely comes in after the
      fact and asks a provider to turn over records the provider has already
      created.
Id. at 611-12.
      There is little distinction between historical and prospective cell site
data. As in Historical Cell Site Data, here the government sought “the
disclosure of the locations of cell site towers being accessed by [Wallace’s] cell
phone” as recorded in future records “captured, stored, recorded and
maintained by the phone companies in the ordinary course of business.” “While
this information is ‘prospective’ in the sense that the records had not yet been
created at the time the order was authorized, it is no different in substance
from the historical cell site information . . . at the time it is transmitted to the
government.” Booker, 2013 WL 2903562, at *7. The information the
government requested was, “in fact, a stored, historical record because it [was]
received by the cell phone service provider and stored, if only momentarily,
before being forwarded to law enforcement officials.” In re U.S. for an Order
for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F. Supp.
2d 448, 459 (S.D.N.Y. 2006). We therefore conclude that like historical cell site
information, prospective cell site data falls outside the purview of the Fourth
Amendment. As such, “the SCA’s authorization of § 2703(d) orders for
[prospective] cell site information if an application meets the lesser ‘specific
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and articulable facts’ standard, rather than the Fourth Amendment probable
cause standard, is not per se unconstitutional.” Historical Cell Site Data, 724
F.3d at 615.
      That said, even if accessing prospective cell site data did constitute a
Fourth Amendment search, DPS’s actions are covered by the good-faith
exception to the exclusionary rule. “[T]he exclusionary rule is a judicially
fashioned remedy whose focus is not on restoring the victim to his rightful
position but on deterring police officers from knowingly violating the
Constitution.” United States v. Allen, 625 F.3d 830, 836 (5th Cir. 2010). As
such, courts have carved out exceptions for police conduct “pursued in complete
good faith” because the rule’s “deterrence rationale loses much of its force” in
such circumstances. United States v. Leon, 468 U.S. 897, 919 (1984) (quoting
Michigan v. Tucker, 417 U.S. 433, 447 (1974)). In particular, the Supreme
Court has held that the exclusionary rule does not apply when police officers
“act[ed] in objectively reasonable reliance upon a statute” even if “the statute
is ultimately found to violate the Fourth Amendment.” Illinois v. Krull, 480
U.S. 340, 342 (1987).
      The plain language of 18 U.S.C. § 2703(c) states that the government
may obtain “a court order” requiring a cellular telephone company to turn over
“record[s] or other information” related to its “customer[s].” Nothing in the text
of the statute suggests that “other information” does not encompass
prospective cell site data. Given the “strong presumption of constitutionality
due to an Act of Congress,” United States v. Watson, 423 U.S. 411, 416 (1976),
and the absence of a “clear, controlling case explicitly stating that the
government may not obtain real-time cell site location data under the SCA,”
United States v. Espudo, 954 F. Supp. 2d 1029, 1044 (S.D. Cal. 2013), it was
reasonable for the officers to rely on the text of the statute. We cannot conclude
that DPS officers “had knowledge, or [could] properly be charged with
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knowledge, that the search was unconstitutional under the Fourth
Amendment.” Leon, 468 U.S. at 919. As such, the district court did not err by
denying Wallace’s motion to suppress.
                                      V.
      In conclusion, we AFFIRM the district court’s denial of Wallace’s motion
to suppress the evidence supporting his conviction in the firearms case. Having
concluded that suppression is not warranted, we need not address Wallace’s
request for remand for resentencing regarding his aiding and abetting
conviction, but instead DISMISS that aspect of his appeal as MOOT.




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