Decided: August 5, 2015
In this case stemming from a series of armed robberies, the Fourth Circuit held that obtaining cell service location information (CSLI) without a warrant violates the Fourth Amendment, but that the Government here relied in good faith on the Stored Communications Act, so the district court did not err in admitting CSLI obtained without a warrant. Further, the Fourth Circuit upheld the district court on several issues related to Graham’s co-defendant, Jordan. These included restrictions on Jordan’s testimony, denial of a motion for severance, exclusion of out-of-court statements by Graham, admission of evidence seized in a search of Jordan’s home, and denial of a motion by Jordan for dismissal based on insufficient evidence. On this basis, the Fourth Circuit affirmed the district court.
Following the armed robberies of six businesses in and around Baltimore, Maryland in early 2011, Aaron Graham and Eric Jordan were charged with being felons in possession of a firearm, Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, brandishing a firearm during a crime of violence, conspiracy to brandish a firearm during a crime of violence, and related aiding and abetting charges. Jordan was also charged with possession of an unregistered, sawed-off shotgun. Prior to trial, Graham and Jordan moved for severance, and to suppress CSLI as violating the Fourth Amendment. Jordan also moved to suppress evidence seized in a search of his home based on an allegedly invalid warrant. The district court denied all pre-trial motions. At trial, Graham and Jordan objected to testimony by a Sprint/Nextel representative and an FBI agent related to CSLI as inadmissible expert opinion, but the district court disagreed, and admitted the testimony. The district court also denied Jordan’s motion in limine to admit a written statement by Graham, which it found was unauthenticated hearsay, and a phone call by Graham, which it found irrelevant. Finally, the district court restricted Jordan’s testimony by not allowing him to discuss items prejudicial to Graham. At the close of the case, the Government moved to dismiss the conspiracy to possess a firearm charge, and Graham and Jordan moved for acquittal on all remaining charges for insufficient evidence. The court granted acquittal to Jordan on the felon-in-possession count, and denied the motion for acquittal on all other counts for both Graham and Jordan. The trial jury found Graham and Jordan guilty on all remaining counts, and the court denied their motions for new trials.
Graham and Jordan appealed to the Fourth Circuit, arguing that the district court erred in admitting the CSLI, and testimony related to the CSLI by the Sprint/Nextel representative, and the FBI agent. Graham and Jordan also argued that the district court erred in restricting Jordan’s testimony, denying severance, excluding the statements by Graham, admitting the evidence from Jordan’s apartment, and finding sufficient evidence to support the charges against them.
The Fourth Circuit first held that obtaining CSLI that covers a long period of time without a warrant, as was done here, violates the Fourth Amendment. The Fourth Circuit made this finding based on the fact that CSLI enables tracking a person through public and private domains, and despite Sprint/Nextel’s privacy policy, which did not state that location information would be disclosed, and was often not read or understood. The Fourth Circuit also found that the third-party doctrine did not apply here, because cell phone users do not voluntarily disclose their location to cell phone providers. Notwithstanding the Fourth Amendment violation, the Fourth Circuit found that the good faith exception applied, because the officers here relied on the Stored Communications Act, which allowed for CSLI to be obtained without a warrant, and on orders issued by a Magistrate Judge under the Act. On that basis, the Fourth Circuit upheld the district court’s admission of the CSLI evidence.
The Fourth Circuit then upheld the district court’s findings on all other issues Graham and Jordan appealed. The Fourth Circuit found the Sprint/Nextel representative’s testimony in part factual, and thus lay testimony, and in part closer to expert opinion, but found that admitting the expert portion was harmless error. The Fourth Circuit found that the FBI agent’s testimony was lay testimony. The Court found some of the restrictions on Jordan’s testimony were consistent with a desire not to prejudice Graham, and still allowed Jordan to engage in a full defense. The Court found that the district court abused its discretion in relation to restrictions on anti-impeachment testimony, but that Jordan forfeited his right to object by not objecting at trial, and the error did not impact Jordan’s substantial rights. The Fourth Circuit upheld the district court’s denial of severance because Graham’s and Jordan’s defenses were quite similar. The Court also upheld the district court in not admitting Graham’s statements because the written statement was not truly adverse to Graham, and was not trustworthy, and the call was irrelevant. The Fourth Circuit also upheld the admission of the evidence seized from Jordan’s home, finding no reason to set aside the presumption of warrant validity. Finally, the Court found the evidence sufficient to uphold the convictions. On this basis, the Fourth Circuit affirmed the district court.
Judge Thacker wrote a separate concurrence to note how privacy was breaking down in the face of new technologies. Judge Motz wrote a concurring/dissenting opinion, in which she agreed with the overall finding of the court upholding the district court. She argued, however, based on the third-party doctrine, that obtaining the CSLI without a warrant did not violate the Fourth Amendment.
Katherine H. Flynn