        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                   No. 16-40701


Consolidated with: 16-40702

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


                ON PETITION FOR REHEARING EN BANC
Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:
      The court having been polled at the request of one of its members, and a
majority of the judges who are in regular active service and not disqualified
not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), the petition
for rehearing en banc is DENIED.
      In the en banc poll, 7 judges voted in favor of rehearing (Judges Smith,
Dennis, Prado, Owen, Elrod, Graves, and Willett), and 8 judges voted against
rehearing (Chief Judge Stewart and Judges Jones, Clement, Southwick,
Haynes, Higginson, Costa, and Ho).
                        No. 16-40701 c/w 16-40702
ENTERED FOR THE COURT:


______________________________
EDITH BROWN CLEMENT
United States Circuit Judge




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JAMES L. DENNIS, Circuit Judge, joined by JAMES E. GRAVES, Circuit
Judge, dissenting from denial of rehearing en banc:

      Defendant William Wallace contends that the Government violated the
Fourth Amendment by ordering his service provider to activate his phone’s
“Enhanced 911” capability 1 and to relay his GPS coordinates in real time,
including while he was in his home. The panel opinion concludes that, even if
the Government’s real-time tracking of Wallace’s GPS coordinates was an
unconstitutional search, Wallace cannot benefit from the exclusionary rule
suppression of the fruits of that search because law-enforcement officials could
have reasonably relied on open-ended language in 18 U.S.C. § 2703(c), a
provision of the Stored Communications Act (SCA), as authorizing their
actions. The panel relies on Illinois v. Krull, 480 U.S. 340, 360 (1987), which
recognized an exception to the exclusionary rule for the fruits of an
unconstitutional search conducted in objectively reasonable reliance “on a
statute that appeared legitimately to allow a warrantless administrative
search.” Because I believe the panel misapprehends and misapplies Krull as
its ultimate authority for finding an exception to the exclusionary rule in the
present case, I respectfully dissent from the denial of rehearing en banc.
      In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court held
that evidence obtained by officers acting in objectively reasonable reliance on
a search warrant later held not to be supported by probable cause need not be
excluded from a criminal prosecution. In Krull, the Court found that the
rationale underlying Leon applied equally to evidence obtained by officers


      1  Enhanced 911 (E911) refers to wireless service providers’ ability to accurately
determine the location of customers who call 911. Federal law requires service providers to
incorporate E911 capabilities to facilitate rescue and emergency assistance. See Enhanced
911 Emergency Calling Systems, 61 FED. REG. 40,374 (proposed Aug. 2, 1996) (codified at 47
C.F.R. § 20.18).
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acting without a warrant but in objectively reasonable reliance on an
administrative-inspection statute later held to be unconstitutional. Krull, 480
U.S. at 350–51. The Court’s reasoning rested in part on legislators’ similarity
to magistrates—the relevant actors in Leon—at least with respect to their
dissimilarity from “adjuncts to the law enforcement team.” Id. at 350–51
(quoting Leon, 468 U.S. at 917).     The Court held that excluding evidence
obtained pursuant to a statutorily authorized search would penalize the
“officer for the [legislature’s] error, rather than his own,” and therefore could
not “logically contribute to the deterrence of Fourth Amendment violations.”
Id. at 350 (quoting Leon, 468 U.S. at 921).        Krull thus holds that law
enforcement officials may defer to the constitutional judgment of the
legislature if that judgment is expressed in clear statutory authorization for
the officials’ actions.
      The good-faith exception announced in Krull is clearly inapposite here.
As an initial matter, there is no similar legislative judgment as to the
constitutionality of the officers’ actions in this case. The statute at issue in
Krull authorized warrantless administrative inspections of a regulated
business. See 480 U.S. at 360. The Court observed that there was
      no evidence suggesting that . . . legislatures have enacted a
      significant number of statutes permitting warrantless
      administrative searches violative of the Fourth Amendment.
      Legislatures generally have confined their efforts to authorizing
      administrative searches of specific categories of businesses that
      require regulation, and the resulting statutes usually have been
      held to be constitutional.

Id. at 351 (collecting cases). The Court therefore addressed circumstances in
which there was a clear pattern of legislative action and consistent court
approval of such action. That administrative-search statutes, as a class, had
generally been upheld was relevant to both the Court’s decision to fashion an
exception to the exclusionary rule at all, id., and to its conclusion that the
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officer’s reliance on the administrative-search statute at issue in Krull was
objectively reasonable, see id. at 357–59.
      Unlike in Krull, here there is no legislative judgment or dialogue
between the courts and the legislature as to the constitutionality of the real-
time GPS surveillance at issue. Congress passed the SCA over thirty years
ago. See Elec. Commc’ns Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat.
1848. At that time there was no E911 requirement, see 61 FED. REG. 40,374,
and GPS was still experimental military technology that would not begin to be
in widespread civilian use until over a decade later, see RICHARD ROWBERG,
CONG. RESEARCH SERV., RL30474, SCIENCE, TECHNOLOGY, AND MEDICINE:
ISSUES FACING THE 106TH CONGRESS, SECOND SESSION (2000); Press Release,
White House Office of Sci. & Tech. Policy Nat’l Sec. Council, Fact Sheet U.S.
Global Positioning System Policy (Mar. 29, 1996).
      Moreover, as has been expressed by five members of the current
Supreme Court and by members of this court, there is grave doubt as to the
constitutionality of the kind of warrantless, real-time GPS tracking at issue in
this case.   See, e.g., United States v. Jones, 565 U.S. 400, 415–18 (2012)
(Sotomayor, J. concurring); id. at 425 (Alito, J. concurring in the judgment)
(expressing concern that the majority’s trespass-based reasoning was under-
inclusive because it would provide no protection if “the Federal Government
required or persuaded auto manufacturers to include a GPS tracking device in
every car”); In re the United States for Historical Cell Site Data, 724 F.3d 600,
615 (5th Cir. 2013) (agreeing that there is a constitutionally relevant
distinction between “the [g]overnment collecting the information or requiring
a third party to collect and store it” and “a third party, of its own accord and
for its own purposes, recording the information”). Thus, both the nature of the
statute and the nature of the alleged constitutional violation strongly suggest
that Krull does not apply here.
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       Equally troubling, unlike the statute at issue in Krull, which reasonably
appeared to authorize warrantless administrative searches, the SCA does not
reasonably appear to authorize real-time GPS tracking. The statute at issue
in Krull required parties licensed to sell vehicles or vehicle parts to permit
officials to inspect records pertaining to the purchase and sale of vehicles and
parts “and to allow ‘examination of the premises of the licensee’s established
place of business for the purpose of determining the accuracy of required
records.’” 480 U.S. at 342–43 (quoting ILL. REV. STAT., ch. 95 1/2, para. 5-401(e)
(1981)). By contrast, the relevant provision of the SCA provides that, in certain
enumerated circumstances, “[a] governmental entity may require a provider of
electronic communication service . . . to disclose a record or other information
pertaining to a subscriber to or customer of such service (not including the
contents of communications).” § 2703(c)(1). The panel opinion reasons that
the phrase “or other information” could be read to include real-time GPS
coordinates and claims that nothing else in the text of the SCA precludes such
a reading. Slip Op. at 7–8.
       This holding ignores plain language in the SCA suggesting that real-time
collection of GPS tracking information is not authorized by this statute.
Section 2703(c) is part of the “Stored Communications Act.” (emphasis added).
The pertinent section is entitled “Records concerning electronic communication
service or remote computing service.” § 2703(c) (emphasis added).                     GPS
coordinates that have not yet been created and would not be created absent the
Government’s       intervention      cannot       be   called   “records”    or   “stored”
communications under any commonsense understanding of those terms.
Moreover, at the time of the surveillance in this case, a majority of courts 2


       2See, e.g., In re Application of U.S. for an Order Authorizing Disclosure of Location
Based Servs., No. H-07-606M, 2007 WL 2086663, at *1 (S.D. Tex. July 6, 2007) (“Nothing in
§ 2703 requires, or authorizes the Government to demand, that a provider create records
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along with numerous legal scholars 3 had observed that the SCA does not
permit the Government to order the creation or collection of real-time location
information.        Against     this   backdrop,      the    panel    opinion’s     proposed
interpretation of the SCA is not objectively reasonable.
       To make up for the lack of textual and precedential support for its
proffered reading of the SCA, the panel falls back on extraneous factors to
conclude that the officer’s reliance was reasonable, relying on the officers’
consultation with an assistant district attorney. But Krull allows officers to
defer to a legislature’s constitutional judgment, not a prosecutor’s. Much more
so than legislators and neutral magistrates, prosecutors are “adjuncts to the
law enforcement team.”           See Krull, 480 U.S. at 360 n.17.               An officer’s
consultation with someone in the local prosecutor’s office does not implicate
the kind of “detached scrutiny” of a neutral decisionmaker that might assuage
concerns about improper searches. See Leon, 468 U.S. at 913 (quoting United
States v. Chadwick, 433 U.S. 1, 9 (1977)).
       It is some comfort that, after two revisions, the panel has eliminated
several pernicious aspects of its previous opinions. However, the panel’s latest
revision still misses the mark. It also misses the opportunity to provide sorely
needed guidance on the meaning of a complicated and poorly understood
statute. Indeed, I am afraid the majority’s opinion aggravates rather than


which would not otherwise exist in the ordinary course of business.”); In re Application of the
U.S. for an Order Authorizing the Installation and Use of a Pen Register Device, a Trap and
Trace Device, & for Geographic Location Info., 497 F. Supp. 2d 301, 309 (D.P.R. 2007) (“[T]he
SCA cannot, at least by itself, support the government’s applications in this case, which seek
cell site information prospectively . . . .”); In re Application of the U.S. for an Order
Authorizing the Release of Prospective Cell Site Info., 407 F. Supp. 2d 134, 140 (D.D.C. 2006)
(concluding that real-time location information is only available pursuant to a warrant).
        3 See, e.g., Deirdre K. Mulligan, Reasonable Expectations in Electronic
Communications: A Critical Perspective on the Electronic Communications Privacy Act, 72
GEO. WASH. L. REV. 1557, 1565 (2004); Orin S. Kerr, A User’s Guide to the Stored
Communications Act, and a Legislator’s Guide to Amending It, 72 GEO. WASH. L. REV. 1208,
1231–33 (2004).
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alleviates the confusion. For these reasons, I respectfully dissent from the
denial of rehearing en banc.




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