United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
case is before the court on remand from the United States
Court of Appeals for the Tenth Circuit. The remand follows
the Supreme Court's decision in Carpenter v. United
States, 138 S.Ct. 2206 (2018), ruling that the
government's seizure of historical cell-site location
information (“CSLI”) under an 18 U.S.C. §
2703(d) order does not generally satisfy the Fourth
Amendment's warrant requirement. On remand, defendant
Albert DeWayne Banks argues the court should vacate his
convictions because the government relied on evidence
dependent on CSLI acquired under a § 2703(d) order. The
government responds, arguing: (1) the court's alternative
discussion about probable cause before issuing the §
2703(d) order rendered the § 2703(d) order a de facto
warrant; (2) the good faith exception applies where it seized
the CSLI under a § 2703(d) order before the Supreme
Court decided Carpenter; and (3) the error in
admitting the CSLI-dependent evidence was harmless beyond a
reasonable doubt. The court concludes its probable cause
discussion was dicta that did not convert the § 2703(d)
order into a warrant. And, the court concludes the government
waived its good-faith argument by not raising it before the
Tenth Circuit. But, the court concludes admission of the
CSLI-dependent evidence was harmless beyond a reasonable
doubt for all counts of conviction. The court thus denies Mr.
Banks relief on his convictions.
Pre-Carpenter Factual and Procedural
2012, Kansas authorities, through a series of controlled
purchases, determined Mr. Banks, in concert with other named
defendants, was selling cocaine. To gain evidence about the
nature and scope of the drug enterprise, authorities sought a
series of state-court wiretap orders under Sections 22-2514,
et seq., of the Kansas Statutes Annotated. Doc. 1064
at 22-28. Judge David R. Platt, a District Judge in
Kansas's Eighth Judicial District, issued at least nine
orders authorizing wiretaps under Kansas law. See
Docs. 379-1, 379-2, 379-3, 379-5, 379-7, 379-9, 379-10,
379-11, 379-13, 379-15 (wiretap orders for all defendants).
The orders permitted authorities to tap phones belonging to
members of the drug conspiracy, including two phones
associated with Mr. Banks: (1) a prepaid Sprint line ending
in 6704, believed to belong to Mr. Banks but with no
subscriber information; and (2) a Sprint line ending in 9771,
believed to belong to Mr. Banks but subscribed to a Glenda
Robinson. Docs. 379-2, 379-13. Judge Platt issued
the first of the orders authorizing a wiretap on a phone
associated with Mr. Banks on March 5, 2013. Doc 379-2 at 8.
Kansas law, the wiretap orders only permitted authorities to
intercept communications within Judge Platt's territorial
jurisdiction-i.e., the four counties comprising Kansas's
Eighth Judicial District. See Kan. Stat. Ann. §
22-2516(3) (“Upon such application the judge may enter
an ex parte order, as requested or as modified,
authorizing the interception of wire, oral or electronic
communications within the territorial jurisdiction of such
judge[.]”). But, authorities had tapped cellular
communications from a location outside of those four counties
without first establishing that the phone subject to a
wiretap order was within one of the four counties when
tapped. Doc. 517 at 3. Information from the tapped
communications helped authorities understand Mr. Banks's
role in the drug conspiracy.
Second Superseding Indictment charged Mr. Banks with (1) one
count of conspiracy to distribute cocaine base, in violation
of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A) (Count
1); (2) three counts of distributing cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)
(Counts 11, 12, and 18); and (3) three counts of distributing
cocaine base, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C) (Counts 8, 15, and 16). Doc. 195 at 2-3,
6-8, 10-11. Count 1 alleged the conspiracy existed between
June 1, 2012, until on or about May 16, 2013. This period
overlapped with authorities tapping phones under the orders
issued by Judge Platt. See Id. at 2. Counts 16 and
18 also involved conduct that occurred after Judge Platt
issued the first wiretap order. See Id. at 10-11.
But, Counts 8, 11, 12, and 15 involved conduct completed
before Judge Platt issued the first wiretap order.
Id. at 4-10.
Banks moved to suppress the evidence acquired from the tapped
cellular devices, arguing the wiretaps had occurred outside
Judge Platt's territorial jurisdiction. See Doc.
431 (motion to join motion to suppress filed by other
defendants). Ruling on a motion to suppress filed in this
case, the court concluded the government could introduce the
contents of a tapped cellular communication only if it could
establish that a tapped phone was within the Eighth Judicial
District when the tap occurred. Doc. 517 at 4-5. To satisfy
this threshold requirement for admission, the government
sought 18 U.S.C. § 2703(d) orders to acquire CSLI from
the cellular providers about the tapped phones. Doc. 417 at
3-4. Section 2703(d) authorizes a court to issue an order
permitting the government to obtain CSLI from a cellular
provider if the government “offers specific and
articulable facts showing that there are reasonable grounds
to believe that the [CSLI records] are relevant and material
to an ongoing criminal investigation.” 18 U.S.C. §
2703(d). Mr. Banks challenged the constitutionality of §
2703(d)'s reasonable suspicion threshold for acquiring
CSLI, arguing that the Fourth Amendment applied to seizure of
CSLI and thus required a probable cause showing. The
government argued that § 2703(d) comported with the
Constitution, contending the Fourth Amendment did not apply
where third-party cellular providers maintained the CSLI.
Doc. 429. The government neither argued in the alternative
that its evidence satisfied the Fourth Amendment's
probable cause threshold nor sought a warrant. See
order indicating an intent to issue § 2703(d) orders,
the court concluded that seizing CSLI from a cellular
provider did not involve a search of a defendant under the
Fourth Amendment because the defendant already had revealed
his CSLI to the cellular provider. Doc. 440 at 6-8 (citing
In re United States Application for Historical Cell Site
Data, 724 F.3d 600 (5th Cir. 2013)). In the alternative,
the court sua sponte considered whether the government had
advanced sufficient evidence and papers to secure a warrant
for the CSLI. Id. at 11. The court concluded: (1)
“By establishing that the phone calls are evidence of
crimes, the government has also established probable cause
for the related CSLI because such information reveals the
defendants' location at the time of each call”; and
(2) the case agent's affidavits in the applications for
the §2703(d) orders satisfied the Fourth Amendment's
“oath or affirmation requirement.” Id.
Following this order indicating an intent to issue §
2703(d) orders, the government submitted an application for a
§ 2703(d) order for several Sprint lines, including
lines ending in 6704 and 9771. See Doc. 452 at 1, 3.
court then issued the requested § 2703(d) orders. Docs.
450-52. Sprint responded to the § 2703(d) order,
providing the government with CSLI for phone numbers ending
in 6704 and 9771. Based on the CSLI, the government
established that certain cellular communications occurred
while one of Mr. Banks's tapped phones was within
Kansas's Eight Judicial District. This enabled the
government to admit 11 cellular communications to which Mr.
Banks was a party at trial. See Doc. 1303-1 at 1-2
(summary of phone calls admitted during trial).
convicted Mr. Banks on all counts. Doc. 766. The court
sentenced Mr. Banks to concurrent terms of 360 months'
imprisonment on each count. Doc. 963 at 3. On appeal, Mr.
Banks challenged the constitutionality of § 2703(d) and
the government's use of CSLI to establish that particular
tapped cellular communications had occurred while a tapped
phone was located within the four counties comprising
Kansas's Eighth Judicial District. United States v.
Banks, 706 Fed.Appx. 455, 457 (10th Cir. 2017),
vacated, 138 S.Ct. 2707 (2018). The Tenth Circuit
affirmed Mr. Banks's convictions, concluding on the CSLI
issue that “the government's request for CSLI is
not a search within the meaning of the Fourth
Amendment” and that “§ 2703(d) is not
unconstitutional.” Id. at 457. Mr. Banks filed a
petition for a writ of certiorari. Doc. 1191. While Mr.
Banks's petition for a writ of certiorari was pending,
the Supreme Court decided Carpenter, a case
addressing the constitutionality of § 2703(d) orders for
Carpenter, the authorities had acquired §
2703(d) orders for CSLI for several suspects in a theft ring.
Carpenter, 138 S.Ct. at 2212. Over Mr.
Carpenter's motion to suppress, the government introduced
the CSLI at trial to place him at or near the scene of
several thefts. Id. at 2212-13. A jury convicted Mr.
Carpenter. Id. at 2213. On appeal, the United States
Court of Appeals for the Sixth Circuit rejected Mr.
Carpenter's challenge to § 2703(d), concluding CSLI
was not subject to Fourth Amendment protection because, under
the Third-Party Doctrine, a cellular phone user voluntarily
provides his CSLI to his cellular provider. Id.
Supreme Court, however, rejected the proposition that the
Third-Party Doctrine applies to historical CSLI. Id.
at 2217, 2219-20. The Court concluded that “individuals
have a reasonable expectation of privacy in the whole of
their physical movements” such that authorities may not
“‘secretly monitor and catalogue every single
movement of an individual . . . for a very long
period'” without involving Fourth Amendment
protections. Id. (quoting United States v.
Jones, 565 U.S. 400, 429 (2012) (Alito, J.,
that seizing historical CSLI from a cellular provider amounts
to a search under the Fourth Amendment, the Court held
“that the Government must generally obtain a warrant
supported by probable cause before acquiring [historical
CSLI].” Id. at 2221. Also, the Court observed
that the government's acquisition of historical CSLI
“in the absence of a warrant . . . is reasonable only
if it falls within a specific exception to the warrant
requirement.” Id. (quoting Riley v.
California, 134 S.Ct. 2473, 2482 (2014)). The Court
concluded its affirmative analysis by stating, “an
order issued under Section 2703(d) . . . is not a permissible
mechanism for accessing historical cell-site records. Before
compelling a wireless carrier to turn over a subscriber's
CSLI, the Government's obligation is a familiar one-get a
warrant.” Id. at 2221.
Post-Carpenter Procedural Background and Arguments
Supreme Court vacated the Tenth Circuit's judgment and
remanded Mr. Banks's case “for further
consideration in light of Carpenter.”
Banks v. United States, 138 S.Ct. 2707 (2018). On
remand, the Tenth Circuit ordered the parties to file
simultaneous briefs to “(1) identify the issues
Carpenter affects, and (2) address how the Supreme
Court's analysis impacts, if at all, the positions taken
by the parties in the briefs filed previously in the [Tenth
Circuit].” United States v. Banks, No.
15-3324, Order dated July 31, 2018. The government argued
Carpenter did not necessitate vacating Mr.
Banks's convictions because (1) the district court
alternatively concluded that probable cause supported the
§ 2703(d) order; and (2) the admission of the tapped
cellular communications was harmless beyond a reasonable
doubt. Mr. Banks argued (1) this court's statements about
probable cause did not salvage the admission of the tapped
cellular communications where no warrant was issued for the
CSLI; and (2) admitting the tapped cellular communications
tainted his convictions. Mr. Banks also contended that any
good-faith exception argument that the government might raise
on remand was waived because the government had not raised it
on direct appeal. The Tenth Circuit “remanded the
case to the district court to determine whether its
alternative holding survives Carpenter and for
further proceedings consistent with the Supreme Court's
decision.” United States v. Banks, No.
15-3324, Order/Mandate dated Oct. 18, 2018 at 4; see also
id., Amended Mandate dated Jan. 16, 2019.
remand, the government advances three arguments for
sustaining Mr. Banks's convictions: (1) the court's
statements about probable cause eliminate the
Carpenter issue because they transformed the §
2703(d) order into a de facto warrant; (2) even if the
§ 2703(d) order in this case cannot be viewed as a
warrant, the good-faith exception applies because
Carpenter issued after the government had acquired
and executed the § 2703(d) order for Mr. Banks's
CSLI; and (3) any error in admitting the contents of the
cellular communications dependent on Mr. Banks's CSLI was
harmless beyond a reasonable doubt given the other evidence
supporting the convictions. In response, Mr. Banks argues:
(1) the court's statements about probable cause are dicta
and do not fall within any recognized exception to the Fourth
Amendment warrant requirement; (2) the good-faith exception
does not apply because the government has waived the argument
and because the government knew about Mr. Banks's
challenge to the constitutionality of § 2703(d) before
acquiring the § 2703(d) order; and (3) error in
admitting the cellular communications was not harmless beyond
a reasonable doubt, particularly on Count 1.
Statements About Probable Cause
ruling on the government's requests for § 2703(d)
orders, the court stated that the requests were supported by
probable cause and affidavits from the case agent. The
government argues the § 2703(d) order delivered to
Sprint satisfied the core requirements of the Fourth
Amendment, making the orders de facto warrants. Two reasons
leave the court unconvinced that the § 2703(d) order
delivered to Sprint was a de facto warrant.
the court's discussion of probable cause was dicta, not
an alternative holding. The government requested three §
2703(d) orders and the court granted the requests. Section
2703(d) orders issue on a “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
investigation.” 18 U.S.C. § 2703(d). And, as the
government conceded at the May 21, 2019, remand hearing, it
did not seek a warrant or argue in the alternative that its
evidence satisfied the probable cause standard. As a result,
Mr. Banks had no reason to brief the probable cause issue.
This is especially true where (1) other provisions of §
2703, see 18 U.S.C. §§ 2703(a), (b)(1)(A),
(c)(1)(A), reference the government's capacity to acquire
a warrant for electronic communications, such as CSLI, that
are held by cellular providers; and (2) the government
continued its pursuit of § 2703(d) orders, rather than
warrants, even after the court, sua sponte, had opined about
probable cause. The court's probable cause discussion
thus not only was unnecessary to decide the issue before the
court-whether to issue the § 2703(d) orders-but also, it
was conducted without Mr. Banks having reason to contest the
probable cause position adopted by the court. And, it is not
apparent why the court's decision to opine about probable
cause should turn a § 2703(d) order into a warrant or
relieve the government of its duty to seek a warrant before
gathering CSLI. To be certain, the government does not
identify any Supreme Court case recognizing an exception to
the warrant requirement in a situation where the government
did not seek a warrant but a court, in dicta, happened to
opine about probable cause.
Carpenter makes clear that the government must
present a cellular carrier with a warrant before
gathering CSLI. Carpenter, 138 S.Ct. at 2221. Here,
the government presented Sprint with a § 2703(d) order.
Doc. 452. This order was not a warrant. And, although this
court's order indicating an intent to issue §
2703(d) orders discussed probable cause, the § 2703(d)
order did not contain any mention of the court's
alternative probable cause discussion.See Id.