                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT
                            ___________

                             No. 12-4659
                            ____________

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

AARON GRAHAM,

                Defendant – Appellant.

------------------------------------

ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY;
AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

                Amici Supporting Appellant.

                            _____________

                             No. 12-4825
                            _____________

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERIC JORDAN,

                Defendant – Appellant.

------------------------------------

ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY;
AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

                Amici Supporting Appellant.

                               ___________

Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:11-cr-00094-RDB-1; 1:11-cr-00094-RDB-2)
                           ____________

Argued:   December 11, 2014                   Decided:    August 5, 2015
                              ____________

Before MOTZ and    THACKER,     Circuit   Judges,   and    DAVIS,   Senior
Circuit Judge.
                              _____________

Affirmed by published opinion. Senior Judge Davis wrote the
majority opinion, in which Judge Thacker joined. Judge Thacker
wrote a separate concurring opinion. Judge Motz wrote an opinion
dissenting in part and concurring in the judgment.
                          _____________

ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland; Ruth J. Vernet, RUTH J VERNET,
ESQ., LLC, Rockville, Maryland, for Appellants.          Rod J.
Rosenstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.   ON BRIEF:   James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant Aaron Graham.    Nathan Judish, Computer
Crime & Intellectual Property Section, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Benjamin M. Block, Assistant
United States Attorney, Baltimore, Maryland, Sujit Raman, Chief
of Appeals, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.   Nathan Freed Wessler, Catherine Crump,
Ben Wizner, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York,
New York; David R. Rocah, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND, Baltimore, Maryland; Kevin S. Bankston,
Gregory   T.  Nojeim,   CENTER   FOR  DEMOCRACY   &  TECHNOLOGY,
Washington, D.C.; Thomas K. Maher, Vice-Chair, 4th Circuit
Amicus Committee, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS, Durham, North Carolina; Hanni Fakhoury, ELECTRONIC
FRONTIER FOUNDATION, San Francisco, California, for Amici
Curiae.


                                    2
DAVIS, Senior Circuit Judge:

     Appellants       Aaron    Graham     and     Eric      Jordan    appeal        their

convictions for several offenses arising from a series of armed

robberies.       Specifically,      Appellants        challenge       the     district

court’s     admission     of    testimonial       and       documentary       evidence

relating to cell site location information (“CSLI”) recorded by

their     cell    phone   service     provider.        We    conclude        that    the

government’s       warrantless      procurement        of     the    CSLI     was     an

unreasonable search in violation of Appellants’ Fourth Amendment

rights.    Nevertheless,       because    the     government        relied    in    good

faith on court orders issued in accordance with Title II of the

Electronic        Communications        Privacy       Act,      or     the      Stored

Communications Act (“SCA”), we hold the court’s admission of the

challenged evidence must be sustained.

     Jordan       separately     challenges       restrictions         on    his     own

testimony imposed by the district court, the court’s denial of

his motion for severance, the exclusion of certain out-of-court

statements       attributed    to   Graham,     the      admission     of     evidence

seized during a search of his residence, and the sufficiency of

the evidence supporting several of his convictions. Finding no

reversible error in these respects, we affirm the judgment of

the district court.

                                         I.



                                         3
      This prosecution arose from a series of six armed robberies

of several business establishments located in Baltimore City and

Baltimore County, Maryland. After a nine-day joint trial in the

U.S. District Court for the District of Maryland, a jury found

Appellants guilty on all counts submitted to it. Aaron Graham

was convicted of being a felon in possession of a firearm, Hobbs

Act   robbery,    conspiracy     to   commit    Hobbs       Act    robbery,    and

brandishing a firearm in connection with all six robberies. Eric

Jordan   was   convicted   of    conspiracy,        Hobbs    Act   robbery,    and

brandishing a firearm in connection with three of the robberies.

                                      A.

      The evidence adduced at trial permitted the jury to find

the following facts.

      The first robbery occurred the evening of January 17, 2011,

at a Dollar Tree store in Baltimore County. Graham entered the

store, brandished a small black gun, and directed a cashier to

open a cash register. The cashier removed cash from the register

and gave it to Graham. Graham reached over the counter to grab

additional cash before fleeing the store.

      The second and third robberies occurred five days later. On

the evening of January 22, 2011, five individuals, including

Graham, arrived at Mondawmin Mall in Baltimore in a dark colored

Ford F-150 pickup truck, exited the vehicle, and entered the

shopping   mall   before   the   truck     pulled    away.    Graham,   seen    on

                                      4
video surveillance wearing the same clothing worn during the

Dollar Tree robbery five days earlier, entered the Milan Gold &

Diamonds jewelry store (“Milan Gold”) inside the mall with a

second    individual.      After    two   other     individuals     entered   the

store, leaving a fifth standing outside the door, Graham pointed

a gun at a clerk and demanded, “Don’t be smart with me. Just

give me everything.” J.A. 1522. The three persons with Graham

picked up the jewelry as the clerk removed it from a display

case. Graham demanded a specific watch from a separate display

case and, after the clerk gave it to him, he and the others left

the mall.

     Later that evening, Graham, again wearing the same clothes,

entered     a   7-Eleven    store    in       Baltimore,   walked   behind    the

counter, grabbed the clerk, and demanded that he open the cash

register. The clerk did not see a gun but saw Graham’s hand

inside his jacket and later testified that “it felt like there

was some kind of weapon, some kind of material in there . . . .”

J.A. 1600. Graham emptied two cash registers and then ordered

the clerk to go into a back room inside the store. After Graham

left, the clerk observed Graham enter the driver’s side of an F-

150 truck and depart. The clerk recorded video of the truck

pulling away and its appearance matched that of the truck used

at Mondawmin Mall earlier that evening.



                                          5
     The fourth robbery occurred on February 1, 2011, at a Shell

gas station in Baltimore County. Graham and a masked individual

entered the cashier’s booth, where Graham pushed the clerk to

the floor, began punching and kicking him, and then brandished a

small gun, placing it near the clerk’s ear. Meanwhile, a third

individual stood near the door to the store with a sawed-off

shotgun. When a customer attempted to leave, the third robber

blocked the exit, forced the customer to the ground, and beat

him in the head with the shotgun. After Graham and the second

robber removed cash from the booth, the three robbers departed.

     The fifth and sixth robberies occurred four days later. On

February 5, 2011, at approximately 3:29 p.m., Graham entered a

Burger King restaurant in Baltimore wearing the same jacket worn

during the Dollar Tree, Milan Gold, and 7-Eleven robberies, and

carrying       a     small     black    gun       with   a   white    handle.       Graham

brandished the weapon and demanded money. The restaurant manager

opened    several         cash   registers,        which     Graham   emptied       before

departing. Graham was seen entering a dark colored F-150 truck

on the passenger side before the truck pulled away.

     About forty five minutes later, Graham entered a McDonald’s

restaurant approximately two miles from the Burger King, went

behind    the       counter,     and   demanded      money,    brandishing      a    small

black    gun       with   a   white    handle.     After     the   restaurant   manager

opened three cash registers, Graham removed cash and stuffed it

                                              6
into his jacket before departing. The manager saw Graham enter

the passenger side of a dark pickup truck, which pulled away

rapidly.

     While investigating the Burger King robbery, Officer Joshua

Corcoran    of     the    Baltimore      Police      Department         received     reports

describing       the     robber,   his    clothing,          and     the   pickup     truck.

Shortly     thereafter,       he     heard       a   radio         call    regarding        the

McDonald’s       robbery    and    indicating        that      the      pickup    truck     was

possibly headed toward his location.

     After leaving the Burger King, Corcoran spotted a pickup

truck matching the descriptions he received and observed that a

passenger        inside    the     vehicle       wore    a     jacket       matching        the

description of that reportedly worn by the Burger King robber.

During Corcoran’s pursuit of the truck, the driver drove it up

onto a sidewalk and accelerated. Corcoran continued pursuit just

before     the    truck     became    trapped         between        heavy       traffic,    a

construction barrier, and a moving train in front of it, and was

forced to stop.

     Corcoran and another officer conducted a felony car stop,

directing orders to Graham and the driver, Jordan. Graham and

Jordan     were        non-compliant       with         some       of      the     officers’

instructions but were eventually secured and arrested. At the

scene, employees of Burger King and McDonald’s identified Graham

as the robber. A black .25 caliber Taurus pistol with a pearl

                                             7
handle    was   recovered       from   under   the    passenger      seat.     Nearly

$1,100 in cash bundles were recovered from the person of Graham

and Jordan, and from an open console inside the truck.

                                         B.

      During    the     ensuing,    post-arrest      investigation,        Detective

Chris    Woerner   recognized       similarities      between       the    restaurant

robberies and the Milan Gold and 7-Eleven robberies. Woerner

prepared search warrants for Graham’s and Jordan’s residences

and the pickup truck. The probable cause portion of each of the

warrant affidavits described what was known at the time about

the Milan Gold, 7-Eleven, Burger King, and McDonald’s robberies.

The search warrants were issued by a judge of the Circuit Court

of Maryland for Baltimore City.

      While     Woerner     was     seeking    the        warrant    for     Graham’s

residence,      other     officers     conducted      a     search    of    Jordan’s

apartment, recovering a sawed-off shotgun, a matching shotgun

shell, a .357 caliber Rossi revolver, .357 caliber cartridges,

and other items. Woerner executed searches of Graham’s residence

and the pickup truck, recovering a gun holster and several rings

and watches from the residence, and two cell phones from the

truck. After Woerner obtained warrants for the phones, the phone

numbers associated with each phone was determined and matched

the   respective      numbers     disclosed    by    Graham    and    Jordan    after

their arrest.

                                         8
       Woerner contacted the Baltimore County Police Department to

determine      whether     they     were       investigating     any    potentially

related      robberies,    sending    photos       of   Graham   and    Jordan    and

photos from the searches. Detective Kelly Marstellar recognized

similarities to the Dollar Tree and Shell station robberies,

including the similarity between the jacket worn by Jordan at

the time of his arrest and that worn by the masked robber of the

Shell station, who had entered the cashier booth. The Baltimore

County Police Department prepared and executed a second round of

search warrants at Graham’s and Jordan’s residences on February

23,    2011.    During     the    second   search       of   Jordan’s   apartment,

officers recovered clothing that matched that worn by Graham

during the Shell station robbery.

       The     government        sought    cell     phone      information       from

Sprint/Nextel, the service provider for the two phones recovered

from    the    truck.     Sprint/Nextel        identified    Graham’s    phone    as

subscribed to Graham’s wife at their shared Baltimore County

address and Jordan’s phone as subscribed to an alias or proxy.

The government then sought and obtained two court orders for

disclosure of CSLI for calls and text messages transmitted to

and from both phones. The government’s initial application for a

court order sought CSLI for four time periods: August 10-15,

2010; September 18-20, 2010; January 21-23, 2011; and February

4-5, 2011. A second application followed, seeking information

                                           9
for a much broader timeframe: July 1, 2010 through February 6,

2011.     The     government    used     the    court         order   to    obtain      from

Sprint/Nextel records listing CSLI for this 221-day time period.

                                           C.

       The   government     charged        Graham       and    Jordan      with   multiple

counts of being felons in possession of a firearm, see 18 U.S.C.

§ 922(g)(1) (2011); robbery affecting commerce, see 18 U.S.C. §

1951(a) (Hobbs Act); conspiracy to commit Hobbs Act robbery, see

id.; brandishing a firearm during a crime of violence, see 18

U.S.C. § 924(c); and conspiracy to brandish a firearm during a

crime   of      violence,   see     18   U.S.C.     §    924(o).      Jordan      was   also

charged with possession of an unregistered sawed-off shotgun.

See 18 U.S.C. § 5861(d). The indictment also charged aiding and

abetting the felon-in-possession, Hobbs Act robbery, conspiracy,

and brandishing-a-firearm offenses. See 18 U.S.C. § 2. Graham

was charged in connection with all six robberies, and Jordan was

charged      in    connection       with    the     Shell,        Burger       King,    and

McDonald’s robberies.

       Appellants filed a number of pre-trial motions, including

motions for severance under Rule 14 of the Federal Rules of

Criminal Procedure and a motion to suppress the CSLI obtained

from    Sprint/Nextel          on    Fourth       Amendment           grounds.      Jordan

separately filed a motion to suppress evidence seized during the

search of his apartment, arguing that the first search warrant

                                           10
was   defective.        The     district       court      denied        all   of    Appellants’

motions, and the case proceeded to trial.

      During       trial,      Appellants          objected       to     proposed       testimony

regarding CSLI from a Sprint/Nextel records custodian and from

an    FBI     agent     who    investigated             the     case,    arguing        that     the

proposed       testimony        was         impermissible          expert        opinion.        The

district court disagreed and admitted the proposed testimony.

Jordan      also      filed    a     motion       in     limine     seeking        to    admit    a

handwritten          statement       purportedly          written        by   Graham       and     a

recorded telephone call in which Graham participated. The court

denied the motion, excluded the handwritten statement as hearsay

and unauthenticated, and excluded the phone call as irrelevant.

The court also ordered that the scope of Jordan’s testimony be

limited       to      exclude        certain       irrelevant           topics      that       were

potentially prejudicial to Graham.

      At the close of the government’s case, the government moved

to dismiss the count of conspiracy to possess a firearm during a

crime    of    violence.        Graham       and       Jordan    moved     for     judgment       of

acquittal       as     to     all    remaining          counts     for    insufficiency           of

evidence      under     Rule        29(a)    of    the    Federal        Rules     of   Criminal

Procedure. The court denied the defendants’ Rule 29(a) motions,

except with respect to the felon-in-possession count, which the

court granted as to Jordan.



                                                  11
        Jordan’s defense case consisted of his own testimony as

well     as   that     of   four      character         witnesses       and     a     private

investigator.         Graham    declined          to    testify        and     offered        no

evidence.

        The parties rested on April 26, 2012, and delivered closing

arguments       the   following       day.    On       April     30,    2012,       the    jury

returned guilty verdicts on all remaining counts. Graham and

Jordan    submitted      motions      for    new       trials,     which      the    district

court denied. This appeal followed.

                                             D.

       During the pendency of this appeal, prior to oral argument,

this    Court    directed      each   party       to    file   a   supplemental           brief

addressing the U.S. Supreme Court’s recent decision in Riley v.

California, 134 S. Ct. 2473 (2014), and permitted Appellants to

file a supplemental reply brief. Dkt. No. 135. Appellants filed

their supplemental brief on July 18, 2014, Dkt. No. 138; the

government filed its supplemental response brief on August 4,

2014, Dkt. No. 142; and Appellants filed a supplemental reply

brief on August 8, 2014, Dkt. No. 144.

       On August 21, 2014, the government filed a letter with the

Court     requesting        permission        to       identify        what     it        called

“erroneous factual assertions” in Appellants’ supplemental reply

and seeking to rebut several assertions made in that brief. Dkt.

No. 145. The next day, Appellants filed a motion to strike the

                                             12
government’s letter as a sur-reply, Dkt. No. 146, to which the

government did not respond.

       The    government’s     submission        is,    in    effect,       a    sur-reply

brief in the form of a letter. This Court does not generally

permit the filing of sur-reply briefs without first granting

leave for such a filing. Moreover, the government’s letter fails

to make an adequate demonstration of the need for a sur-reply.

Accordingly,        we    grant     the     motion       to     strike,          deny    the

government’s request, and do not consider the content of the

government’s letter in disposition of this appeal.

                                           E.

       Graham and Jordan present several issues on appeal, arguing

that the district court erred in admitting the government’s CSLI

evidence      and   certain     testimony        of    the    case     agent       and   the

Sprint/Nextel       records       custodian      regarding       the       CSLI.     Jordan

argues       separately     that    the     district         court     also      committed

constitutional error in restricting his testimony and erred in

denying       his   severance       motion,       excluding          the    out-of-court

statements attributed to Graham, and admitting evidence seized

from   his     apartment.     Jordan      argues      further    that      the     evidence

presented at trial was insufficient to support convictions for

conspiracy, Hobbs Act robbery, or brandishing a firearm during a

crime of violence. We consider these issues in turn.

                                           II.

                                           13
       During the investigation of the robberies charged in this

case, the government secured court orders under the SCA for 221

days’ worth of historical CSLI from Sprint/Nextel. Appellants

filed a motion to suppress use of the CSLI at trial, arguing

that   the     government’s         acquisition      of    the    records      without     a

warrant based on probable cause was an unreasonable search in

violation of the Fourth Amendment. The district court denied the

motion,      holding     that    the    government’s         conduct         was   not    an

unreasonable         search     and,    even    if    it     was,      the     good-faith

exception to the exclusionary rule justified admission of the

CSLI. See generally United States v. Graham, 846 F. Supp. 2d 384

(D. Md. 2012). The government ultimately used the CSLI at trial

to establish Appellants’ locations at various times before and

after most of the charged robberies.

       Appellants      now    appeal     the     denial      of       their    motion     to

suppress. We review a district court’s evidentiary rulings for

abuse of discretion, United States v. Rivera, 412 F.3d 562, 566

(4th Cir. 2005), but we review de novo any legal conclusions as

to   whether     certain      law    enforcement      conduct         infringes     Fourth

Amendment rights, United States v. Breza, 308 F.3d 430, 433 (4th

Cir. 2002).

       For     the    reasons       explained     below,         we    hold    that      the

government’s procurement of the historical CSLI at issue in this

case     was     an     unreasonable           search.      Notwithstanding              that

                                          14
conclusion,           we    affirm           the    district          court’s         denial     of    the

suppression           motion       because,          in    obtaining            the       records,      the

government acted in good-faith reliance on the SCA and the court

orders issued under that statute.

                                                     A.

      Historical CSLI identifies cell sites, or “base stations,”

to   and   from        which       a    cell       phone       has    sent      or    received        radio

signals,        and    the       particular          points          in   time       at    which      these

transmissions occurred, over a given timeframe. Cell sites are

placed     at    various          locations          throughout           a     service      provider’s

coverage    area           and    are    often       placed          on    towers      with      antennae

arranged        in     sectors          facing        multiple            directions        to     better

facilitate       radio           transmissions.            A    cell      phone       connects        to   a

service provider’s cellular network through communications with

cell sites, occurring whenever a call or text message is sent or

received by the phone. 1 The phone will connect to the cell site

with which it shares the strongest signal, which is typically

the nearest cell site. The connecting cell site can change over

the course of a single call as the phone travels through the

coverage    area.          When        the    phone       connects         to    the      network,     the

      1A “smartphone,” a type of cell phone with a computer
operating system, may communicate more frequently with the
network than other types of cell phones through, for example,
automatic updates to email inboxes and other operations of
software applications installed on the phone.



                                                     15
service    provider    automatically          captures   and    retains   certain

information about the communication, including identification of

the specific cell site and sector through which the connection

is made.

     By identifying the nearest cell tower and sector, CSLI can

be used to approximate the whereabouts of the cell phone at the

particular points in time in which transmissions are made. The

cell sites listed can be used to interpolate the path the cell

phone, and the person carrying the phone, travelled during a

given time period. The precision of this location data depends

on the size of the identified cell sites’ geographical coverage

ranges.    Cell    sites   in    urban   areas,     which   have    the   greatest

density of cell sites, tend to have smaller radii of operability

than those in rural areas. The cell sites identified in the CSLI

at issue in this case covered areas with a maximum radius of two

miles, each divided into three 120-degree sectors.

                                         B.

     The   government      obtained      Appellants’     CSLI   through    use   of

court orders issued under the SCA directing Sprint/Nextel to

disclose the information. The SCA “provid[es] an avenue for law

enforcement       entities      to   compel     a   provider       of   electronic

communication services to disclose the contents and records of

electronic communications.” In re Application of U.S. for an

Order Pursuant to 18 U.S.C. Section 2703(d) (In re Application

                                         16
(Fourth Circuit)), 707 F.3d 283, 287 (4th Cir. 2013); see also

18 U.S.C. §§ 2701–2711 (2010). The statute outlines procedures a

governmental entity must follow to procure information from a

service       provider,              treating           subscriber              account        records

differently        than     the          content        of     electronic         communications.

United States v. Clenney, 631 F.3d 658, 666 (4th Cir. 2011)

(citing 18 U.S.C. § 2703).

      Absent subscriber notice and consent, the government must

secure    a   warrant       or       a    court     order         for    subscription          account

records.      18   U.S.C.        §       2703(c)(1).          A       warrant    from     a    federal

district court for the disclosure of subscriber records must be

issued pursuant to the Federal Rules of Criminal Procedure, id.

§ 2703(c)(1)(A), which, in accordance with the Fourth Amendment,

require a finding of probable cause by an impartial magistrate,

Fed. R. Crim. P. 41(d); see also Payton v. New York, 445 U.S.

573, 588 n.26 (1980).

      Section 2703(d) sets out the requirements for a court order

for a service provider to disclose subscriber account records.

The   government        must      “offer[]         specific            and   articulable         facts

showing that there are reasonable grounds to believe that . . .

the   records      or     other          information          sought[]       are    relevant       and

material      to   an     ongoing         criminal           investigation.”        18        U.S.C.   §

2703(d).       “This        is           essentially              a     reasonable        suspicion

standard[,]” In re Application (Fourth Circuit), 707 F.3d at

                                                   17
287,   in    contrast    to     the   substantially     higher    probable       cause

standard for securing a warrant. The statute offers no express

direction as to when the government should seek a warrant versus

a § 2703(d) order.

       The government obtained two § 2703(d) court orders for the

CSLI    at    issue     in    this      appeal.   The   first     order     directed

Sprint/Nextel to disclose CSLI records for four time periods

amounting to 14 days, and the second order directed disclosure

of records for a much broader 221-day time period that included

the previously ordered 14 days. Sprint/Nextel disclosed to the

government     the      total     221     days’   worth     of    CSLI    for     each

Appellant’s phone.

                                           C.

       Appellants argue that the government violated the Fourth

Amendment     in    seeking     and     inspecting   the   CSLI    at    issue    here

without a warrant based on probable cause. We agree.

       The    Fourth         Amendment      protects       individuals      against

unreasonable searches and seizures. Katz v. United States, 389

U.S.   347,   353     (1967).    A    “search”    within    the   meaning    of    the

Fourth Amendment occurs where the government invades a matter in

which a person has an expectation of privacy that society is

willing to recognize as reasonable. Kyllo v. United States, 533

U.S. 27, 33 (2001) (citing Katz, 389 U.S. at 361 (Harlan, J.,

concurring)). A person’s expectation of privacy is considered

                                           18
reasonable by societal standards when derived from “‘concepts of

real or personal property law or . . . understandings that are

recognized and permitted by society.’” Minnesota v. Carter, 525

U.S. 83, 88 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143

n.12 (1978)). Warrantless searches are, “as a general matter, .

. . per se unreasonable under the Fourth Amendment,” although

“there are a few specifically established and well-delineated

exceptions      to    that     general        rule.”       United    States       v.     (Earl

Whittley) Davis, 690 F.3d 226, 241-42 (4th Cir. 2012) (quoting

City   of    Ontario,       Cal.    v.    Quon,      560     U.S.    746,       760    (2010))

(internal quotation marks omitted).

       We hold that the government conducts a search under the

Fourth   Amendment         when    it    obtains     and     inspects       a    cell    phone

user’s      historical       CSLI       for     an   extended        period       of     time.

Examination      of    a     person’s         historical      CSLI    can       enable     the

government to trace the movements of the cell phone and its user

across      public    and    private      spaces       and    thereby       discover       the

private activities and personal habits of the user. Cell phone

users have an objectively reasonable expectation of privacy in

this information. Its inspection by the government, therefore,




                                               19
requires          a   warrant,        unless    an    established    exception    to   the

warrant requirement applies. 2

                                                 1.

       As an initial matter, we are not persuaded that, as the

district court stated, Sprint/Nextel’s privacy policy disproves

Appellants’ claim that they had an actual expectation in the

privacy of their location and movements. The privacy policy in

effect       at       the      time    Sprint/Nextel       disclosed       CSLI   to   the

government stated as follows:

       Information we collect when we provide you with
       Services includes when your wireless device is turned
       on, how your device is functioning, device signal
       strength, where it is located, what device you are
       using, what you have purchased with your device, how
       you are using it, and what sites you visit.

J.A.       957.       First,    the    policy    only    states     that   Sprint/Nextel

collects information about the phone’s location – not that it

discloses this information to the government or anyone else.



       2
       The en banc Eleventh Circuit recently held that, assuming
government acquisition of CSLI through use of a § 2703(d) order
is a Fourth Amendment search, such a search would be reasonable
under the Fourth Amendment and not require a warrant. United
States v. (Quartavious) Davis, 785 F.3d 498, 516-18 (11th Cir.
2015) (en banc). Section 2703(d) orders, as previously noted, do
not require a showing of probable cause and do not fit within
any of the “well delineated exceptions” to the general rule that
a search requires a warrant based on probable cause. Quon, 560
U.S. at 760. We decline here to create a new exception to a rule
so well established in the context of criminal investigations.




                                                 20
Second,        studies      have        shown     that        users       of    electronic

communications services often do not read or understand their

providers’       privacy      policies. 3        There       is     no     evidence      that

Appellants here read or understood the Sprint/Nextel policy.

                                            2.

       The Supreme Court has recognized an individual’s privacy

interests in comprehensive accounts of her movements, in her

location,       and    in   the    location       of   her        personal     property    in

private spaces, particularly when such information is available

only       through    technological       means    not       in    use    by   the   general

public.

                                            a.

       In     United    States     v.    Knotts,       460    U.S.       276   (1983),    law

enforcement officers used a combination of visual surveillance

and monitoring of a radio transmitter installed in a container

of chloroform to track the container’s movements by automobile

to the defendants’ homes. 460 U.S. at 278-79. In holding that

this practice did not infringe upon a reasonable expectation of



       3See, e.g., Federal Trade Commission, Mobile Privacy
Disclosures: Building Trust Through Transparency 10 (Feb. 2013),
http://www.ftc.gov/sites/default/files/documents/reports/mobile-
privacy-disclosures-building-trust-through-transparency-federal-
trade-commission-staff-report/130201mobileprivacyreport.pdf
(saved as ECF opinion attachment); Aleecia M. McDonald & Lorrie
Faith Cranor, The Cost of Reading Privacy Policies, 4 I/S: J. L.
& Pol’y Info. Soc’y 543, 544 (2008).



                                            21
privacy,      the       Court     emphasized           the    “limited”       nature        of    the

government’s electronic surveillance effort, which was confined

to tracking the container’s movement on public roads from its

place   of    purchase          to   its     ultimate         destination.       Id.     at       284.

Although the government tracked the container to a defendant’s

private      home,        there      was     no     indication         that      the    officers

continued     to        monitor      the    container         inside    the    private           space

after   its    public        journey        had     ended.      Id.     at    285;     see        also

California v. Ciraolo, 476 U.S. 207, 213 (1986) (“The Fourth

Amendment     protection          of   the     home      has    never     been    extended         to

require      law    enforcement            officers      to    shield     their        eyes      when

passing by a home on public thoroughfares.”).

      Knotts left unanswered two questions critical to assessing

the constitutionality of the government’s conduct in the present

case: (1) whether tracking the location of an individual and her

property inside a private space constitutes a Fourth Amendment

search; and (2) whether locational tracking of an individual and

her   property          continuously         over      an     extended       period     of       time

constitutes         a    search.       Courts       have       answered       each     of     these

questions in the affirmative.

                                                  b.

      United States v. Karo, 468 U.S. 705 (1984), addressed the

first question. As in Knotts, government agents surreptitiously

used a radio transmitter to track the movements of a chemical

                                                  22
container to a private residence, but here the agents continued

to   monitor    the    container           while      it    was    inside   the    residence.

Karo, 468 U.S. at 709-10. The Court held that this practice

“violate[d]     the    Fourth         Amendment        rights       of   those    who       have   a

justifiable interest in the privacy of the residence.” Id. at

714. The government’s monitoring of the beeper “reveal[ed] a

critical fact about the interior of the premises . . . that [the

government]      could          not       have     otherwise        obtained       without         a

warrant”: “that a particular article is actually located at a

particular      time       in    the       private         residence      and     is       in   the

possession of the person or persons whose residence is being

watched.”      Id.    at   715.       “Indiscriminate             monitoring     of        property

that has been withdrawn from public view would present far too

serious a threat to privacy interests in the home to escape

entirely some sort of Fourth Amendment oversight.” Id. at 716

(footnote omitted).

      In Kyllo v. United States, 533 U.S. 27 (2001), the Court

again   considered         whether         the   use       of     technology     to        discover

information      hidden         in    a    private         home    constituted         a    Fourth

Amendment search. The government aimed a thermal imaging device

at the petitioner’s home from a public street to detect infrared

radiation inside the home, which would allow it to identify the

locations and movements of persons and certain objects inside.

Id. at 29-30. The Court held that “[w]here . . . the Government

                                                 23
uses a device that is not in general public use, to explore

details of the home that would previously have been unknowable

without physical intrusion, the surveillance is a ‘search’ and

is presumptively unreasonable without a warrant.” Id. at 40.

     Like the searches challenged in Karo and Kyllo, examination

of   historical   CSLI       can    allow      the    government      to     place    an

individual and her personal property – specifically, her cell

phone – at the person’s home and other private locations at

specific points in time. “In the home, . . . all details are

intimate   details,       because   the     entire    area     is   held   safe      from

prying government eyes.” Id. at 37; see also Karo, 468 U.S. at

714 (“[P]rivate residences are places in which the individual

normally   expects    privacy       free    of    governmental       intrusion       not

authorized by a warrant, and that expectation is plainly one

that society is prepared to recognize as justifiable.”). The

Karo and Kyllo Courts recognized the location of a person and

her property within a home at a particular time as a “critical”

private detail protected from the government’s intrusive use of

technology. See Kyllo, 533 U.S. at 37; Karo, 468 U.S. at 715.

     Inspection      of    long-term       CSLI      invades    an    even     greater

privacy interest than the search challenged in Karo because,

unlike a cell phone, the tracking device in Karo was not carried

on anyone’s person and therefore was not capable of tracking the

location of any individual. Additionally, the private location

                                          24
information discovered in this case covered a remarkable 221

days,   potentially      placing      each       Appellant    at    home     on    several

dozen specific occasions, far more than the single instances

discovered in Karo and Kyllo. See Kyllo, 533 U.S. at 30; Karo,

468 U.S. at 709, 714.

                                            c.

     The Supreme Court considered long-term electronic location

surveillance in United States v. Jones, 132 S. Ct. 945 (2012).

In   that    case,      the     government,        acting     without      a      warrant,

installed     a   Global      Positioning         System     (“GPS”)      device     on   a

suspect’s vehicle to track the movements of the vehicle over a

28-day period. Jones, 132 S. Ct. at 948. The D.C. Circuit had

decided that this practice was a search because (1) a reasonable

individual would not expect that the sum of her movements over a

month would be observed by a stranger in public, and (2) this

information could reveal “an intimate picture” of her life not

disclosed    by   any    one     of   her    movements        viewed      individually.

United States v. Maynard, 615 F.3d 544, 561-64 (D.C. Cir. 2010),

aff’d sub. nom. Jones, 132 S. Ct. 945.

     The    Supreme     Court     unanimously       affirmed        the   D.C.     Circuit

without     reaching     full     agreement        as   to    the    basis     for    this

decision. See Jones, 132 S. Ct. at 954; id. at 964 (Alito, J.,

concurring in the judgment). The entire Court did agree however

that Knotts had explicitly left unanswered the constitutionality

                                            25
of “dragnet type law enforcement practices” like the form of

“twenty-four hour surveillance” employed in Jones. Knotts, 460

U.S. at 283-84); see Jones, 132 S. Ct. at 952 n.6 (Scalia, J.,

writing    for   the    majority);          id.    at    956    n.*    (Sotomayor,     J.,

concurring);     id.    at    963     n.10      (Alito,    J.,    concurring      in   the

judgment).    Justice        Scalia’s       majority      opinion,      expressing     the

views of five Justices, held that the government’s installation

of the GPS device on the suspect’s vehicle constituted a search

under the traditional trespass-based theory of Fourth Amendment

protection,      bypassing           the     reasonable-expectation-of-privacy

analysis     established        in        Katz.    See    id.     at    949-52.    While

acknowledging      that         “[s]ituations             involving       merely       the

transmission of electronic signals without trespass would remain

subject to Katz analysis,” Justice Scalia declined to address

this question. Id. at 953; see also id. at 954 (“It may be that

achieving the same result through electronic means, without an

accompanying     trespass,          is     an     unconstitutional        invasion      of

privacy, but the present case does not require us to answer that

question.”).

     In two concurring opinions, five Justices confronted the

Katz question and agreed that “longer term GPS monitoring in

investigations     of    most       offenses       impinges      on    expectations     of

privacy.” Id. at 955 (Sotomayor, J., concurring); id. at 964

(Alito,    J.,   concurring          in    the    judgment).      Justice    Sotomayor

                                             26
echoed       the    D.C.    Circuit’s        concerns       about      the   government’s

ability to record an individual’s movements and aggregate the

information         “in    a     manner      that    enables      the     Government      to

ascertain,         more    or    less   at    will,”       private     facts     about   the

individual, such as her “political and religious beliefs, sexual

habits, and so on.” Id. at 956. Neither concurrence indicated

how    long    location         surveillance       could    occur      before    triggering

Fourth Amendment protection, but, considering the investigation

challenged in Jones, Justice Alito stated that “the line was

surely crossed before the 4-week mark.” Id. at 964.

       The privacy interests affected by long-term GPS monitoring,

as identified in Maynard and the Jones concurrences, apply with

equal or greater force to historical CSLI for an extended time

period. See Commonwealth v. Augustine, 4 N.E.3d 846, 861 (Mass.

2014) (“CSLI implicates the same nature of privacy concerns as a

GPS    tracking      device.”).         “[C]itizens        of   this    country    largely

expect the freedom to move about in relative anonymity without

the government keeping an individualized, turn-by-turn itinerary

of our comings and goings.” Renée McDonald Hutchins, Tied Up in

Knotts? GPS Technology and the Fourth Amendment, 55 UCLA L. Rev.

409, 455 (2007). Much like long-term GPS monitoring, long-term

location information disclosed in cell phone records can reveal

both     a    comprehensive          view      and     specific        details     of    the

individual’s daily life. As the D.C. Circuit stated in Maynard,

                                              27
“A person who knows all of another’s travels can deduce whether

he is a weekly church goer, a heavy drinker, a regular at the

gym,   an   unfaithful   husband,    an   outpatient     receiving   medical

treatment, an associate of particular individuals or political

groups – and not just one such fact about a person, but all such

facts.” 615 F.3d at 561-62; compare Jones, 132 S. Ct. at 955

(Sotomayor,    J.,   concurring)      (“GPS    monitoring     generates   a

precise,    comprehensive   record   of   a   person’s    public   movements

that reflects a wealth of detail about her familial, political,

professional, religious, and sexual associations.”), with State

v. Earls, 70 A.3d 630, 642 (N.J. 2013) (“[CSLI] can reveal not

just where people go — which doctors, religious services, and

stores they visit — but also the people and groups they choose

to affiliate with and when they actually do so.”).

       Inspection of historical CSLI may provide even more private

information about an individual than the locational monitoring

challenged in Maynard/Jones. The surveillance at issue in that

case was limited to movements of an automobile on public roads.

See Jones, 132 S. Ct. at 948. Quite unlike an automobile, a cell

phone is a small hand-held device that is often hidden on the

person of its user and seldom leaves her presence. As previously

discussed, cell phone users regularly carry these devices into

their homes and other private spaces to which automobiles have



                                     28
limited access at best. See Augustine, 4 N.E.3d at 861. 4 Thus,

unlike GPS monitoring of a vehicle, examination of historical

CSLI can permit the government to track a person’s movements

between   public   and   private   spaces,   impacting   at   once   her

interests in both the privacy of her movements and the privacy

of her home. 5

     Considering the multiple privacy interests at stake, it is

not surprising that we are not the first court to recognize as

objectively reasonable cell phone users’ expectation of privacy

in their long-term CSLI. See, e.g., Augustine, 4 N.E.3d at 865-



     4 Cell phones are not subject to the “lesser expectation of
privacy in a motor vehicle,” which, as noted in Knotts, “has
little capacity for escaping public scrutiny.” 460 U.S. at 281
(quoting   Cardwell  v.   Lewis,   417  U.S.  583,   590  (1974)
(plurality)). Additionally, while a car “seldom serves . . . as
the repository of personal effects[,]” id., cell phones often
provide access to substantial collections of private notes and
records, hiding these personal effects from inspection even
while themselves hidden from view in their owners’ purses or
pockets, see Riley, 134 S. Ct. at 2489-91.
     5  Indeed, a recent survey by the Pew Research Center
revealed that 82% of adults feel that the details of their
physical location revealed by cell phone GPS tracking is at
least “somewhat sensitive,” with half of adults considering this
information “very sensitive.” Pew Research Center, Public
Perceptions of Privacy and Security in the Post-Snowden Era 34
(Nov.                          12,                         2014),
http://www.pewinternet.org/files/2014/11/PI_PublicPerceptionsofP
rivacy_111214.pdf (saved as ECF opinion attachment). This
percentage rivals that of adults who consider their health
information and the content of their phone conversations,
emails, and text messages at least “somewhat sensitive” – 81%,
81%, 77%, and 75%, respectively. Id. at 32-34.



                                   29
66 (reasonable expectation of privacy in location information

shown       in     historical     CSLI      records);          Earls,      70   A.3d       at    632

(reasonable expectation of privacy in location of cell phones);

Tracey v. State, 152 So.3d 504, 526 (Fla. 2014) (objectively

reasonable expectation of privacy in “location as signaled by

one’s       cell    phone”);     In    re   Application          of   U.S.      for    an       Order

Authorizing Disclosure of Location Info. of a Specified Wireless

Tel.,       849    F.   Supp.    2d    526,     539      (D.    Md.     2011)    (“reasonable

expectation of privacy both in [subject’s] location as revealed

by real-time [CSLI] and in his movement where his location is

subject to continuous tracking over an extended period of time,

here       thirty    days”);     In    re   Application          of   U.S.      for    an       Order

Authorizing the Release of Historical Cell-Site Info. (In re

Application         (E.D.N.Y.)),       809    F.      Supp.     2d    113,      120    (E.D.N.Y.

2011)       (“reasonable        expectation      of      privacy      in    long-term           cell-

site-location           records”). 6     Even      the    Supreme        Court,       in    Riley,



       6
       As the dissenting opinion points out, a number of courts
that have addressed the issue have not reached the same
conclusion we reach today. Courts that have reached the opposite
conclusion, like the dissent, have typically done so through
application of the “third-party” doctrine as discussed in Part
II.C.4 infra.

     In United States v. Skinner, 690 F.3d 772 (6th Cir. 2012),
the Sixth Circuit held that the defendant “did not have a
reasonable expectation of privacy in the data given off by his
voluntarily procured pay-as-you-go cell phone.”    690 F.3d at
777. This case involved locational surveillance of two cell
phones in real time over the course of a few days as the users
(Continued)
                                              30
specifically     cited      “[h]istoric     location        information”       as   among

the     heightened     privacy     concerns           presented        in    government

inspection    of     cell    phones,   as      such    information          details   the

user’s “specific movements down to the minute, not only around

town but also within a particular building.” 134 S. Ct. at 2490. 7

      Taken together, Karo, Kyllo, and the views expressed in

Riley and the Jones concurrences support our conclusion that the

government invades a reasonable expectation of privacy when it

relies    upon   technology      not   in      general      use   to    discover       the

movements of an individual over an extended period of time. Cell

phone     tracking     through     inspection          of    CSLI      is     one     such

technology. It is possible that the CSLI for a particular cell



transported marijuana along public roads. Id. at 776. The Sixth
Circuit determined that the case was governed by Knotts, id. at
777-78, and distinguished Jones based on the “comprehensiveness
of the tracking” in that case, involving “‘constant monitoring’”
over the course of four weeks, id. at 780 (quoting Jones, 132 S.
Ct. at 963 (Alito, J., concurring in the judgment)). The instant
case is similarly distinguishable.
      7Some courts, including the district court in this case, as
well as the dissent, have suggested that privacy interests in
real-time or prospective location information are greater than
those in historical location information, like that at issue in
this case. See (Quartavious) Davis, 785 F.3d at 509 n.10;
Graham, 846 F. Supp. 2d at 391. We see no constitutional
distinction   between  the   two  types   of  data.   A  person’s
expectation of privacy in information about where she has been
is no less reasonable, or less deserving of respect, than that
regarding where she is or where she is going.




                                          31
phone is not very revealing at all because, for instance, the

phone has been turned off or it has made few or no connections

to   the    cellular     network.    But    the   government   cannot    know   in

advance of obtaining this information how revealing it will be

or whether it will detail the cell phone user’s movements in

private spaces. See Earls, 70 A.3d at 642. We hold, therefore,

that the government engages in a Fourth Amendment search when it

seeks to examine historical CSLI pertaining to an extended time

period like 14 or 221 days. 8

                                           3.

          The     district   court       concluded    that     this     case    is

distinguishable from Karo and Maynard/Jones because the type of

locational surveillance at issue in those cases permits real-

time tracking with greater precision and continuity than the

examination of historical CSLI. See Graham, 846 F. Supp. 2d at

391-92,         404.   The   use    of     GPS    technology    challenged      in

Maynard/Jones permitted law enforcement to track the suspect’s

vehicle continuously at every moment “‘24 hours a day for 28

days[,]’” id. at 392 (quoting Maynard, 615 F.3d at 558), while,




      8This case does not require us to draw a bright line as to
how long the time period for historical CSLI can be before its
inspection rises to the level of a Fourth Amendment search, and
we decline to do so.



                                           32
here, the CSLI records only disclose a finite number of location

data points for certain points in time.

      This   distinction     is   constitutionally      insignificant.        The

Fourth Amendment challenge is directed toward the government’s

investigative conduct, i.e., its decision to seek and inspect

CSLI records without a warrant. There is no way the government

could have known before obtaining the CSLI records how granular

the location data in the records would be. If Appellants had

been in constant use of their phones as they moved about each

waking day – constantly starting and terminating calls – then

the   government    would    have   obtained      a   continuous    stream     of

historical    location      information   approaching      that    of   GPS.   A

similar or greater degree of continuity would have been achieved

if Appellants had smartphones that automatically connect to the

nearest cell site every few minutes or seconds.

      As it turns out, the CSLI records did reveal an impressive

29,659 location data points for Graham and 28,410 for Jordan,

amounting to well over 100 data points for each Appellant per

day on average. This quantum of data is substantial enough to

provide a reasonably detailed account of Appellants’ movements

during the 221-day time period, including movements to and from

the   cell-site    sectors   in   which   their    homes   were    located.    We

therefore reject the district court’s suggestion that the CSLI



                                     33
was   not     sufficiently     continuous     to   raise     reasonable   privacy

concerns.

       The district court also questioned the precision of the

location data itself, concluding that the CSLI did not identify

sufficiently precise locations to invade a reasonable privacy

expectation. Unlike GPS data, the court found, CSLI “can only

reveal the general vicinity in which a cellular phone is used.”

Graham, 846 F. Supp. 2d at 392.

       The precision of CSLI in identifying the location of a cell

phone       depends    in   part   on   the   size    of     the   coverage   area

associated with each cell-site sector listed in the records. 9

Service providers have begun to increase network capacity and to

fill gaps in network coverage by installing low-power cells such

as “microcells” and “femtocells,” which cover areas as small as

40    feet. 10   The    intense    competition       among    cellular    networks



       9
       Sprint/Nextel’s custodian testified at trial that the cell
sites listed in the records each had, at most, a two-mile radius
of operability. Each cell site, therefore, covered no greater
than approximately 12.6 square miles, divided into three sectors
of approximately 4.2 square miles or less.
       10
       See Federal Communications Commission, Public Safety Tech
Topic #23 – Femtocells, http://www.fcc.gov/help/public-safety-
tech-topic-23-femtocells; PR Newswire, Small Cells Market 2014-
2019: Femtocell, Picocell, & Microcell Prospects for LTE, SONs,
Wireless Offloading & Heterogeneous Networks (Nov. 6, 2014),
http://www.prnewswire.com/news-releases/small-cells-market-2014-
2019-femtocell-picocell--microcell-prospects-for-lte-sons-
wireless-offloading--heterogeneous-networks-281857341.html;
Nancy   Gohring,   Femtocells    Make   Way   Into   Enterprises,
(Continued)
                                         34
provides    ample   reason    to   anticipate   increasing    use    of    small

cells and, as a result, CSLI of increasing precision. We must

take such developments into account. See Kyllo, 533 U.S. at 36

(“While the technology used in the present case was relatively

crude, the rule we adopt must take account of more sophisticated

systems that are already in use or in development.”).

     In any event, the CSLI at issue here was precise enough, at

minimum,    to   support     reasonable    inferences   about     Appellants’

locations at specific points in time. Otherwise, the information

would have lacked any probative value at trial. The very reason

that the government obtained and introduced the evidence was to

establish    Appellants’     locations     during   times   surrounding     the

charged    robberies. 11   Investigators     and    prosecutors     must    have




ComputerWorld             (May              7,                            2011),
http://www.computerworld.com/article/2550032/mobile-
wireless/femtocells-make-way-into-enterprises.html.
     11Specifically, the government used the CSLI to show, among
other things, that Graham was within a few miles of the Dollar
Tree before and after the robbery of January 17, 2011; Graham
was within a few miles of the 7-Eleven before and after the
robbery of January 22, 2011; minutes after the robbery of Shell
on February 1, 2011, Jordan was near the Shell and then both he
and Graham were near Jordan’s apartment; Appellants were both
near Jordan’s apartment approximately 45 minutes before robbery
of Burger King on February 5, 2011; Graham was near the Burger
King within minutes of the robbery; Appellants were together a
few miles north of the Burger King minutes after the robbery;
and Graham was near the McDonald’s approximately one half hour
before the McDonald’s robbery.



                                      35
believed, after analyzing the CSLI, that it was sufficiently

precise     to    establish     Appellants’       whereabouts.       The     fact      that

inference was required to glean Appellants’ past locations from

the   CSLI    does    not     ameliorate    or     lessen     in    any     manner      the

invasion     of     privacy.    Indeed,     the    Supreme     Court,        in     Kyllo,

specifically        rejected    “the     novel    proposition        that     inference

insulates a search . . . .” Id. at 36 (citing Karo, 468 U.S.

705). We therefore reject the government’s argument that the

CSLI was not adequately precise to infringe upon Appellants’

expectations of privacy in their locations and movements.

                                          4.

      We     also    disagree     with     the     district        court’s     and      the

dissent’s        conclusion     that     Appellants      lacked        a     reasonable

expectation of privacy in their CSLI because the CSLI records

were kept by Sprint/Nextel in the ordinary course of business.

See Graham, 846 F. Supp. 2d at 403; post at 111.

      The     dissent    argues     first        that   “[t]he       nature       of    the

governmental activity” at issue in this case sets it apart from

Karo, Kyllo, and Jones. Post at 108-09. While Karo, Kyllo, and

Jones each involved direct and contemporaneous surveillance by

government agents, the locational tracking challenged here was

achieved     through    government       inspection     of    records        held      by   a

third party.



                                          36
       This distinction is inconsequential. The precedents of this

Court       and     others    show   that       a    Fourth          Amendment     search       may

certainly          be   achieved     through         an    inspection        of    third-party

records. See, e.g., Doe v. Broderick, 225 F.3d 440, 450-52 (4th

Cir. 2000) (holding that detective’s examination of a patient

file    held       by   a    methadone     clinic         was    a    search      and,   without

probable cause, violated the patient’s Fourth Amendment rights);

DeMassa v. Nunez, 770 F.2d 1505, 1508 (9th Cir. 1985) (holding

that “an attorney’s clients have a legitimate expectation of

privacy       in     their    client     files”);          cf.       Ferguson     v.     City    of

Charleston, 532 U.S. 67, 78 (2001) (holding that patients enjoy

a   reasonable          expectation        of    privacy         that       the    results       of

diagnostic          tests    will    not    be       disclosed         to   law    enforcement

without the patient’s consent). 12 That the government acquired


       12
        In the sense most crucial to a proper Fourth Amendment
analysis, “[t]he nature of the governmental activity” challenged
in this case, post at 108-09, was not unlike that challenged in
Karo, Kyllo, and Jones. The dissent’s language is apparently
drawn from Smith v. Maryland, 442 U.S. 735 (1979), where the
Court deemed it important to identify “the nature of the state
activity that is challenged” in order to determine the precise
nature of Smith’s Fourth Amendment claim. 442 U.S. at 741.
Specifically, this initial inquiry was made in order to
determine whether Smith could claim an invasion of his property
or intrusion into a constitutionally protected area, under the
traditional   trespass-based   theory    of   Fourth   Amendment
protection. Because the challenged governmental activity was the
installation of a pen register “on telephone company property at
the telephone company’s central offices,” Smith could make no
such claim. Id. Instead, Smith claimed an invasion of a
legitimate expectation of privacy in the numbers he dialed,
(Continued)
                                                37
Appellants’ private information through an inspection of third-

party records cannot dispose of their Fourth Amendment claim.

     Yet the dissent seizes upon the fact that the government

obtained   Appellants’   CSLI      from   a   third-party    cell   service

provider and maintains that we have placed our focus on the

wrong   question.   Instead   of    assessing      the   reasonableness   of

Appellants’   expectation     of    privacy   in    their   “location     and

movements over time,” our dissenting colleague would frame the

question as “whether an individual has a reasonable expectation




which the government obtained through use of the pen register.
Id. at 742.

     In this sense, the nature of the governmental activity
challenged in this case is not unlike the activities challenged
in Karo, Kyllo, and Jones. In Karo and Kyllo, the nature of the
challenged governmental activity was the use of technology to
acquire certain private information rather than the physical
invasion of constitutionally protected property or spaces. See
Karo, 468 U.S. at 714; Kyllo, 533 U.S. at 34-35. The
governmental activity challenged in Jones was of both sorts:
installation of a GPS tracking device effected through a
trespass onto Jones’ property, and use of the device to obtain
information about Jones’ location and movements over an extended
period of time. As previously noted, the majority confined its
analysis to the trespass without considering the nature of the
information the government subsequently acquired. 132 S. Ct. at
949-54. In the concurrences, five Justices focused on the
government’s acquisition of location information and whether
this conduct invaded a legitimate expectation of privacy.
Because the challenged activity in the present case, like those
considered in Karo, Kyllo, and the Jones concurrences, is the
government’s non-trespassory acquisition of certain information,
our inquiry is properly focused on the legitimacy of Appellants’
expectation of privacy in this information.



                                     38
of privacy in a third party’s records that permit the government

to deduce this information.” Post at 109. But even the analyses

in the cases upon which the dissent relies focused foremost on

whether,      under        Katz,         the    privacy        expectations        asserted        for

certain information obtained by the government were legitimate.

See United States v. Miller, 425 U.S. 435, 442 (1976) (“We must

examine      the    nature         of    the    particular          documents      sought     to    be

protected in order to determine whether there is a legitimate

‘expectation of privacy’ concerning their contents.” (emphasis

added));      Smith           v.    Maryland,            442        U.S.    735,      742     (1979)

(“[P]etitioner’s argument that [the] installation and use [of a

pen register] constituted a ‘search’ necessarily rests upon a

claim     that      he     had       a       ‘legitimate        expectation         of      privacy’

regarding      the        numbers         he    dialed         on    his    phone.”      (emphasis

added)).      In     answering               that   question,          the     fact      that      the

information         at    issue         in     Miller     and       Smith    was    contained       in

records held by third parties became relevant only insofar as

the   defendant          in    each          case   had    “voluntarily            conveyed”       the

information to the third party in the first place. See Miller,

425 U.S. at 442; Smith, 442 U.S. at 743-44.

      It is clear to us, as explained below, that cell phone

users   do    not        voluntarily           convey     their      CSLI    to    their     service

providers.         The    third-party            doctrine       of     Miller      and   Smith      is

therefore inapplicable here.

                                                    39
                                          a.

      The Supreme Court held in Miller and Smith that “a person

has   no    legitimate       expectation      of   privacy        in   information    he

voluntarily turns over to third parties.” Smith, 442 U.S. at

743-44; see also Miller, 425 U.S. at 442. This is so even if

“the information is revealed on the assumption that it will be

used only for a limited purpose and the confidence placed in the

third party will not be betrayed.” Miller, 425 U.S. at 443. 13

      In     Miller,       the   government    used      defective      subpoenas     to

obtain financial records from the defendant’s bank. 425 U.S. at

436. The Court determined first that the defendant could not

claim      an    unconstitutional      invasion     of      his    “private    papers”

because         he   had    neither    ownership      nor        possession    of    the

transactional         records     at   issue.      Id.      at     440-41     (citation

omitted). Next, the Court turned to the defendant’s claim that

the government violated his privacy interests in the contents of

      13This “third-party” doctrine finds its roots in cases
involving consensual disclosures to informants or undercover
government agents. See United States v. White, 401 U.S. 745,
751-752 (1971); Hoffa v. United States, 385 U.S. 293, 302-303
(1966); Lopez v. United States, 373 U.S. 427, 439 (1963). White,
Hoffa, Lopez, and similar cases generally establish that a
person who confides information about her illegal activities in
another bears the risk that this information will be reported to
law enforcement, see White, 401 U.S. at 752, and introduced as
evidence against her, see Lopez, 373 U.S. at 439. Any
expectation she holds that this information will be held in
confidence is not one entitled to Fourth Amendment protection.
See White, 401 U.S. at 749; Hoffa, 385 U.S. at 301.



                                          40
the bank records. Id. at 442. Because such documents “contain

only information voluntarily conveyed to the banks and exposed

to   their    employees       in       the    ordinary    course       of    business,”      the

Court held that the depositor lacks “any legitimate expectation

of privacy” in this information. Id. at 442. “[I]n revealing his

affairs to another,” the defendant assumed the risk “that the

information        [would]         be    conveyed        by     that        person    to     the

Government.” Id. at 443.

       In Smith, a telephone company, at the request of police,

utilized a pen register device to record the numbers dialed from

the home phone of Michael Lee Smith, a man suspected of robbing

a woman and then harassing her through anonymous phone calls.

442 U.S. at 737. Smith argued that the warrantless installation

of the pen register was an unreasonable search. Id. at 737-38.

The Court determined, first, that people generally understand

that they must communicate the numbers they dial to the phone

company and that the company has facilities for recording and

storing this information permanently. Id. at 742. Even if Smith

had an actual expectation of privacy in the numbers he dialed,

this    would      not   be        a    “legitimate”          expectation          because   he

“voluntarily conveyed” the numerical information to the phone

company      and    “‘exposed’”              the    information    to        the     company’s

recording and storage equipment. Id. at 744. In so doing, Smith



                                                   41
“assumed       the    risk”    that     the       company     would     disclose      this

information to law enforcement. Id.

       We recently applied the third-party doctrine of Miller and

Smith in United States v. Bynum, 604 F.3d 161 (4th Cir. 2010),

where    the     government         served    administrative          subpoenas      on     a

website operator to obtain a user’s account information. 604

F.3d at 162. Specifically, the government obtained the user’s

name, email address, telephone number, and physical address, id.

at 164, all information that the user entered on the website

when    he    opened    his    account,       id.    at     162.   Citing     Smith,       we

determined          that,     in     “voluntarily         convey[ing]         all     this

information” to the Internet company, the user “‘assumed the

risk’”       that     this    information         would      be    revealed     to        law

enforcement. Id. at 164 (quoting Smith, 442 U.S. at 744). The

user, therefore, could not show that he had either an actual or

an     objectively      reasonable       expectation         of    privacy     in     this

information. Id.

       These precedents do not categorically exclude third-party

records from Fourth Amendment protection. They simply hold that

a    person    can    claim    no    legitimate      expectation       of   privacy        in

information she voluntarily conveys to a third party. It is that

voluntary conveyance – not the mere fact that the information

winds up in the third party’s records – that demonstrates an

assumption of risk of disclosure and therefore the lack of any

                                             42
reasonable       expectation    of    privacy.     We     decline   to   apply      the

third-party doctrine in the present case because a cell phone

user does not “convey” CSLI to her service provider at all –

voluntarily or otherwise – and therefore does not assume any

risk of disclosure to law enforcement. 14

     The     service    provider       automatically         generates       CSLI    in

response    to    connections     made     between     the   cell   phone    and    the

provider’s       network,      with    and      without      the    user’s     active

participation. See Augustine, 4 N.E.3d at 862 (“CSLI is purely a

function and product of cellular telephone technology, created

by the provider’s system network at the time that a cellular

telephone     call     connects       to   a    cell    site.”);     id.      at    863



     14 At the outset of its argument that the third-party
doctrine applies here, the dissent insists that Appellants
“exposed” their CSLI to their service provider and therefore
assumed the risk of disclosure to law enforcement. Post at 111.
This “exposure” language is derived from Miller and Smith, but
it is clear in each of those cases that any “exposure” of the
information at issue to the third party’s employees or
facilities occurred only through the defendant’s voluntary
conveyance of that information to the third party. See Miller,
425 U.S. at 442 (noting that the financial information at issue
had been “voluntarily conveyed to the banks and exposed to their
employees in the ordinary course of business” (emphasis added));
Smith, 442 U.S. at 744 (“When he used his phone, petitioner
voluntarily conveyed numerical information to the telephone
company and ‘exposed’ that information to its equipment in the
ordinary course of business.” (emphasis added)). The dissent
goes on to argue that Appellants did indeed voluntarily convey
the wealth of cell site location data points at issue here to
their service provider by choosing generally to operate and
carry their phones. We reject this contention.



                                           43
(describing       CSLI    as   “location-identifying              by-product”      of   cell

phone technology). “Unlike the bank records in Miller or the

phone      numbers      dialed       in       Smith,    cell-site     data    is   neither

tangible nor visible to a cell phone user.” In re Application of

U.S. for Historical Cell Site Data, 747 F. Supp. 2d 827, 844

(S.D. Tex. 2010), vacated, 724 F.3d 600 (5th Cir. 2013). A user

is   not    required      to     actively        submit     any   location-identifying

information       when    making          a    call    or   sending    a   message.     Such

information is rather “quietly and automatically calculated by

the network, without unusual or overt intervention that might be

detected by the target user.” Id. at 833. We cannot impute to a

cell phone user the risk that information about her location

created     by    her    service          provider      will   be     disclosed    to   law

enforcement when she herself has not actively disclosed this

information.

      Notably, the CSLI at issue in this appeal details location

information not only for those transmissions in which Appellants

actively participated – i.e., messages or calls they made or

answered – but also for messages and calls their phones received

but they did not answer. When a cell phone receives a call or

message and the user does not respond, the phone’s location is

identified without any affirmative act by its user at all – much

less, “voluntary conveyance.” See In re Application of U.S. for

an   Order       Directing       a    Provider         of   Electronic       Communication

                                                 44
Service to Disclose Records to the Government (In re Application

(Third Circuit)), 620 F.3d 304, 317 (3d Cir. 2010) (“[W]hen a

cell phone user receives a call, he hasn’t voluntarily exposed

anything at all.”). We conclude, in agreement with the analysis

of the Third Circuit in In re Application (Third Circuit) and

that    of    several     state    supreme     courts,     that   the   third-party

doctrine of Smith and Miller does not apply to CSLI generated by

cell phone service providers. See id.; Augustine, 4 N.E.3d at

862-63; Tracey, 152 So.3d at 525; see also Earls, 70 A.3d at

641-42 (categorically rejecting third-party doctrine).

                                          b.

       The     Fifth    Circuit,    in    In     re   Application      of   U.S.    for

Historical Cell Site Data (In re Application (Fifth Circuit)),

724 F.3d 600 (5th Cir. 2013), and the en banc Eleventh Circuit

in United States v. (Quartavious) Davis, 785 F.3d 498 (11th Cir.

2015), have reached the opposite conclusion. While acknowledging

that the cell phone user “does not directly inform his service

provider of the location of the nearest cell phone tower[,]” the

Fifth       Circuit    decided    that   users    voluntarily     convey     CSLI    to

their       service    providers    through      general    use   of    their      cell

phones. In re Application (Fifth Circuit), 724 F.3d at 614. 15 In




       15
        In United States v. Guerrero, 768 F.3d 351 (5th Cir.
2014), the Fifth Circuit reaffirmed its holding in In re
(Continued)
                                          45
reaching this conclusion, the court relied on the proposition,

advanced by the government, that “users know that they convey

information about their location to their service providers when

they make a call.” Id. at 612. The Eleventh Circuit followed

suit, suggesting that because users are generally aware that

their   calls      are    connected     through    cell       towers,      their    use    of

their phones amounts to voluntary conveyance of “their general

location within that cell tower’s range[.]” (Quartavious) Davis,

785 F.3d at 511.

       We   cannot       accept   the     proposition     that      cell    phone       users

volunteer     to     convey       their     location      information            simply    by

choosing to activate and use their cell phones and to carry the

devices on their person. Cell phone use is not only ubiquitous

in our society today but, at least for an increasing portion of

our    society,      it    has    become    essential         to   full    cultural        and

economic participation. See Quon, 560 U.S. at 760 (“Cell phone

and    text   message       communications        are    so    pervasive         that     some

persons may consider them to be essential means or necessary

instruments       for     self-expression,        even    self-identification.”);

Riley, 134 S. Ct. at 2484 (“[M]odern cell phones . . . are now

such    a   pervasive      and    insistent      part    of    daily      life    that     the



Application (Fifth Circuit) in affirming denial of a motion to
suppress CSLI evidence. See 768 F.3d at 358-61.



                                            46
proverbial       visitor    from    Mars       might   conclude   they     were   an

important feature of human anatomy.”). People cannot be deemed

to have volunteered to forfeit expectations of privacy by simply

seeking active participation in society through use of their

cell phones. “The fiction that the vast majority of the American

population       consents   to     warrantless     government     access    to    the

records of a significant share of their movements by ‘choosing’

to   carry   a    cell   phone     must   be    rejected.”   In   re   Application

(E.D.N.Y.), 809 F. Supp. 2d at 127, quoted in Tracey, 152 So.3d

at 523. 16



      16The dissent points out that similar arguments were made
in dissenting opinions in Miller and Smith and ultimately
rejected by the Court. We do not doubt that the financial
services   implicated  in   Miller   or   the  telephone   service
implicated in Smith were any less crucial to social and economic
participation than cell phone service has become. But the
determination in each of those cases that the defendant had
assumed the risk of disclosure to law enforcement did not rely
upon the defendant’s general choice to avail himself of these
services. The assumption of risk was based on voluntary acts by
which the defendant conveyed specific information to a third
party while using these services. Smith, for instance, actively
and voluntarily turned specific numbers over to his phone
company, and was surely aware of what numbers he was turning
over, when he placed specific calls. See Smith, 442 U.S. at 742.
Smith  even   conceded   that  he   could   claim  no   legitimate
expectation of privacy in the same numbers had he placed the
calls through a live operator. Id. at 744. Similarly here, we do
not believe that Appellants could claim a legitimate privacy
expectation had they specifically identified their location or
the closest cell tower to their service provider each time a
transmission was made to or from their cell phones.




                                           47
     Users’       understanding       of   how    cellular   networks    generally

function is beside the point. The more pertinent question is

whether users are generally aware of what specific cell sites

are utilized when their phones connect to a cellular network.

After all, it is the specificity with which CSLI identifies cell

sites     that    allows   users’      location    to   be   tracked    and   raises

privacy     concerns.      We   have    no   reason     to   suppose   that    users

generally know what cell sites transmit their communications or

where those cell sites are located. A cell phone user cannot be

said to “voluntarily convey” to her service provider information

that she never held but was instead generated by the service

provider itself without the user’s involvement. 17

     Both        the   Fifth    and    Eleventh     Circuits    emphasized     that

service providers maintain CSLI records for their own business

purposes rather than for law enforcement purposes and on this

basis concluded that a subscriber can have no legitimate privacy

     17 In (Quartavious) Davis, the Eleventh Circuit pointed out
that the pen register information at issue in Smith had the
effect of disclosing precise information about the phone user’s
location. 724 F.3d at 511-12. Pen register information could be
used to place the phone user at a specific address at a specific
time “because the phone lines at issue in Smith corresponded to
stationary landlines at known physical addresses.” Id. The
location information at issue in the present case is not
“stationary” but permits tracking of a person’s movements across
private and public spaces. In this way, CSLI raises greater
locational privacy concerns than any location information
revealed through use of a stationary landline. See Karo, 468
U.S. at 715.



                                           48
expectation in the information these records contain. See In re

Application (Fifth Circuit), 724 F.3d at 611-12; (Quartavious)

Davis, 785 F.3d at 511-12. CSLI records are, however, wholly

unlike business records such as “credit card statements, bank

statements, hotel bills, purchase orders, and billing invoices,”

which     the    government       “routinely”       obtains       from        third-party

businesses      by   subpoena.      Id.   at   506.     These   sorts        of    business

records     merely     capture      voluntary     commercial       transactions          to

which the business and its individual client or customer are

parties. See Miller, 425 U.S. at 442. CSLI, on the other hand,

records transmissions of radio signals in which the cell phone

service subscriber may or may not be an active and voluntary

participant.

      We agree with our sister circuits that a service provider’s

business    interest        in   maintaining     CSLI    records       is     a    relevant

consideration in determining whether a subscriber can have a

legitimate expectation of privacy in this information. But it is

not   the    only     consideration.       Courts      consider        not    only     such

“concepts       of   real   or   personal      property    law”    in        making    this

determination but also “‘understandings that are recognized and

permitted       by   society.’”      Carter,     525     U.S.     at     88       (citation

omitted).       As    we     have    explained,         society        recognizes        an

individual’s privacy interest in her movements over an extended

time period as well as her movements in private spaces. The fact

                                          49
that    a   provider      captures         this    information            in     its       account

records,       without     the       subscriber’s            involvement,             does        not

extinguish the subscriber’s reasonable expectation of privacy.

Applying the third-party doctrine in this context would simply

permit the government to convert an individual’s cell phone into

a   tracking     device    by    examining        the    massive      bank       of     location

information      retained       by   her     service         provider,     and        to     do    so

without probable cause. See David Gray & Danielle Citron, The

Right to Quantitative Privacy, 98 Minn. L. Rev. 62, 140 (2013)

(“If the government lacks legal authority to install and monitor

a   GPS-enabled        tracking      device,       then       it    can        get     the      same

information by securing locational data from OnStar, Lojac, a

cellular phone provider, or any number of ‘apps’ that gather and

use locational information as part of their services.” (emphasis

added)).

       This is not a case like Hoffa, where a person assumes the

risk    that     an     associate      or      confidante          will        disclose           her

communications to law enforcement, see 385 U.S. at 302-03; nor

is this a case like Miller, where a person assumes the risk that

a   bank    will       disclose      her     financial          transactions               to     the

government,      see     425    U.S.    at     443.     Cell       phone       users       do     not

actively    or    knowingly       communicate           or    “trade”      their        location

information       to     their       service      providers          as        part        of     the

consideration for the services provided, to say nothing of the

                                             50
documentation of such information in reproducible formats. That

this    information           winds     up    in     the     provider’s        hands     as    a

consequence       of     how       cellular    networks       function      does    not       and

should not affect cell phone users’ reasonable expectations of

privacy     in    this      information         or    society’s       respect      for    that

expectation.

                                               c.

       Courts     have      recognized        that    not    all    private     information

entrusted to third-party providers of communications services is

subject to warrantless government inspection. As far back as

1877, the Supreme Court recognized Fourth Amendment protection

against warrantless inspection of the contents of mail entrusted

to the postal service for delivery. Ex parte Jackson, 96 U.S.

727,    733      (1877).       In     so     holding,       the     Court   recognized          a

distinction between, on one hand, protected matter “intended to

be   kept     free     from    inspection,          such    as     letters[]    and      sealed

packages[,]”         and,      on     the     other        hand,     unprotected         matter

“purposefully left in a condition to be examined” as well as the

“outward form and weight” of sealed articles. Id.

       The Court continued to recognize this distinction 90 years

later in Katz: “What a person knowingly exposes to the public,

even in his own home or office, is not a subject of Fourth

Amendment protection. . . . But what he seeks to preserve as

private,      even     in     an    area     accessible      to     the   public,      may     be

                                               51
constitutionally          protected.”          389       U.S.    at        351-52       (citations

omitted). Katz involved a Fourth Amendment challenge to use of

an    electronic       recording       device         attached    to       the       outside       of    a

public      phone     booth    that       recorded       the    petitioner’s            side       of    a

phone conversation. Id. at 348-49. Applying the principle that

the    Fourth       Amendment       protects      that       which     a       person    “seeks         to

preserve as private,” id. at 351, the Court held that “[o]ne who

occupies [a public phone booth], shuts the door behind him, and

pays    the     toll    that     permits       him      to     place       a    call     is    surely

entitled to assume that the words he utters into the mouthpiece

will not be broadcast to the world[,]” id. at 352. Although

shutting       the     door    to    the    phone        booth    proved             inadequate         to

prevent the petitioner’s private words from being overheard, and

indeed would have been inadequate to prevent monitoring by the

phone    company,       the    petitioner          demonstrated            an    expectation            of

privacy society would accept as reasonable. See Smith, 442 U.S.

at    746-47    (Stewart,        J.,      dissenting);          Katz,          389    U.S.    at    361

(Harlan, J., concurring).

       In     the    current     digital         age,     courts       continue          to    accord

Fourth       Amendment        protection           to     information                entrusted          to

communications intermediaries but intended to remain private and

free     from        inspection.          Courts        have,     for          example,        deemed

government          inspection       of    the     contents          of        emails    a     Fourth

Amendment search but have declined to do the same for email

                                                 52
address     information       used    to     transmit      emails.         Compare     United

States v. Warshak, 631 F.3d 266, 287-88 (6th Cir. 2010) (holding

that email subscribers enjoy a reasonable expectation of privacy

in   the    content    of    their    emails       even   though       such      content   is

accessible to Internet service providers), with United States v.

Forrester,     512    F.3d     500,    510    (9th      Cir.       2008)    (holding    that

government surveillance of a computer to discover email address

information, IP addresses, and amount of data transmitted by

email does not constitute a Fourth Amendment search).

      The    dissent     argues      essentially         that,      like    the    forms   of

address      information      at     issue    in       Forrester,         CSLI    is   simply

information      that       facilitates       the      routing       of     communications

rather than protected content, and on this basis distinguishes

cases like Warshak. Post at 124. CSLI is of course more than

simple      routing    information;        it     tracks       a    cell     phone     user’s

location     across     specific      points      in    time. 18     And    as    previously



      18The dissent argues that types of information deemed
unworthy of Fourth Amendment protection “‘track[]’ some form of
activity when aggregated over time.” Post at 125. To be sure, we
do not hold that a person may claim Fourth Amendment protection
for records of just any type of information that happens to
disclose a location, i.e., her location when she deposits an
article of mail or engages in a credit card transaction. We do
hold that a person may claim protection for her long-term CSLI
because this information may track practically all of the
movements a person makes over an extended period of time. This
feature sets CSLI apart from the various sorts of address and
routing information cited in the dissent.



                                             53
noted,     cell     phone    users    generally      consider      their     location

information no less sensitive than the contents of emails and

phone calls. 19 Like a user of web-based email who intends to

maintain the privacy of her messages, however, there is nothing

the typical cell phone user can do to hide information about her

location     from    her    service   provider. 20     In   the    absence    of   any

evidence that Appellants or cell phone users generally intend

for   their    location      information     to   be   open   to    inspection      by

others, we cannot treat the fact that CSLI is used to route

communications and is recorded by intermediaries as dispositive

of Appellants’ claim of Fourth Amendment protection for this

information.

                                        d.

      Our review of well settled Fourth Amendment jurisprudence

teaches us that, even as technology evolves, protections against

government intrusion should remain consistent with those privacy

expectations society deems reasonable. See, e.g., United States


      19   See supra note 4.
      20It seems that, here, Appellants took what little action
was possible that might have concealed their personal location
information from their service provider. Graham’s service was
subscribed in his wife’s name, and Jordan used an alias or proxy
on his account, although the record does not indicate that these
actions were taken specifically to protect Appellants’ privacy
interests.




                                        54
v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S.

297,    312      (1972)    (“There     is,     understandably,    a   deep-seated

uneasiness       and    apprehension    that    [government’s    capability     for

electronic surveillance] will be used to intrude upon cherished

privacy of law-abiding citizens.”); Berger v. State of N.Y., 388

U.S. 41, 62 (1967) (“‘[T]he fantastic advances in the field of

electronic       communication       constitute     a   great    danger    to   the

privacy of the individual; . . . indiscriminate use of such

devices in law enforcement raises grave constitutional questions

under the Fourth and Fifth Amendments . . . .’”) (quoting Lopez,

373 U.S. at 1389 (Warren, C.J., concurring in the result)). That

is   not    to    say   that   societal      expectations   of   privacy    cannot

change over time, but the advent of new technology alone – even

major technological advances – is not a sufficient basis upon

which to infer an equally dramatic shift in people’s privacy

expectations. 21


       21
        In Smith, for instance, the Supreme Court rejected the
notion that different constitutional rules should apply to
different technological means of engaging in the same form of
communication, lest “a crazy quilt” be made of the Fourth
Amendment. 442 U.S. at 745. Just as a caller could claim no
legitimate expectation of privacy in telephone connections made
personally by an operator, Smith could claim no privacy
expectation in numbers he dialed to connect his calls through
the phone company’s automatic switching equipment. Id. at 744.
Smith, in this way, reflects the principle that the use of new
technology to hide from view what would otherwise be exposed
cannot by itself expand Fourth Amendment rights where none would
otherwise exist.
(Continued)
                                          55
      It turns out that the proliferation of cellular networks

has   left      service     providers    with        a     continuing       stream    of

increasingly       precise    information       about          the    locations       and

movements of network users. Prior to this development, people

generally had no cause for concern that their movements could be

tracked    to   this   extent.    That   new    technology           has   happened   to

generate     and   permit    retention    of    this       information      cannot    by

itself displace our reasonable privacy expectations; nor can it

justify inspection of this information by the government in the

absence of judicially determined probable cause.

      Courts and commentators have for years begun to acknowledge

the   increasing       tension,   wrought       by       our    technological        age,

between      the   third-party     doctrine          and       the   primacy    Fourth

Amendment doctrine grants our society’s expectations of privacy.



     The natural corollary to this principle is that a
technological advance alone cannot constrict Fourth Amendment
protection for private matters that would otherwise be hidden or
inaccessible. Confronting the question of “what limits there are
upon [the] power of technology to shrink the realm of guaranteed
privacy” in Kyllo, 533 U.S. at 34, Justice Scalia concluded for
the majority that the use of new technology “to explore details
of the home that would previously have been unknowable without
physical intrusion” constitutes a search, id. at 40. “This
assures   preservation  of  that   degree  of   privacy  against
government that existed when the Fourth Amendment was adopted.”
Id. at 34. As one prominent commentator explained, the Fourth
Amendment not only “permit[s] access to that which technology
hides” but also “protect[s] that which technology exposes.” Orin
S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L.
Rev. 561, 580 (2009).



                                         56
In her concurring opinion in Jones, Justice Sotomayor declared

the assumption that people lack reasonable privacy expectations

in information held by third parties “ill suited to the digital

age, in which people reveal a great deal of information about

themselves     to    third     parties       in    the     course    of    carrying      out

mundane   tasks.”          Jones,   132      S.   Ct.    at    957     (Sotomayor,       J.,

concurring).

       It is concerning that now, during a time and context in

which the viability of the third-party doctrine, “the Lochner of

search and seizure law,” Orin S. Kerr, The Case for the Third-

Party   Doctrine,      107    Mich.     L.     Rev.   561,     563   (2009)         (footnote

omitted),      has    never     been      in      graver      doubt,      the    dissent’s

treatment      of    the    doctrine      would       expand    it     into     a     full-on

exception to the legitimate-expectation-of-privacy inquiry. Post

at 133. Our dissenting colleague reads into Miller and Smith a

rule    that    would        preclude        virtually        any    Fourth      Amendment

challenge against government inspection of third-party records.

But just a few years ago, writing for the Court in Bynum, our

dissenting      colleague      rightly        declared      that     the    question      of

whether an individual has a reasonable expectation of privacy in

a matter searched is “[t]he ‘touchstone’ of Fourth Amendment

analysis[.]” 604 F.3d 164 (citation omitted). Contrary to her

current views, the third-party doctrine was not devised to side-

step    this    question;       rather,        the      doctrine     aids       the    court

                                             57
precisely in deciding whether certain privacy expectations are

reasonable by societal standards. See Smith, 442 U.S. at 743-44;

Bynum, 604 F.3d at 164; (Quartavious) Davis, 785 F.3d at 527

(Rosenbaum, J., concurring) (“Supreme Court precedent fairly may

be   read       to    suggest       that       the       third-party        doctrine       must    be

subordinate          to     expectations             of     privacy        that     society       has

historically recognized as reasonable.”). Smith and Miller do

not endorse blind application of the doctrine in cases where

information          in     which     there       are       clearly        reasonable       privacy

expectations is generated and recorded by a third party through

an accident of technology. The third-party doctrine is intended

to delimit Fourth Amendment protections where privacy claims are

not reasonable - not to diminish Fourth Amendment protections

where new technology provides new means for acquiring private

information. See Orin S. Kerr, An Equilibrium-Adjustment Theory

of   the    Fourth        Amendment,       125       Harv.      L.   Rev.    476,     527    (2011)

(“[I]f      a    new      technology           permits       the     government       to    access

information          that    it     previously            could      not    access    without      a

warrant, using techniques not regulated under preexisting rules

that predate that technology, the effect will be that the Fourth

Amendment matters less and less over time.”).

                                  *        *         *      *        *

      For       these     reasons,       we     decline         to   apply    the     third-party

doctrine        here      and     hold     that          Appellants        have   a   reasonable

                                                  58
expectation of privacy in their long-term CSLI. 22 Specifically,

we conclude that the government’s procurement and inspection of

Appellants’ historical CSLI was a search, and the government

violated Appellants’ Fourth Amendment rights by engaging in this

search    without    first   securing    a   judicial   warrant   based   on

probable cause. 23     If the Twenty-First Century Fourth Amendment

is to be a shrunken one, as the dissent proposes, we should



     22  Echoing the sentiments of the Fifth and Eleventh
Circuits, the dissent suggests that any privacy concerns raised
by the government’s warrantless acquisition of CSLI should be
presented to Congress and addressed legislatively, rather than
to the courts for constitutional protection. Post at 131-33. We
think the same argument might be made in any case in which a new
technological means or investigative practice is employed to
obtain personal information and the court must decide the Katz
question. In each of these cases, the court is tasked with
making an assessment of what privacy interests society might
deem reasonable. This is a task for which one might argue the
legislative branch is suited, but one that is, as a matter of
constitutional interpretation, nonetheless imposed upon the
courts. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
(1803) (“It is emphatically the province and duty of the
judicial department to say what the law is.”).
     23 Moving beyond her theoretical objections to our holding,
our dissenting colleague declares the holding “bizarre in
practice,” citing the fact that the cell service records
admitted in this case included not just CSLI but also
information we have not deemed Fourth Amendment protected. Post
at 126. The § 2703(d) orders in this case specifically requested
the CSLI associated with Appellants’ cell service accounts.
After today’s holding, the government will need to secure a
warrant for this information. This requirement would not affect
whether, in response to such a warrant, the service provider
produces records that include information for which a warrant is
not specifically required. It is unclear to us what makes this
practice “bizarre.”



                                    59
leave that solemn task to our superiors in the majestic building

on First Street and not presume to complete the task ourselves.

                                            D.

        Although     we     conclude        that     the     government         violated

Appellants’       Fourth    Amendment       rights    in    procuring      their   CSLI

without a warrant based on probable cause, the records were not

subject to suppression because the government acted in good-

faith reliance on court orders issued under the SCA.

       “The       exclusionary        rule         ‘generally       prohibits          the

introduction at criminal trial of evidence obtained in violation

of a defendant’s Fourth Amendment rights[.]’” United States v.

Stephens, 764 F.3d 327, 335 (4th Cir. 2014) (quoting Pa. Bd. of

Prob. & Parole v. Scott, 524 U.S. 357, 359 (1998)). But our

system of justice and society at large incur “‘heavy costs’”

when     courts    are     required     to       disregard    reliable      evidence,

“‘suppress the truth’” about criminal conduct, and release to

the    community    a     criminal    who    might    otherwise      be    subject      to

imprisonment. Id. (quoting (Willie Gene) Davis v. United States,

131    S.   Ct.    2419,    2427     (2011)).      Considering      that   the     “sole

purpose” of the exclusionary rule “is to deter future Fourth

Amendment     violations[,]”         (Willie     Gene)     Davis,   131    S.    Ct.    at

2426, courts apply the rule to exclude evidence only where the

benefits of deterrence outweigh the costs of suppression, id. at

2427.

                                            60
       In assessing the deterrent value of suppression, our focus

is properly placed on culpable police conduct and not on the

actions of legislators and judicial officers. Id. at 2432-33.

Where    law    enforcement        acts     “with        an     objectively            ‘reasonable

good-faith belief’ that their conduct is lawful,” there is no

need    for    deterrence        sufficient         to    justify          the    exclusion         of

reliable evidence. Id. at 2427 (quoting United States v. Leon,

468    U.S.    897,     909    (1984)).     This     good-faith            exception         to    the

exclusionary       rule        applies    where          law    enforcement             reasonably

relies on (1) an enacted statute, unless that statute is clearly

unconstitutional,             Illinois    v.     Krull,         480     U.S.       340,       349-50

(1987); (2) a search warrant or other court order issued by a

neutral       magistrate,       unless    issuance         of    the       order       is    clearly

defective,       Leon,    468     U.S.    at     922-23,         926;      or     (3)       “binding

appellate precedent,” (Willie Gene) Davis, 131 S. Ct. at 2429.

       Here,     the     government         is      entitled          to     the        good-faith

exception because, in seeking Appellants’ CSLI, the government

relied on the procedures established in the SCA and on two court

orders issued by magistrate judges in accordance with the SCA.

The    government’s       first     §    2703(d)         application         requested            data

regarding       calls    and     messages      to    and       from    Appellants’            phones

during    four        time      periods     and          described          robberies          under

investigation that occurred during some of those time periods.

After    learning       about    other    similar         robberies,             the    government

                                               61
submitted a second application to request records for the much

broader 221-day time frame. The second application included the

same    facts    provided           in    the        first     application         but       added

descriptions       of        additional         robberies         under        investigation.

Appellants do not claim that the government was “dishonest or

reckless” in preparing either application. Leon, 468 U.S. at

926.     Upon     consideration             of        each     of        the     government’s

applications,       two       magistrate         judges      of     the    district           court

respectively issued § 2703(d) orders to Sprint/Nextel for the

disclosure of Appellants’ account records. There is nothing in

the record to suggest that either magistrate “abandoned” her or

his    “detached    and       neutral”       role       such      that    a     well        trained

officer’s reliance on either order would have been unreasonable.

Id.

       Appellants       do    not    attack      the     facial     validity           of    the    §

2703(d) orders. Instead, they argue that the government cannot

reasonably rely on the § 2703 orders because, in offering law

enforcement a choice between seeking a warrant and a § 2703(d)

court    order     to     obtain         subscriber       records,        the     statute          is

internally      inconsistent.            Appellants       point     out        that,    while       a

warrant requires a showing of probable cause, a § 2703(d) order




                                                62
requires a significantly lesser showing – a standard akin to

reasonable suspicion. 24

       We find no “inherent contradiction on the face of the SCA.”

Appellants’      Br.    46.     Section    2703(c)       unambiguously      offers     law

enforcement a choice between specific avenues to obtain records

from        service     providers.        “Unless        a     statute     is    clearly

unconstitutional, an officer cannot be expected to question the

judgment of the legislature that passed the law.” Krull, 480

U.S.    at    349-50.    That    the    statute     provides       options      that   set

different requirements on law enforcement does not amount to a

contradiction or render the statute facially unconstitutional.

       Appellants       argue    next     that   the     SCA     cannot    justify     the

government’s      unconstitutional         use     of    discretion       granted   under

the statute to seek a § 2703(d) court order instead of a warrant

for    historical      CSLI.    Citing     State    v.       Thompson,    810   P.2d   415

(Utah 1991), Appellants argue that the good-faith exception is

       24
        Appellants cite In re Application (Third Circuit),
wherein the Third Circuit reviewed a district court’s denial of
§ 2703(d) applications for CSLI. 620 F.3d at 305-06. In seeking
to determine whether a magistrate has authority under the
statute to deny an application that satisfies the requirements
of § 2703(d), the court stated, “There is an inherent
contradiction in the statute or at least an underlying
omission.” Id. at 319. The court did not specifically identify
any contradiction in the statute. We presume that the court’s
comment is based on the statute’s lack of clarity as to the
scope of the magistrate’s discretion to grant or deny § 2703(d)
applications. That does not appear to be the “inherent
contradiction” upon which Appellants rely.



                                           63
inapplicable where a prosecutor fails to exercise a statutory

grant of discretionary power within constitutional bounds. In a

related case prior to Thompson, the Supreme Court of Utah had

determined that issuance and use of certain subpoenas by the

state attorney general under Utah’s Subpoena Powers Act violated

the Utah Constitution in several respects for which the attorney

general was responsible. In re Criminal Investigation, 7th Dist.

Ct.    No.   CS-1,   754   P.2d    633,    658-59   (Utah     1988),    cited   in

Thompson, 810 P.2d at 146. In Thompson, the court determined

that “a good faith exception [to Utah’s exclusionary rule] . . .

would be inapplicable to illegal subpoenas issued . . . by the

attorney general, who is chargeable for the illegality[,]” and

therefore evidence obtained through use of the illegal subpoenas

was subject to suppression. 810 P.2d at 420. The constitutional

defects in the issuance and use of the subpoenas were clear

enough for the attorney general to concede that the Subpoena

Powers Act had been unconstitutionally applied. See id. at 639,

658.

       The constitutionally infirm decision of the prosecution in

the present case to seek § 2703(d) orders instead of warrants

was not so clear, at least not prior to today’s decision. Prior

to our ruling today, neither this Court nor the U.S. Supreme

Court    had   deemed      the    government’s      conduct     in     this   case

unconstitutional.

                                          64
     We     agree     with    Appellants         that,   when       in    doubt,   the

government      should       “err    on     the     side      of     constitutional

behavior[.]” Leon, 468 U.S. at 926 (Brennan, J., dissenting).

And we recognize that, at the time the government obtained the

CSLI at issue here, court rulings outside of this Circuit were

in   conflict    as    to    the    constitutionality         of    obtaining      this

information without a warrant. But the government’s conduct in

this case was not governed by disagreements among a handful of

courts    outside     this    Circuit,      and     there     was    no    decisional

authority in this Circuit suggesting that the choice presented

in § 2703(c) was unconstitutional as applied to CSLI from cell

phone     service     providers.     We     conclude,       therefore,      that    the

government reasonably relied on the SCA in exercising its option

to seek a § 2703(d) order rather than a warrant. The good-faith

exception applies. 25 We affirm denial of Appellants’ motion to

suppress.

                                          III.

      Appellants appeal the district court’s admission of certain

testimony of Jeff Strohm, records custodian for Sprint/Nextel,



     25Now that we have determined that law enforcement violates
the Fourth Amendment when it acts without a warrant to obtain an
individual’s long-term CSLI, its choice under § 2703(c) is
constrained. The government may no longer rely on the statute to
justify an election not to secure a warrant for this
information.



                                           65
and Special Agent Colin Simons of the FBI, arguing that portions

constitute expert testimony in the guise of lay opinion.

      As    previously        stated,     we    review     the     district     court’s

evidentiary rulings for abuse of discretion. United States v.

Johnson, 617 F.3d 286, 292 (4th Cir. 2010). “A district court

has   abused      its    discretion       if    its     decision    ‘is      guided    by

erroneous legal principles’ or ‘rests upon a clearly erroneous

factual finding.’” Morris v. Wachovia Sec., Inc., 448 F.3d 268,

277 (4th Cir. 2006) (quoting Westberry v. Gislaved Gummi AB, 178

F.3d 257, 261 (4th Cir. 1999)). If we find such an abuse of

discretion,       we    review    it    under     the    harmless-error        standard

stated in Rule 52(a) of the Federal Rules of Criminal Procedure.

Johnson, 617 F.3d at 292. We find the district court’s error

harmless if we can “say with fair assurance, after pondering all

that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the

error.” Id. (quoting United States v. Brooks, 111 F.3d 365, 371

(4th Cir. 1997)) (internal quotation marks omitted).

      For   the     reasons      explained      below,    we     find   no     abuse   of

discretion     in       the    district        court’s    admission       of    Simons’

testimony and portions of Strohm’s testimony. Insofar as the

court erred in admitting other portions of Strohm’s testimony as

that of a lay witness, we find such error harmless.

                                           A.

                                           66
      The admission of expert testimony is governed by Rule 702

of the Federal Rules of Evidence, which permits one “who is

qualified         as    an    expert”        to   offer     at   trial      opinion    testimony

based        on        “scientific,           technical,          or     other     specialized

knowledge.” Prior to admitting any expert testimony, the trial

judge     must         act     as     a     gatekeeper,         conducting     a   preliminary

assessment of whether the expert’s proffered testimony is both

relevant and reliable. Kumho Tire Co. v. Carmichael, 526 U.S.

137, 149 (1999) (citing Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579, 592 (1993)).

      Under Rule 701, lay witnesses are “‘not permit[ted] . . .

to express an opinion as to matters which are beyond the realm

of common experience and which require the special skill and

knowledge         of     an        expert    witness.’”          Certain     Underwriters    at

Lloyd’s, London v. Sinkovich, 232 F.3d 200, 203 (4th Cir. 2000)

(quoting Randolph v. Collectramatic, Inc., 590 F.2d 844, 846

(10th    Cir.      1979)).          “At     bottom,     .   .    .   Rule    701   forbids   the

admission of expert testimony dressed in lay witness clothing,

but     it    ‘does          not     interdict      all     inference        drawing    by   lay

witnesses.’” United States v. Perkins, 470 F.3d 150, 156 (4th

Cir. 2006) (quoting United States v. Santos, 201 F.3d 953, 963

(7th Cir. 2000)).

                                                   B.



                                                   67
     Appellants challenge Strohm’s testimony regarding how cell

phones   connect         with    cell   sites      and     the   operations            and   radio

frequency range of cell sites. Strohm testified that, in seeking

or receiving a connection to the cellular network, a cell phone

connects to the cell tower emitting the strongest signal, and

that cell sites in urban areas have a two-mile maximum range of

connectivity. He testified further that, aside from proximity,

factors such as line of sight and volume of call traffic may

affect the ability of a particular cell tower to connect to a

phone, but, in any case, the phone must be located within two

miles    of   any       cell    tower   in   the     Baltimore         area       in   order    to

connect to it.

     Strohm’s          testimony    that     signal      strength       determines           which

cell tower will connect to a phone and that cell towers in urban

areas    have      a    two-mile    maximum        range    of    operability           was    not

opinion testimony. These statements were not conclusions Strohm

drew based on any specialized reasoning or assessment, and were

not presented in the form of an opinion or inference. They were

facts    based          on     Strohm’s      experience          as     an        employee     of

Sprint/Nextel.          Indeed,    at     trial,    defense       counsel         specifically

declined      to       challenge   Strohm’s        testimony          that    a    cell      phone

connects to the tower emitting the strongest signal. Strohm’s

testimony as to cell sites’ range of operability required no

greater than the same minimal technical knowledge. The district

                                              68
court did not abuse its discretion in admitting this testimony

by a lay witness.

     Similarly,       Strohm’s           testimony       that     factors          including

proximity, line of sight, and call traffic may affect a phone’s

ability to connect to a particular cell tower did not rise to

the level of an expert opinion. Strohm did not, for instance,

engage   in    any    analysis        comparing        the      factors       or    seek   to

determine     how     these        factors       resulted        in     any        particular

connection, which would have required scientific, technical, or

specialized knowledge. He merely presented the fact that these

factors exist, which prevented the jury from being misled into

believing that signal strength is a matter of proximity alone or

that a cell phone will always connect to the nearest tower.

     Even     if    the     district       court       abused     its     discretion       in

admitting Strohm’s testimony about these factors, any such error

was harmless. The government’s evidence as to the locations of

Appellants’    cell       phones    at    various      points     in    time       was   based

solely   on    the        locations       of     the     cell     towers       listed      in

Sprint/Nextel’s records and each tower’s two-mile maximum range

of operability. In order for Appellants’ cell phones to connect

to the towers listed in Sprint/Nextel’s records, they had to

have been located within two miles of the listed towers, even if

line of sight or call traffic affected which cell sites within

two miles ultimately connected to the phones. The mere fact that

                                            69
these    factors       exist,      therefore,        could    not     have       substantially

affected the jury’s assessment of the government’s evidence and

the resultant verdict.

     The admission of other aspects of Strohm’s lay testimony is

more concerning. Strohm provided explanations of how cell phones

connect    to    a     cellular        network       for    the    completion       of    calls,

going,    at     times,         into     technical         details        about    operations

performed by cell sites and how calls are routed through network

switches.       Such     testimony       was     clearly          “based    on    scientific,

technical, or specialized knowledge within the scope of Rule

702.” Fed. R. Evid. 701(c); see also United States v. Yeley-

Davis,    632        F.3d   673,       684     (10th       Cir.    2011)       (“The     agent’s

testimony concerning how cell phone towers operate constituted

expert testimony because it involved specialized knowledge not

readily accessible to any ordinary person.”); United States v.

Evans, 892 F. Supp. 2d 949, 954 (N.D. Ill. 2012) (holding that

testimony       as     to   “how       cellular       networks       operate,      i.e.,    the

process    by    which      a    cell        phone    connects       to    a     given   tower”

requires an expert qualified to “meet the demands of Rule 702

and Daubert”).

     We conclude, however, that any error in the admission of

this testimony was harmless. The technical aspects of how cell

phone calls are completed have little to do with establishing

the location of a cell phone based on cell site information. All

                                                70
that really matters is that the cell site had a particular range

of connectivity and that the phone connected to a cell site at a

particular      time    –    facts     established   through      Sprint/Nextel’s

records and admissible portions of Strohm’s testimony.

                                          C.

        Appellants     challenge     testimony    offered    by    Agent   Simons

regarding his creation of maps based on the CSLI disclosed by

Sprint/Nextel. The maps plot the locations of certain cell sites

listed in the CSLI records, the business establishments robbed,

and Jordan’s apartment. The maps also identify the dates and

times of inbound and outbound calls made by Appellants’ phones

through the plotted cell sites.

     Simons’ testimony did not amount to an expert opinion. To

create    the   maps,       Simons   utilized    mapping    software    that   was

marketed to the general public and required little more than

identification of the various locations he intended to plot. He

entered the locations of the businesses and Jordan’s apartment

by their physical addresses and the cell sites by latitude and

longitude, as disclosed by Sprint/Nextel. The minimal technical

knowledge or skill required to complete this task was not so

“specialized” as to constitute a matter of expertise within the

meaning of Rule 702. See United States v. Henderson, 564 F.

App’x    352,   364    (10th    Cir.    2014)   (unpublished)      (holding    that

agent’s testimony regarding review of cell phone records and

                                          71
creation     of    map    of     cell   tower     locations     “did    not     require

expertise”). The district court did not abuse its discretion in

admitting Simons’ testimony.

                                           IV.

       Jordan appeals the district court’s decision to set certain

restrictions on his testimony, arguing that these restrictions

infringed upon his constitutional right to testify in his own

defense. We review the district court’s evidentiary rulings for

abuse of discretion but review constitutional questions de novo.

United States v. Dinkins, 691 F.3d 358, 382 (4th Cir. 2012). We

find   no   constitutional         error    or    abuse   of    discretion      in   the

challenged restrictions.

                                           A.

       A criminal defendant has a constitutional right to testify

on her own behalf derived from the compulsory process clause of

the Sixth Amendment and the due process clause of the Fourteenth

Amendment.     Rock      v.    Arkansas,   483    U.S.    44,   52    (1987);    United

States v. Midgett, 342 F.3d 321, 325 (4th Cir. 2003). The right

to testify is not absolute, however, and “‘may, in appropriate

cases,   bow      to   accommodate      other     legitimate      interests     in   the

criminal trial process.’” Rock, 483 U.S. at 55 (quoting Chambers

v.   Mississippi,        410    U.S.    284,     295   (1973)).      This   Court    has

previously held, for instance, that “criminal defendants do not

have a right to present evidence that the district court, in its

                                           72
discretion, deems irrelevant or immaterial.” United States v.

Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003); see also Taylor

v. Illinois, 484 U.S. 400, 410 (1988) (holding that compulsory

process clause does not give defendant “an unfettered right to

offer testimony that is incompetent, privileged, or otherwise

inadmissible        under    standard     rules    of     evidence”);    Montana    v.

Egelhoff, 518 U.S. 37, 42 (1996) (applying same rule in due

process context).

       The defendant exercising her right to testify “must comply

with established rules of procedure and evidence designed to

assure both fairness and reliability in the ascertainment of

guilt and innocence.” Chambers, 410 U.S. at 302. Thus, under

Rule    403    of    the    Federal     Rules     of     Evidence,   even      relevant

testimony by the defendant “may be excluded if its probative

value    is    substantially        outweighed      by    the   danger    of    unfair

prejudice, confusion of the issues, or misleading the jury[.]”

                                          B.

        The   district      court   set   certain       restrictions     on    Jordan’s

testimony to prevent unfair prejudice to Graham. Specifically,

Jordan was precluded from




                                          73
                                                                 .

      Jordan did not object to these restrictions at trial, so

any   error    committed       by    the   district    court    in   imposing     the

restrictions is subject to plain-error review. United States v.

Godwin, 272 F.3d 659, 672 (4th Cir. 2001); see also Fed. R.

Crim. P. 52(b). We will reverse only upon a showing by Jordan

that an error by the district court was “clear or obvious[,]”

affected Jordan’s substantial rights, and “‘seriously affect[s]

the   fairness,       integrity       or    public     reputation    of     judicial

proceedings.’” Godwin, 272 F.3d at 672-73 (quoting United States

v. Olano, 507 U.S. 725, 732 (1993)).

                                           C.

      We find no constitutional error in the restrictions the

district      court    placed        on    Jordan’s    testimony     because       the

restrictions     did    not    prevent      Jordan     from    presenting    a    full

narrative in his defense. Jordan was permitted to testify – and

did   indeed    testify    –    as    follows:    In    late    January   or     early

February of 2011, Graham and a group of friends began coming to

Jordan’s home on a regular basis. Jordan would socialize with

them “for a little while” before asking them to leave because “I

don’t live like they live[.]” J.A. 2303. Friends of Graham were

at Jordan’s apartment on the morning of February 5, 2011, and

                                           74
Graham arrived later. After Jordan and Graham visited a liquor

store together, Graham dropped Jordan off at his home, and then

Jordan went to visit his aunt’s home on the 300 block of North

Stricker          Street        in     Baltimore.         Graham     came   through       the

neighborhood,             and    Jordan         arranged     for     him    to    meet    an

unidentified person to “do their little business.” J.A. 2310.

When Graham returned to Jordan, he asked Jordan to take him to a

Wal-Mart          store    to    purchase        a    television     set.   Jordan      drove

Graham’s truck and was eventually stopped by police, and the two

were arrested. When asked about the weapons recovered from his

home after his arrest, Jordan testified that he did not know how

they    got       there    but       believed    that     Graham’s    friends    left    them

there. 26

       Jordan argues that the court’s restrictions prevented him

from explaining the basis of his association with Graham. He

avers that a full account of his relationship with Graham would

have shown that they were together and communicated at certain

times       for    reasons       other    than       to   commit   robberies.    The     only

alternative explanation disclosed in Jordan’s brief is that




       26
        Specifically, Jordan stated, “I think the day I let his
home boys stay [in my house], they left them in there.” J.A.
2314. Viewed in context, the statement implicitly referred to
Graham. The court admonished Jordan for this statement,
instructing him “to confine [his] remarks to what [he] did.” Id.



                                                 75
                      . Jordan also sought to testify that,




                                          .

      The restrictions imposed by the district court were not

arbitrary but were appropriately tailored to suit their purpose

in preventing unfair prejudice to Graham. Testimony that




                                                    had the potential to

prejudice Graham while bearing no real exculpatory value for

Jordan. Specifically naming Graham and his associates would have

had   minimal   probative   value   in   Jordan’s   favor.   The   district

court did not abuse its discretion in determining that the risk

of unfair prejudice to Graham outweighed the probative value of

any of this testimony. See Fed. R. Evid. 403.

                                    D.

      Jordan argues that testimony about

       would have explained a prior inconsistent statement the

government used to impeach him.




                                    76
                                                         The cell phone records

obtained by the government disproved this version of events,

showing    that    the   last     call   Graham      made   to    Jordan    was   much

earlier    that    afternoon       and   then    both    Jordan’s     and    Graham’s

phones    were    near     each    other,      but   several      miles    away   from

Jordan’s apartment.

     Jordan’s initial version of events also contradicted his

testimony at trial, wherein he stated that Graham picked him up

from Stricker Street to ask for a ride – not from his home. When

confronted by the inconsistent statement made to authorities,

Jordan admitted that he had lied, but stated that he did so

because he was “scared.” J.A. 2314, 2343. Jordan avers that his

initial account was not accurate because he was afraid to inform

the authorities about

                            .     However,      Jordan      was    precluded      from

explaining the basis for his fear at trial due to the court’s

restriction       against       testifying     about                                 .

During    its    closing    argument,     the    government       disputed    whether

Jordan’s purported fear was the reason for the lies he told

authorities, stating to the jury, “he didn’t mislead the police

                                          77
because he was afraid. He misled the police to get away with

what he had done.” J.A. 2444.

     We     agree     with     Jordan    that,      in     the    context        of     the

government’s       efforts     to     impeach    him,     it     was     an     abuse    of

discretion for the court to prevent Jordan from rebutting these

efforts through a full explanation of his prior inconsistent

statement.    Jordan’s       counsel,    however,        did    not    object     to    the

restriction and thus forfeited the issue. The forfeited error

only warrants reversal if it was “clear or obvious” and affected

Jordan’s substantial rights. Godwin, 272 F.3d at 672. Absent an

objection    that    would     have    brought    the     issue    to    the     district

court’s   attention,         the    court’s     abuse    of    discretion        was    not

“clear or obvious.”

     Further, Jordan fails to show that the error affected his

substantial        rights.     At     trial,      the     government           introduced

substantial    evidence       tending    to     disprove       Jordan’s       version    of

events.     Such    evidence        included     data    from     test        drives    and

Computer Aided Dispatch (“CAD”) reports showing that it would

not have been possible for Graham to have picked Jordan up from

the 300 block of North Stricker Street during the brief time

period between the McDonald’s robbery and the point at which

Jordan and Graham were apprehended by Baltimore police. On this

record, we cannot conclude that the government’s impeachment of



                                          78
Jordan by prior inconsistent statement was necessary for the

jury to determine that Jordan’s version of events was untrue.

     In sum, Jordan fails to show that the restriction against

testimony about

                   on the date of the Burger King and McDonald’s

robberies was plain error. 27 We affirm.

                                    V.

     Jordan appeals the district court’s denial of his motion

for severance, arguing that the joint trial of him and Graham

compromised his right to testify fully in his own defense. “We

review a district court’s denial of a motion for severance for

an abuse of discretion.” United States v. Lighty, 616 F.3d 321,

348 (4th Cir. 2010) (citation omitted). The district court has

“broad    discretion”   to   deny   a   motion   for   severance.   Id.   To

     27Based on the apparent agreement between Jordan’s counsel,
the government, and the district court about the restrictions on
Jordan’s testimony, the government argues that Jordan waived the
issue and that even plain-error review is not warranted. See
Olano, 507 U.S. at 733 (“Waiver is different from forfeiture.
Whereas forfeiture is the failure to make the timely assertion
of a right, waiver is the ‘intentional relinquishment or
abandonment of a known right.’”) (citation omitted). Jordan
argues   that    the   restriction   implicated   his   personal
constitutional right to testify in his own defense, which cannot
be waived by defense counsel or the court. United States v.
Flores-Martinez, 677 F.3d 699, 711 (5th Cir. 2012); United
States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992); see also
Midgett, 342 F.3d at 327 (agreement between court and defense
counsel did not effect waiver of defendant’s constitutional
right to testify). We need not decide whether Jordan waived the
issue because there is no plain error.



                                    79
establish abuse of discretion, “a defendant must show that he

was prejudiced by the denial of a severance motion . . . .”                                  Id.

(citation omitted).

       Under Rule 8(b) of the Federal Rules of Criminal Procedure,

multiple defendants “may be charged in the same indictment if

they   are   alleged        to   have        ‘participated         in    the   same    act   or

transaction,    or     in    the       same    series      of     acts    or   transactions,

constituting      an    offense        or     offenses.’”         Id.    (quoting     Fed.    R.

Crim. P. 8(b)). “There is a preference in the federal system for

joint trials of defendants who are indicted together[]” because

such   trials   “promote         efficiency          and     ‘serve      the   interests      of

justice by avoiding the scandal and inequity of inconsistent

verdicts.’” Zafiro v. United States, 506 U.S. 534, 537 (1993)

(quoting     Richardson          v.    Marsh,       481     U.S.      200,     210    (1987)).

“Accordingly, severance under Rule 14 is only warranted when

‘there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the

jury from making a reliable judgment about guilt or innocence.’”

United   States    v.    Najjar,         300       F.3d    466,    473    (4th   Cir.    2002)

(quoting     Zafiro,     506          U.S.    at     539).      The      defendant     seeking

severance must show “‘that actual prejudice would result from a

joint trial, . . . and not merely that a separate trial would

offer a better chance of acquittal.’” Id. (quoting United States

v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995)).

                                               80
       Jordan argues that the joint trial compromised his right to

provide exculpatory testimony on his own behalf and resulted in

prejudice to him. As discussed in Part IV supra, the district

court placed some restrictions on Jordan’s testimony to prevent

prejudice to Graham and to permit a fair joint trial between the

defendants.     Jordan      contends,    again,      that    these     restrictions

impaired his right to provide testimony that would exculpate him

but tend to inculpate Graham. This Court has previously held,

however, that a defendant’s “desire . . . to exculpate himself

by    inculpating     another   [is]    insufficient         grounds    to    require

separate trials.” Najjar, 300 F.3d at 474 (quoting United States

v. Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986)). As explained

in Part IV, Jordan was permitted to present a full narrative in

his   defense    to   the    charges    against      him.    The     testimony    that

Jordan    sought      to    provide     inculpating         Graham     held    little

exculpatory value for Jordan. The restrictions did not prejudice

Jordan   and    did   not   prevent     the   jury    from    making     a    reliable

judgment.

       As we stated in Najjar,

       [Rule 14] requires more than finger pointing. There
       must be such a stark contrast presented by the
       defenses   that  the   jury  is   presented  with  the
       proposition that to believe the core of one defense it
       must disbelieve the core of the other . . . or “that
       the jury will unjustifiably infer that this conflict
       alone demonstrates that both are guilty.”

Id. (citations omitted).

                                         81
       In summary, Graham’s defense was that he was not any of the

individuals seen in video surveillance of the armed robberies

charged in the case; witnesses’ identifications of Graham were

dubious; the CSLI in the cell phone records was imprecise; the

government failed to show that Graham’s and Jordan’s association

amounted to an agreement to commit crime; and items of clothing

and the vehicle used to link Graham to various robberies were

common and not distinctive. Similarly, Jordan contended at trial

that he did not drive Graham’s pickup truck to flee any robbery;

that he was visiting a relative’s home when the Burger King and

McDonald’s robberies occurred; that descriptions of individuals

who committed the Shell robbery did not match Jordan; that the

government      failed     to   show    that     his   association       with    Graham

amounted   to    a   conspiracy;        and    that    the   CSLI   was    imprecise.

Additionally, Jordan asserted in his defense that he did not

sanction Graham’s friends using his apartment to store weapons

and    clothing.     There      is     little,    if    any,    contrast        between

Appellants’ defenses, and certainly no contrast so stark as to

necessitate     severance.       We    cannot     conclude     that      the   district

court abused its broad discretion and therefore affirm denial of

Jordan’s motion for severance.

                                          VI.

       Jordan challenges the district court’s decision to exclude

from   evidence      two   out-of-court         statements     of   an    unavailable

                                          82
declarant, i.e., Graham. We review the district court’s decision

for abuse of discretion. United States v. Bumpass, 60 F.3d 1099,

1102 (4th Cir. 1995).

       Hearsay is generally not admissible in evidence, Fed. R.

Evid. 802, given the “dangers” of insincerity, misperception,

misremembrance,        and        ambiguity       presented       in       out-of-court

statements,    Williamson         v.     United   States,     512      U.S.     594,    598

(1994). Rule 804(b)(3), however, provides an exception to the

hearsay     rule    for    statements         made     against      the    declarant’s

interest, including statements that, at the time they were made,

“had so great a tendency . . . to expose the declarant to civil

or criminal liability” that a reasonable person in her position

would not have made the statements unless believing them to be

true. Fed. R. Evid. 804(b)(3). “[H]earsay may be admitted under

this    exception   if    (1)     the    declarant     is   unavailable,         (2)    the

statement     is    genuinely          adverse    to    the      declarant’s       penal

interest, and (3) ‘corroborating circumstances clearly indicate

the    trustworthiness       of    the    statement.’”      Bumpass,       60    F.3d    at

1102.     Satisfying      these     requirements        presents       a   “formidable

burden” to the party offering the statement. Id.

       Jordan argues that the district court should have admitted

a written statement bearing the signature “Aaron Graham” and the

recording of a jail call between Graham and an individual called

Tony. Dated February 9, 2011, the written statement reads, “I

                                           83
Aaron Graham I did pick up Eric Jordan 10-15 minutes prior to my

truck being pulled over and he had no knowledge of anything I’m

accused of.” J.A. 2638. On the jail call, Tony asks, “Remember,

didn’t you write a statement or something saying he wasn’t with

you or something like that?” Graham responds, “Oh, yeah, yeah,

yeah, yeah, yeah.” J.A. 2218. Exercising his Fifth Amendment

right not to testify at trial, Graham was unavailable to testify

as the declarant of the statements at issue. See United States

v. Dargan, 738 F.3d 643, 649 (4th Cir. 2013).

     We    conclude    that   the    district    court   did    not   abuse   its

discretion in excluding the statements from evidence. First, the

written statement was not genuinely adverse to Graham’s penal

interest. The statement admits of no wrongdoing by Graham but

rather casts the charges against Graham as mere allegations.

     Second,    Jordan   fails      to   show   corroborating    circumstances

that clearly indicate that the written statement is trustworthy.

While recognizing that “the precise nature of the corroboration

required   by   Rule   804(b)(3)      cannot    be   fully   described,”      this

Court has identified several factors that courts consider in

“determining whether sufficient corroboration exists to justify

admitting a statement under the rule[.]” Bumpass, 60 F.3d at

1102. These factors include

     (1) whether the declarant had at the time of making
     the statement pled guilty or was still exposed to
     prosecution  for  making  the  statement,  (2)  the

                                         84
      declarant’s motive in making the statement and whether
      there was a reason for the declarant to lie, (3)
      whether the declarant repeated the statement and did
      so consistently, (4) the party or parties to whom the
      statement was made, (5) the relationship of the
      declarant with the accused, and (6) the nature and
      strength of independent evidence relevant to the
      conduct in question.

Id.

      The fact that Graham and Jordan were friends or associates

likely gave Graham a motive to exonerate Jordan and a reason to

lie for this purpose. Further, there is no indication in the

record   that   the   content   of   the   written   statement    was    ever

repeated by Graham; nor is there any independent evidence, aside

from Jordan’s own testimony, to show that Jordan was not with

Graham during the robberies. Graham was facing prosecution on

the date attached to the written statement, but he could not

have exposed himself to greater criminal liability or risk of

conviction in making the statement, given its non-incriminating

character.

      In sum, we agree with the district court that there are not

sufficient corroborating circumstances to “clearly” indicate the

trustworthiness of the written statement. We find no abuse of

discretion   in   the   district     court’s   decision   to   exclude   the

hearsay statement.

      We also agree with the district court that the jail call is

insufficient to establish that the written statement was indeed


                                      85
a statement by Graham. See Fed. R. Evid. 901. On the call,

Graham    appears     to    affirm    that        he,   at   some      point,   wrote    a

statement,      but   his    comment        falls       short     of   identifying      or

otherwise authenticating the written statement Jordan sought to

admit    into   evidence.     We     find    no    abuse     of   discretion     in   the

district court’s decision to exclude jail call as non-relevant.

See Fed. R. Evid. 401.

                                        VII.

     Jordan challenges the district court’s denial of his motion

to suppress evidence obtained in searches of his home conducted

after his arrest in February 2011. The searches were conducted

pursuant to two warrants Jordan argues were invalid based on

defects in the affidavit of probable cause submitted to obtain

the first warrant and in the return after the first warrant was

executed. Jordan does not dispute that the affidavits for both

warrants provided a substantial basis for a finding of probable

cause. Instead, Jordan argues that the warrants were invalid

because (1) the affidavit supporting the first warrant omitted

exculpatory      information         while        including       information     about

robberies for which Jordan was not ultimately charged; and (2)

the affiant falsely certified in the return that he executed the

warrant. We find no reversible error.

                                            A.



                                            86
        Jordan    identifies          two    sets          of    defects       in    the        affidavit

supporting the first warrant: (1) it included facts about the

robberies        of    January       22,     2011,          with       which    Jordan          was    not

ultimately charged; and (2) it omitted the facts about these

robberies that would tend to exculpate Jordan, including the

fact that descriptions of the robbers did not match Jordan and

the lack of forensic evidence linked to Jordan. Jordan claims

that he was prejudiced by these additions and omissions.

     An affidavit supporting a search warrant is entitled to “a

presumption of validity[,]” Franks v. Delaware, 438 U.S. 154,

171 (1978), but a defendant may “attack a facially sufficient

affidavit” “in certain narrowly defined circumstances[,]” United

States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (citing

Franks, 438 U.S. 154). After making a preliminary showing, a

defendant may demand under the Fourth Amendment a hearing to

determine        (1)      whether           an        affiant           has     “knowingly             and

intentionally,           or    with    reckless             disregard          for        the     truth,”

included    a     false        statement         in    a    warrant       affidavit;             and   (2)

whether    the        false    statement         “is       necessary       to       the    finding      of

probable cause[.]” Franks, 438 U.S. at 155-56.

     “[T]he           search    warrant          must       be     voided”          if     perjury      or

reckless    disregard           is   established             by    a    preponderance             of   the

evidence, and, “with the affidavit’s false material set to one

side,     the    affidavit’s          remaining            content       is     insufficient           to

                                                  87
establish probable cause[.]” Id. at 156. In such a case, “the

fruits of the search [must be] excluded to the same extent as if

probable cause was lacking on the face of the affidavit.” Id.

This rule “also applies when affiants omit material facts ‘with

the intent to make, or in reckless disregard of whether they

thereby made, the affidavit misleading.’” Colkley, 899 F.2d at

300 (quoting United States v. Reivich, 793 F.2d 957, 961 (8th

Cir. 1986)).

      Jordan did not request a Franks hearing before the district

court and has made no showing before this Court that the affiant

on    the    challenged       affidavit        included        any       false       statement,

whether     “knowingly        and     intentionally,         .      .    .    with     reckless

disregard for the truth,” or otherwise. Franks, 438 U.S. at 155.

Jordan      also   has    not        shown    that    any      of       the    complained-of

statements     included       in     the     affidavit      were        “necessary      to   the

finding of probable cause” or that any of the excluded facts

would have prevented a finding of probable cause. Id. at 156.

      We    also    reject      Jordan’s       challenge         with        respect    to   the

potentially        exculpatory         information        he        complains          was   not

included in the first warrant affidavit. In Colkley, this Court

affirmed denial of a defendant’s motion to suppress fruits of an

arrest      warrant      that      “did      not    contain       certain        potentially

exculpatory information known to the affiant.” 899 F.2d at 298.

The   defendant       “made     no    showing      that   the     affiant        intended     to

                                              88
mislead the magistrate by omitting information, and because the

warrant with the omitted information would in any event have

been supported by probable cause . . . .” Id. Similarly here,

Jordan has not shown that the affiant intended to mislead the

magistrate by omitting, or was reckless in omitting, information

that tended to exculpate Jordan as to the robberies of January

22, 2011.

      We find no reason to set aside our presumption that the

challenged warrant affidavit was valid and therefore find no

reversible     error     in    the    district       court’s    decision     to   admit

evidence seized during the searches of Jordan’s home.

                                             B.

      Citing      Rule   41(f)(1)      of     the    Federal    Rules   of   Criminal

Procedure, Jordan next argues that the first search warrant was

defective      because    the        affiant,       Detective    Woerner,     falsely

certified    in    the   return       that    he    executed    the    warrant.    Rule

41(f)(1)     provides         that    “[a]n       officer    present     during    the

execution of the warrant must prepare and verify an inventory of

any   property     seized”      and    that       “[t]he    officer   executing    the

warrant must promptly return it — together with a copy of the

inventory — to the magistrate judge designated on the warrant.”

      By its own terms, however, Rule 41 applies only to federal

search warrants requested by “a federal law enforcement officer”

or “an attorney for the government[.]” Fed. R. Crim. P. 41. This

                                             89
Court     has    held    that     “a      warrant      proceeding     must    meet    the

particulars of Rule 41 only where the warrant application was

made at the direction or urging of a federal officer.” United

States v. Clyburn, 24 F.3d 613, 616 (4th Cir. 1994) (citations

and internal quotation marks omitted). We have also held that

“[n]on-constitutional violations of Rule 41 warrant suppression

only when the defendant is prejudiced by the violation . . . or

when ‘there is evidence of intentional and deliberate disregard

of a provision in the Rule[.]’” United States v. Simons, 206

F.3d 392, 403 (4th Cir. 2000) (citations omitted).

       The warrants Jordan challenges were prepared and executed

by local law enforcement officers, not federal agents. Thus, any

defect in the return cannot serve as a basis for suppression.

Even if Rule 41 applied, however, Jordan has not shown that the

officers        intentionally          or        deliberately        disregarded      the

requirements of Rule 41(f) or that he was prejudiced by the

defect    in    the     return.      In     this    context,     prejudice    would   be

established by a showing that the search would not have taken

place the same way if the officers had complied with the Rule

with respect to the return. See United States v. Pangburn, 983

F.2d    449,    455   (2d     Cir.     1993)     (“[T]here     was   no   prejudice    to

Salcido    because      the    search       of   his   storage    locker     would   have

taken place in exactly the same way if Rule 41 had been followed

with regard to notice of the entry . . . .”). Jordan has made no

                                               90
such showing. The false certification of the return provides no

basis    for    suppression        in    this       case.   We   affirm       the    district

court’s decision to admit the challenged evidence.

                                             VIII.

      Jordan appeals the district court’s denial of his motion

for acquittal with respect to the charges for conspiracy, Hobbs

Act   robbery,      and        brandishing      a     firearm      during     a     crime    of

violence       in   connection          with    the     Shell,      Burger         King,     and

McDonald’s       robberies.        Rule       29(a)    of    the     Federal        Rules    of

Criminal       Procedure       requires       the     district     court      to    “enter    a

judgment of acquittal of any offense for which the evidence is

insufficient        to     sustain       a     conviction.”         At   the        close    of

government’s        case-in-chief,             Jordan       submitted         motions        for

acquittal      as   to    all    offenses       charged     in     the   indictment.         The

district court granted the motion as to the charge under 18

U.S.C. § 922(g)(1) in Count One for being a felon in possession

of a firearm but denied the motion as to the remaining counts.

The jury ultimately returned guilty verdicts as to each of these

offenses. Jordan argues that the evidence presented at trial was

not     sufficient        to     support       the     guilty      verdicts         beyond    a

reasonable doubt. We disagree.

                                               A.

      We   review        challenges      to    the     sufficiency       of    evidence       de

novo. United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012),

                                               91
cert. denied, 133 S. Ct. 179 (2012). The Court must sustain the

verdict if, “viewing the evidence and the reasonable inferences

to    be   drawn      therefrom        in    the       light     most   favorable     to    the

Government, ‘. . . the evidence adduced at trial could support

any    rational       determination              of     guilty     beyond      a   reasonable

doubt.’” United States v. Burgos, 94 F.3d 849, 863 (4th Cir.

1996) (quoting United States v. Powell, 469 U.S. 57, 67 (1984)).

In assessing the challenge, we focus on “‘the complete picture

that the evidence presents[,]’ . . . consider[ing] the evidence

‘in cumulative context’ rather than ‘in a piecemeal fashion[.]’”

United     States     v.    Strayhorn,           743    F.3d     917,   921-22     (4th    Cir.

2014), cert. denied, 134 S. Ct. 2689 (2014) (quoting Burgos, 94

F.3d at 863).

       This    Court       “may   not       overturn       a    substantially       supported

verdict     merely      because        it    finds       the     verdict     unpalatable      or

determines         that      another,            reasonable         verdict        would      be

preferable.”        Burgos,       94    F.3d       at    862.     Rather,     “reversal     for

insufficiency         [is]    ‘.        .    .     confined       to    cases      where    the

prosecution’s         failure      is       clear[.]’”         Engle,   676    F.3d   at   419

(quoting      Burks    v.    United         States,      437     U.S.   1,    17   (1978)).    A

defendant asserting a sufficiency challenge therefore bears a

“‘heavy burden[.]’” Id. (quoting United States v. Hoyte, 51 F.3d

1239, 1245 (4th Cir. 1995)).

                                                 B.

                                                 92
      The evidence presented at trial included the following:

      Three     individuals          were    seen    on     video    surveillance      using

firearms to rob Shell on February 1, 2011. Clothing matching

that worn by one of the individuals, who the government sought

to prove was Graham, and weapons matching those seen in the

video    and      described        by    victims      were     later     recovered      from

different       locations         inside      Jordan’s        apartment,       among     his

personal       belongings.           Photographs           showed    that     distinctive

clothing Jordan wore at the time of his arrest closely resembled

that worn by a masked robber seen in the video of the Shell

robbery,     which     was       confirmed    in     the    testimony    of    two   police

detectives.       CSLI      in    cell    phone     records     showed      that,    minutes

after the Shell robbery on February 1, 2011, Jordan was near

Shell and then both he and Graham were near Jordan’s apartment.

      Cell phone records also showed that numerous calls were

made between Jordan and Graham between February 1 and February

5,   2011.     CSLI    showed      that,     on     February    5,    2011,    Jordan    and

Graham     were      both     near       Jordan’s     apartment        approximately      45

minutes before the Burger King robbery and that Graham was near

Burger   King        within      minutes     of     the     robbery.     On   that     date,

according       to     eyewitness           testimony,         an    individual        later

identified as Graham used a black pistol with a white handle to

rob Burger King and then McDonald’s. Graham was seen fleeing



                                              93
each robbery by entering the passenger side of a dark colored

Ford F-150 pickup truck that was driven by another individual.

     Officer Corcoran testified that, during his investigation

of the Burger King robbery, he received reports describing the

robber, his weapon, and the getaway vehicle. A 911 call was

placed     reporting    the      McDonald’s       robbery       and    described        the

getaway    vehicle     as   a   pickup    truck.    CAD     reports      confirm      that

approximately five minutes after the call, Corcoran spotted a

speeding F-150 truck on the road and saw that the passenger wore

a jacket matching the description of the Burger King robber.

Corcoran    pursued     the     vehicle   and   activated        the    siren    on     his

patrol    car.   The   driver     of   the     truck,     who    turned    out     to    be

Jordan, responded by driving up on a sidewalk before becoming

trapped between heavy traffic, a construction barrier, and a

moving train in front of the truck. Jordan was initially non-

compliant with instructions given by Officer Corcoran but was

eventually secured and arrested. Graham was arrested from the

passenger side of the vehicle.

     Bundles of folded and crumbled cash were recovered from

Jordan    and    Graham,      including    more    than     $200       recovered      from

Jordan’s person and $83 stuffed in the console inside the truck.

A .25 caliber Taurus pistol with a pearl handle was found under

the passenger seat of the truck and matched the description of

the gun used in the Burger King and McDonald’s robberies. The

                                          94
truck was owned by Graham and matched the description of the

truck used as the getaway vehicle after each of the Burger King

and McDonald’s robberies. A fingerprint belonging to Graham was

found at Burger King after the robbery.

     Test drives were conducted of the route between McDonald’s

and the location on North Stricker Street where Jordan testified

that he was picked up by Graham on February 5, 2011. The tests

showed    that    the    trip       would    take     more    than     seven      minutes    to

travel at the highest possible rate of speed in traffic, using

emergency lights and sirens. This evidence tended to show that

it would not have been possible for Jordan to have been picked

up from North Stricker Street between the time of the McDonald’s

robbery and the pursuit by Officer Corcoran.

     In     addition          to     the    foregoing         evidence,       the     parties

stipulated       that    the       businesses       robbed    operated       in    interstate

commerce and that the robberies affected interstate commerce.

     Viewed as a whole and in the light most favorable to the

government,       a     reasonable          juror     could       accept     the    evidence

presented    at       trial    “as    adequate       and     sufficient      to    support    a

conclusion of guilt beyond a reasonable doubt[]” on each of the

offenses of which Jordan was convicted. Engle, 676 F.3d at 419.

                                              C.

     Jordan’s         sufficiency          challenges        as   to   his     robbery      and

firearm convictions proceed from assumptions that he was found

                                              95
guilty of these offenses solely on a theory of having aided and

abetted armed robberies principally committed by Graham. These

assumptions are dubious, considering that the jury found Jordan

guilty of conspiracy in Count Four.

       To   prove       conspiracy,       the   government      must       show   “(1)   an

agreement between two or more people to commit a crime, and (2)

an overt act in furtherance of the conspiracy.” United States v.

Ellis, 121 F.3d 908, 922 (4th Cir. 1997). “The existence of a

‘tacit      or     mutual       understanding’          between   conspirators           is

sufficient evidence of a conspiratorial agreement.” Id. (quoting

United States v. Chorman, 910 F.2d 102, 109 (4th Cir. 1990)).

Such   an    agreement        may    be     established    through         circumstantial

evidence,        such    as   the    defendant’s     “‘relationship           with   other

members of the conspiracy, the length of this association, [the

defendant’s]        attitude        [and]    conduct,     and   the    nature      of    the

conspiracy.’” Burgos, 94 F.3d at 858 (4th Cir. 1996) (citation

omitted).

       “Like       the        conspirators’        agreement,          a      defendant’s

participation in the conspiracy ‘need not be explicit; it may be

inferred from circumstantial evidence.’” Id. This Court has held

that “once a conspiracy is established, even a slight connection

between a defendant and the conspiracy is sufficient to include

him in the plan.” Ellis, 121 F.3d at 922 (internal quotation

marks and citation omitted).

                                              96
       A reasonable fact finder could conclude from the evidence

presented at trial that Jordan conspired with Graham to commit

armed     robberies        of        Shell,     Burger          King,     and     McDonald’s.

Circumstantial       and    direct          evidence       showing        that    Jordan       and

Graham    cooperated       in        performing      the    armed        robbery       of   Shell

reflects a “‘tacit and mutual understanding’” between the two

and supports a reasonable inference that they had an agreement

to commit this crime. Ellis, 121 F.3d at 922 (citation omitted).

Evidence of the pair’s involvement in the Shell robbery, ongoing

communications between Jordan and Graham over the course of the

days    to   follow,   and       Jordan’s        role      as     getaway        driver     after

Graham’s      robberies         of     Burger       King    and       McDonald’s         provide

circumstantial       evidence          that     Jordan          and     Graham        agreed     to

cooperate in assuming their respective roles in these robberies.

In    sum,   the   evidence          presented       at    trial        was   sufficient         to

support Jordan’s conspiracy conviction.

       As a co-conspirator with Graham in the Shell, Burger King,

and     McDonald’s     robberies,             Jordan       is     liable        for     Graham’s

reasonably foreseeable acts in furtherance of the conspiracy.

See United States v. Ashley, 606 F.3d 135, 142-43 (4th Cir.

2010)    (citing    Pinkerton          v.    United    States,          328   U.S.      640,   647

(1946)). Jordan does not dispute that the government presented

substantial evidence that Graham was responsible for Hobbs Act

robbery      of   Shell,    Burger          King,    and    McDonald’s,           and     used    a

                                               97
firearm in each of those robberies. 28 We hold, therefore, that

Jordan’s convictions for Hobbs Act robbery and brandishing a

firearm under 18 U.S.C. § 924(c) are supported by substantial

evidence.

                                     D.

     Jordan contends that the district court made a ruling that

the government failed to prove Jordan’s knowledge that Graham

brought a firearm into the pickup truck after the McDonald’s

robbery. Without such evidence, Jordan argues, there was not

sufficient evidence to convict him on the Hobbs Act robbery and

firearm offenses arising from the Burger King and McDonald’s

robberies.    The   record     discloses     no        clear   ruling     from   the

district court as to any evidence of Jordan’s knowledge about

the Taurus pistol in the truck.

     Jordan    directs   our     attention        to     the   district     court’s

decision to grant Jordan’s Rule 29(a) motion for acquittal on

Count One, which charged Jordan with being a felon in possession


     28   A conviction under the Hobbs Act requires proof

          (1) that the defendant coerced the victim to part
     with property; (2) that the coercion occurred through
     the “wrongful use of actual or threatened force,
     violence or fear or under color of official right”;
     and (3) that the coercion occurred in such a way as to
     affect adversely interstate commerce.

United States v. Buffey, 899 F.2d 1402, 1403 (4th Cir. 1990)
(citation omitted); see also 18 U.S.C. § 1951.



                                     98
of a firearm under 18 U.S.C. § 922(g)(1). Liability under §

922(g)(1) may arise from a felon’s voluntary and intentional

possession of a firearm, whether the felon possessed the weapon

actually or constructively, exclusively or jointly with others.

See United States v. Gallimore, 247 F.3d 134, 136-37 (4th Cir.

2001). “‘Constructive possession’ . . . occurs when a person

‘exercise[s],        or   ha[s]   the    power    to    exercise,      dominion    and

control over [an] item’ of property.” United States v. Scott,

424 F.3d 431, 435 (4th Cir. 2005) (quoting United States v.

Shorter, 328 F.3d 167, 172 (4th Cir. 2003)). The government may

“prove constructive possession of an item in instances when a

defendant has dominion and control over the premises or vehicle

where the item is located.” Id. at 435 n.*.

      The government asserted multiple theories of the felon-in-

possession     charge     against     Jordan,     including      the    theory    that

Jordan   was    in    constructive       possession      of    the   Taurus     pistol

through operation of the truck in which it was located. The

district court rejected each of the government’s theories. As to

the   constructive-possession           theory,   the    district      court    stated

two   grounds    for      its     decision:      (1)    “all    of     the   evidence

introduced to date indicates the firearm was under the complete

individual control of the co-defendant Graham[;]” and (2) there

was   “no    evidence       tending      to    show     that    Jordan’s       alleged



                                          99
constructive possession of the firearm was voluntary as required

by the Scott case.” J.A. 2213.

      We are not persuaded that, in so ruling, the district court

implied that there was insufficient evidence that Jordan knew

about the gun Graham brought into the truck. Cf. Schneckloth v.

Bustamonte, 412 U.S. 218, 224 (1973) (“[Voluntariness] cannot be

taken literally to mean a ‘knowing’ choice.”). From the larger

context      of    the    court’s       colloquy       with   counsel   regarding     the

felon-in-possession             charge,    it    is     apparent    that    the   court’s

skepticism of the constructive-possession theory was based on

the   view      that     Jordan,    as    “the   alleged      getaway      driver,”   J.A.

2192, could not have assumed joint possession of a weapon that

was solely within the control of Graham simply because Graham

chose      to     bring    it    into     the    vehicle.      In   that     sense,    any

possession Jordan had of the weapon by virtue of his control of

the vehicle was not “voluntary.” But that does not mean that

Jordan was unaware that the weapon was present. 29

      In any case, our review of the district court’s sufficiency

determination is de novo, and we hold that there was indeed

sufficient evidence that Jordan knew the Taurus pistol was in

the   truck       after    the     Burger       King    and   McDonald’s      robberies.

      29
       We decline to reach the question of whether the district
court expressed the correct view of constructive possession of a
firearm through control of the vehicle in which it is located.



                                            100
Accordingly,   we   reject   Jordan’s   sufficiency   challenge   to   his

convictions for these robberies and associated firearm offenses.

                                  IX.

     For the foregoing reasons, Appellants’ Motion to Strike the

Sur-Reply of the United States is granted, and the judgment of

the district court is

                                                              AFFIRMED.




                                  101
THACKER, Circuit Judge, concurring:

               I am in agreement with Judge Davis’s conclusion that

cell       site    location      information       (”CSLI”)    cannot    be     obtained

without a warrant but that, in this case, admission of the CSLI

evidence          must   be     sustained    pursuant     to    the     “good     faith”

exception to the warrant requirement.                     I write separately to

express my concern about the erosion of privacy in this era of

rapid technological development.

                  The tension between the right to privacy and emerging

technology, particularly as it relates to cell phones, impacts

all Americans.            Indeed, as the Supreme Court noted in Riley v.

California, cell phones “are now such a pervasive and insistent

part of daily life that the proverbial visitor from Mars might

conclude      they       were   an   important      feature    of   human     anatomy.”

134 S. Ct. 2473, 2484 (2014).                 Nearly every American adult owns

a cell phone. *           See Mobile Technology Fact Sheet, Pew Research

Ctr.,       http://www.pewinternet.org/fact-sheets/mobile-technology-

fact-sheet (last visited July 23, 2015) (saved as ECF opinion

attachment)          (reporting      that,    as    of   January      2014,     “90%   of



       *
       Cell phone ownership is even higher among young adults.
See Aaron Smith, How Americans Use Text Messaging, Pew Research
Ctr.,    http://www.pewinternet.org/2011/09/19/how-americans-use-
text-messaging (last visited July 23, 2015) (saved as ECF
opinion attachment) (reporting that 95% of 18 to 24 year olds
own a cell phone).



                                             102
American adults own a cell phone”). More than three-fifths of

American       adults     own     a    smartphone.          See       Aaron    Smith,        Pew

Research         Ctr.,           U.S.       Smartphone             Use          in          2015

2             (2015),             http://www.pewinternet.org/files/2015/03/

PI_Smartphones_0401151.pdf               (saved    as    ECF      opinion      attachment)

(reporting that “64% of American adults now own a smartphone of

some kind”).         And each year more Americans decide to rely solely

on     cell    phones,      untethering         from     landlines.            See,     e.g.,

Stephen J. Blumberg & Julian V. Luke, U.S. Dept. of Health &

Human Res., Wireless Substitution: Early Release Estimates from

the    National;      Health     Interview        Survey,      July    -   December         2014

(2015),                   http://www.cdc.gov/nchs/data/nhis/earlyrelease/

wireless201506.pdf (saved as ECF opinion attachment).                                  As of

2014, almost half of American homes only had cell phones.                                   See

id. (“More than two in every five American homes (45.4%) had

only    wireless      telephones        (also    known    as    cellular        telephones,

cell    phones,      or    mobile       phones)    during       the     second       half    of

2014 . . . .”).

               And   cell       phones    are     far    more     than        sophisticated

walkie-talkies.           Unlike a walkie-talkie, which merely facilities

a    conversation,        “a    cell     phone    collects        in    one    place     many

distinct types of information . . . that reveal much more in

combination than any isolated record” or conversation.                                Riley,

134 S. Ct. at 2489.             This information -- stored on the phone and

                                            103
on remote servers -- makes reconstructing a day in the life of

any individual a simple task.                See, e.g., id. (“The sum of an

individual’s     private       life    can    be     reconstructed     through    a

thousand    photographs        labeled       with     dates,    locations,       and

descriptions . . . .”).         In fact, gathering and storing location

information “is a standard feature on many smart phones and can

reconstruct someone’s specific movements down to the minute, not

only   around    town    but    also     within      a   particular    building,”

including in the privacy of his or her own home.                     Id. at 2490.

This is the reality of modern life.                  “The fact that technology

now allows an individual to carry such information in his hand

does not make the information any less worthy of the protection

for which the Founders fought.”              Id. at 2495 (2014).

            It is particularly disturbing that any one of us can

be   tracked    from    afar    regardless      of    whether   or    not   we   are

actively using our phones.             Even just sitting at home alone,

your phone may be relaying data, including your location data.

This data is transmitted to the remote servers of your service

provider,      where    the    data    is     stored.       According       to   the

Government, it does not need a warrant to force your service

provider to turn over this information.                  By doing nothing, you

disclosed your location information to a third party.                       Per the

Government’s theory, in so doing you have foregone your right to



                                        104
privacy such that a warrant is not necessary.          I cannot approve

of such a process (or lack thereof).

          As the march of technological progress continues to

advance upon our zone of privacy, each step forward should be

met with considered judgment that errs on the side of protecting

privacy and accounts for the practical realities of modern life.

          At   bottom,   this   decision   continues    a   time-honored

American tradition -- obtaining a warrant is the rule, not the

exception.




                                  105
DIANA GRIBBON MOTZ, Circuit                  Judge,    dissenting   in     part   and
concurring in the judgment:

       I concur in the judgment affirming Defendants’ convictions

and sentences.           But, with respect, I dissent from the holding

that       the     government    violated      Defendants’      Fourth     Amendment

rights.          The majority concludes that the government did so when

it obtained, pursuant to 18 U.S.C. § 2703(d) court orders, but

without warrants, records of the cell phone towers Defendants

used to make and receive calls and text messages.                       That holding

flies in the face of the Supreme Court’s well-established third-

party doctrine. 1

       The       Court   has   long   held   that     an   individual    enjoys   “no

legitimate expectation of privacy,” and so no Fourth Amendment

protection, in information he “voluntarily turns over to [a]

third part[y].”          Smith v. Maryland, 442 U.S. 735, 743-44 (1979).

This rule applies even when “the information is revealed,” as it

assertedly was here, “on the assumption that it will be used

only for a limited purpose and the confidence placed in the



       1
       Given the majority’s affirmance of Defendants’ convictions
on alternate grounds, its rejection of the third-party doctrine
makes no difference to the result in this case.          But the
majority’s disavowal of the third-party doctrine will have
profound consequences in future cases in the Fourth Circuit.
For unlike in cases arising in every other circuit to consider
the matter, the government will have to obtain a search warrant
supported by probable cause before obtaining even historical
CSLI in this circuit.



                                         106
third party will not be betrayed.”                        United States v. Miller, 425

U.S. 435, 443 (1976).                Accordingly, the government’s acquisition

of   historical          cell     site       location       information        (CSLI)        from

Defendants’ cell phone provider did not implicate, much less

violate, the Fourth Amendment.

                                                I.

      The    Fourth        Amendment        ensures       that     “[t]he   right      of     the

people     to     be    secure       in    their     persons,       houses,     papers,       and

effects, against unreasonable searches and seizures, shall not

be   violated.”           U.S.       Const.    amend.       IV.      Broadly,     “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).

      In     assessing       whether          such    a    search     occurred,        “it     is

important to begin by specifying precisely the nature of the

state activity that is challenged.”                          Smith, 442 U.S. at 741

(emphasis added).               Here, that “activity” is the government’s

acquisition from a phone company, Sprint/Nextel, of CSLI records

-- i.e., the records the phone company created that identify

which      cell    towers       it    used     to    route        Defendants’    calls        and

messages.         The government did not surreptitiously view, listen

to, record, or in any other way engage in direct surveillance of

Defendants        to     obtain       this      information.            Rather,        it     was

Sprint/Nextel alone that obtained the information, and generated

                                               107
the       business     records,      that        Defendants      now        claim    are

constitutionally protected.

      The     nature     of   the     governmental         activity         here     thus

critically     distinguishes        this    case    from   those       on    which   the

majority      relies     --   cases        in     which    the     government         did

surreptitiously collect private information. 2                   In United States

v. Karo, 468 U.S. 705, 714-15 (1984), for instance, the Drug

Enforcement Agency placed a beeper within a can of ether and

received tracking information from the beeper while the can was

inside a private residence.                Similarly, in Kyllo, 533 U.S. at

34-35, the Department of the Interior used a thermal imager to



      2My colleagues acknowledge this distinction but dismiss it
as “inconsequential.”   I cannot agree.   It matters, for Fourth
Amendment purposes, how the government acquires information.
Just as the Supreme Court applies a different analysis depending
on whether the government engages in a physical trespass, see
United States v. Jones, 132 S. Ct. 945, 949-53 (2012), so too
the Court applies a different analysis, in non-trespassory
cases, depending on whether the information at issue was
voluntarily disclosed to a third party. See Smith, 442 U.S. at
743-44.   Perhaps, in accord with the two lower court cases the
majority cites, the Court will someday conclude that, given
long-established statutory and common-law protections, the
third-party doctrine does not apply to information a patient
reveals to a doctor or a client to a lawyer -- i.e., that the
patient and client do have reasonable expectations of privacy in
information conveyed in the course of these confidential
relationships. But see 1 Wayne R. LaFave, Search & Seizure: A
Treatise on the Fourth Amendment § 2.7(d) (5th ed. 2012 & Supp.
2014).   Clearly, however, the Court has already declined to
recognize any reasonable expectation of privacy for information
a phone company customer provides to the phone company.      See
Smith, 442 U.S. at 743-44.



                                           108
gather “information regarding the interior of the home.”                                And in

United States v. Jones, 132 S. Ct. 945, 949 (2012), the FBI and

local law enforcement secretly installed a GPS tracking device

on a suspect’s vehicle and monitored the vehicle’s movements for

four weeks.

       On the basis of these cases, the majority contends that

“the government invades a reasonable expectation of privacy when

it relies upon technology not in general use to discover the

movements of an individual over an extended period of time.”

Perhaps.    But that question is not before us.                          The question we

must answer is not whether, in the abstract, an individual has a

reasonable expectation of privacy in his location and movements

over   time.      Rather,       the     question        before    us     is    whether      an

individual has a reasonable expectation of privacy in a third

party’s    records      that    permit       the       government      to     deduce      this

information.        Karo,      Kyllo,      and     Jones,   all     of      which   involve

direct government surveillance, tell us nothing about the answer

to that question.

       Instead, the cases that establish the third-party doctrine

provide    the    answer.            Under       the    third-party         doctrine,       an

individual can claim “no legitimate expectation of privacy” in

information      that    he    has    voluntarily        turned     over      to    a    third

party.     Smith,       442   U.S.    at     743-44.        The   Supreme       Court      has

reasoned    that,       by    “revealing         his    affairs     to      another,”       an

                                             109
individual “takes the risk . . . that the information will be

conveyed by that person to the Government.”                       Miller, 425 U.S. at

443.      The     Fourth      Amendment           does    not    protect    information

voluntarily disclosed to a third party because even a subjective

expectation      of    privacy     in    such      information     is    “not    one    that

society is prepared to recognize as ‘reasonable.’”                              Smith, 442

U.S. at 743 (internal quotation marks and citation omitted).

The government therefore does not engage in a Fourth Amendment

“search” when it acquires such information from a third party.

       Applying       the   third-party       doctrine      to    the    facts    of    this

case, I would hold that Defendants did not have a reasonable

expectation of privacy in the CSLI recorded by Sprint/Nextel.

The Supreme Court’s reasoning in Smith controls.                            There, the

defendant challenged the government’s use of a pen register -- a

device that could record the outgoing phone numbers dialed from

his    home    telephone.         Id.   at    737.        The    Court   held    that    the

defendant could “claim no legitimate expectation of privacy” in

the numbers he had dialed because he had “voluntarily conveyed”

those    numbers       to   the    phone          company   by    “‘expos[ing]’         that

information to” the phone company’s “equipment in the ordinary

course    of    business.”         Id.       at    744.     The     defendant      thereby

“assumed the risk that the company would reveal to police the

numbers he dialed.”          Id.



                                             110
      Here, as in Smith, Defendants unquestionably “exposed” the

information at issue to the phone company’s “equipment in the

ordinary course of business.”             Id.     Each time Defendants made or

received     a    call,    or     sent    or    received     a     text    message     --

activities       well    within    the   “ordinary       course”     of    cell   phone

ownership -- Sprint/Nextel generated a record of the cell towers

used.      The    CSLI    that    Sprint/Nexel     recorded       was     necessary    to

route Defendants’ cell phone calls and texts, just as the dialed

numbers recorded by the pen register in Smith were necessary to

route the defendant’s landline calls.                   Having “exposed” the CSLI

to Sprint/Nextel, Defendants here, like the defendant in Smith,

“assumed the risk” that the phone company would disclose their

information to the government.                 Id. at 744.       For these reasons,

the   government’s        acquisition      of    that    information       (historical

CSLI) pursuant to § 2703(d) orders, rather than warrants, did

not violate the Fourth Amendment.

      Three other federal appellate courts have considered the

Fourth Amendment question before us.                    Not one has adopted the

majority’s holding.              Two of our sister courts have expressly

held, as I would, that individuals do not have a reasonable

expectation       of    privacy    in    historical      CSLI     records    that     the

government obtains from cell phone service providers through a

§ 2703(d) order.          See United States v. Davis, 785 F.3d 498, 511

(11th   Cir.       2015)     (en     banc)       (holding        defendant     had    no

                                          111
“objective[ly] reasonable expectation of privacy in MetroPCS’s

business     records      showing     the     cell     tower     locations       that

wirelessly connected his calls”); In re Application of U.S. for

Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013) (In

re Application (Fifth Circuit)) (holding the government can use

“[s]ection      2703(d)    orders     to     obtain    historical        cell    site

information” without implicating the Fourth Amendment (emphasis

omitted)).      And although the third court opined that “[a] cell

phone    customer    has    not     ‘voluntarily’       shared     his     location

information with a cellular provider in any meaningful way,” it

held that “CSLI from cell phone calls is obtainable under a

§ 2703(d)    order,”      which     “does    not     require   the   traditional

probable cause determination” necessary for a warrant.                          In re

Application of U.S. for an Order Directing a Provider of Elec.

Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313,

317 (3d Cir. 2010) (In re Application (Third Circuit)).

     Even in the absence of binding circuit precedent, the vast

majority of federal district court judges have reached the same

conclusion. 3    Given this near unanimity of federal authority, the


     3 See, e.g., United States v. Epstein, No. 14-287, 2015 WL
1646838, at *4 (D.N.J. Apr. 14, 2015) (Wolfson, J.); United
States v. Dorsey, No. 14-328, 2015 WL 847395, at *8 (C.D. Cal.
Feb. 23, 2015) (Snyder, J.); United States v. Lang, No. 14-390,
2015 WL 327338, at *3-4 (N.D. Ill. Jan. 23, 2015) (St. Eve, J.);
United States v. Shah, No. 13-328, 2015 WL 72118, at *7-9
(E.D.N.C. Jan. 6, 2015) (Flanagan, J.); United States v.
(Continued)
                                       112
majority is forced to rest its holding on three inapposite state

cases and three district court opinions -- including one that

has been vacated, In re Application of U.S. for Historical Cell

Site Data, 747 F. Supp. 2d 827 (S.D. Tex. 2010), vacated, 724

F.3d       600   (5th   Cir.   2013),   and   another   that   involves   only

prospective and real-time CSLI, In re Application of U.S. for an

Order Authorizing Disclosure of Location Info. of a Specified

Wireless Tel., 849 F. Supp. 2d 526, 535 & n.4 (D. Md. 2011). 4




Martinez, No. 13-3560, 2014 WL 5480686, at *3-5 (S.D. Cal. Oct.
28, 2014) (Hayes, J.); United States v. Rogers, No. 13-952, 2014
WL 5152543, at *3-4 (N.D. Ill. Oct. 9, 2014) (Kocoras, J.);
United States v. Giddins, 57 F. Supp. 3d 481, 491-94 (D. Md.
2014) (Quarles, J.); United States v. Banks, 52 F. Supp. 3d
1201, 1204-06 (D. Kan. 2014) (Crabtree, J.); United States v.
Serrano, No. 13-0058, 2014 WL 2696569, at *6-7 (S.D.N.Y. June
10, 2014) (Forrest, J.); United States v. Moreno-Nevarez, No.
13-0841, 2013 WL 5631017, at *1-2 (S.D. Cal. Oct. 2, 2013)
(Benitez, J.); United States v. Rigmaiden, No. 08-814, 2013 WL
1932800, at *14 (D. Ariz. May 8, 2013) (Campbell, J.); United
States v. Gordon, No. 09-153-02, 2012 WL 8499876, at *2 (D.D.C.
Feb. 6, 2012) (Urbina, J.); United States v. Benford, No. 09-86,
2010 WL 1266507, at *2-3 (N.D. Ind. Mar. 26, 2010) (Moody, J.);
In re Application of the U.S. for an Order Authorizing the
Disclosure of Cell Site Location Info., No. 08-6038, 2009 WL
8231744, at *9-11 (E.D. Ky. Apr. 17, 2009) (Wier, Mag. J.); In
re Applications of U.S. for Orders Pursuant to Title 18, U.S.
Code Section 2703(d), 509 F. Supp. 2d 76, 79-82 (D. Mass. 2007)
(Stearns, J.).   But see United States v. Cooper, No. 13-00693,
2015 WL 881578, at *6-8 (N.D. Cal. Mar. 2, 2015) (Illston, J.);
In re Application of U.S. for an Order Authorizing the Release
of Historical Cell-Site Info., 809 F. Supp. 2d 113, 120-27
(E.D.N.Y. 2011) (Garaufis, J.).
       4
       Two of the state cases do not even interpret the Fourth
Amendment, but instead rely on broader state constitutional
protections.  See Commonwealth v. Augustine, 4 N.E.3d 846, 858
(Continued)
                                        113
     In      sum,   the   majority’s   holding   lacks   support   from   all

relevant authority and places us in conflict with the Supreme

Court and three other federal appellate courts.

                                       II.

     Despite the lack of support for its position, the majority

insists that the third-party doctrine does not apply here.                The

majority maintains that “a cell phone user does not ‘convey’

CSLI to her service provider at all –- voluntarily or otherwise

–- and therefore does not assume any risk of disclosure to law

enforcement.”       This is the analytical lynchpin of my colleagues’

holding. 5     By my count, they invoke a cell phone user’s asserted




(Mass. 2014) (finding “no need to wade into the[] Fourth
Amendment waters” when the court could rely on article 14 of the
Massachusetts Declaration of Rights); State v. Earls, 70 A.3d
630, 641-42 (N.J. 2013) (explaining that New Jersey has
“departed” from Smith and Miller and does not recognize the
third-party doctrine).   And the court in the third state case
repeatedly pointed out that it was not considering “historical
cell site location records” -- like those at issue here -- but
“real time cell site location information,” which had been
obtained, not through a § 2703(d) order, but under an order that
had authorized only a “pen register” and “trap and trace
device.”   Tracey v. State, 152 So. 3d 504, 506-08, 515-16, 526
(Fla. 2014). Thus, contrary to my colleagues’ charge, it is not
the dissent, but rather cases on which the majority relies, that
“have suggested” that there are different privacy interests in
“real-time” versus “historical” location information.   See id.;
see also In re Application of U.S. for an Order Authorizing
Disclosure of Location Info. of a Specified Wireless Tel., 849
F. Supp. 2d 526, 535-39 (D. Md. 2011).
     5 My colleagues also emphasize the general “sensitiv[ity]”
of location information. But to the extent they do so to argue
(Continued)
                                       114
lack   of   “voluntariness”        no     less   than       twenty    times       in   their

discussion    of    the     third-party     doctrine.          But        my    colleagues’

holding that cell phone users do not voluntarily convey CSLI

misapprehends       the   nature     of    CSLI,      attempts       to    redefine       the

third-party     doctrine,      and      rests    on     a    long-rejected         factual

argument      and     the     constitutional            protection             afforded    a

communication’s content.

                                           A.

       With respect to the nature of CSLI, there can be little

question that cell phone users “convey” CSLI to their service

providers.     After all, if they do not, then who does?                           Perhaps

the majority believes that because a service provider generates

a record of CSLI, the provider just conveys CSLI to itself.                               But

before the provider can create such a record, it must receive

information indicating that a cell phone user is relying on a



that the third-party doctrine does not apply to CSLI, they are
mistaken.   The third-party doctrine clearly covers information
regarded as comparably “sensitive” to location information, like
financial records, Miller, 425 U.S. at 442, and phone records,
Smith, 442 U.S. at 745.     Indeed, the public polling study the
majority   twice    cites   in   attempting  to   establish   the
“sensitivity” of CSLI relates that a similar number of adults
regard the phone numbers they call to be just as “sensitive” as
location data. Pew Research Ctr., Public Perceptions of Privacy
and   Security   in     the   Post-Snowden  Era   34-35   (2014),
http://www.pewinternet.org/files/2014/11/PI_PublicPerceptionsof
Privacy_111214.pdf.    This is so even though the location data
that the study asked about (GPS) is far more precise than the
CSLI at issue here. See id. at 34.



                                          115
particular         cell    tower.            The     provider     only     receives      that

information when a cell phone user’s phone exchanges signals

with   the     nearest      available         cell    tower.        A    cell    phone   user

therefore “conveys” the location of the cell towers his phone

connects with whenever he uses the provider’s network.

       There is similarly little question that cell phone users

convey   CSLI       to    their    service          providers    “voluntarily.”            See

Davis,   785       F.3d    at   512     n.12       (“Cell   phone       users    voluntarily

convey cell tower location information to telephone companies in

the    course       of    making       and     receiving        calls     on     their   cell

phones.”).         This is so, as the Fifth Circuit explained, even

though a cell phone user “does not directly inform his service

provider of the location of the nearest cell phone tower.”                                 In

re Application (Fifth Circuit), 724 F.3d at 614.

       Logic       compels      this     conclusion.             When      an     individual

purchases      a    cell     phone     and     chooses      a   service        provider,    he

expects the provider will, at a minimum, place outgoing calls,

send text messages, and route incoming calls and messages.                                  As

most cell phone users know all too well, however, proximity to a

cell tower is necessary to complete these tasks.                           Anyone who has

stepped outside to “get a signal,” or has warned a caller of a

potential       loss       of     service          before   entering        an     elevator,

understands, on some level, that location matters.                               See id. at

613 (“Cell phone users recognize that, if their phone cannot

                                               116
pick up a signal (or ‘has no bars’), they are out of the range

of their service provider’s network of towers.”).

       A cell phone user thus voluntarily enters an arrangement

with       his    service        provider       in    which    he     knows    that      he    must

maintain proximity to the provider’s cell towers in order for

his phone to function.                      Whenever he expects his phone to work,

he   is     thus        permitting       --    indeed,       requesting       --   his     service

provider         to     establish       a     connection      between    his       phone      and   a

nearby      cell        tower.      A    cell      phone     user   therefore       voluntarily

conveys the information necessary for his service provider to

identify the CSLI for his calls and texts.                                   And whether the

service provider actually “elects to make a . . . record” of

this       information           “does       not     . . .    make     any     constitutional

difference.”            Smith, 442 U.S. at 745.

       To be sure, some cell phone users may not recognize, in the

moment,          that     they     are       “conveying”       CSLI     to     their       service

provider.             See In re Application (Third Circuit), 620 F.3d at

317.       But the Supreme Court’s use of the word “voluntarily” in

Smith and Miller does not require contemporaneous recognition of

every detail an individual conveys to a third party. 6                                     Rather,


       6
       If it were otherwise, as my colleagues appear to believe,
then courts would frequently need to parse business records for
indicia of what an individual knew he conveyed to a third party.
For example, when a person hands his credit card to the cashier
at a grocery store, he may not pause to consider that he is also
(Continued)
                                                   117
these cases make clear that the third-party doctrine does not

apply when an individual involuntarily conveys information -- as

when the government conducts surreptitious surveillance or when

a third party steals private information.

     Thus, this would be a different case if Sprint/Nextel had

misused its access to Defendants’ phones and secretly recorded,

at   the   government’s    behest,   information      unnecessary    to    the

provision of cell service.       Defendants did not assume that risk

when they made calls or sent messages.              But like the defendant

in Smith, 442 U.S. at 747, Defendants here did “assume the risk”

that the phone company would make a record of the information

necessary   to   accomplish   the    very   tasks    they   paid   the   phone

company to perform.       They cannot now protest that providing this

essential information was involuntary.

                                     B.

     To justify its rejection of the third-party doctrine, the

majority attempts to redefine it.           The majority maintains that

the third-party doctrine does not apply to CSLI because a cell



“conveying” to his credit card company the date and time of his
purchase or the store’s street address. But he would hardly be
able to use that as an excuse to claim an expectation of privacy
if those pieces of information appear in the credit card
company’s resulting records of the transaction.       Cf. United
States v. Phibbs, 999 F.2d 1053, 1077-78 (6th Cir. 1993)
(Defendant “did not have both an actual and a justifiable
privacy interest in . . . his credit card statements.”).



                                     118
phone user need not “actively submit any location-identifying

information    when     making     a    call    or     sending     a     message.”      My

colleagues      apparently        believe         that      an     individual         only

“voluntarily convey[s]” information he “actively submit[s],” but

such a rule is nowhere to be found in either Miller or Smith.

Moreover, this purported requirement cannot be squared with the

myriad of federal cases that permit the government to acquire

third-party    records,       even      when    individuals        do    not    “actively

submit” the information contained in the records.

     For     starters,       courts      have     attached        no     constitutional

significance    to     the    distinction        between     records       of   incoming

versus outgoing phone calls.              The technology the police used in

Smith -- a pen register -- recorded only the numbers dialed by a

suspect’s     phone.         It   did    not    (and      could    not)     record    any

information about incoming calls.                 To capture that information,

police routinely use a “trap and trace” device.                         If the majority

were correct that the third-party doctrine applies only when an

individual “actively submit[s]” information, then any effort to

acquire    records     of    incoming     phone      calls       would    constitute     a

search protected by the Fourth Amendment.                    After all, the phone

customer     never     “actively       submits”      to   the     phone     company    --

“voluntarily     or     otherwise”        --     the      numbers        from    incoming

telephone calls.        Only the user on the other end of the line,

who actually dials the numbers, does so.

                                          119
     But federal courts have not required a warrant supported by

probable     cause       to     obtain    such   information.            Rather,    they

routinely       permit    the    government      to    install    “trap    and     trace”

devices without demonstrating probable cause or even reasonable

suspicion,       the   showing        required   for    § 2703(d)       orders.      See,

e.g., United States v. Reed, 575 F.3d 900, 914 (9th Cir. 2009);

United States v. Hallmark, 911 F.2d 399, 402 (10th Cir. 1990).

And recently we held that police “did not violate the Fourth

Amendment”       when         obtaining    a     defendant’s       “cellular        phone

records,” even though the records included “basic information

regarding       incoming       and    outgoing   calls    on     that    phone     line.”

United States v. Clenney, 631 F.3d 658, 666-67 (4th Cir. 2011)

(emphasis added). 7

     Moreover, outside the context of phone records, we have

held that third-party information relating to the sending and

routing    of    electronic          communications     does   not      receive    Fourth

Amendment protection.            United States v. Bynum, 604 F.3d 161, 164

     7 Nor has this court ever suggested that other information
typically contained in phone records -- the date, time, and
duration of each call, for example -- merits constitutional
protection. Yet a phone customer never “actively submits” this
information either.   Rather, this information is, to borrow a
phrase from the majority opinion, “quietly and automatically
calculated” by the phone company “without unusual or overt
intervention that might be detected by the target user.”     If
individuals “voluntarily convey” all of this information to
their phone companies, I see no basis for drawing the line at
CSLI. Notably, the majority does not provide one.



                                           120
(4th Cir. 2010).        In Bynum, we explained that it “would not be

objectively reasonable” for a defendant to expect privacy in his

phone   and   Internet      subscriber      records,     including         “his   name,

email address, telephone number, and physical address.”                            Id.

Although we had no occasion in Bynum to consider whether an

individual    has   a   protected     privacy        interest    in    his   Internet

Protocol (IP) address, id. at 164 n.2, several of our sister

circuits   have     concluded    that    no    such    interest       exists.      See

United States v. Suing, 712 F.3d 1209, 1213 (8th Cir. 2013);

United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010).

      And as the majority itself recognizes, the Ninth Circuit

has held that “e-mail and Internet users have no expectation of

privacy in . . . the IP addresses of the websites they visit.”

United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008).

The   Forrester     court    also    held     that    there     is    no   reasonable

expectation   of    privacy     in   either    the     to/from       addresses    of   a

user’s emails or the “total amount of data transmitted to or

from [a user’s] account.”            Id. at 510-11.        The court found the

government’s acquisition of this information “constitutionally

indistinguishable from the use of a pen register that the Court

approved in Smith,” in part because “e-mail and Internet users,

like the telephone users in Smith, rely on third-party equipment

in order to engage in communication.”                Id. at 510.



                                        121
     Of course, computer users do “actively submit” some of the

information discussed in the above cases, like the “to” address

in an email and the subscriber information conveyed when signing

up for Internet service.            But users do not actively submit other

pieces of information, like an IP address or the amount of data

transmitted      to   their     account.        Internet        service    providers

automatically generate that information.                  See Christie, 624 F.3d

at 563; Forrester, 512 F.3d at 511.

     If    the    majority     is    correct    that      the    Fourth    Amendment

protects    information       individuals      do   not    “actively      submit”   to

third parties, then it should trouble my colleagues that we and

our sister circuits have consistently failed to recognize this

protection.      Yet nowhere in their opinion do my colleagues even

attempt to grapple with these cases or to reconcile the rule

they announce with the previous applications of the third-party

doctrine.     Today’s decision is a holding in search of a coherent

legal principle; my colleagues have offered none.

                                        C.

     Instead, my colleagues rely on an argument long rejected by

the Supreme Court and a series of cases involving the content of

communications to support their holding that CSLI is protected

by the Fourth Amendment.

     First,      my   colleagues      emphasize     that    cell    phone    use    is

“ubiquitous      in   our     society   today”      and     “essential      to   full

                                        122
cultural and economic participation.”                          To the majority, such

“ubiquitous”        and     “essential”       use     shields             CSLI      from    the

consequences of the third-party doctrine.                            For, the majority

contends,     cell        phone   users    cannot         be     held       to    voluntarily

“forfeit     expectations         of   privacy       by        simply       seeking      active

participation in society through use of their cell phones.”

       But    the     dissenting          justices        in      Miller           and     Smith

unsuccessfully advanced nearly identical concerns.                                  Dissenting

in Miller, Justice Brennan contended that “the disclosure by

individuals or business firms of their financial affairs to a

bank   is    not    entirely      volitional,       since       it     is    impossible       to

participate in the economic life of contemporary society without

maintaining a bank account.”                  425 U.S. at 451 (Brennan, J.,

dissenting)        (internal      quotation      marks     and       citation        omitted).

And dissenting in Smith, Justice Marshall warned that “unless a

person is prepared to forgo use of what for many has become a

personal     or    professional        necessity,”        i.e.,       a     telephone,      “he

cannot help but accept the risk of surveillance.”                                 442 U.S. at

750 (Marshall, J., dissenting).                  It was, in Justice Marshall’s

view, “idle to speak of ‘assuming’ risks in contexts where, as a

practical     matter,       individuals     have     no    realistic             alternative.”

Id.    The Supreme Court has thus twice rejected the majority’s

“ubiquitous”        and    “essential”      theory.            Until      the      Court   says

otherwise, these holdings bind us.

                                           123
      Second, the majority relies on cases that afford Fourth

Amendment protection to the content of communications to suggest

that CSLI warrants the same protection.                        See Ex parte Jackson,

96 U.S. 727, 733 (1877) (content of letters and packages); Katz

v. United States, 389 U.S. 347, 353 (1967) (content of telephone

calls); United States v. Warshak, 631 F.3d 266, 287 (6th Cir.

2010)     (content       of    emails).             What    the       majority        fails   to

acknowledge is that for each medium of communication these cases

address,    there        is   also     a    case     expressly        withholding          Fourth

Amendment     protection          from        non-content          information,             i.e.,

information involving addresses and routing.                             See Jackson, 96

U.S. at 733 (no warrant needed to examine the outside of letters

and     packages);       Smith,      442      U.S.     at    743-44       (no     reasonable

expectation of privacy in phone numbers dialed); Forrester, 512

F.3d at 510 (no reasonable expectation of privacy in the to/from

addresses     of     emails);          accord       Jones,     132      S.      Ct.    at     957

(Sotomayor, J., concurring) (noting the Fourth Amendment does

not     currently    protect         “phone         numbers”      disclosed           to    phone

companies and “e-mail addresses” disclosed to Internet service

providers).

      The   Supreme       Court      has     thus     forged      a     clear    distinction

between     the    contents       of       communications         and    the     non-content

information       that    enables      communications          providers        to     transmit



                                              124
the content. 8        CSLI, which reveals the equipment used to route

calls and texts, undeniably belongs in the non-content category.

       My     colleagues    apparently      disagree   with   this   conclusion.

They posit that CSLI is “of course more than simple routing

information” because “it tracks a cell phone user’s location

across specific points in time.”                 But all routing information

“tracks” some form of activity when aggregated over time.                    The

postmark on letters “tracks” where a person has deposited his

correspondence in the mail; a pen register “tracks” every call a

person makes and allows the government to know precisely when he

is at home; credit card records “track” a consumer’s purchases,

including the location of the stores where he made them.                       Of

course, CSLI is not identical to any of these other forms of

routing information, just as cell phones are not identical to

other modes of communication.              But it blinks at reality to hold

that       CSLI,   which   contains   no    content,   somehow   constitutes    a

communication of content for Fourth Amendment purposes.




       8
       In addition to being firmly grounded in the case law, the
content/non-content distinction makes good doctrinal sense. The
intended recipient of the content of communication is not the
third party who transmits it, but the person called, written,
emailed, or sent texts. The routing and addressing information,
by contrast, is intended for the third parties who facilitate
such transmissions.



                                           125
      That the majority attempts to blur this clear distinction 9

further   illustrates    the    extent    to   which    its   holding     is   a

constitutional outlier -- untenable in the abstract and bizarre

in practice.     Case in point:          As I understand the majority’s

view, the government could legally obtain, without a warrant,

all data in the Sprint/Nextel records admitted into evidence

here, except the CSLI.          If that is so, then the line in this

case between a Fourth Amendment “search” and “not a search” is

the   literal   line    that,    moving    left   to    right    across     the

Sprint/Nextel   spreadsheets,      separates    the    seventh   column    from

the eighth.     See J.A 2656; see also J.A. 1977-79.             The records

to the left of that line list the source of a call, the number

dialed, the date and time of the call, and the call’s duration -



      9I note that my concurring colleague’s concern about a
general “erosion of privacy” with respect to cell phones rests
on a similar misapprehension of this distinction. My friend
worries about protecting the large quantity of information
“stored on the phone and on remote servers.”     And if all that
information were indeed at risk of disclosure, I would share her
concern.   But the Supreme Court has already made clear that
police must “get a warrant” to search a cell phone for content
stored on the phone -- even for a call log listing the phone
numbers a suspect has dialed.    Riley v. California, 134 S. Ct.
2473, 2492, 2495 (2014).    Moreover, the Riley Court suggested
this rule would also apply to content stored on remote servers,
i.e., the “cloud,” given that “the same type of data may be
stored locally on the device for one user and in the cloud for
another.”   Id. at 2491.   These are clear limiting principles.
Holding, as I would, that the government may acquire, without a
warrant, non-content routing information (including historical
CSLI) would not send us down any slippery slope.



                                    126
- all of which the government can acquire without triggering

Fourth Amendment protection.                   The records to the right of that

line list the cell phone towers used at the start and end of

each call -- information the majority now holds is protected by

the   Fourth      Amendment.            Constitutional        distinctions       should     be

made of sturdier stuff.

                                               III.

      Technology             has    enabled         cell    phone     companies,          like

Sprint/Nextel, to collect a vast amount of information about

their customers.             The quantity of data at issue in this case --

seven        months’    worth      of   cell    phone      records,    spanning        nearly

30,000       calls     and    texts     for    each    defendant      --    unquestionably

implicates weighty privacy interests.

        At     bottom,       I     suspect     discomfort      with        the   amount     of

information          the     government       obtained      here,     rather      than     any

distinction          between        CSLI      and     other    third-party         records,

motivates today’s decision.                    That would certainly explain the

majority’s        suggestion         that     the     government    can      acquire      some

amount of CSLI “before its inspection rises to the level of a

Fourth Amendment search.” 10                   But this concession is in fatal


        10
        It is unclear from my concurring colleague’s opinion,
which simply asserts that “cell site location information . . .
cannot be obtained without a warrant,” whether she agrees that
the government can acquire a small quantity of CSLI without
engaging in a Fourth Amendment “search.”


                                               127
tension         with    the     majority’s         rationale      for     finding    a   Fourth

Amendment violation here. 11                      After all, the majority maintains

that    every          piece    of    CSLI    has        the    potential    to     “place   an

individual . . . at the person’s home,” that no piece of CSLI is

voluntarily conveyed, and that the government can never know

before it acquires CSLI whether the information “will detail the

cell phone user’s movements in private spaces.”                              If all of this

is true (and I doubt it is) 12, then why does a cell phone user

have        a    reasonable          expectation         of     privacy     in    only    large

quantities of CSLI?

       The majority’s answer appears to rest on a misunderstanding

of   the        analysis       embraced      in    the    two    concurring       opinions   in



       11The lack of a bright line between permissible and
impermissible amounts of CSLI also stands at odds with the
Supreme Court’s “general preference to provide clear guidance to
law   enforcement  through   categorical  rules.”      Riley  v.
California, 134 S. Ct. 2473, 2491 (2014). I do not envy the law
enforcement officers and district courts in this circuit who now
must attempt to divine this line.
       12
        Contrary to the majority’s suggestion, and unlike the
information in Karo and Jones, CSLI does not enable the
government to “place an individual” at home or at other private
locations. Each of the cell sites at issue here covers an area
with a radius of up to two miles, and each data point of CSLI
corresponds to a roughly 120-degree sector of a cell site’s
coverage area.   That translates to an area of more than four
square miles in which it would be possible to “locate” a cell
phone user.   Although I do not think the applicability of the
Fourth Amendment hinges on the precision of CSLI, it is
premature to equate CSLI with the far more accurate forms of
surveillance the majority cites.



                                                  128
Jones.   There, the concurring justices recognized a line between

“short-term     monitoring         of    a      person’s    movements           on    public

streets,” which would not infringe a reasonable expectation of

privacy, and “longer term GPS monitoring,” which would.                               Jones,

132 S. Ct. at 964 (Alito, J., concurring in the judgment); see

also id. at 955 (Sotomayor, J., concurring).                         But Jones involved

government surveillance of an individual, not an individual’s

voluntary   disclosure        of   information         to   a   third        party.         And

determining     when      government          surveillance           infringes        on     an

individual’s reasonable expectation of privacy requires a very

different analysis.

      In considering the legality of the government surveillance

at issue in Jones, Justice Alito looked to what a hypothetical

law   enforcement      officer      or       third    party,     engaged        in    visual

surveillance, could reasonably have learned about the defendant.

He concluded that four weeks of GPS monitoring constituted a

Fourth   Amendment     “search”         because      “society’s       expectation”         had

always been “that law enforcement agents and others would not --

and indeed, in the main, simply could not -- secretly monitor

and   catalogue”     an     individual’s        movements       in    public     for       very

long.    Id.    at    964    (Alito,      J.,      concurring        in   the    judgment)

(emphasis added).           In other words, when a defendant has not

disclosed     his    location      to     any      particular        third    party,       the

government may nonetheless surveil him, without a warrant, for

                                             129
as long as a hypothetical third party could reasonably “monitor

and catalogue” his movements in person.

     When, however, an individual has voluntarily conveyed his

location to an actual third party, as Defendants did here, a

court need not resort to hypotheticals to determine whether he

justifiably expected that information to remain private.             Here,

we know that Defendants had already disclosed all the CSLI at

issue to Sprint/Nextel before the government acquired the phone

company’s records.      And the very act of disclosure negated any

reasonable expectation of privacy, regardless of how frequently

that disclosure occurred.        The majority ignores these critical

facts,   applying     the   same     constitutional   requirements     for

location information acquired directly through GPS tracking by

the government to historic CSLI that has already been disclosed

to a third party.

     I recognize the appeal -- if we were writing on a clean

slate -- in holding that individuals always have a reasonable

expectation    of    privacy    in    large   quantities   of   location

information, even if they have shared that information with a

phone company.      But the third-party doctrine does not afford us

that option.     Intrinsic to the doctrine is an assumption that

the quantity of information an individual shares with a third

party does not affect whether that individual has a reasonable

expectation of privacy.        Although third parties have access to

                                     130
much more information now than they did when the Supreme Court

decided Smith, the Court was certainly then aware of the privacy

implications        of    the    third-party     doctrine.         Justice      Stewart

warned the Smith majority that “broadcast[ing] to the world a

list of the local or long distance numbers” a person has called

could    “reveal        the    most   intimate   details     of    [that]       person’s

life.”        Smith, 442 U.S. at 748 (Stewart, J., dissenting).                       That

is, in essence, the very warning that persuades the majority

today.        But the Supreme Court was unmoved by the argument then,

and it is not our place to credit it now.                    If individuals lack

any legitimate expectation of privacy in information they share

with a third party, then sharing more non-private information

with that third party cannot change the calculus.

       Application of the third-party doctrine does not, however,

render        privacy     an     unavoidable      casualty        of     technological

progress.        After all, Congress and state legislatures are far

better positioned to respond to changes in technology than are

the courts.         See Jones, 132 S. Ct. at 964 (Alito, J., concurring

in the judgment) (“A legislative body is well situated to gauge

changing       public     attitudes,     to    draw   detailed         lines,   and    to

balance privacy and public safety in a comprehensive way.”); see

also     In    re    Application      (Fifth     Circuit),    724       F.3d    at     615

(explaining that that the proper “recourse” for those seeking



                                          131
increased    privacy   is   often     “in    the   market    or    the   political

process”). 13

     The very statute at issue here, the Stored Communications

Act (SCA), demonstrates that Congress can -- and does -- make

these     judgments.    The   SCA     imposes      a   higher     burden    on   the

government for acquiring “the contents of a wire or electronic

communication” than for obtaining “a record . . . pertaining to

a subscriber . . . or customer” of an electronic communication

service.     18 U.S.C. §§ 2703(a), (c).            And the SCA is part of a

broader statute, the Electronic Communications Privacy Act of

1986 (ECPA), which was enacted in the wake of Smith.                       See Pub.

L. No. 99-508, 100 Stat. 1848.              In the ECPA, Congress responded

directly    to   Smith’s    holding    by     requiring     the   government     to

obtain a court order before installing a pen register or “trap



     13 The majority posits that it is our responsibility to
ensure that “a technological advance alone cannot constrict
Fourth Amendment protection for private matters that would
otherwise be hidden or inaccessible.”    But this is simply an
incorrect statement of Fourth Amendment law.     As the Supreme
Court explained in Kyllo, “[i]t would be foolish to contend that
the degree of privacy secured to citizens by the Fourth
Amendment has been entirely unaffected by the advance of
technology.” 533 U.S. at 33-34. The “technology enabling human
flight,” for example, “has exposed to public view . . .
uncovered portions of the house and its curtilage that once were
private.” Id. at 34. And yet the Court held in California v.
Ciraolo, 476 U.S. 207, 215 (1986), and again in Florida v.
Riley, 488 U.S. 445, 450 (1989), that police observations of the
curtilage from an aircraft do not implicate the Fourth
Amendment. See Kyllo, 533 U.S. at 34.



                                      132
and trace” device.           See 18 U.S.C. § 3121(a).                       Although Congress

could undoubtedly do more, it has not been asleep at the switch.

      Ultimately,       of    course,         the    Supreme         Court        may    decide    to

revisit       the    third-party        doctrine.               Justice           Sotomayor       has

suggested that the doctrine is “ill suited to the digital age,

in    which    people       reveal      a    great    deal           of   information         about

themselves      to    third       parties      in    the    course           of    carrying       out

mundane    tasks.”          Jones,      132    S.    Ct.        at    957    (Sotomayor,          J.,

concurring).         Indeed, although the Court formulated the third-

party doctrine as an articulation of the reasonable-expectation-

of-privacy inquiry, it increasingly feels like an exception. 14                                     A

per   se   rule      that    it    is       unreasonable         to       expect        privacy    in

information         voluntarily         disclosed          to        third        parties     seems

unmoored from current understandings of privacy.

      The landscape would be different “if our Fourth Amendment

jurisprudence cease[d] to treat secrecy as a prerequisite for

privacy.”       Id.     But until the Supreme Court so holds, we are

      14Seizing on the word “exception,” my colleagues suggest
that I advocate “an expansion” of the third-party doctrine.
They misinterpret my statement as to what the third-party
doctrine has become for a statement as to what the doctrine
should be.     This mistake is puzzling given my colleagues’
reliance on Justice Sotomayor’s opinion in Jones.    It is clear
from her opinion, though not from the majority’s retelling, that
tailoring the Fourth Amendment to “the digital age” would, in
Justice   Sotomayor’s  view,   require  the  Supreme   Court  to
“reconsider” the third-party doctrine. See Jones, 132 S. Ct. at
957 (Sotomayor, J., concurring).



                                              133
bound by the contours of the third-party doctrine as articulated

by the Court.       See, e.g., Agostini v. Felton, 521 U.S. 203, 237

(1997) (reversing         the       Second    Circuit       but    noting       that    it    had

correctly       applied    then-governing            law,    explaining         that    “if     a

precedent of this Court has direct application in a case, yet

appears    to    rest     on    reasons      rejected       in    some     other       line    of

decisions, the Court of Appeals should follow the case which

directly    controls”      (internal         quotation       marks,       alteration,         and

citation     omitted)).               Applying        the     third-party          doctrine,

consistent with controlling precedent, I can only conclude that

the Fourth Amendment did not protect Sprint/Nextel’s records of

Defendants’ CSLI.         Accordingly, I would hold that the government

legally acquired those records through § 2703(d) orders.

                                             * * *

     Time may show that my colleagues have struck the proper

balance between technology and privacy.                       But if the majority is

proven right, it will only be because the Supreme Court revises

its decades-old understanding of how the Fourth Amendment treats

information voluntarily disclosed to third parties.                                Today the

majority    endeavors          to   beat     the    Supreme       Court    to    the    punch.

Respectfully, I dissent.




                                              134
