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United States v. Beverly

United States Court of Appeals, Fifth Circuit

November 14, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellant
ERIC BEVERLY, Defendant-Appellee

          Appeals from the United States District Court for the Southern District of Texas

          Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.

          STUART KYLE DUNCAN, Circuit Judge

         Armed with a court order but no warrant, FBI agents obtained historical cell-site location information ("CSLI") for the phone of a suspected serial bank robber, Eric Beverly. Before the government could use that information at trial (to show that Beverly's phone was at or near the banks at the time they were robbed) the Supreme Court held in Carpenter v. United States that if the government wants CSLI it needs a valid search warrant. 138 S.Ct. 2206, 2221 (2018). So, on the same day Carpenter was decided, federal prosecutors applied for-and got-a search warrant for the CSLI they already had (plus quite a bit more). Beverly moved to suppress the CSLI and other related evidence, claiming the warrant was obtained in bad faith. The district court agreed, suppressing the CSLI and declaring the court order and warrant void. The government appeals that order. Because the district court should have applied various strands of the good-faith exception to the warrant requirement, we reverse.


         In the summer of 2014, surveillance cameras across the Houston area began capturing a string of armed bank robberies. The robberies consistently involved a group of masked individuals, two or three of whom would enter a bank, hold up the lobby, and empty the teller drawers-all in less than sixty seconds-before driving off in a black Dodge Ram pickup with chrome nerf bars[1] and two bullet holes in the back. Sometimes other vehicles were also used, including a silver Infiniti SUV. During the holdups, the robbers would communicate via three-way cell phone calls. They never entered the bank vaults, but instead took money only from teller drawers. Still, the robbers managed to steal as much as $20, 000-$30, 000 from some of the banks, all of which were FDIC insured.

         The government finally caught a break in the investigation on January 24, 2015, when agents lifted a palm print from a spot where one of the robbers had vaulted over a teller counter (as recorded in the security footage). The FBI matched the print to Jeremy Davis, who was arrested on May 5, 2015, while driving the black Dodge Ram seen in the videos. The truck turned out to be registered to Davis's mother. Davis confessed, admitting participation in twenty bank robberies and three jewelry store smash-and-grabs. He also named five of his accomplices, one of whom was Eric Beverly. According to Davis, Beverly was responsible for handing out the guns, masks, and gloves before each robbery, and Beverly along with another accomplice did most of the planning.

         Investigators later tied Beverly to the silver Infiniti SUV seen on some of the surveillance tapes. They learned that Beverly had bought the vehicle from a Craigslist seller in a Target parking lot for $9, 000 but had never changed over the registration. The government also interviewed at least two people who indicated that Davis and Beverly were friends.

         Meanwhile, on May 28, 2015, the government applied for an order pursuant to the Stored Communications Act, 18 U.S.C. § 2703(d), directing T-Mobile to provide subscriber information, toll records, and historical CSLI for Davis's iPhone.[2] A federal magistrate judge issued the requested order that same day. Armed with the order, the government did not seek a warrant for Davis's historical CSLI. The government subsequently associated four other phone numbers with Davis's co-conspirators and submitted a second § 2703(d) application requesting subscriber information, toll records, and historical CSLI for those phone numbers. The same magistrate judge issued an order for the additional phone numbers on July 8, 2015, requiring T-Mobile to provide CSLI for the period between January 24, 2015 and May 5, 2015. Subscriber information provided by T-Mobile confirmed that one of the numbers was registered to Beverly.

         Sometime in August 2015, Beverly was arrested for an unrelated probation violation and placed in a Texas state jail. On May 26, 2016, while Beverly was still incarcerated in the state facility, he was charged by federal indictment with multiple counts of conspiracy, armed bank robbery, attempted armed bank robbery, and brandishing a firearm during a crime of violence. Beverly was transferred into federal custody on June 1, 2016.

         On June 22, 2018, less than two months before the start of Beverly's federal trial, the Supreme Court handed down its decision in Carpenter, in which the Court held that obtaining CSLI constituted a "search" under the Fourth Amendment and therefore required a valid warrant supported by probable cause. 138 S.Ct. at 2220-21. Out of "an abundance of caution" the government applied for and obtained a search warrant that very day for Beverly's cell phone information, including historical CSLI, subscriber information, and toll records associated with his T-Mobile account. Notably, the government's warrant application sought historical CSLI for the period extending from August 25, 2014 until May 2, 2015-more than double the amount of time covered by the previous § 2703(d) order. Although the application omitted the fact that the government already possessed some of the information to be searched, the issuing magistrate judge was apparently aware of Carpenter and agreed that obtaining a search warrant was a "good idea."

         In response to Carpenter and the government's contemporaneous search warrant, Beverly moved to suppress the warrant and the "numbers, cell site information, and names" gathered as fruit of the two § 2703(d) orders. The district court granted the motion on October 25, 2018, voiding the "warrant and the order," and suppressing the "cell-site location data and all evidence that has been derived from them . . . as infected by the same virus." The government timely appealed. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3731. See United States v. Wise, 877 F.3d 209, 215 (5th Cir. 2017).


         On appeal of a motion to suppress, legal conclusions are reviewed de novo while factual findings are reviewed for clear error. United States v. Mendez, 885 F.3d 899, 907 (5th Cir. 2018). "A factual finding 'is clearly erroneous if we are left with a definite and firm conviction that a mistake has been committed.'" Id. (quoting United States v. Hernandez, 670 F.3d 616, 620 (5th Cir. 2012)). "But when influenced by an incorrect view of the law or an incorrect application of the correct legal test, a factual determination is reviewed de novo." United States v. Toussaint, 838 F.3d 503, 507 (5th Cir. 2016) (citing United States v. Mask, 330 F.3d 330, 335 (5th Cir. 2003)).

         "The party seeking suppression 'has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights.'" United States v. Wallace, 885 F.3d 806, 809 (5th Cir. 2018) (quoting United States v. Smith, 978 F.2d 171, 176 (5th Cir. 1992)). Evidence is viewed in the light most favorable to the prevailing party. Mendez, 885 F.3d at 907.



         The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The basic purpose of the Amendment "is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Carpenter, 138 S.Ct. at 2213 (citing Camara v. Mun. Court of City and Cty. of San Francisco, 387 U.S. 523, 528 (1967)). It protects against government intrusion into areas where people have reasonable expectations of privacy. Smith v. Maryland, 442 U.S. 735, 740 (1979); Katz v. United States, 389 U.S. 347, 351 (1967). Where the government seeks to intrude upon such private spheres, it generally needs a warrant supported by probable cause. Carpenter, 138 S.Ct. at 2213.

         "The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands . . . ." United States v. Leon, 468 U.S. 897, 906 (1984). The reason is that exclusion of such evidence would not cure the wrong condemned by the Amendment: the unlawful search or seizure itself. Id. However, courts have embraced the so-called "exclusionary rule"-a judicially created remedy that precludes the use of evidence obtained from an unconstitutional search or seizure-in order "to safeguard Fourth Amendment rights generally through its deterrent effect." Id. (citing United States v. Calandra, 414 U.S. 338, 348 (1974)).

         An exception to the exclusionary rule exists where government investigators acted with an objectively reasonable good-faith belief that their conduct was lawful. Davis v. United States, 564 U.S. 229, 238 (2011). This "good-faith exception" to the exclusionary rule is grounded in the observation that where official action is "pursued in complete good faith . . . the deterrence rationale loses much of its force." Leon, 468 U.S. at 919 (quoting United States v. Peltier, 422 U.S. 531, 539 (1975)); see also United States v. Williams, 622 F.2d 830, 840 (5th Cir. ...

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