A USMJ issued an order for CSLI, and, for the sake of argument, the court assumes it was without probable cause and it was before United States v. Graham (“Graham II”), 796 F.3d 332 (4th Cir. 2015). Reliance on the warrant was clearly with good faith. United States v. Thomas, 2015 U.S. Dist. LEXIS 139722 (E.D.Va. Oct. 13, 2015):
B. Suppression Is Not Appropriate Because the Officers Reasonably Relied on the Magistrate Judge’s § 2703(d) Order and Acted in Good Faith
Most pertinent to this Motion to Suppress is that the entire Graham II panel ultimately affirmed the denial of the motion to suppress, finding that law enforcement reasonably relied in good faith on the procedures outlined in the SCA and the orders issued by a United States Magistrate Judge. Id. at 363. Like the District of Maryland and the Fourth Circuit in Graham, this Court will not suppress the CSLI because law enforcement obtained the data in good faith. Graham II, 796 F.3d at 361-63; Graham I, 846 F. Supp. 2d at 405-06. In obtaining the CSLI, the officers reasonably relied on a federal statute (then unchallenged within the Fourth Circuit), orders issued by a neutral and detached United States Magistrate Judge, and the inherent reasonableness of the request due to the facts of the case.
1. The Officers Relied in Good Faith on a Lawfully Enacted Federal Statute
First, the officers here relied in good faith on 18 U.S.C. § 2703, a statute lawfully enacted by Congress. At the time of the Application, § 2703 also had not been found, in binding appellate precedent, to violate the Constitution. Cf. Graham II, 796 F.3d at 361 n.23 (“After today’s holding, the government will need to secure a warrant for [long-term CSLI].”) “Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law.” Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). 18 U.S.C. § 2703(d) is not “clearly unconstitutional.” Id. Indeed, a reliance on legislation in the dynamic technological world is particularly well-placed. United States v. Jones, 132 S. Ct. 945, 964, 181 L. Ed. 2d 911 (2012) (Alito, J., concurring) (“In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.”). Further, when law enforcement executed the § 2703(d) Order, no binding precedent existed stating that long-term historical CSLI required a warrant supported by probable cause. Nearly the exact opposite was true.
Thus far, the Supreme Court has explicitly declined to rule on whether obtaining long-term real-time or historical CSLI constitutes a Fourth Amendment search. See Riley, 134 S. Ct. at 2489 n. 1 (“[T]hese cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.”); Jones, 132 S. Ct. at 953-54 (“It may be that [four weeks of surveillance] through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.”).
Given the recent decision in Graham II, federal appellate courts now differ as to whether the collection of CSLI constitutes a Fourth Amendment search requiring a warrant supported by probable cause. See Graham II, 796 F.3d at 380-81 (Motz, J., dissenting). But any circuit split occurred just this summer, months after the CSLI was collected here. Compare Graham II, 796 F.3d at 338, with Davis, 785 F.3d at 513 (holding that the government’s use of a § 2703(d) order to obtain 67 days of historical CSLI did not constitute a search and was not a violation of the Fourth Amendment); In re Application of the United States of America for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013) (finding that the lower standard of “specific and articulable facts” standard required under a § 2703(d) order used to procure 60 days of historical CSLI was not per se unconstitutional); United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012) (holding that the use of a § 2703(d) order to acquire three days of real-time CSLI on a voluntarily procured pay-as-you-go cell phone was not a search under the Fourth Amendment because it did not violate the defendant’s reasonable expectation of privacy); and In the Matter of the Application of the United States of America for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 313 (3d Cir. 2010) (ruling that CSLI may be obtained through a § 2703(d) order without requiring probable cause). Importantly, the Fourth Circuit has expressed serious doubts about a narrow view that reasonable reliance may stem only from binding precedent. At least one decision suggests that an officer might reasonably look to extant, nonbinding precedent when binding precedent does not exist. See Stephens, 764 F.3d at 336-37.
In Thomas’s case, law enforcement appropriately relied on a validly enacted federal statute that was not “clearly unconstitutional” and had not yet been ruled unconstitutional by binding appellate precedent. Krull, 480 U.S. at 350. The near unanimity of cases supporting the use of the § 2703(d) Order (and not a warrant) at the time the Application was filed suggests the utmost good faith by the officers. Accordingly, the law enforcement officers acted in good faith when they “relied on the procedures established in the SCA,” including when the Assistant United States Attorney applied for and obtained the § 2703(d) Order. Graham II, 796 F.3d at 362.
2. The Officers Acted in Good Faith on an Order Issued by the Neutral and Detached United States Magistrate Judge
Second, the officers in Thomas’s case acted in good faith by relying on a § 2703(d) order issued by the neutral and detached Magistrate Judge. The record does not indicate that the affidavit contained false or misleading information. See Leon, 468 U.S. at 923. No evidence exists that the Magistrate Judge acted as a mere “rubber stamp” in approving a “bare bones” affidavit. See Bynum, 293 F.3d at 197. The Magistrate Judge found that the nine-page application “offered specific and articulable facts showing that there are reasonable grounds to believe that the records and other information sought are relevant and material to an ongoing criminal investigation” as required by the SCA. (§ 2703(d) Order 1.) Accordingly, the Magistrate Judge “applied the correct standard under the [SCA]” and appropriately issued the § 2703(d) Order. Graham I, 846 F. Supp. 2d at 406. Law enforcement was entitled to rely on the Magistrate Judge’s order. Graham II, 796 F.3d at 363.
3. The § 2703(d) Order Was Not So Facially Deficient that the Officers Could Not Have Reasonably Presumed It Valid
Finally, the § 2703(d) Order was not “overly broad” or “so facially deficient” that the executing officers could not have reasonably presumed it to be valid under the circumstances of this case.13 Bynum, 293 F.3d at 195. The officers could rely in good faith on the § 2703(d) Order because the Order reasonably limited itself to approximately six weeks before, and one day after, the string of robberies under investigation. This time span was reasonable generally and as applied to Thomas specifically.
The investigation involved a conspiracy from the outset; each event had more than one participant. Obtaining CSLI for a period of time prior to the first robbery would very likely lead to “relevant and material” evidence regarding the conspirators’ communications arranging the criminal conspiracy itself. 18 U.S.C. § 2703(d); see Abboud, 438 F.3d at 576 n.7. Like the § 2703(d) order in Graham, the § 2703(d) Order here sought CSLI for a period of time prior to the first robbery. See Graham II, 796 F.3d at 338-40. Unlike the order in Graham, which granted law enforcement access to CSLI beginning six months prior to the first robbery, the § 2703(d) Order in the case here sought CSLI for only a little over one month before the November 11, 2014 robbery. The time periods between each robbery could also reasonably contain relevant and material evidence of the conspiracy. Cf. United States v. White, 519 F. App’x 797, 801-02 (4th Cir. 2013) (‘This Court has previously recognized that ‘[w]hen law enforcement officials are confronted with large, far-flung and on-going criminal activity involving multiple parties, they are afforded greater latitude in conducting wiretaps.'” (quoting United States v. Clerkley, 556 F.2d 709, 716 (4th Cir. 1977))). Accordingly, a time period from six weeks prior to the first armed robbery to one day after the last robbery, for a total of 133 days, was sufficiently particular under these circumstances.
The time frame was also reasonable and sufficiently particular as it related to Thomas specifically. First, Thomas always has been investigated for, among other offenses, conspiracy to commit robbery by threats or violence, which contemplates coordinated criminal conduct. The Application, then, reasonably sought information about a conspiracy Thomas was alleged to have participated in, at the very least, during the first robbery. Black letter law could make him liable for foreseeable conduct in furtherance of the conspiracy after that date, even if he did not participate directly in the subsequent robberies. See Graham II, 796 F.3d at 375. The CLSI sought information relevant and material to the United States’s ongoing criminal investigation of his association and conspiracy with the other participants. See id. at 375-76; White, 519 F. App’x at 801-02.
Second, the time frame of the § 2703(d) Order was sufficiently particular as to Thomas based on the facts sworn in the Application. In short, some participants in the subsequent three robberies, at the time of the application, remained unidentified. Importantly, nothing in the Application indicates that Thomas only participated in the November 11, 2014 robbery. Thus, not only could Thomas be linked to all four robberies through his conspiracy charge, the Application demonstrates that he could have directly participated in each robbery as well. While no party currently suggests now that Thomas actively joined subsequent robberies, the § 2703(d) Order was not overly broad at the time in authorizing law enforcement to obtain Thomas’s CSLI for the relevant 133 days. Indeed, it served the important investigative purpose of either potentially linking Thomas to subsequent events, or distancing him from direct involvement in them. Accordingly, Thomas does not meet the “high” threshold of showing that the § 2703(d) Order was so facially deficient that a well-trained officer could not have relied upon it. Graham I, 846 F. Supp. 2d at 406 (citation omitted).
C. The Officers Acted in Good Faith Because a Reasonably Well Trained Officer Would Not Have Known that the Search Was Illegal
In making a good faith inquiry, the Court must consider, above all, “the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all the circumstances.” Stephens, 764 F.3d at 336; see United States v. Legg, 18 F.3d 240, 243 n.1 (4th Cir. 1994). Here, a reasonably well-trained officer would not have known that obtaining 133 days of historical CSLI through a § 2703(d) order instead of a warrant was illegal in light of all the circumstances.
The Court notes that, in Thomas’s case, law enforcement “did most everything right.” Bynum, 293 F.3d at 200 (King, J., concurring). The officers engaged in months of investigation of an extensive armed robbery conspiracy involving at least seven people. An Assistant United States Attorney prepared a nine-page application in accordance with § 2703(d), a federal statute then presumed constitutionally valid within the Fourth Circuit. The prosecutor appropriately presented the application to a United States Magistrate Judge. The neutral and detached Magistrate Judge considered the application, made the appropriate statutory finding, and issued a court order. Finally, law enforcement complied with the terms of the § 2703(d) Order. Because the officers acted in good faith, suppression does not provide a proper remedy in Thomas’s case. The Court will deny the Motion to Suppress.
