CA2: 2011 CSLI seizure by SCA order valid under GFE

Defendant was convicted of international parental kidnapping. CSLI was obtained in 2011 by an order under the SCA without probable cause. The good faith exception applies. United States v. Zodhiates, 2018 U.S. App. LEXIS 23278 (2d Cir. Aug. 21, 2018):

In 2011, appellate precedent—the third party doctrine—permitted the government to obtain the phone bill records by subpoena as opposed to by warrant. Under this doctrine, the Fourth Amendment “does not prohibit the obtaining of information revealed to a third party and conveyed by [the third party] to Government authorities.” Miller, 425 U.S. at 443. In Miller, the Supreme Court held that the government was entitled to obtain a defendant’s bank records with a subpoena, rather than a warrant, because the bank records were “business records of the banks” and the defendant had “no legitimate expectation of privacy” in the contents of his checks because those documents “contain[ed] only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Id. at 440-42 (internal quotation marks omitted). Similarly, in Smith, the Supreme Court held that a defendant did not have a reasonable expectation of privacy in the telephone numbers that he dialed because “[t]elephone users … typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes.” 442 U.S. at 743.

These cases stand for the proposition that, in 2011, prior to Carpenter, a warrant was not required for the cell records. We acknowledged as much in United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017), when we considered ourselves bound by the third party doctrine in Smith “unless it is overruled by the Supreme Court,” id. at 97.

To escape this result, Zodhiates directs us to United States v. Jones, 565 U.S. 400, 404, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012), which held that when the government engages in prolonged location tracking, it conducts a search under the Fourth Amendment requiring a warrant. However, Jones is of no help to him. It was decided in 2012, after the Government’s 2011 subpoena and consequently is not relevant to our good faith analysis. For these reasons, we conclude that the District Court properly denied Zodhiates’ motion to suppress the cell location evidence.