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No. 12-4659 (L)

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Appellee,
v.
AARON GRAHAM
and
ERIC JORDAN,
Appellants.

Appeal from the United States District Court for the
District of Maryland, Northern Division
Honorable Richard D. Bennett, District Judge
GOVERNMENT’S PETITION FOR REHEARING EN BANC

Rod J. Rosenstein
United States Attorney

Sujit Raman
Chief of Appeals
Nathan Judish
Attorney, Computer Crime &
Intellectual Property Section,
U.S. Department of Justice

6500 Cherrywood Lane, Suite 200
Greenbelt, Maryland 20770
(301) 344-4433
September 17, 2015

Attorneys for the Appellee

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TABLE OF AUTHORITIES
CASES
Donaldson v. United States, 400 U.S. 517 (1971) .....................................................9
First Nat. Bank of Mobile v. United States, 267 U.S. 576 (1925) .............................9
In re Application of the United States, 620 F.3d 304 (3d Cir. 2010) ........................1
In re Application of the United States, 724 F.3d 600 (5th Cir. 2013) ...................1, 8
In re Subpoena Duces Tecum, 228 F.3d 341 (4th Cir. 2000) ............................. 1, 12
Kastigar v. United States, 406 U.S. 441 (1972) ......................................................12
Kyllo v. United States, 533 U.S. 27 (2001) ................................................................4
Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946) .........................12
SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735 (1984) ..................................................9
Smith v. Maryland, 442 U.S. 735 (1979) ......................................................... passim
United States v. Bynum 604 F.3d 161 (4th Cir. 2010) ...............................................3
United States v. Davis, 573 Fed. Appx. 925 (11th Cir. 2014) ...................................6
United States v. Davis, 785 F.3d 498 (11th Cir. 2015) ....................................... 1, 13
United States v. Forrester, 512 F.3d 500 (9th Cir. 2008)..........................................9
United States v. Graham, 846 F. Supp. 2d 384 (D. Md. 2012) .................................3
United States v. Jones, 132 S. Ct. 945 (2012) .......................................... 4, 6, 10, 11
United States v. Karo, 468 U.S. 705 (1984) ..............................................................4
United States v. Miller, 425 U.S. 435 (1976) .................................................. passim
United States v. R. Enterprises, 498 U.S. 292 (1991) ........................................ 1, 12
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United States v. Watson, 423 U.S. 411 (1976) ........................................................13

Statutes
18 U.S.C. § 2703(d) ......................................................................................... passim

Rules
Fed. R. App. 35(b) .....................................................................................................6

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INTRODUCTORY STATEMENT
The panel decision struck down Section 2703 of the Stored Communications
Act on the theory that the statute unconstitutionally authorizes courts to issue orders
for historical cell-site location information (CSLI) from communications providers.
Its reasoning “flies in the face of the Supreme Court’s well-established third-party
doctrine,” Op. 106 (Motz, J., dissenting), by contravening United States v. Miller,
425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979). Its logic “lacks
support from all relevant authority and places [this Court’s jurisprudence] in conflict
with the Supreme Court and three other federal appellate courts.” Op. 114; see
United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc); In re Application of
the United States, 724 F.3d 600 (5th Cir. 2013); In re Application of the United
States, 620 F.3d 304 (3d Cir. 2010). Its holding disregards the precedent of this
Court and the Supreme Court regarding the reasonableness requirement for
compulsory process. See In re Subpoena Duces Tecum, 228 F.3d 341, 346-49 (4th
Cir. 2000); United States v. R. Enterprises, 498 U.S. 292, 297 (1991). The decision
“is a constitutional outlier—untenable in the abstract and bizarre in practice,” which
“will have profound consequences in future cases.” Op. 126, 106 n.1.
En banc review is therefore necessary to avoid conflict with the Supreme
Court’s decisions (and those of other circuits); to maintain the uniformity of this
Court’s decisions; and to address a question of exceptional importance.
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QUESTION PRESENTED
Whether the government’s acquisition of historical cell site records from a
third-party telecommunications provider pursuant to a court order issued in
compliance with 18 U.S.C. § 2703(d) violates the Fourth Amendment.
STATEMENT OF THE CASE
1. Defendants Aaron Graham and Eric Jordan were indicted in the District of
Maryland for committing a series of armed robberies in and around Baltimore in
early 2011. Thirty-nine witnesses testified in the government’s case-in-chief, and
prosecutors introduced more than 200 physical exhibits in the form of photographs,
videos, clothing, firearms, ammunition, reports and records, latent print cards, maps,
and stipulations. Gov’t Br. 35. Two cell phones were seized from Graham and
Jordan, and the government also introduced records obtained from Sprint/Nextel
showing which cell towers those phones used to make or receive calls and text
messages at times relevant to the robberies. The jury convicted both defendants of
all charges, and the district court sentenced Graham and Jordan to 147 years and 72
years of imprisonment, respectively. The defendants timely appealed.
2.

The Stored Communications Act (SCA), 18 U.S.C. §§ 2701-2712,

authorizes a court to issue an order compelling a service provider to disclose
non-content records of electronic communications if the government “offers specific

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and articulable facts showing that there are reasonable grounds to believe that . . . the
records . . . sought[] are relevant and material to an ongoing criminal investigation.”
18 U.S.C. § 2703(d). Here, the government sought two separate § 2703(d) orders for
information about which cell towers the phones had used. The first order issued in
March 2011 and covered four specific time periods between August 2010 and
February 2011, totaling 14 days, linked to particular robberies. Gov’t Br. 25. The
second order issued four months later, after the government obtained information
about other similar and possibly related robberies, and sought historical CSLI from
July 1, 2010 through February 6, 2011. Gov’t Br. 26.
3.

The defendants moved to suppress the historical CSLI on Fourth

Amendment grounds. The district court rejected their claim based on the third-party
doctrine: “Like the bank records at issue in Miller, the telephone numbers dialed in
Smith, and the subscriber information collected in [United States v.] Bynum [604
F.3d 161 (4th Cir. 2010)], historical cell site location records are records created and
kept by third parties that are voluntarily conveyed to those third parties by their
customers.” United States v. Graham, 846 F. Supp. 2d 384, 400 (D. Md. 2012).
4. This Court affirmed the defendants’ convictions, but the majority opinion
held that the government violated the Fourth Amendment by obtaining historical
CSLI with a § 2703(d) order. Op. 1, 13-65. The majority ruled that cell-phone
users have an objectively reasonable expectation of privacy in a phone company’s
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historical CSLI, in part because such information “can enable the government to
trace the movements of the cell phone and its user across public and private spaces
and thereby discover the private activities and personal habits of the user.” Op. 19.
The majority held that the government conducts a Fourth Amendment search
whenever it obtains third-party records of historical CSLI “pertaining to an extended
time period like 14 or 221 days.” Op. 32; see Op. 19. The point between zero and 14
days at which obtaining cell-site records becomes a search remains unclear.
In reaching this conclusion, the majority (1) analogized the government’s
examination of historical CSLI to the searches in United States v. Karo, 468 U.S.
705 (1984), and Kyllo v. United States, 533 U.S. 27 (2001), which involved the
government’s direct tracking of suspects, rather than the inspection of third-party
business records, and (2) focused on what such information might allow the
government to learn, rather than on how the information was obtained. See Op. 24.
Although this case involved no precise location information, no trespass, and no
real-time monitoring by the government, the majority held that the privacy concerns
regarding “longer term GPS monitoring” raised by five concurring Justices in
United States v. Jones, 132 S. Ct. 945 (2012), applied “with equal or greater force”
to historical CSLI. Op. 27. The majority opined that the government’s inspection
of historical CSLI invaded privacy interests because “track[ing]” cell phones using
such data relies “upon technology not in general use to discover the movements of
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an individual over an extended period of time.” Op. 31. The majority also
rejected the district court’s holding that the CSLI used in this case was not
sufficiently precise or continuous to raise privacy concerns. Op. 32-36.
The majority flatly rejected application of the third-party doctrine. Op. 36-60.
The majority sought to distinguish Miller and Smith on the ground that “the
defendant in those cases had ‘voluntarily conveyed’ the information to the third
party.” Op. 39; see Op. 42-43. The majority concluded that historical CSLI is not
“voluntarily conveyed” because a “user is not required to actively submit any
location-identifying information when making a call or sending a message.”
Op. 44. Disregarding the undisputed evidence that cell phones cannot work unless
the service provider knows which cell tower to use, and that Sprint/Nextel informed
customers that it collected their location information, the majority deemed it “clear”
that “cell phone users do not voluntarily convey their CSLI to their service
providers.” Op. 20, 39, 40-45. Evidence that customers know that their phone
must connect with a service provider’s nearby tower was “beside the point,” the
majority found, because users generally are not aware of which specific cell tower
their phone uses to connect to a cellular network. Op. 48; see Op. 48-51.
The majority rejected suppression because the government obtained the CSLI
in good-faith reliance on court orders. Op. 60-65. The majority ruled, however, that
the good-faith exception would not be available to the government in future cases
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presenting the same issue. Op. 65 n.25.1 Judge Thacker joined the majority opinion
by Senior Judge Davis and filed a concurrence to express her “concern about the
erosion of privacy in this era of rapid technological development.” Op. 102.
5. Judge Motz dissented from the majority’s Fourth Amendment holding.
Op. 106-34. As she recognized, “[i]t matters, for Fourth Amendment purposes,
how the government acquires information.” Op. 108 n.2 (emphasis in original).
Because Sprint/Nextel obtained the information for its own purposes in the normal
course of business, Judge Motz distinguished the surreptitious government activity
in Karo, Kyllo, and Jones, and instead applied the third-party doctrine. Op. 107-11,
128-30. Moreover, Judge Motz noted, there is “little question” that cell-phone users
reveal their locational information to their service providers and do so voluntarily, as
that term is normally understood in the Fourth Amendment context. Op. 115-18.
Judge Motz also took issue with the majority’s suggestion that the third-party
doctrine applies only when a user “actively submits” information, noting that “such
a rule is nowhere to be found in either Miller or Smith” and is inconsistent with
circuit precedent and the decisions of other courts of appeals. Op. 119; see Op.
1

For this reason, and because the majority opinion limits the government’s ability
to obtain § 2703(d) orders in future investigations, the government seeks rehearing
en banc even though the defendants’ convictions were affirmed. See Fed. R. App.
35(b) (providing that “[a] party may petition for hearing or rehearing en banc,” and
omitting any exception for prevailing parties); United States v. Davis, 573 Fed.
Appx. 925 (11th Cir. 2014) (granting government en banc petition in analogous
context).
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118-22. Finally, Judge Motz observed that the Supreme Court may revisit the
third-party doctrine, but only the Supreme Court can overrule it. Op. 133-34.
REASONS FOR GRANTING THE PETITION
1. The majority’s holding that the defendants “have a reasonable expectation
of privacy in their long-term CSLI,” Op. 58-59, cannot be reconciled with United
States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979).
Those cases establish that an individual has no expectation of privacy in information
conveyed to and maintained by a third party for its own business purposes. That
principle squarely applies to CSLI records maintained by and obtained from a
cell-phone provider.
a. The Supreme Court “has repeatedly held that the Fourth Amendment does
not prohibit the obtaining of information revealed to a third party and conveyed by
him to Government authorities.” Smith, 442 U.S. at 744 (quoting Miller, 425 U.S. at
443). In Miller, the Court held that bank customers have “no protectable Fourth
Amendment interest” in “the business records of the banks” (including checks,
deposit slips, and financial statements)—records that a federal statute required the
banks to maintain. 425 U.S. at 436-38, 441-42. Similarly, the Smith Court held that a
phone customer lacks a legitimate expectation of privacy in the numbers dialed from
his phone. 442 U.S. at 744-46. Those holdings are consistent with the plain text of
the Fourth Amendment, which protects “[t]he right of the people to be secure in their
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. . . papers, and effects” (emphasis added), not the records of others. Accordingly,
“the government . . . does not engage in a Fourth Amendment ‘search’ when it
acquires [business records] from a third party.” Op. 110 (dissent).
Like the bank customer in Miller and the phone customer in Smith, the
defendants sought to suppress business records over which they could “assert neither
ownership nor possession.” Miller, 425 U.S. at 440. The historical CSLI records
“pertain[ed] to transactions to which [Sprint/Nextel] itself was a party,” id. at 441;
were generated “for its own business purposes,” In re Application, 724 F.3d at
611-12; were stored on its premises; and were subject to its control.
The majority erred in concluding that the defendants had a subjective
expectation of privacy in Sprint/Nextel’s records because “cell phone users do not
voluntarily convey their CSLI to their service providers.” Op. 39. Disclosure of
CSLI is voluntary. As Judge Motz explained, cell-phone users know that their
phones emit signals that are conveyed to service providers, through facilities close to
their phone, as a necessary incident of making or receiving calls. Op. 115-17. In
addition, Sprint/Nextel informed customers that it would collect their location
information. Op. 20. Here, the defendants also tried to conceal their connections to
the phones, which further demonstrates that they expected their phones to convey
incriminating information to third parties. Op. 54 & n.20. The defendants “cannot

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now protest that providing this essential information was involuntary.” Op. 118.2
As Judge Motz observed, the majority’s insistence that an individual only
“voluntarily conveys” what he “actively submits” contravenes long-established
business records jurisprudence. See Op. 119-20. Customers do not “actively
submit” the date, time, and duration of phone calls, but neither this Court nor any
other court has held that such information is protected by the Fourth Amendment.
The majority’s reasoning could have far-reaching consequences. For example,
Internet communications are routed via IP address, and courts have held that users
lack a reasonable expectation of privacy in IP address information, see, e.g., United
States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008)—but users do not actively
submit IP addresses to their service providers. The majority’s creation of a Fourth
Amendment interest in such data vitiates the third-party doctrine and eliminates the
bright line (or any discernable line at all) between information protected by the
2

Even if the defendants did not voluntarily disclose CSLI, the third-party doctrine
is not limited to information voluntarily disclosed by a defendant. When a witness
collects and retains its own information without state action, the government may
obtain the witness’s information regardless of whether the information was
voluntarily conveyed to the witness. The Supreme Court addressed voluntariness in
Miller and Smith because the bank was required by law to maintain the records, and
the phone company acted as a government agent in monitoring the defendant at the
government’s request. 425 U.S. at 441; 442 U.S. at 739 n.1. Whether information
has been voluntarily disclosed plays no role in business records cases not involving
state action. See, e.g., SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743 & n.11
(1984) (financial records in absence of data retention law); Donaldson v. United
States, 400 U.S. 517, 522 (1971) (employment records); First Nat. Bank of Mobile v.
United States, 267 U.S. 576 (1925) (bank records prior to data retention law).
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Fourth Amendment and information that belongs to a third-party.
Even if the defendants were unaware that the service provider needs to know
which tower to use, such subjective ignorance cannot be objectively reasonable.
Wireless phones free the customer from the need to connect to a network with a
stationary cord, but they do not free the customer from the need to connect to a
network. When the third-party provider makes a record of which cell tower it uses
to make service available to the customer, that record does not infringe the
customer’s rights. See Smith, 442 U.S. at 745 (stating that the “fortuity of whether
or not the phone company in fact elects to make a quasi-permanent record” of
information does not “make any constitutional difference”). Consistent with the
third-party doctrine, no Fourth Amendment search takes place when the government
obtains a provider’s CSLI under under § 2703(d) because a person has no
constitutional expectation of privacy in business records owned by a third party.
b. Karo, Kyllo, and Jones do not exempt location information from the
third-party doctrine. As Judge Motz observed, the majority misread Karo and Kyllo
to support the abstract proposition that an individual has an expectation of privacy in
his location and movements over time. But those cases actually “involve[d] direct
surveillance,” i.e., real-time tracking of a particular person by government agents in
their homes and other places, and therefore concerned “the right of the people” to be
“secure in their persons, houses, . . . and effects,” U.S. Const., Amend. IV, from
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government efforts to “surreptitiously collect private information.” Op 109, 108.
Here, by contrast, the government did not engage in any surveillance at all. Instead,
it simply collected historical information from a witness (the phone company),
which the witness compiled and maintained in the ordinary course of business.
Likewise, Jones has no application here. This case involves no physical
incursion into a constitutionally-protected area. Officers in Jones did not obtain
location data from a third-party service provider, and the Court did not discuss the
third-party doctrine. And while one concurring Justice in Jones suggested that the
Supreme Court should reconsider its third-party rule, even she did not suggest that
other courts are not bound by that rule in the interim. See 132 S. Ct. at 957
(Sotomayor, J.). Moreover, four of the five concurring Justices went out of their
way in Jones to encourage legislative solutions of the kind struck down in this case.
See id. at 964 (Alito, J., concurring) (“In circumstances involving dramatic
technological change, the best solution to privacy concerns may be legislative. A
legislative body is well situated to gauge changing public attitudes, to draw detailed
lines, and to balance privacy and public safety in a comprehensive way.”).
2. In a footnote, the majority held that § 2703(d) orders for CSLI not only
implicate a reasonable expectation of privacy, but also violate the Fourth
Amendment because they “do not fit within any of the ‘well delineated exceptions’”
to the warrant requirement. Op. 20 n.2 (rejecting Davis’s holding that use of
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Section 2703(d) orders to obtain historical CSLI is reasonable). But there is a
long-established exception to the warrant requirement applicable here: A § 2703(d)
order is a judicial subpoena, and this Court has held that subpoenas “are limited by
the general reasonableness standard of the Fourth Amendment (protecting the
people against “unreasonable searches and seizures”), not by the probable cause
requirement.” In re Subpoena Duces Tecum, 228 F.3d at 348. The rule that
subpoenas are subject only to a reasonableness requirement is deeply rooted in
Supreme Court precedent. See, e.g., R. Enterprises, 498 U.S. at 297 (rejecting
probable cause requirement for subpoenas because “the very purpose of requesting
the information is to ascertain whether probable cause exists”); Kastigar v. United
States, 406 U.S. 441, 443 (1972) (stating that the government’s right to every
person’s evidence through compulsory process “was considered an ‘indubitable
certainty’ that ‘cannot be denied’ by 1742”); Oklahoma Press Publishing Co. v.
Walling, 327 U.S. 186, 208 (1946) (holding that subpoenas under the Fourth
Amendment are subject “at most” to a reasonableness requirement).
More careful consideration than a summary footnote is warranted before this
Court strikes down § 2703(d) as it applies to cell-site records; overrules precedent
regarding the Fourth Amendment requirements for subpoenas; creates a circuit split
with Davis regarding whether use of § 2703(d) orders to obtain CSLI is reasonable
under the Fourth Amendment; and creates enormous uncertainty over the use of
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compulsory process to obtain business records. This Court should not hold that
Section 2703(d) orders are unconstitutional without carefully evaluating whether
§ 2703(d) satisfies the core reasonableness requirement of the Fourth Amendment.
As the Eleventh Circuit recognized, Congress did not “lower the bar from a
warrant” in enacting § 2703(d); instead, “requiring a court order under § 2703 raises
the bar from an ordinary subpoena to one with additional privacy protections built
in.” Davis, 785 F.3d at 505-06. Congress went well beyond the constitutional
prerequisites for obtaining third-party business records by: (1) requiring prior
approval of a neutral and detached magistrate; (2) authorizing the judicial officer to
act only if specific and articulable facts establish reasonable grounds to believe the
records are relevant and material to an ongoing criminal investigation; and
(3) prohibiting improper disclosures of the records. See §§ 2703(d), 2707(g). The
majority failed to apply the “strong presumption of constitutionality due to an Act of
Congress, especially when it turns on what is ‘reasonable’” within the meaning of
the Fourth Amendment. United States v. Watson, 423 U.S. 411, 416 (1976). In
sum, § 2703(d) satisfies an established exception to the warrant requirement, and it
is more protective of individual privacy than other commonly accepted and
practically indistinguishable forms of compulsory process.
3. The majority’s holding also conflicts with the en banc Eleventh Circuit’s
decision in Davis, the Fifth Circuit’s decision in In re Application, and the Third
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Circuit’s holding in its In re Application, each of which upheld § 2703(d) against a
Fourth Amendment challenge. Moreover, the vast majority of federal district courts
have rejected the majority’s reasoning. See Op. 112-14. The majority made little
effort to reconcile its holding with the conflicting circuit court opinions, simply
declaring that those cases applied the third-party doctrine too expansively. But the
majority’s reasoning is unpersuasive for the reasons Judge Motz has well explained,
and it creates a circuit split with serious implications for law enforcement.
4.

The panel’s ruling substantially burdens important governmental

interests. Law-enforcement agencies rely on CSLI to investigate and solve serious
crimes in which they lack probable cause to obtain a warrant but reasonably believe
that the requested records will be of use. Investigators use CSLI early in
investigations as a building block to develop probable cause for search warrants, and
in other investigations they use CSLI to connect dots and solve crimes that might
otherwise go unsolved. In such cases, § 2703(d) orders—like other forms of
compulsory process not subject to the warrant requirement—help deflect suspicion
from the innocent, build probable cause against the guilty, aid in the search for truth,
and conserve scarce investigative resources.3
3

The majority’s refusal to draw a “bright line” as to when the Fourth Amendment is
implicated in this context is eliminating the use of § 2703(d) orders to obtain
historical cell-site records. Magistrates in Maryland already have simply defaulted
up to the warrant requirement—contrary to Congress’s clearly articulated wishes.
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Those real-world benefits come at a negligible cost to individual privacy.
Unlike real-time tracking, historical cell-site records contain information already
known and used by third parties. Unlike GPS data, CSLI does not provide precise
location information; its precision in this case was on the order of miles. See Op. 35
n.11. Such general location information does not reveal sensitive or private activities
and is useful only if police already have a point of reference, such as a robbery
location. Finally, any information theoretically discoverable from such records is
subject to statutory safeguards crafted to avoid unwarranted invasions of individual
privacy. Those protections amply accommodate any diminished expectation of
privacy the defendants may assert in Sprint/Nextel’s records.
CONCLUSION
The panel decision should be vacated and the petition for rehearing en banc
should be granted.
Respectfully submitted,

Rod J. Rosenstein
United States Attorney
/s/
Sujit Raman
Chief of Appeals
District of Maryland
September 17, 2015

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on September 17, 2015, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF System, which will send
notice of such filing to all registered counsel of record.

/s/
Sujit Raman
Assistant United States Attorney