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. Before the Tenth
Circuit, defendant Anthony Carlyle Thompson argued that one
or more of his convictions were supported by evidence
dependent on cell-site locational information
(“CSLI”) gathered under an 18 U.S.C. §
2703(d) order issued by the court. 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 CSLI under a §
2703(d) order generally does not satisfy the Fourth
Amendment's warrant requirement. On remand, Mr. Thompson
essentially abandons his § 2703(d) argument. Mr.
Thompson now contends authorities acquired his CSLI in
real-time under Kansas wiretap orders predating the §
2703(d) order but that acquisition of the CSLI exceeded the
scope of the Kansas wiretap orders. Because Mr. Thompson did
not present the argument he raises on remand to the Tenth
Circuit despite the availability of the argument on his
direct appeal, the mandate rule precludes the court from
granting Mr. Thompson relief based on it. The court thus
denies Mr. Thompson's request to vacate his conviction
and sentence and reimposes final judgment consistent with the
Jury Verdict of June 23, 2015, (Doc. 771) and the sentence
imposed December 7, 2015 (Doc. 941).
Pre-Carpenter Factual and Procedural
2012, Kansas authorities, through a series of controlled
purchases, determined Mr. Thompson, 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. Docs. 379-1,
379-2, 379-3, 379-5, 379-7, 379-9, 379-10, 379-11, 379-13,
379-15. The orders permitted authorities to tap phones
belonging to members of the drug conspiracy, including two
phones associated with Mr. Thompson: (1) a T-Mobile line
ending in 1783, believed to belong to Mr. Thompson but
subscribed to a Jason Roberts; and (2) a prepaid T-Mobile
line ending in 2893, believed to belong to Mr. Thompson but
with no subscriber information.
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 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. See Doc. 517 at 3. Information from the
tapped communications helped authorities understand Mr.
Thompson's role in the drug conspiracy.
Second Superseding Indictment charged Mr. Thompson 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) one count of conspiracy to distribute cocaine
base, in violation of 21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(C) (Count 17); (3) eight counts of distribution of
cocaine base, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C) (Counts 3, 5, 6, 7, 8, 9, 10, 14); and
(4) one count of distribution of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) (Count 13).
Doc. 195 at 2-7, 10.
Thompson moved to suppress the evidence acquired from the
tapped cellular devices, arguing the wiretaps had occurred
outside Judge Platt's territorial jurisdiction. Doc. 356
at 22- 30. 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 party to a given communication 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 § 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. Thompson challenged the constitutionality of
§ 2703(d)'s reasonable suspicion threshold for
acquiring the CSLI, arguing that the Fourth Amendment applied
to the seizure of CSLI and required a probable cause showing.
Doc. 425 at 2-3; see Doc. 435 at 1. The government
argued § 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.
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. 440-1 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
court thus issued § 2703(d) orders permitting the
government to acquire CSLI from several cellular providers,
including T-Mobile. Docs. 450-52. T-Mobile responded to the
§ 2703(d) order, indicating that it no longer possessed
CSLI for phone numbers ending in 1783 and 2893. See
Doc. 1014 at 9 (Transcript of Status Conference where
government discusses results of serving § 2703(d)
orders). But, the government learned that it had acquired, in
realtime, the CSLI for the phones associated with numbers
ending in 1783 and 2893 when authorities had executed the
wiretaps. See Id. And, the government disclosed this
fact to Mr. Thompson during the September 30, 2014, status
conference and during a hearing on defendants' motion to
suppress CSLI evidence acquired through § 2703(d)
orders. See id.; see also Doc. 1016 at
28-31 (“Q. Okay. And then T-Mobile wasn't able to
send you call cell site location information, but you had
been getting it during the wire, correct? A. Yes.”).
But, Mr. Thompson did not argue to the court that authorities
had exceeded the scope of the Kansas wiretap orders issued by
Judge Platt when they acquired CSLI in real-time from
trial, the government admitted 31 cellular communications to
which Mr. Thompson was a party. See Doc. 1303-1 at
1-2 (summary of phone calls admitted during trial). A jury
convicted Mr. Thompson on Counts 1, 3, 5-10, and 13-14.
See Doc. 771 (jury verdict for Mr. Thompson). The
court sentenced Mr. Thompson to 360 months' imprisonment
on each count, with the sentences running concurrently. Doc.
941 at 3.
appeal, Mr. Thompson challenged the constitutionality of
§ 2703(d) and the use of CSLI data to establish the
particular tapped cellular communications that occurred while
a tapped phone was located within the four counties
comprising Kansas's Eighth Judicial District. United
States v. Thompson, 866 F.3d 1149, 1152 (10th Cir.
2017), vacated, 138 S.Ct. 2706 (2018); see
also Brief of Appellant at 34, United States v.
Thompson, No. 15-3313 (10th Cir. Oct. 7, 2016) (phrasing
argument as “[w]ithout suggesting that § 2703(d)
is otherwise unconstitutional, it is clear that as to CSLI it
is unconstitutional due to the privacy
implications”). But, the Tenth Circuit did not
recognize that Mr. Thompson had raised the argument that
authorities exceeded the scope of the Kansas wiretap orders
when they seized his CSLI in realtime. See Id. (not
listing this argument as one raised by Mr. Thompson). And,
during the May 21, 2019, remand hearing, Mr. Thompson, when
questioned on the matter, affirmatively conceded that he did
not argue to the Tenth Circuit that authorities had exceeded
the scope of the Kansas wiretap orders by seizing his CSLI.
Tenth Circuit, seemingly not advised that Mr. Thompson's
CSLI was seized under the authority of the Kansas wiretap
orders, proceeded to analyze whether § 2703(d) was
constitutional. See Id. at 1153 (discussing
acquisition of Mr. Thompson's CSLI in terms of §
2703(d) order without mentioning Kansas wiretap orders);
see also Id. at 1154-60 (analyzing constitutionality
of § 2703(d) but not discussing constitutionality of
seizure of CSLI under Kan. Stat. Ann. §§ 22-2514,
et seq.). The Tenth Circuit affirmed Mr.
Thompson's convictions, concluding, on the CSLI issue,
that “the district court did not err in granting the
government's application for orders requesting historical
CSLI under § 2703(d) or in admitting some of that CSLI
at a pretrial proceeding.” Id. at 1160;
see also Id. at 1164 (affirming conviction and
sentence). Mr. Thompson filed a petition for a writ of
certiorari. Doc. 1183. While Mr. Thompson'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.
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 ...