Virginia Lawyers Weekly VA Lawyers Weekly
Where the government obtained the defendant’s historical cellular site location information, or CSLI, in good-faith reliance upon then-existing law, the defendant’s counsel did not render ineffective assistance by failing to move to suppress the information. The motion likely would not have been meritorious.
Background
Gloria Patricia Taylor appeals the district court’s order denying relief on her 28 U.S.C. § 2255 motion to vacate, set aside or correct her sentence. Appellant claimed that her trial counsel rendered ineffective assistance by failing to move to suppress information obtained from a search warrant that relied, in part, on the government’s warrantless procurement of certain data from her cell phone service provider.
The district court denied appellant’s § 2255 motion, holding that a motion to suppress the historical cellular site location information, or CSLI, and Global Positioning System, or GPS, tracking data used in the search warrant application would likely not have been meritorious.
Analysis
When the government served administrative subpoenas on Sprint in 2014, it acted in good faith pursuant to the Stored Communications Act, or SCA, which permits the collection of certain subscriber information through a subpoena. At that point, this court had not yet decided United States v. Graham, 796 F.3d 332 (4th Cir. 2015), which held that “obtaining historical CSLI constitutes a search, such that the Fourth Amendment bars the Government from obtaining it ‘without first securing a judicial warrant based on probable cause,’” and the Supreme Court “consistently ha[d] held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”
Thus, until the Supreme Court declined “to extend Smith and Miller to the collection of CSLI,” law enforcement officers had reason to believe that they could collect information from a cell phone provider as long as they complied with the SCA. Therefore, any motion to suppress filed before appellant’s trial would not have been meritorious, even in light of Graham, because the officers had reason to believe in 2014 that it was lawful to collect this information through an administrative subpoena.
Appellant asks this court to look past the language of the subpoenas and find that the agents here were “on notice after Sprint’s responsive production to the first subpoena … that Sprint includes repoll location data in response to an administrative subpoena.” While this may be true, even if Sprint did routinely turn over such information, appellant has not identified any legal obligation the government had to ask Sprint to stop doing so.
Rather, the government’s subpoenas ask for statutorily authorized materials. The government cannot be held responsible when a subpoena recipient exceeds the bounds of a subpoena and produces more information than was requested or required. Accordingly, the district court did not err by concluding that a motion to suppress would not have been meritorious because the good faith exception applies.
Affirmed.
United States v. Taylor, Case No. 20-7593, Dec. 5, 2022. 4th Cir. (Thacker), from DMD at Greenbelt (Chuang). Stephen Bennett Mercer for Appellant. Christopher Michael Sarma for Appellee. VLW 022-2-256. 17 pp.
