     Case: 16-40701    Document: 00514101947       Page: 1   Date Filed: 08/03/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                    No. 16-40701                    FILED
                                                               August 3, 2017
                                                               Lyle W. Cayce
Consolidated with: 16-40702
                                                                    Clerk

UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

WILLIAM CHANCE WALLACE,

             Defendant - Appellant




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


Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      The opinion issued May 22, 2017 is withdrawn by the panel, and the
following is issued in its place:
      William Chance Wallace is a confirmed member of Tango Blast, a Texas
crime syndicate. As of 2015, Wallace had been convicted of five violent felonies:
one count of possession of a controlled substance with intent to distribute, two
counts of aggravated assault with a deadly weapon, one count of possession of
a controlled substance, and one count of unlawful delivery of a controlled
substance. Wallace violated his probation for the unlawful delivery charge and
a warrant was issued for his arrest on January 15, 2015. In two separate cases,
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Wallace was charged with and pleaded guilty to: (1) being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); and
(2) aiding and abetting retaliation against a witness in a criminal
investigation, in violation of 18 U.S.C. § 1512(b) and 18 U.S.C. § 2. In this
consolidated appeal, we are called on to decide whether the district court erred
in denying Wallace’s motion to suppress. Because we conclude that it did not,
we AFFIRM in part and DISMISS in part as MOOT.
                                       I.
                                 A. Firearm Case
      In May 2015, a confidential informant approached Shawn Hallett, a
Special Agent with the Texas Department of Safety (“DPS”). The informant
gave Wallace’s phone number to Hallett and informed him that Wallace was a
gang member and a wanted fugitive living in Austin. When Hallett verified
this information, he discovered an outstanding arrest warrant. He then passed
this information to DPS’s gang unit in Austin.
      DPS Agent Jose Rodriguez (with the help of an assistant district
attorney) then sought a Ping Order for authorization under both federal and
state law to (among other things) obtain real-time geolocation coordinates of
the cellular device linked to the number given by the confidential informant.
This information is referred to as “E911” data. A state district court judge
granted the requested Ping Order for a period of sixty days going forward. As
a result, DPS discovered that Wallace’s phone had been turned off.
      Hallett reached out to his confidential informant and received a new
telephone number for Wallace within a few days. Rodriguez then applied for
and was granted a second Ping Order for this new cell phone number. With
this Ping Order, DPS obtained the approximate, real-time GPS location of
Wallace’s cell phone from AT&T. Using this information, Hallett located
Wallace near a pond on private property off U.S. Highway 87 north of Victoria,
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Texas. Officers arrested Wallace, discovering a Winchester Super X .22
magnum caliber round of ammunition in his pocket, a black Bersa Thunder
.380 semi-automatic pistol at the edge of the pond, and a box of ammunition
for that pistol along with an empty holster in Wallace’s truck. Wallace was
charged with being a felon in possession of a firearm.
      Once charged, Wallace moved to suppress the evidence obtained during
the execution of the arrest warrant, including the pistol, ammunition, and
relevant testimony. He argued that the Ping Order used to locate him was
invalid because “1) the information provided to the State District Judge was
ambiguous, overbroad and conclusory and 2) law enforcement was not engaged
in an ‘ongoing criminal investigation’ of the Defendant.” He also argued that
the statutes authorizing the Ping Order were unconstitutional. The district
court denied Wallace’s motion, finding that suppression was not a cognizable
statutory remedy under Fifth Circuit precedent. The district court also upheld
the statutes as constitutional. Wallace timely appealed. 1
                          B. Aiding and Abetting Charge
      Approximately five months after Wallace was indicted for the firearms
charge, Wallace and two accomplices posted a photograph of the firearms
complaint and revealed the individual they believed to be the “snitch.” As a
result, that individual, who may or may not have been the actual confidential
informant, was threatened. Wallace was charged with and pleaded guilty to
aiding and abetting retaliation against a witness in a federal investigation, a
violation of 18 U.S.C. § 1513(b) and 18 U.S.C. § 2. Pursuant to his plea
agreement, Wallace waived his right to appeal his conviction and sentence for
any reason other than ineffective assistance of counsel.



      1  Wallace’s plea agreement preserved his right to appeal the district court’s
suppression ruling.
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                                  C. Sentencing
      The cases were consolidated for sentencing. The district court sentenced
Wallace to two concurrent 180-month sentences, followed by three years of
supervised release. At the sentencing hearing, Wallace’s attorney noted that
the Guidelines range for the aiding and abetting charge would have been much
lower had Wallace not been classified an armed career criminal, a threshold he
would not have reached if he not been convicted on the firearms charge.
Wallace therefore requested—and the district court agreed—to reconsider his
sentence should the firearms conviction be overturned on appeal.
                                       II.
      “When examining a district court’s ruling on a motion to suppress, we
review questions of law de novo and factual findings for clear error.” United
States v. Turner, 839 F.3d 429, 432 (5th Cir. 2016) (quoting United States v.
Hearn, 563 F.3d 95, 101 (5th Cir. 2009)). The evidence is viewed “in the light
most favorable to the prevailing party.” Id. We may “affirm the district court’s
ruling on a motion to suppress based on any rationale supported by the record.”
United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005).
      The party seeking suppression “has the burden of proving, by a
preponderance of the evidence, that the evidence in question was obtained in
violation of his Fourth Amendment rights.” United States v. Smith, 978 F.2d
171, 176 (5th Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 133-34
(1978)).
                                      III.
      Wallace maintains that the district court erred in denying his motion to
suppress because “[t]he Government failed to show that it sought an order to
find information relevant to an ongoing criminal investigation” as required by
the federal pen-trap statute and the Texas Code of Criminal Procedure.
Wallace concedes that the Ping Order was issued pursuant to a valid arrest
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warrant for violating the conditions of his probation, but he argues that the
plain meaning of the phrase “ongoing criminal investigation” implies “new
criminal activity” and does not encompass “technical violations of . . .
probation” or “conduct other than new crime.” Neither the relevant statutes
nor binding precedent define the term “ongoing criminal investigation.”
       But Wallace’s ultimate problem is that suppression is not a remedy for a
violation of either the federal pen-trap statute or the Texas Code of Criminal
Procedure. United States v. German, 486 F.3d 849, 654 (5th Cir. 2007) (holding
that suppression is not a remedy for a violation of the federal pen-trap statute);
see also United States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014). 2 “Where
Congress has both established a right and provided exclusive remedies for its
violation, we would encroach upon the prerogatives of Congress were we to
authorize a remedy not provided for by the statute.” German, 486 F.3d at 853
(alteration omitted) (quoting United States v. Frazin, 780 F.2d 1461, 1466 (9th
Cir. 1986)). Unlike the wire-tap statute which “specifically provides for an
exclusionary remedy when the statutory requirements are not met,” the pen-
trap statute provides only for fines and imprisonment for knowing violations.
Id. at 842. Accordingly, it is clear that “Congress has determined that the
benefits of an exclusionary rule do not outweigh its substantial social costs.”
Id.
       The same is true with respect to the parallel state statute in Article 18.21
of the Texas Code of Criminal Procedure. It specifically states that the




       2  DPS also sought the Ping Order pursuant to § 2703(d) of the federal Stored
Communications Act (SCA). Like the federal pen-trap statute and the parallel state
provision, the SCA requires the government to show that the “information sought, [is]
relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). Wallace
does not argue that the government failed to comply with the requirements of the SCA. Even
if he did, we have held that suppression is not a remedy for violations of the SCA. Guerrero,
768 F.3d at 358.
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“remedies and sanctions described” therein—namely “injunctive relief,” “a
reasonable attorney’s fee and other litigation costs,” and “actual damages”—
“are the exclusive judicial remedies and sanctions for a violation of this article.”
Tex. Code. Crim. Proc. art. 18.21, §§ 12-13. Suppression is not an available
recourse. As such, even if the Ping Order were issued in violation of federal or
state law, Wallace is not entitled to suppression. The district court did not err.
                                        IV.
      Alternatively, Wallace argues that the district court should have granted
his motion to suppress because the government violated his Fourth
Amendment rights when it accessed his phone’s E911 location information
pursuant to a court order supported by “specific and articulable facts” rather
than a warrant supported by probable cause. Ordinarily, “evidence obtained in
violation of the Fourth Amendment cannot be used in a criminal proceeding
against the victim of the illegal search or seizure. This prohibition applies as
well to the fruits of the illegally seized evidence.” United States v. Calandra,
414 U.S. 338, 347 (1974) (internal citations omitted). “[A] Fourth Amendment
search occurs when the government violates a subjective expectation of privacy
that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33
(2001) (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.
concurring)). Whether obtaining E911 data constitutes a search within the
meaning of the Fourth Amendment is still an open question in this Circuit.
Nor need we reach that issue here.
      Even if accessing Wallace’s cell phone’s E911 data did constitute a
Fourth Amendment search here, DPS’s actions are covered by the good-faith
exception to the exclusionary rule. “[T]he exclusionary rule is a judicially
fashioned remedy whose focus is not on restoring the victim to his rightful
position but on deterring police officers from knowingly violating the
Constitution.” United States v. Allen, 625 F.3d 830, 836 (5th Cir. 2010). As
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such, courts have carved out exceptions for police conduct “pursued in complete
good faith” because the rule’s “deterrence rationale loses much of its force” in
such circumstances. United States v. Leon, 468 U.S. 897, 919 (1984) (quoting
Michigan v. Tucker, 417 U.S. 433, 447 (1974)). In particular, the Supreme
Court has held that the exclusionary rule does not apply when police officers
“act[ed] in objectively reasonable reliance upon a statute” even if “the statute
is ultimately found to violate the Fourth Amendment.” Illinois v. Krull, 480
U.S. 340, 342 (1987).
      The plain language of 18 U.S.C. § 2703(c) states that the government
may obtain “a court order” requiring a cellular telephone company to turn over
“record[s] or other information” related to its “customer[s].” Nothing in the text
of the statute suggests that “other information” does not encompass E911 data.
Given the “strong presumption of constitutionality due to an Act of Congress,”
United States v. Watson, 423 U.S. 411, 416 (1976), and the absence of a “clear,
controlling case explicitly stating that the government may not obtain real-
time [E911] data under the SCA,” United States v. Espudo, 954 F. Supp. 2d
1029, 1044 (S.D. Cal. 2013), it was reasonable for the officers to rely on the text
of the statute. We cannot conclude that DPS officers “had knowledge, or [could]
properly be charged with knowledge, that the search was unconstitutional
under the Fourth Amendment.” Leon, 468 U.S. at 919. As such, the district
court did not err by denying Wallace’s motion to suppress.
                                        V.
      In conclusion, we AFFIRM the district court’s denial of Wallace’s motion
to suppress the evidence supporting his conviction in the firearms case. Having
concluded that suppression is not warranted, we need not address Wallace’s
request for remand for resentencing regarding his aiding and abetting
conviction, but instead DISMISS that aspect of his appeal as MOOT.


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