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United States v. Banks

United States District Court, D. Kansas

July 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ALBERT DEWAYNE BANKS (01), Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This 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.

         I. Pre-Carpenter Factual and Procedural Background

         In 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.[1] 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.

         Under 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.

         A 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.

         Mr. 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 id.

         In an 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.

         The 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).

         A jury convicted Mr. Banks on all counts.[2] 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.”[3] 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 CSLI.

         II. Carpenter Decision

         In 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.

         The 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., concurring)).

         Concluding 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.

         III. Post-Carpenter Procedural Background and Arguments on Remand

         The 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.

         On 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;[4] (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.

         IV. Analysis

         A. Statements About Probable Cause

         In its 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.

         First, 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.[5]

         Second, 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.[6]See Id. ...


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