No. 16-402

In the Supreme Court of the United States
TIMOTHY IVORY CARPENTER, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO
Acting Solicitor General
Counsel of Record
KENNETH A. BLANCO
Acting Assistant Attorney
General
JENNY C. ELLICKSON
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTION PRESENTED

Whether the government’s acquisition, pursuant to
a court order issued under 18 U.S.C. 2703(d), of historical cell-site records created and maintained by a
cellular-service provider violates the Fourth Amendment rights of the individual customer to whom the
records pertain.

(I)

 TABLE OF CONTENTS

Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 1
Argument..................................................................................... 10
Conclusion ................................................................................... 32
TABLE OF AUTHORITIES

Cases:
Application of the U.S. for an Order Directing a
Provider of Elec. Commc’n Serv. to Disclose
Records to the Gov’t, In re, 620 F.3d 304
(3d Cir. 2010) ........................................................... 26, 27, 28
Application of the U.S. for Historical Cell Site
Data, In re, 724 F.3d 600 (5th Cir. 2013).................... 15, 26
Commonwealth v. Augustine, 4 N.E.3d 846
(Mass. 2014) ......................................................................... 29
Davis v. United States, 131 S. Ct. 2419 (2011) ................... 31
Davis v. United States, 136 S. Ct. 479 (2015) ..................... 10
Donaldson v. United States, 400 U.S. 517 (1971)............... 18
Ferguson v. City of Charleston, 532 U.S. 67 (2001) ........... 22
Guerrero v. United States, 135 S. Ct. 1548 (2015).............. 10
Illinois v. Krull, 480 U.S. 340 (1987) ................................... 30
Katz v. United States, 389 U.S. 347 (1967) ......................... 11
Kyllo v. United States, 533 U.S. 27 (2001) .............. 11, 17, 18
Maryland v. King, 133 S. Ct. 1958 (2013) ............... 23, 25, 26
Neder v. United States, 527 U.S. 1 (1999) ........................... 31
Oklahoma Press Publ’g Co. v. Walling,
327 U.S. 186 (1946).................................................. 11, 23, 24
Reporters Comm. for Freedom of the Press v.
American Tel. & Tel. Co., 593 F.2d 1030
(D.C. Cir. 1978), cert. denied, 440 U.S. 949 (1979) .......... 28
(III)

 IV
Cases—Continued:

Page

Riley v. California, 134 S. Ct. 2473 (2014) .............. 19, 20, 22
Smith v. Maryland, 442 U.S. 735 (1979) .................... passim
State v. Earls, 70 A.3d 630 (N.J. 2013) ................................ 29
Tracey v. State, 152 So. 3d 504 (Fla. 2014).......................... 29
United States v. Davis, 785 F.3d 498 (11th Cir.),
cert. denied, 136 S. Ct. 479 (2015) ................... 15, 24, 25, 26
United States v. Graham, 824 F.3d 421 (4th Cir.),
petitions for cert. pending, No. 16-6308 (filed
Sept. 26, 2016), and No. 16-6694 (filed Oct. 27,
2016) ......................................................................... 16, 17, 26
United States v. Jones, 132 S. Ct. 945 (2012)............. passim
United States v. Karo, 468 U.S. 705 (1984) ......................... 17
United States v. Knotts, 460 U.S. 276 (1983) ...................... 20
United States v. Leon, 468 U.S. 897 (1984) ......................... 30
United States v. Maynard, 615 F.3d 544 (D.C. Cir.
2010), aff ’d on other grounds sub nom. United
States v. Jones, 132 S. Ct. 945 (2012) ................................ 28
United States v. Miller, 425 U.S. 435 (1976).............. passim
United States v. Salerno, 481 U.S. 739 (1987) .................... 25
United States v. Watson, 423 U.S. 411 (1976) .................... 23
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) ...... 23
Zanders v. State, 58 N.E.3d 254 (Ind. Ct. App.),
vacated and transfer granted, 62 N.E.3d 1202
(Ind. 2016) ............................................................................ 28
Constitution and statutes:
U.S. Const. Amend. IV..................................................passim
Bank Secrecy Act, 12 U.S.C. 1829b(d) ........................ 3, 5, 12
Hobbs Act, 18 U.S.C. 1951(a) ............................................. 2, 5

 V
Statutes—Continued:

Page

Stored Communications Act, 18 U.S.C. 2701 et seq. ............ 2
18 U.S.C. 2702(a) ............................................................... 3
18 U.S.C. 2703 .................................................................... 3
18 U.S.C. 2703(c)(1)(A) ............................................... 3, 27
18 U.S.C. 2703(c)(1)(B) ..................................................... 3
18 U.S.C. 2703(c)(2)(A)-(C) ............................................... 3
18 U.S.C. 2703(d) ............................................... 3, 9, 24, 25
18 U.S.C. 2711(1) ............................................................... 3
18 U.S.C. 924(c) .................................................................... 2, 5
18 U.S.C. 2510(1) ..................................................................... 3

 In the Supreme Court of the United States
No. 16-402
TIMOTHY IVORY CARPENTER, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a32a) is reported at 819 F.3d 880. The opinion of the
district court denying petitioner’s motion to suppress
(Pet. App. 34a-48a) is not published in the Federal
Supplement but is available at 2013 WL 6385838.
JURISDICTION

The judgment of the court of appeals was entered
on April 13, 2016. A petition for rehearing was denied
on June 29, 2016 (Pet. App. 33a). The petition for a
writ of certiorari was filed on September 26, 2016.
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATEMENT

Following a jury trial in the United States District
Court for the Eastern District of Michigan, petitioner
was convicted on six counts of aiding and abetting
(1)

 2
Hobbs Act robbery, in violation of 18 U.S.C. 1951(a),
and five counts of aiding and abetting the use or
carrying of a firearm during and in relation to a crime
of violence, in violation of 18 U.S.C. 924(c). Pet. App.
5a-6a. The district court sentenced petitioner to 1395
months in prison. Id. at 7a. The court of appeals
affirmed. Id. at 1a-24a.
1. Between December 2010 and December 2012,
petitioner and his co-conspirators committed a string
of armed robberies at Radio Shack and T-Mobile
stores in Ohio and Michigan. Pet. App. 3a, 6a; Presentence Investigation Report (PSR) ¶¶ 16-23. Petitioner
organized most of the robberies, often supplied the
guns, and typically acted as a lookout during the robberies. Pet. App. 5a. On petitioner’s signal, a group
of robbers “entered the store, brandished their guns,
herded customers and employees to the back, and
ordered the employees to fill the robbers’ bags with
new smartphones.” Ibid. After each robbery, the
team disposed of the guns and getaway vehicle and
sold the stolen merchandise. Ibid.; PSR ¶¶ 17-23.
2. a. In April 2011, police arrested four of petitioner’s co-conspirators, and one of them confessed
that the group had robbed nine stores in Michigan and
Ohio between December 2010 and March 2011. Pet.
App. 3a. The robber who confessed to the crimes gave
the Federal Bureau of Investigation (FBI) his cellular
telephone number and the cell-phone numbers of
other co-conspirators. Ibid. The FBI reviewed his
call records and identified additional numbers he had
called around the time of the robberies. Ibid.
In May and June 2011, the government applied to
federal magistrate judges for three court orders pursuant to the Stored Communications Act (SCA),

 3
18 U.S.C. 2701 et seq. See Pet. App. 3a, 49a-55a, 62a68a; Gov’t C.A. Br. 9. Those applications sought orders directing certain cellular-service providers, including MetroPCS and Sprint, to disclose specified
records for 16 telephone numbers, including a cellphone number that petitioner was known to use. Pet.
App. 3a-4a, 49a-55a, 62a-68a; Gov’t C.A. Br. 9.
The SCA generally prohibits communications providers from disclosing certain records pertaining to
their subscribers to a governmental entity, but permits the government to acquire such records in certain circumstances. 18 U.S.C. 2510(1), 2702(a), 2703,
2711(1). As relevant here, the government may obtain
“a record or other information pertaining to a subscriber * * * (not including the contents of communications)” either through a warrant or through “a
court order for such disclosure under [18 U.S.C.
2703(d)].” 18 U.S.C. 2703(c)(1)(A) and (B). To obtain a
court order, the government must “offer[] specific and
articulable facts showing that there are reasonable
grounds to believe that * * * the records or other
information sought[] are relevant and material to an
ongoing criminal investigation.” 18 U.S.C. 2703(d).
The records that the government may obtain under
such an order include a subscriber’s name and address,
“telephone connection records,” and “records of session
times and durations.” 18 U.S.C. 2703(c)(2)(A)-(C).
The records that the government sought for petitioner’s cell phone included “[a]ll subscriber information, toll records and call detail records including
listed and unlisted numbers dialed or otherwise
transmitted to and from [petitioner’s] telephone[].”
Pet. App. 4a (first set of brackets in original). The
government also sought records known as historical

 4
“cell-site” records, which show which cell towers a cell
phone has connected with while in use. Id. at 4a-5a.
Cellular-service providers create and retain cell-site
records in the ordinary course of business for their
own purposes, including to find weak spots in their
cellular networks and to determine whether to charge
customers roaming charges for particular calls. Id. at
5a, 7a, 10a.
In this case, the government sought “cell site
information for [petitioner’s] telephone[] at call origination and at call termination for incoming and
outgoing calls.” Pet. App. 4a. As an FBI expert testified, “cellphones work by establishing a radio connection with nearby cell towers (or ‘cell sites’).” Id. at 5a.
“[I]ndividual towers project different signals in each
direction or ‘sector,’ ” with three or six sectors per
tower, “so that a cellphone located on the north side of
a cell tower will use a different signal than a cellphone
located on the south side of the same tower.” Ibid.;
see id. at 14a. In an urban area like Detroit, the FBI
expert explained, “each cell site covers ‘typically anywhere from a half-mile to two miles.’ ” Id. at 5a. By
requesting “historical” cell-site records, the government sought data pertaining only to past calls and did
not seek to monitor the connections of petitioner’s
phone to cell towers in real time.
The magistrate judges granted the government’s
applications and issued the requested orders. Pet.
App. 56a-61a, 69a-73a. Petitioner’s wireless carrier,
MetroPCS, then produced 127 days of historical cellsite records for petitioner’s phone number, which
MetroPCS had made in the ordinary course of business for billing and other business purposes. Id. at 7a,
10a; see Pet. 5 & n.2. In addition, Sprint produced

 5
seven days of historical cell-site records for petitioner’s phone number for early March 2011, when petitioner’s cell phone was connecting to Sprint cellular
towers in Warren, Ohio, pursuant to a roaming agreement between MetroPCS and Sprint. 12/13/13 Tr. (Tr.)
58-60; Pet. App. 88a; see Pet. 5.
From the historical cell-site records as well as
MetroPCS and Sprint records identifying the locations of their towers, the government was able to infer
the approximate location of petitioner’s phone at the
time it made and received calls. Pet. App. 6a; Tr. 9394. 1 Because the cell-site records “could do no better
than locate [petitioner’s] cellphone[] within a 120- (or
sometimes 60-) degree wedge extending between onehalf mile and two miles in length,” however, the government could determine the location of petitioner’s
phone only “within a 3.5 million square-foot to 100
million square-foot area.” Pet. App. 14a. The government ultimately determined that petitioner’s cell
phone communicated with cell towers in the general
vicinity of the sites of four robberies between December 2010 and April 2011. Id. at 6a.
b. Petitioner was indicted on six counts of aiding
and abetting Hobbs Act robbery, in violation of 18
U.S.C. 1951(a), and six counts of aiding and abetting
the use or carrying of a firearm during and in relation
to a federal crime of violence, in violation of 18 U.S.C.
924(c). Pet. App. 4a; D. Ct. Doc. 119 (June 18, 2013).
Before trial, petitioner moved to suppress the historical cell-site records, alleging that the government had
obtained them from MetroPCS and Sprint in violation
The records did not contain any cell-site information for text
messages or for times when petitioner’s cell phone was turned on
but was not making or receiving a call. See Pet. App. 7a.
1

 6
of the Fourth Amendment. Pet. App. 7a-8a. Petitioner argued that MetroPCS’s and Sprint’s production of
their business records constituted a search of petitioner that could be conducted only pursuant to a
search warrant supported by probable cause. Ibid.
The district court denied the motion to suppress.
Pet. App. 34a-48a. The court observed that petitioner
had “not directed the Court to a single decision by any
United States Court of Appeals * * * that supports
[his] position,” and it concluded that “there is no legitimate expectation of privacy in cell site data.” Id. at
38a. The district court ruled in the alternative that,
even if a warrant were required to obtain historical
cell-site data, “the evidence should not be suppressed
* * * because the agents relied in good faith on the
[SCA] in obtaining the evidence.” Id. at 38a n.1.
c. The case proceeded to trial, where seven of petitioner’s accomplices testified about petitioner’s involvement in the robberies. Pet. App. 5a. The witnesses described how petitioner “organized most of
the robberies and often supplied the guns.” Ibid. The
government also introduced videotapes and eyewitness testimony placing petitioner near the relevant
robbery scenes. See Gov’t C.A. Br. 45-47 (describing
evidence). In addition, an FBI agent offered expert
testimony about the cell-site data for petitioner’s
phone. Pet. App. 5a-6a. The agent presented maps
showing that petitioner’s phone was within a half-mile
to two miles of the location of four of the robberies
around the time those robberies occurred. Id. at 6a.
The jury convicted petitioner on all the Hobbs Act
counts and all but one of the firearms counts. Pet.
App. 6a. The district court sentenced petitioner to
1395 months in prison. Id. at 7a.

 7
3. The court of appeals affirmed. Pet. App. 1a-24a.
a. As relevant here, the court of appeals rejected
petitioner’s Fourth Amendment challenge to the historical cell-site records, holding that the government’s
acquisition of those business records was not a Fourth
Amendment “search” of petitioner. Pet. App. 8a-17a.
The court of appeals emphasized that petitioner
“lack[s] any property interest in cell-site records
created and maintained by [his] wireless carrier.”
Pet. App. 12a. As the court explained, MetroPCS and
Sprint “gathered [the data] in the ordinary course of
business” to be used for their own purposes, such as
“to find weak spots in their network and to determine
whether roaming charges apply.” Id. at 10a.
The court of appeals further concluded that petitioner had no reasonable expectation of privacy in his
cellular-service providers’ records of their towers’
connections with his cell phone. Pet. App. 7a-13a.
The court observed that “federal courts have long
recognized a core distinction” between “the content of
personal communications,” which “is private,” and
“the information necessary to get those communications from point A to point B,” which “is not.” Id. at
9a. Historical cell-site records “fall on the unprotected side of this line,” the court concluded, “because
they contain “routing information” and “say nothing
about the content of any calls.” Id. at 10a; see id. at
10a-12a.
The court of appeals observed that this Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979),
“confirm[ed] the point” that “[t]he government’s collection of business records containing [historical cellsite] data * * * is not a search.” Pet. App. 11a. “[I]n
Smith,” the court explained, “th[is] Court held that

 8
the police’s installation of a pen register—a device
that tracked the phone numbers a person dialed from
his home phone—was not a search because the caller
could not reasonably expect those numbers to remain
private.” Id. at 9a-10a. Because “Smith ‘voluntarily
conveyed numerical information to the telephone
company and exposed that information to its equipment in the ordinary course of business,” the “numerical information was not protected under the Fourth
Amendment.” Id. at 12a (quoting 442 U.S. at 744)
(internal quotation marks omitted). The court concluded that the same result should apply “to the locational information here” because cell-phone users
voluntarily convey that data to their cellular-service
providers “as a means of establishing communication”
when they place or receive calls. Ibid. (quoting Smith,
442 U.S. at 741).
The court of appeals distinguished this Court’s decision in United States v. Jones, 132 S. Ct. 945 (2012),
which held that the government’s installation of a
Global-Positioning-System (GPS) tracking device on a
vehicle constituted a “search” under the Fourth
Amendment, id. at 949. See Pet. App. 13a-15a. The
court of appeals emphasized that “the government
action in this case”—namely, “government collection
of business records”—“is very different from the
government action in Jones.” Id. at 13a, 14a. The
court further observed that the historical cell-site data
here was “as much as 12,500 times less accurate than
the GPS data in Jones” and so could not provide the
same level of detail about petitioner’s location and
movements. Id. at 14a.
The court of appeals also observed that, in enacting
the SCA, Congress “struck a balance that it thinks

 9
reasonable,” Pet. App. 16a, by requiring the government to “offer[] specific and articulable facts showing
that there are reasonable grounds to believe that”
historical cell-site records “are relevant and material
to an ongoing criminal investigation,” 18 U.S.C.
2703(d). The court stated that “Congress is usually
better equipped than courts are to answer the empirical questions that [new] technologies present.” Pet.
App. 17a. The court concluded that “[t]hese concerns
favor leaving undisturbed the Congressional judgment” reflected by the SCA’s “middle ground [approach] between full Fourth Amendment protection
and no protection at all.” Id. at 15a, 17a. 2
b. Judge Stranch filed an opinion concurring in the
judgment on the Fourth Amendment issue. Pet. App.
24a-32a.
Judge Stranch believed that the government’s
acquisition of the historical cell-site records “raise[d]
Fourth Amendment concerns.” Pet. App. 24a; see
id. at 25a-29a. She “f  [ound] it unnecessary to reach a
definitive conclusion on the Fourth Amendment
issue,” however, because she concluded that the motion to suppress was properly denied under the goodfaith exception to the exclusionary rule. Id. at 25a;
see id. at 29a-31a. She observed that no evidence
“suggest[ed] that the FBI agents who obtained the
Because the court of appeals concluded that the government’s
acquisition of petitioner’s historical cell-site data did not constitute
a search, it did not reach the government’s alternative arguments
that (i) any search that occurred was constitutionally reasonable,
see Gov’t C.A. Br. 37-40; (ii) the good-faith exception to the exclusionary rule applies here, see id. at 40-42; and (iii) any error in
admitting the historical cell-site data was harmless, see id. at 4447.
2

 10
[cell-site data] * * * pursuant to the SCA engaged
in intentional misconduct.” Id. at 31a. Because
“[s]uppressing the [cell-site data] at trial would not
have the requisite deterrent effect on future unlawful
conduct,” she concluded that the district court correctly denied the motion to suppress. Ibid.
ARGUMENT

Petitioner renews his claim (Pet. 10-34) that the
government’s acquisition of MetroPCS’s and Sprint’s
historical cell-site records pursuant to three SCA
court orders violated his Fourth Amendment rights.
Petitioner further asserts (Pet. 21-26) that the lower
courts are divided on the Fourth Amendment question. Those claims lack merit. The court of appeals
correctly concluded that the Fourth Amendment permits the government to obtain historical cell-site data
under the standard set forth in the SCA, and no conflict exists on that question. This Court has recently
denied other petitions for a writ of certiorari raising
Fourth Amendment challenges to the government’s
acquisition of historical cell-site data pursuant to SCA
court orders, 3 and no reason exists for a different
result here.
In any event, this case would be an unsuitable
vehicle to address the Fourth Amendment question
because, as the district court held and as Judge
Stranch concluded in her opinion concurring in the
judgment, the relevant evidence was admissible under
the good-faith exception to the exclusionary rule. In
addition, any error in the admission of the historical
cell-site data was harmless because other evidence
See Davis v. United States, 136 S. Ct. 479 (2015) (No. 15-146);
Guerrero v. United States, 135 S. Ct. 1548 (2015) (No. 14-7103).
3

 11
conclusively established petitioner’s guilt. Petitioner
thus could not benefit from a ruling in his favor on the
Fourth Amendment question. Further review of that
question is unwarranted.
1. The court of appeals correctly held that the government’s acquisition of MetroPCS’s and Sprint’s cellsite records pursuant to court orders authorized by
the SCA did not violate petitioner’s Fourth Amendment rights. Petitioner has no Fourth Amendment
interest in those business records. And even if he did
have such an interest, the SCA procedure is constitutionally reasonable.
a. A person has no Fourth Amendment interest in
records created by a communications-service provider
in the ordinary course of business that pertain to the
individual’s transactions with the service provider.
i. The Fourth Amendment’s prohibition on unreasonable searches was originally understood to be “tied
to common-law trespass.” United States v. Jones, 132
S. Ct. 945, 949 (2012). Since this Court’s decision in
Katz v. United States, 389 U.S. 347 (1967), however,
the Court has held that a Fourth Amendment search
may also “occur[] when the government violates a
subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S.
27, 33 (2001).
The Fourth Amendment permits the government
to obtain business records through a subpoena, without either a warrant or a showing of probable cause.
See Oklahoma Press Publ’g Co. v. Walling, 327 U.S.
186, 194-195 (1946); see also United States v. Miller,
425 U.S. 435, 445-446 (1976). In its decisions in Miller
and Smith v. Maryland, 442 U.S. 735 (1979), this
Court further concluded that the acquisition of a busi-

 12
ness’s records does not constitute a Fourth Amendment “search” of an individual customer even when
the records reflect information pertaining to that
customer.
In Miller, the government had obtained by subpoena records of the defendant’s accounts from his
banks, including copies of his checks, deposit slips,
financial statements, and other business records. 425
U.S. at 436-438. The banks were required to keep
those records under the Bank Secrecy Act, 12 U.S.C.
1829b(d). 425 U.S. at 436, 440-441. The Court held
that the government’s acquisition of those records was
not an “intrusion into any area in which [the defendant] had a protected Fourth Amendment interest.”
Id. at 440. The Court explained that the defendant
could “assert neither ownership nor possession” of the
records; rather, they were “business records of the
banks.” Ibid. The Court further rejected the defendant’s argument that he had “a reasonable expectation
of privacy” in the records because “they [were] merely
copies of personal records that were made available to
the banks for a limited purpose.” Id. at 442. As the
Court explained, it had “held repeatedly that the
Fourth Amendment does not prohibit the obtaining of
information revealed to a third party and conveyed by
him to Government authorities, even if the information is revealed on the assumption that it will be
used only for a limited purpose.” Id. at 443. Because
the records obtained from the bank “contained only
information voluntarily conveyed to the banks and
exposed to their employees in the ordinary course of
business,” the Court concluded that the defendant had
“take[n] the risk, in revealing his affairs to another,

 13
that the information w[ould] be conveyed by that
person to the Government.” Id. at 442, 443.
In Smith, the Court applied the same principles to
records created by a telephone company. There, the
police requested that the defendant’s telephone company install a pen register at its offices to record the
numbers dialed from the defendant’s home phone. 442
U.S. at 737. The defendant argued that the government’s acquisition of the records of his dialed numbers
violated his reasonable expectation of privacy and
therefore qualified as a Fourth Amendment search.
Id. at 741-742. The Court rejected that contention,
concluding both that the defendant lacked a subjective
expectation of privacy and that any such expectation
was not objectively reasonable. Id. at 742-746.
The Smith Court first expressed “doubt that people in general entertain any actual expectation of
privacy in the numbers they dial,” given that “[a]ll
telephone users realize that they must ‘convey’ phone
numbers to the telephone company, since it is through
the telephone company switching equipment that their
calls are completed.” 442 U.S. at 742. The Court
further emphasized that “the phone company has
facilities for recording this information” and “does in
fact record this information for a variety of legitimate
business purposes.” Id. at 743.
The Smith Court went on to explain that “even if
[the defendant] did harbor some subjective expectation that the phone numbers he dialed would remain
private, this expectation is not one that society is
prepared to recognize as reasonable.” 442 U.S. at 743
(citation and internal quotation marks omitted). That
was because “a person has no legitimate expectation
of privacy in information he voluntarily turns over to

 14
third parties.” Id. at 743-744 (citing, inter alia,
Miller, 425 U.S. at 442-444). “When [the defendant]
used his phone,” the Court continued, he “voluntarily
conveyed numerical information to the telephone
company and exposed that information to its equipment in the ordinary course of business.” Id. at 744
(internal quotation marks omitted). The Court found
no more persuasive the defendant’s argument that he
reasonably expected the local numbers he dialed to
remain private because “telephone companies, in view
of their present billing practices, usually do not record
local calls” or include those numbers on their customers’ monthly bills. Id. at 745. Because the defendant
“voluntarily conveyed to [the phone company] information that it had facilities for recording and that it
was free to record,” the Court concluded that he had
“assumed the risk that the information would be divulged to police.” Ibid.
ii. The principles set forth in Miller and Smith resolve this case. See Pet. App. 11a-12a, 14a.
Petitioner lacks any subjective expectation of privacy in phone-company records of historical cell-site
data because they are business records that
MetroPCS and Sprint create for their own purposes.
See Pet. App. 7a, 10a. As with the bank records in
Miller, petitioner “can assert neither ownership nor
possession” of the cell-site records. 425 U.S. at 440.
Rather, the providers created the records for their
own business purposes as part of the process of
providing telephone service to customers. See Pet.
App. 5a-7a, 10a.
As in Smith, moreover, cell-phone users presumably understand that their phones emit signals that are
conveyed to their service providers, through facilities

 15
close to the area of the phone’s use, as a necessary
incident of making or receiving calls. See, e.g., United
States v. Davis, 785 F.3d 498, 511 (11th Cir.) (en
banc), cert. denied, 136 S. Ct. 479 (2015); In re Application of the U.S. for Historical Cell Site Data, 724
F.3d 600, 613 (5th Cir. 2013) (Fifth Circuit In re Application); Pet. App. 12a. “[A]ny cellphone user who
has seen her phone’s signal strength fluctuate must
know that, when she places or receives a call, her
phone ‘exposes’ its location to the nearest cell tower
and thus to the company that operates the tower.”
Pet. App. 12a. That is why, for example, cell phones
often cannot receive a signal in sparsely populated
areas or underground. See Fifth Circuit In re Application, 724 F.3d at 613. “Although subjective expectations cannot be scientifically gauged,” cell-phone users, like landline users, do not have a “general expectation” that data generated when they use telephonecompany equipment “will remain secret.” Smith, 442
U.S. at 743.
Additionally, any subjective expectation of privacy
in information transmitted to a cellular-service
provider by engaging its cellular network would not
be objectively reasonable because “a person has no
legitimate expectation of privacy in information he
voluntarily turns over to third parties.” Smith, 442
U.S. at 743-744. Just as a person who dials a number
into a phone “voluntarily convey[s] numerical
information to the telephone company and expose[s]
that information to its equipment in the ordinary
course of business,” id. at 744 (internal quotation
marks omitted), a cell-phone user must reveal his
general location to a cell tower in order for the
cellular service provider to connect a call. And a cell-

 16
phone user thus “takes the risk, in revealing his
affairs to [the cellular-service provider], that the
information” he transmits in engaging the cellular
network “will be conveyed by [the cellular-service
provider] to the Government.” Miller, 425 U.S. at
443. Because petitioner “voluntarily conveyed to [his
cellular-service providers] information that [they] had
facilities for recording and that [they] w[ere] free to
record,” he “assumed the risk that the information
would be divulged to police.” Smith, 442 U.S. at 745.
The court of appeals therefore correctly concluded
that the government’s acquisition of the historical cellsite data did not constitute a Fourth Amendment
search.
iii. Petitioner’s arguments to the contrary (Pet. 2632) lack merit.
Petitioner seeks to avoid (Pet. 28-29) the principles
set forth in Miller and Smith by contending that cellphone users do not voluntarily convey cell-site data to
their service providers. But “[a] cell phone user voluntarily enters an arrangement with his service provider in which he knows that he must maintain proximity to the provider’s cell towers in order for his
phone to function.” United States v. Graham, 824
F.3d 421, 430 (4th Cir.) (en banc), petitions for cert.
pending, No. 16-6308 (filed Sept. 26, 2016), and No. 166694 (filed Oct. 27, 2016). Petitioner chose to carry a
cell phone for the purpose of having his wireless provider route calls to and from him whenever he was in
range of a cell tower. By “expect[ing] his phone to
work,” he “permitt[ed]—indeed, request[ed]—his
service provider to establish a connection between his
phone and a nearby cell tower,” and he thus “voluntarily convey[ed] the information necessary for his ser-

 17
vice provider to identify the [historical cell-site data]
for his calls.” Ibid.
Petitioner also errs in suggesting (Pet. 29) that
Smith and Miller are inapplicable because the records
at issue in this case are “exceedingly sensitive and
private in ways that were not at issue in [those
decisions].” 4 Petitioner provides no support for his
contention that records of the cell towers to which a
phone connected when placing or receiving a call are
more private than, for example, the financial
information contained in the “checks, deposit slips,
* * * financial statements, and * * * monthly statements” the government acquired in Miller. 425 U.S.
at 438. Although the records in Miller were “copies of
personal records that were made available to the
banks for a limited purpose,” this Court nevertheless
concluded that no Fourth Amendment search had
occurred because the records “contain[ed] only
information voluntarily conveyed to the banks and
Petitioner’s reliance for this point (Pet. 29-30) on United States
v. Karo, 468 U.S. 705 (1984), and Kyllo, supra, is misplaced. In
Karo, this Court concluded that police officers conducted a Fourth
Amendment search when they used a beeper device to monitor the
location of a container within a private residence. 468 U.S. at 714.
Similarly, in Kyllo, this Court held that the use of a thermal imaging device “that is not in general public use[] to explore details of
the home that would previously have been unknowable without
physical intrusion” is a Fourth Amendment search. 533 U.S. at 40.
In each case, the use of the device in question permitted the authorities to obtain information from inside a house that had not
already been exposed to the public. See id. at 34-40; Karo, 468
U.S. at 714-716. In this case, however, petitioner had already
exposed the information necessary to create the cell-site records to
MetroPCS and Sprint, and the government obtained that information from MetroPCS and Sprint through lawful process.
4

 18
exposed to their employees in the ordinary course of
business.” Id. at 442. That analysis applies with even
greater force here because, unlike in Miller, the
records at issue here are not even copies of documents
that petitioner submitted to the cellular-service
providers, and the government did not require the
providers to keep those records. See ibid. Petitioner’s argument also overlooks the “core distinction”
between “the content of personal communications”
and “the information necessary to get those communications from point A to point B.” Pet. App. 9a.
“The business records here fall on the unprotected
side of this line” because they “say nothing about the
content of any calls” but instead contain only “routing
information.” Id. at 10a.
Petitioner essentially objects to the fact that lawenforcement officers could infer from MetroPCS’s and
Sprint’s records that petitioner was within a particular radius of a cell tower. But “an inference is not a
search.” Kyllo, 533 U.S. at 33 n.4. Law-enforcement
investigators regularly deduce facts about a person’s
movements or conduct from information gleaned from
third parties. Indeed, that is a central feature of criminal investigations. See Donaldson v. United States,
400 U.S. 517, 522 (1971) (explaining that the lack of
Fourth Amendment protection for third-party business records was “settled long ago”); id. at 537 (Douglas, J., concurring) (“There is no right to be free from
incrimination by the records or testimony of others.”).
For example, law-enforcement officers can infer from
an eyewitness statement that a suspect was in a particular location at a particular time, from a credit-card
slip that she regularly dines at a particular restaurant
and was there at a particular time, and from a key-

 19
card entry log her routine hours at a gym. But merely
because facts about a person can be deduced from
records or other information in the possession of third
parties does not make the acquisition of that information a Fourth Amendment search of the person.
Indeed, the pen-register records in Smith allowed a
far more specific inference about the defendant’s
whereabouts—his presence in his home—but the
Court nevertheless concluded that no Fourth Amendment search had occurred.
Petitioner suggests (Pet. 16-18, 27-28) that the
Fourth Amendment principles recognized in Smith
and Miller should not apply to new technologies.
Although petitioner relies (Pet. 16-18) on Jones and
Riley v. California, 134 S. Ct. 2473 (2014), those decisions did not address—much less disavow—this
Court’s precedents recognizing that an individual does
not have a Fourth Amendment interest in a third
party’s records pertaining to him or in information
that he voluntarily conveys to third parties. In Jones,
the Court held that the warrantless installation and
use of a GPS tracking device on a vehicle to continuously monitor its movements over the course of 28
days constituted a Fourth Amendment search. 132
S. Ct. at 948-949. In reaching that conclusion, the
Court relied on the fact that the government had
“physically intrud[ed] on a constitutionally protected
area”—the suspect’s automobile—to attach the device.
Id. at 950 n.3. In this case, by contrast, petitioner
does not contend that any such physical occupation
occurred. Because the Court in Jones concluded that
the attachment of the device constituted “a classic
trespassory search,” id. at 954, it did not reach the
Katz inquiry or hold that tracking a person’s vehicle

 20
on public streets violates a reasonable expectation of
privacy, which would represent a significant qualification of the Court’s prior holding in United States v.
Knotts, 460 U.S. 276, 281-282 (1983). See Jones, 132
S. Ct. at 953-954.
This Court’s decision in Riley likewise does not aid
petitioner’s argument. Riley held that a law-enforcement
officer generally must obtain a warrant to search the
contents of a cell phone found on an arrestee. 134
S. Ct. at 2485. No question existed in Riley that the
review of the contents of a cell phone constitutes a
Fourth Amendment search; the question was whether
that search fell within the traditional search-incidentto-arrest exception to the warrant requirement. See
id. at 2482 (“The two cases before us concern the
reasonableness of a warrantless search incident to
a lawful arrest.”); see also id. at 2489 n.1 (noting that
“[b]ecause the United States and California agree that
these cases involve searches incident to arrest, these
cases do not implicate the question whether the
collection or inspection of aggregated digital information amounts to a search under other circumstances”). Riley thus presented no occasion for this Court
to reconsider its longstanding view that an individual
has no Fourth Amendment interest in records pertaining to an individual that are created by third parties
or in information he voluntarily conveys to third parties.
Even putting aside the specific holdings of Jones
and Riley, the broader privacy concerns raised in
those cases (and discussed in the concurrences by
Justice Alito and Justice Sotomayor in Jones, see 132
S. Ct. at 954-956 (Sotomayor, J., concurring); id. at
962-964 (Alito, J., concurring in the judgment)) do not

 21
justify creating a novel Fourth Amendment rule here.
The GPS tracking device in Jones allowed lawenforcement officers to use “signals from multiple
satellites” to continuously track the movements of the
defendant’s vehicle over the course of 28 days, accurate to “within 50 to 100 feet.” Id. at 948 (majority
opinion). The information the government acquired in
this case, by contrast, consisted of records indicating
which of the cellular-service provider’s antennas
communicated with petitioner’s phone only when the
phone was making or receiving calls, not continuously.
See Pet. App. 4a, 6a-7a. And although these records
contained historical cell-site information for a 127-day
period, the information revealed only that petitioner
was somewhere within the specified sector of a cell
tower when he made or received calls. Id. at 7a, 14a.
According to the court of appeals’ calculations, that
information was “as much as 12,500 times less accurate than the GPS data in Jones.” Id. at 14a-15a. This
case thus presents no occasion to consider the legal
implications of technology capable of “secretly monitor[ing] and catalog[ing] every single movement” an
individual makes continuously “for a very long period.” Jones, 132 S. Ct. at 964 (Alito, J., concurring in
the judgment); see id. at 955 (Sotomayor, J., concurring).
Likewise, this case does not touch on a central concern in Riley: that cell phones may contain “vast
quantities of personal information” that could be used
to discern “[t]he sum of an individual’s private life,”
including information about the user’s health, family,
religion, finances, political and sexual preferences,
and shopping habits, as well as GPS records of the
user’s “specific movements down to the minute, not

 22
only around town but also within a particular building.” 134 S. Ct. at 2485, 2489, 2490. As explained, the
historical cell-site records obtained in this case revealed only that petitioner (or someone using his
phone) was in “a 3.5 million square-foot to 100 million
square-foot area” when placing or receiving a call.
Pet. App. 14a. The records did not (and could not)
reveal any information stored on petitioner’s phone or
permit law-enforcement officers to learn the sort of
detailed personal facts that the Court identified in
Riley.
Petitioner essentially seeks a rule that he has a
personal Fourth Amendment interest in the record of
his transaction with a business from which his location
can be approximately inferred. No recognized Fourth
Amendment doctrine supports that contention. 5 The
court of appeals therefore correctly held that under
this Court’s precedents, petitioner has no valid Fourth
Amendment interest in records of his calls created by
MetroPCS and Sprint for their own business
purposes.
b. Even if petitioner could establish that he has a
novel Fourth Amendment interest in the records created and held by MetroPCS and Sprint, the govern-

Petitioner cites (Pet. 26-27) a variety of cases that did not involve the third-party doctrine to support his contention that privacy interests may survive even when “another person has access to
or control over private records.” None of those cases involved
business records created by a third party based on information
voluntarily conveyed to the business. For example, Ferguson v.
City of Charleston, 532 U.S. 67 (2001), involved urine tests conducted by state hospital staff that “were indisputably searches
within the meaning of the Fourth Amendment.” Id. at 76. The
other cited cases are equally inapposite.
5

 23
ment’s acquisition of those records was reasonable
and therefore complied with the Fourth Amendment.
“As the text of the Fourth Amendment indicates,
the ultimate measure of the constitutionality of a
governmental search is ‘reasonableness.’ ” Maryland
v. King, 133 S. Ct. 1958, 1969 (2013) (citation omitted).
A “warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably
required either.” Vernonia Sch. Dist. 47J v. Acton,
515 U.S. 646, 653 (1995). In deciding whether a warrantless search is permissible, this Court “balance[s]
the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.”
King, 133 S. Ct. at 1970 (citation omitted). In addition, in a case that challenges a federal statute under
the Fourth Amendment, this Court applies a “strong
presumption of constitutionality” to the statute, “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) (citation
omitted). In light of those principles, even if the acquisition of MetroPCS’s and Sprint’s records pertaining to petitioner’s calls qualified as a Fourth Amendment search, that acquisition would be constitutionally
reasonable. That follows for two independently sufficient reasons.
First, as discussed above, this Court has held that
subpoenas for records do not require a warrant based
on probable cause, even when challenged by the party
to whom the records belong. See Miller, 425 U.S. at
446 (reaffirming the “traditional distinction between a
search warrant and a subpoena”); see also Oklahoma

 24
Press Publ’g Co., 327 U.S. at 209. It follows that the
SCA procedure for obtaining the business records at
issue here is constitutionally reasonable, because the
SCA provides more substantial privacy protections
than an ordinary judicial subpoena. See Davis, 785
F.3d at 505-506 (describing SCA privacy-protection
provisions). In particular, the SCA “raises the bar”
for obtaining historical cell-site records, id. at 505, by
requiring the government to establish “specific and
articulable facts showing that there are reasonable
grounds to believe that * * * the records or other
information sought[ ] are relevant and material to an
ongoing criminal investigation,” 18 U.S.C. 2703(d)
(emphasis added). In contrast, an ordinary subpoena
requires only a “court’s determination that the investigation is authorized by Congress, [that it] is for a
purpose Congress can order, [that] the documents
sought are relevant to the inquiry,” and that the
“specification of the documents to be produced [is]
adequate, but not excessive, for the purposes of the
relevant inquiry.” Oklahoma Press Publ’g Co., 327
U.S. at 209. Given that “[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,” Jones, 132 S. Ct. at 964
(Alito, J., concurring in the judgment), Congress’s
considered effort in the SCA to augment the privacy
protections that this Court has found sufficient for
judicial subpoenas complies with the Fourth Amendment. See Pet. App. 15a-17a.
Second, traditional standards of Fourth Amendment reasonableness independently confirm that a
Section 2703(d) court order is a reasonable mechanism
for obtaining a cellular-service provider’s historical

 25
cell-site records. As discussed above, under traditional Fourth Amendment standards, petitioner had
no legitimate expectation of privacy in the third-party
business records at issue here. But even if this Court
were to depart from that settled framework and hold
that an individual can assert a Fourth Amendment
interest in records created by a third party that
pertain to a transaction he engaged in with the third
party, petitioner could at most assert only a diminished expectation of privacy in those records. That
is a factor that this Court has said “may render a
warrantless search or seizure reasonable.” King, 133
S. Ct. at 1969 (citation omitted). And any invasion of
petitioner’s assumed privacy interest was minimal,
given the imprecise nature of the location information
that could be inferred from the historical cell-site
records at issue here, which could not have enabled
law-enforcement officers to pinpoint petitioner’s
location and could not have revealed other personal
facts about him. See Pet. App. 14a-15a (discussing
these factors); Davis, 785 F.3d at 516 (same).
On the other side of the reasonableness balance,
the government has a compelling interest in obtaining
historical cell-site records using a Section 2703(d)
court order, rather than a warrant, because, like other
investigative techniques that involve seeking information from third parties about a crime, this evidence
is “particularly valuable during the early stages of an
investigation, when the police [may] lack probable
cause and are confronted with multiple suspects.”
Davis, 785 F.3d at 518. Society has a strong interest
in both promptly apprehending criminals and exonerating innocent suspects as early as possible during an
investigation. See United States v. Salerno, 481 U.S.

 26
739, 750-751 (1987); King, 133 S. Ct. at 1974. In addition, the SCA ensures judicial scrutiny of the government’s basis for obtaining an order, so the government may obtain such orders only in circumstances
where the asserted governmental interest in acquiring
the records has been examined by a neutral magistrate.
In short, “a traditional balancing of interests amply
supports the reasonableness of the [SCA] order[s] at
issue here.” Davis, 785 F.3d at 518.
2. Petitioner contends (Pet. 21-26) that lower
courts are divided over whether the Fourth Amendment requires the government to obtain a warrant
before acquiring a cellular-service provider’s historical cell-site records pertaining to a particular user.
That is incorrect. The decision below does not conflict
with any other decision of another circuit or state high
court.
a. All courts of appeals to have considered the
question presented have concluded, in accordance
with the Sixth Circuit below, that no Fourth Amendment violation occurs when the government acquires
historical cell-site data pursuant to an SCA order. See
Graham, 824 F.3d at 425-438 (4th Cir.); Davis, 785
F.3d at 506-516 (11th Cir.); Fifth Circuit In re Application, 724 F.3d at 609-615 (5th Cir.); Pet. App. 17a. 6
b. Petitioner asserts (Pet. 14, 22-23) that the decision below conflicts with the Third Circuit’s decision
in In re Application of the U.S. for an Order DirectPetitions for a writ of certiorari from the Fourth Circuit’s decision in Graham are currently pending. See Nos. 16-6308 (filed
Sept. 26, 2016) and 16-6694 (filed Oct. 27, 2016). Those petitions
raise a similar Fourth Amendment challenge to the government’s
acquisition of historical cell-site data.
6

 27
ing a Provider of Elec. Commc’n Serv. to Disclose
Records to the Gov’t, 620 F.3d 304 (2010) (Third Circuit In re Application). But the Third Circuit addressed only the statutory standard for obtaining cellsite records under the SCA. Id. at 308-319. The Third
Circuit “h[eld] that [historical cell-site data] from cell
phone calls is obtainable under a [Section] 2703(d)
order and that such an order does not require the
traditional probable cause determination.” Id. at 313.
The court further interpreted the SCA to grant judges
discretion “to require a warrant showing probable
cause” pursuant to Section 2703(c)(1)(A), although the
court stated that such an option should “be used sparingly because Congress also included the option of a
[Section] 2703(d) order.” Id. at 319. But the court did
not consider—let alone adopt—petitioner’s proposed
rule that the Fourth Amendment requires the government to obtain a warrant to acquire historical cellsite data.
Petitioner emphasizes (Pet. 22-23) the Third Circuit’s statement that “[a] cell phone customer has not
‘voluntarily’ shared his location information with a
cellular provider in any meaningful way.” Third Circuit In re Application, 620 F.3d at 317. But the Third
Circuit made that observation simply to support its
interpretation of the SCA. And while the court noted
“the possibility” that the disclosure of historical cellsite data could “implicate the Fourth Amendment
* * * if it would disclose location information about
the interior of a home,” ibid., that suggestion would
not aid petitioner here, because the evidence he
sought to suppress did not (and could not) disclose
anything about the interior of his home. In any event,
the Third Circuit’s suggestion does not amount to a

 28
constitutional holding that would place it in conflict
with the Fourth, Fifth, Sixth, and Eleventh Circuits. 7
c. Petitioner also contends (Pet. 24-26) that the
court of appeals’ decision conflicts with the D.C. Circuit’s decision in United States v. Maynard, 615 F.3d
544 (2010), aff ’d in part on other grounds sub nom.
United States v. Jones, 132 S. Ct. 945 (2012). But
Maynard involved the government’s installation and
use of a GPS tracking device on the defendant’s car,
not the acquisition of records that a third party had
created and stored for its own business purposes. See
id. at 555. Indeed, Maynard specifically recognized
the continuing validity of the principles applied in
Smith. See id. at 561; see also Reporters Comm. for
Freedom of the Press v. American Tel. & Tel. Co., 593
F.2d 1030, 1043 (D.C. Cir. 1978), cert. denied, 440 U.S.
949 (1979).
d. Petitioner further errs in contending that “state
high courts are divided” on the question presented in
this case. Pet. 21 (capitalization omitted). 8 Petitioner
The Third Circuit recently heard oral argument in a case that
involves a Fourth Amendment challenge to the government’s
acquisition of historical cell-site data pursuant to an SCA order
under Section 2703(d). See United States v. Stimler, Nos. 15-4053,
15-4094, and 15-4095 (argued Jan. 25, 2017). That case may provide the Third Circuit with an opportunity to revisit its empirical
assumption from six years ago that “it is unlikely that cell phone
customers are aware that their cell phone providers collect and
store historical location information.” Third Circuit In re Application, 620 F.3d at 317 (emphasis omitted).
8
Petitioner also cites (Pet. 14, 23) a decision from the Indiana
Court of Appeals, but that decision was recently vacated when the
Supreme Court of Indiana granted discretionary review. See
Zanders v. State, 58 N.E.3d 254, vacated and transfer granted, 62
N.E.3d 1202 (Ind. 2016). In any event, a conflict with a decision of
7

 29
cites (Pet. 23-24) two decisions in which state courts of
last resort required warrants to obtain cell-site records, but both of those decisions relied expressly on
state law. See Commonwealth v. Augustine, 4 N.E.3d
846, 858, 865-866 (Mass. 2014) (Massachusetts Declaration of Rights); State v. Earls, 70 A.3d 630, 644 (N.J.
2013) (New Jersey Constitution). In addition, petitioner cites (Pet. 23-24) the Florida Supreme Court’s
decision in Tracey v. State, 152 So. 3d 504 (2014), but
that case involved the use of prospective, “real time
cell site location information,” and the court made
clear that its decision did not encompass historical
cell-site records like those at issue here. Id. at 515,
525-526 (emphasis added). Petitioner also points to
(Pet. 23-24) several state statutes, but those statutes
do not reflect any judicial conflict over the meaning of
the Fourth Amendment. To the contrary, they fortify
the view that legislatures are best positioned to balance privacy interests and law-enforcement needs in
light of new technologies, as Congress did in the SCA.
See Jones, 132 S. Ct. at 964 (Alito, J., concurring in
the judgment); see Pet. App. 15a-17a.
3. In any event, this case is not a suitable vehicle to
consider whether the government’s acquisition of
historical cell-site data violated the Fourth Amendment because the district court correctly denied the
motion to suppress based on the good-faith exception
to the exclusionary rule and because any error in
admitting the cell-site data was harmless.
a. As this Court has explained, the exclusionary
rule is a “judicially created remedy” that is “designed
to deter police misconduct rather than to punish the
an intermediate state appellate court does not warrant this Court’s
review.

 30
errors of judges and magistrates.” United States v.
Leon, 468 U.S. 897, 906, 916 (1984). “As with any
remedial device, application of the exclusionary rule
properly has been restricted to those situations in
which its remedial purpose is effectively advanced.”
Illinois v. Krull, 480 U.S. 340, 347 (1987). The rule
therefore does not apply “where [an] officer’s conduct
is objectively reasonable” because suppression “cannot be expected, and should not be applied, to deter
objectively reasonable law enforcement activity.”
Leon, 468 U.S. at 919. For that reason, “evidence
obtained from a search should be suppressed only if it
can be said that the law enforcement officer had
knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the
Fourth Amendment.” Ibid. (citation omitted).
As the district court correctly held, Pet. App. 38a
n.1, and as Judge Stranch recognized in her opinion
concurring in the judgment, id. at 29a-31a, even if the
government’s collection of the historical cell-site data
constituted a search in violation of the Fourth
Amendment, the evidence was properly admitted at
trial pursuant to the good-faith exception to the exclusionary rule. As Judge Stranch emphasized, “there is
nothing to suggest that the FBI agents who obtained
[the historical cell-site data] * * * pursuant to the
SCA engaged in any intentional misconduct.” Id. at
31a. This Court has held that the good-faith exception
applies to “officer[s] acting in objectively reasonable
reliance on a statute,” later deemed unconstitutional,
that authorizes warrantless administrative searches.
Krull, 480 U.S. at 349; see id. at 342. It follows a
fortiori that officers act reasonably in relying on a

 31
statute that authorizes the acquisition of records only
pursuant to an order issued by a neutral magistrate.
At the time the records were acquired in petitioner’s case, moreover, no binding appellate decision
(or holding of any circuit) had suggested, much less
held, that the SCA was unconstitutional as applied to
historical cell-site records. Given that, officers were
entitled to rely on the presumption that acts of
Congress are constitutional. Cf. Davis v. United States,
131 S. Ct. 2419, 2429 (2011) (“Evidence obtained
during a search conducted in reasonable reliance on
binding precedent is not subject to the exclusionary
rule.”). Judge Stranch accordingly correctly concluded that “[s]uppressing the [historical cell-site
data] at trial would not have the requisite deterrent
effect on future unlawful conduct and application of
the exclusionary rule is therefore inappropriate.” Pet.
App. 31a.
b. In addition, even if the historical cell-site data
should have been suppressed, any error in admitting
that evidence at trial was harmless. See Neder v.
United States, 527 U.S. 1, 18 (1999) (observing that
constitutional error is harmless when it is “clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error”).
The information provided by the historical cell-site
data was merely cumulative of other uncontroverted
evidence at trial that placed petitioner near the robbery scenes. See Gov’t C.A. Br. 44-47 (describing
evidence). That evidence included surveillance tape
video showing petitioner near the site of one robbery,
see id. at 45-46, as well as testimony from eyewitness
accomplices who described petitioner’s involvement in
and presence at the scene of the other robberies, see

 32
id. at 46-47; see also Pet. App. 5a (describing testimony from accomplices “that [petitioner] organized most
of the robberies and often supplied the guns”). In
light of the other evidence establishing petitioner’s
involvement in the robberies and his location at the
relevant times, it is clear that the jury would have
returned a guilty verdict even if the historical cell-site
data had not been admitted at trial. Indeed, the jury
convicted petitioner on two robbery counts for which
the government had not introduced any historical cellsite data.
Because petitioner would not obtain relief even if
this Court were to rule in his favor on the Fourth
Amendment question, review of that question is not
warranted in this case.
CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Acting Solicitor General
KENNETH A. BLANCO
Acting Assistant Attorney
General
JENNY C. ELLICKSON
Attorney

JANUARY 2017