United States v. Joel Rosario

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 20‐2330 UNITED STATES OF AMERICA, Plaintiff‐Appellee, v.

JOEL ROSARIO, Defendant‐Appellant. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:15‐cr‐00611‐3 — John Z. Lee, Judge. ____________________

ARGUED MAY 11, 2021 — DECIDED JULY 19, 2021 ____________________

Before EASTERBROOK, RIPPLE, and KANNE, Circuit Judges. RIPPLE, Circuit Judge. Several individuals burglarized a store in Ann Arbor, Michigan, stealing firearms, collector coins, and other goods. Police officers obtained cell‐site loca‐ tion information pursuant to the Stored Communications Act, 18 U.S.C. § 2701 et seq. That information led to the arrest of Joel Rosario.

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Prior to trial, Mr. Rosario filed a motion to suppress the cell‐site location information. He submitted that the Fourth Amendment required the Government to secure a search war‐ rant before obtaining cell‐site location information. Applying the law as it existed prior to Carpenter v. United States, 138 S. Ct. 2206 (2018), the district court denied the motion, hold‐ ing that the acquisition of cell‐site location information from third‐party service providers did not constitute a Fourth Amendment search. A jury found Mr. Rosario guilty of one count of transport‐ ing stolen goods in interstate commerce, in violation of 18 U.S.C. § 2314, and of one count of unlawful possession of a firearm by a felon, in violation of 18 U.S.C § 922(g)(1). Mr. Ro‐ sario filed a motion for a new trial, maintaining that the cell‐site location information should have been suppressed because it was obtained without a warrant. While Mr. Ro‐ sario’s motion was pending, the Supreme Court issued its de‐ cision in Carpenter, holding that the acquisition of cell‐site lo‐ cation information constitutes a Fourth Amendment search for which law enforcement is generally required to obtain a warrant supported by probable cause. 138 S. Ct. at 2221. The district court nevertheless denied Mr. Rosario’s new trial mo‐ tion, as well as his subsequent motion to reconsider. Mr. Ro‐ sario timely appealed, and we now affirm the judgment of the district court. I A. On December 5, 2013, several individuals burglarized a store in Ann Arbor, Michigan, after the store had closed. The burglars stole twenty‐four firearms, collector coins, and other

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goods with a combined value over $208,000. The store’s owner told investigating officers that three men had entered the store approximately forty‐five minutes prior to closing. The owner had spoken to one of the men about guns in a dis‐ play case, while the other two browsed the store. During the investigation, the officers discovered that a pri‐ 1 vate caller, using the *67 code, had placed multiple calls to the store shortly after it had closed for the day. The Stored Communications Act sets out two ways to obtain cell‐site lo‐ cation information: (1) voluntary disclosure, or an “exigent re‐ quest,” under 18 U.S.C. § 2702(c);2 or (2) required disclosure 3 authorized by a court order, under 18 U.S.C. § 2703(d). Here, the officers made an exigent request to Comcast, the store’s telephone service provider, for the private caller’s phone number. After Comcast voluntarily disclosed the number, the officers, using the Internet, determined that Sprint was that caller’s provider. The officers then made an exigent request to

1 Dialing *67 before placing a call blocks the recipient’s caller ID from re‐ vealing the caller’s phone number. 2 Under 18 U.S.C. § 2702(c)(4), a service provider may divulge customer information “to a governmental entity, if the provider, in good faith, be‐ lieves that an emergency involving danger or death or serious physical injury to any person requires disclosure without delay of information re‐ lating to the emergency.” 3 Under 18 U.S.C. § 2703(d), a court order for disclosure “may be issued by any court … only if the governmental entity offers specific and articu‐ lable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal in‐ vestigation.”

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Sprint for the cell‐site location information for that cell phone. Cell‐site location information is the location information generated by a cell phone. When the phone is powered on,4 it sends and receives signals from the cell tower with the strong‐ est signal; that cell tower is usually the one closest to the phone. Sprint voluntarily provided the requested cell‐site lo‐ cation information, which indicated that on December 3 and 4, 2013, the phone had pinged off various cell towers in Illi‐ nois. At 9:26 p.m. on December 4, however, the phone had pinged off of a cell tower in Lansing, Michigan, and at 11:14 p.m., the phone pinged off of a cell tower in Ann Arbor, Mich‐ igan. The phone pinged off of cell towers in Ann Arbor until 6:37 p.m. on December 5. The phone then traveled back to Il‐ linois. The officers surveyed hotels in the Ann Arbor area and discovered that the phone number had been provided to a Comfort Inn under Mr. Rosario’s name. Although the officers had obtained cell‐site location infor‐ mation directly from Sprint, the officers and the Government later sought court orders for the same and more information. On December 9, 2013, the officers applied for and received a court order pursuant to § 2703(d) to obtain the store’s phone records from Comcast. On December 13, 2013, the Govern‐ ment applied for and received another court order pursuant to § 2703(d) to obtain the cell‐site location information for

4 “[A] cell phone logs a cell‐site record by dint of its operation, without any affirmative act on the part of the user beyond powering up. Virtually any activity on the phone generates [cell‐site location information], includ‐ ing incoming calls, texts, or e‐mails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates.” Carpenter v. United States, 138 S. Ct. 2206, 2220 (2018).

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Mr. Rosario’s phone for the month of December 2013. In Feb‐ ruary 2017, the Government again sought and received the same information from Sprint in another § 2703(d) order. B. A grand jury indicted Mr. Rosario for transporting stolen goods in interstate commerce, in violation of 18 U.S.C. § 2314, and for unlawful possession of a firearm by a felon, in viola‐ tion of 18 U.S.C. § 922(g)(1). On December 4, 2016, Mr. Rosario filed a motion to suppress the cell‐site location information evidence. He argued that the Government had obtained the cell‐site location information in violation of his Fourth Amendment rights by failing to first obtain a warrant sup‐ ported by probable cause. At the time the district court denied Mr. Rosario’s motion to suppress, there was not yet any bind‐ ing Fourth Amendment precedent regarding the propriety of acquiring cell‐site location information from third‐party ser‐ vice providers. Relying on Smith v. Maryland, 442 U.S. 735 (1979), and applying the third‐party doctrine, the court con‐ cluded that Mr. Rosario did not have a reasonable expectation of privacy in the information he voluntarily had turned over to his cellular service provider through the use of his cell phone. The court accordingly denied Mr. Rosario’s suppres‐ sion motion. Mr. Rosario proceeded to trial, and the jury con‐ victed him on both counts. Two months after Mr. Rosario’s trial, the Supreme Court issued its decision in Carpenter, 138 S. Ct. at 2206. The Court held that individuals do have a reasonable expectation of pri‐ vacy in their cell‐site location information and that police gen‐ erally must obtain a warrant supported by probable cause prior to acquiring cell‐site location information from a third‐party service provider. The Court further held that

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court orders obtained under § 2703(d) were insufficient. Showing by specific and articulable facts that there are “rea‐ sonable grounds” to believe that the information was “rele‐ vant and material to an ongoing investigation” is a lower standard than probable cause. Id. at 2221. The district court nevertheless denied Mr. Rosario’s mo‐ tions to reconsider the motion to suppress and for acquittal; it also concluded that a new trial was not warranted. The court acknowledged that its earlier denial of Mr. Rosario’s suppres‐ sion motion rested on the pre‐Carpenter view that obtaining cell‐site location information was not a search. The court fur‐ ther acknowledged that Carpenter had “effectively over‐ 5 turned” that view. The district court held, nevertheless, that a clear chain of probable cause would have led to the cell‐site location information’s inevitable discovery and that the offic‐ ers had followed in good faith the requirements of the existing legal framework of the Stored Communications Act. II A. Mr. Rosario appeals the district court’s denial of his mo‐ tion to suppress the cell‐site location information evidence. He contends that the police seized the cell‐site location infor‐ mation records without probable cause and that the records are therefore inadmissible against him. The district court erred, he maintains, in denying the motion to suppress and in denying him a new trial.

5 R.254 at 6. No. 20‐2330 7

1. The procedural and substantive standards that must gov‐ ern our assessment of Mr. Rosario’s submission are well es‐ tablished. In reviewing a district court’s denial of a motion to suppress, “we review legal conclusions de novo but findings of fact for clear error.” United States v. Edgeworth, 889 F.3d 350, 353 (7th Cir. 2018). We review a district court’s ruling on a new trial motion for an abuse of discretion. United States v. Friedman, 971 F.3d 700, 713 (7th Cir. 2020). An error of law constitutes an abuse of discretion. See United States v. Shelton, 997 F.3d 749, 757 (7th Cir. 2021). “The ‘touchstone’ of the Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’” United States v. Hammond, 996 F.3d 374, 383 (7th Cir. 2021) (quoting Henry v. Hulett, 969 F.3d 769, 776–77 (7th Cir. 2020)). “If a defendant has the requisite ex‐ pectation of privacy, the Fourth Amendment generally re‐ quires law enforcement to obtain a warrant before executing a search.” Id. at 384. “In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.” Id. (quoting Riley v. California, 573 U.S. 373, 382 (2014)). To “‘compel respect for the constitutional guaranty’ of freedom from unreasonable searches,” the Supreme Court also has “fashioned the exclusionary rule.” Id. (quoting United States v. Martin, 807 F.3d 842, 846 (7th Cir. 2015)). We have recently made clear, however, that the exclusionary rule is not a personal constitu‐ tional right, and its application exacts a heavy toll on both the judicial system and society at

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large, as its effect often is to suppress the truth and set the criminal loose in the community without punishment. The exclusionary rule is designed primarily to deter unconstitutional conduct. The exclusionary rule therefore does not apply when law enforcement has relied in good faith on a facially valid warrant, a then‐valid statute, or binding circuit precedent. Succinctly, suppression of evidence … has al‐ ways been our last resort. Id. (cleaned up). To obtain Mr. Rosario’s cell‐site location information, of‐ ficers relied on the procedures set forth in the Stored Commu‐ nications Act, 18 U.S.C. § 2701 et seq. Section 2702 covers the “[v]oluntary disclosure of customer communications or rec‐ ords.” Section 2702(c)(4) allows service providers to divulge customer information “to a governmental entity, if the pro‐ vider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person re‐ quires disclosure without delay of information relating to the emergency.” Section 2703 covers the “[r]equired disclosure of customer communications or records.” Section 2703(d) pro‐ vides the requirements for a court order: A court order for disclosure … shall issue only if the governmental entity offers specific and ar‐ ticulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and ma‐ terial to an ongoing criminal investigation.

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Id. In 2018, however, the Supreme Court held in Carpenter that “an individual maintains a legitimate expectation of pri‐ vacy in the record of his physical movements as captured through [cell‐site location information].” 138 S. Ct. at 2217. Accordingly, “the Government must generally obtain a war‐ rant supported by probable cause before acquiring such rec‐ ords.” Id. at 2221. The Supreme Court further held that the showing required to obtain a court order under § 2703(d) of the Stored Communications Act “[fell] well short of the prob‐ able cause required for a warrant.” Id. “Consequently, an or‐ der issued under Section 2703(d) of the Act is not a permissi‐ ble mechanism for accessing historical cell‐site records.” Id. 2. Mr. Rosario now seeks to exclude his cell‐site location in‐ formation based on Carpenter’s holding. We addressed this is‐ sue in United States v. Curtis, 901 F.3d 846, 848 (7th Cir. 2018), 6 and again in United States v. Hammond, 996 F.3d at 385–86. In those cases, we made clear that a conceded error after Carpen‐ ter does not automatically require the application of the exclu‐ sionary rule where the Government relied in good faith on a statute later declared unconstitutional. Curtis, 901 F.3d at 848; Hammond, 996 F.3d at 385–86; see also Illinois v. Krull, 480 U.S. 340, 350 (1987) (“If the statute is subsequently declared

6 Although the Supreme Court decided Carpenter after the Government requested and received Mr. Rosario’s cell‐site location information pursu‐ ant to §§ 2702(c)(4) and 2703(d) of the Stored Communications Act, Car‐ penter controls our analysis. See United States v. Hammond, 996 F.3d 374, 385 n.3 (7th Cir. 2021); see also United States v. Maez, 960 F.3d 949, 954 (7th Cir. 2020) (“Current law governs our review on direct appeal.”).

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unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written.”). Here, the officers initially requested voluntary disclosures from Com‐ cast and Sprint by invoking the exigent request procedures set out in § 2702(c)(4). Notably, local officers and the Govern‐ ment, a few days into the investigation, and then the Govern‐ ment again in 2017, sought and obtained § 2703(d) court or‐ ders authorizing access to cell‐site location information for broader periods of time. Mr. Rosario contends that, although “Curtis maps the 7 course for this court’s analysis,” a different result is required. Unlike in Curtis, he submits, the officers did not seek the § 2703(d) orders until after they had invoked § 2702(c)(4) of the Stored Communications Act, the voluntary exigent cir‐ cumstances provision, and requested, obtained, and used Mr. Rosario’s cell‐site location information. When the officers invoked § 2702(c)(4), he submits, there were no exigent cir‐ cumstances presented by the theft of firearms. In Mr. Ro‐ sario’s view, “[w]ithout such imminent emergency, law en‐ forcement could not legitimately obtain the [cell‐site location 8 information] under § 2702(c)(4).” We therefore cannot say, he maintains, that the officers were acting in good‐faith reliance on the provision. We cannot accept Mr. Rosario’s submission. In our view, the record demonstrates that the officers relied on § 2702(c)(4)

7 Appellant’s Br. 13. 8 Id. at 16. No. 20‐2330 11

of the Stored Communications Act in good faith. The officers’ emergency request form submitted to Comcast stated that “[a] total of 25 guns (22 handguns) [were] stolen,” and that the “[v]olume of guns, in particular, the number of stolen handguns, pose[d] a significant community risk to life or se‐ rious physical harm if potential recovery of the guns is de‐ 9 layed.” Indeed, according to the police report, exigent re‐ quests were made to Sprint within thirty minutes of Com‐ 10 cast’s providing the telephone number. To support his view that there was no exigency here, Mr. Rosario invites our attention to a number of cases that considered facts arguably more graphic and circumstances more immediate such as a burglary in process. However, the existence of scenarios involving greater exigencies does not render the facts before us non‐exigent. The officers did not act unreasonably when they submitted to Comcast and Sprint, the entities tasked with deciding whether to release the infor‐ mation, that the volume of guns and the number of handguns stolen presented a significant threat to public safety. The rec‐ ord contains no information to support the view that the of‐ ficers did anything other than attempt to stem the distribution of the weapons by quickly ascertaining their location. 3. Another exception to the exclusionary rule, the inevitable discovery doctrine, also supports, independently, the district court’s decision. “Under the inevitable discovery doctrine, the exclusionary rule is inapplicable where the government

9 R.222‐1 at 1. 10 See R.95‐2 at 3. 12 No. 20‐2330

establishes by a preponderance of the evidence ‘that the infor‐ mation ultimately or inevitably would have been discovered by lawful means.’” United States v. Alexander, 573 F.3d 465, 477 (7th Cir. 2009) (quoting Nix v. Williams, 467 U.S. 431, 444 (1984)). To establish that officers inevitably would have dis‐ covered the challenged evidence by lawful means, the Government must demonstrate that two criteria are met: First, it must show that it had, or would have obtained, an independent, legal justification for conducting a search that would have led to the discovery of the evidence; sec‐ ond, the Government must demonstrate that it would have conducted a lawful search absent the challenged conduct. United States v. Marrocco, 578 F.3d 627, 637–38 (7th Cir. 2009) (footnote omitted). The district court properly concluded that the require‐ ments of the inevitable discovery doctrine had been met. On the first prong, as the district court held, there was “a clear chain of probable cause, which would have supported war‐ 11 rants had the police applied for them.” The officers, after learning from the owner the timing of the call (after the store had closed and before the burglary) and that it was a private number, were justified in contacting Comcast to obtain the caller’s phone number. Such a warrantless request is sup‐ ported by Smith v. Maryland, 442 U.S. at 742, left undisturbed by Carpenter, 138 S. Ct. at 2220. Once the officers had that number, we agree that “they would have had probable cause

11 R.254 at 8. No. 20‐2330 13

to seek [cell‐site location information] for, at least, the night of the burglary, to determine if the caller was in the vicinity of 12 the store.” If that search established, as it did, that the caller was in the vicinity of the store, “officers would have had prob‐ able cause to seek [cell‐site location information] for the days immediately surrounding the burglary as well as the identity 13 of the subscriber.” “This is not a case where the investigating officers learned new information during an illegal search and, based on that information, took investigatory steps that they would not have taken otherwise.” Marrocco, 578 F.3d at 638. Mr. Rosario attempts to cast doubt on the individual facts. He contends that “[b]usinesses often receive after‐hours calls” or even robocalls, that having a phone number listed as pri‐ vate or blocked is not uncommon and perfectly lawful, and that the store received multiple calls from out‐of‐town area 14 codes. But evaluating whether there is probable cause re‐ quires looking at the totality of the circumstances. See United States v. Rees, 957 F.3d 761, 766 (7th Cir. 2020) (“It also depends on the totality of the circumstances—‘the whole picture’—not each fact in isolation.” (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018))). Here, the totality of the circum‐ stances indicate that the officers would have had independent legal justification for searches that would have led to the dis‐ covery of Mr. Rosario’s cell‐site location information. On the second prong of the inevitable discovery doctrine, the Government must show that the officers inevitably would

12 Id. at 9. 13 Id. 14 Appellant’s Reply Br. 6–7. 14 No. 20‐2330

have sought the warrant and conducted a lawful search. To do so, the Government must “prove that a warrant would cer‐ tainly, and not merely probably, have been issued had it been applied for.” United States v. Tajeda, 524 F.3d 809, 813 (7th Cir. 2008). “Our case law establishes that the inevitable discovery rule applies in cases, such as this one, where investigating of‐ ficers undoubtedly would have followed routine, established steps resulting in the issuance of a warrant.” Marrocco, 578 F.3d at 639–40. The Government has met its burden here by demonstrating that the officers complied with the framework set out in the Stored Communications Act. Mr. Rosario argues that because the officers skirted the Stored Communications Act by ignoring the exigency re‐ quirement, they therefore would have skirted the warrant re‐ quirement had one been required. As we have discussed ear‐ lier, the premise of that argument has no merit. The officers did not skirt the exigency requirement. Indeed, the Govern‐ ment has shown that “[i]t would be unreasonable to conclude that, after discovering all of this information, the officers would have failed to seek a warrant.” Id. at 640. Thus, the ex‐ clusion of the cell‐site location information of Mr. Rosario’s phone was therefore not required because it would have been 15 inevitably discovered.

15 The Government also submits that, even if the district court erred in failing to suppress Mr. Rosario’s cell‐site location information, the error was harmless. On either of the alternate grounds proffered by the Govern‐ ment, its position on the merits is a solid one. We therefore see no reason why we must address this default argument, which is clearly superfluous.

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Conclusion Despite the conceded error in light of Carpenter, Mr. Ro‐ sario is not entitled to relief under the exclusionary rule. In obtaining Mr. Rosario’s cell‐site location information, the of‐ ficers relied in good faith on the procedures set forth in the Stored Communications Act. Moreover, the officers inevita‐ bly would have discovered Mr. Rosario’s cell‐site location in‐ formation. The district court correctly ruled in denying Mr. Rosario’s motion to suppress and his motion for a new trial. The judgment of the district court is affirmed. AFFIRMED