Appeals from the United States District Court for the
Southern District of Texas
CLEMENT, ELROD, and DUNCAN, Circuit Judges.
KYLE DUNCAN, Circuit Judge
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.
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 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.
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.
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.
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. 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
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.
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."
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).
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.
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.
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.
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)).
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. ...