United States v. Thompson , 866 F.3d 1149 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
August 8, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3313
ANTHONY CARLYLE THOMPSON,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 5:13-CR-40060-DDC-10)
Kari S. Schmidt (Tyler J. Emerson with her on the briefs), Conlee Schmidt &
Emerson, LLP, Wichita, Kansas, for Appellant.
James A. Brown, Assistant United States Attorney (Thomas E. Beall, United
States Attorney, with him on the brief), Office of the United States Attorney,
Topeka, Kansas, for Appellee.
Before TYMKOVICH, Chief Judge, MATHESON and MORITZ, Circuit
Judges.
TYMKOVICH, Chief Judge.
I. Introduction
This appeal arose from a law enforcement investigation into a drug-
trafficking operation in the Geary County, Kansas area. Agents gathered
evidence by making controlled buys of crack cocaine through a confidential
informant; monitoring telephones used by certain of the co-conspirators,
including Anthony Carlyle Thompson; and conducting searches of several
residences, including Thompson’s. Thompson was arrested and charged with one
count of conspiracy to distribute more than 280 grams of cocaine base, in
violation of 21 U.S.C. §§ 846 and 841(a), and multiple counts of distribution of
cocaine base, in violation of 21 U.S.C. § 841(a)(1).
Before trial, Thompson moved to dismiss the indictment for Speedy Trial
Act violations. The district court overruled the motion, finding the court had
properly granted an ends-of-justice continuance that tolled the speedy-trial clock.
Also before trial, the district court admitted cell-service location information
(CSLI) the government obtained without a warrant as part of the process for
determining whether certain intercepted phone calls were admissible at trial. In
addition, the court denied Thompson’s motion to suppress evidence obtained from
a search of his residence, finding the search warrant was supported by probable
cause.
Thompson was tried along with several co-defendants, including Johnny
Lee Ivory, Martye Madkins, and Albert Dewayne Banks, who are appellants in
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related appeals. Thompson and his co-defendants were convicted on all counts.
Using an extrapolation method of calculation, the presentence investigation report
(PSR) attributed 8.477 kilograms of cocaine base to Thompson. The PSR then
imposed a four-level leadership sentencing enhancement, which yielded a total
offense level of 40, a criminal history category of IV, and a corresponding
guidelines range of 360 months to life in prison. Thompson objected to both the
drug-quantity calculation and the imposition of the leadership enhancement. At
sentencing, the court rejected Thompson’s objections, finding he was responsible
for 8.477 kilograms of cocaine base and applying the four-level leadership
enhancement. The court then sentenced Thompson to 360 months’ imprisonment.
Thompson now appeals his convictions and sentence, incorporating by
reference some of the arguments made by his co-defendants Madkins, Banks, and
Ivory in their related appeals. 1 In particular, Thompson contends the district court
erred in (1) denying his motion to dismiss for Speedy Trial Act violations; (2)
admitting CSLI obtained without a warrant; (3) denying his motion to suppress
evidence obtained from the search of his residence; and (4) delivering a
constitutionally deficient reasonable doubt instruction to the jury. Thompson also
appeals his sentence, arguing the district court erred in (1) relying on an
1
We consolidated these four appeals for all procedural purposes, including
briefing and oral argument. The government thus submitted one consolidated
response brief, and we heard oral argument in Thompson’s appeal along with
consolidated cases 15-3299 (Madkins) and 15-3324 (Banks). Consolidated case
15-3238 (Ivory) was submitted on the briefs.
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extrapolation method to calculate the drug quantity attributable to him as relevant
conduct; and (2) imposing the four-level leader-organizer enhancement, because
the evidence did not establish he served as a leader or organizer in the conspiracy.
For the reasons below, we affirm the district court in full, finding no error
in the court’s various rulings or in the sentence it imposed.
II. Analysis
We address Thompson’s challenges to his convictions and sentence in turn.
A. Speedy Trial Action Violations
Thompson first argues the district court violated his right to a speedy trial.
Pursuant to Federal Rule of Appellate Procedure 28(j), Thompson joins in and
adopts by reference the Speedy Trial Act arguments made by his co-defendant
Madkins.
In United States v. Madkins, No. 15-3299 (10th Cir. 2017), we explain the
relevant factual background, which is materially indistinguishable for purposes of
Thompson’s appeal. Pertinently, Thompson filed a motion to dismiss for Speedy
Trial Act violations. It is the district court’s denial of that motion that Thompson
now appeals.
In Madkins, we hold that the district court complied with the requirements
of the Speedy Trial Act in granting an ends-of-justice continuance, because the
record contains sufficient ends-of-justice findings. For the same reasons, we
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conclude the district court did not violate Thompson’s right to a speedy trial. We
therefore affirm Thompson’s convictions.
B. Admission of CSLI
Thompson next argues the district court erred in granting the government’s
application for historical cell-service location information (CSLI) and in
admitting that CSLI at a pretrial evidentiary hearing. The Stored
Communications Act (SCA), 18 U.S.C. § 2703(d), allows the government to
obtain a court order for disclosure of CSLI if it makes a showing of reasonable
suspicion. Thompson contends § 2703(d) is unconstitutional, because cell-phone
users have a reasonable expectation of privacy in their historical CSLI. And
because collecting CSLI constitutes a search, Thompson argues, the Fourth
Amendment requires the government to procure a warrant before obtaining a cell-
phone user’s historical CSLI.
We first explain the relevant background facts and then evaluate
Thompson’s constitutional arguments. Before trial, the parties engaged in
extensive litigation over the admissibility of recorded telephone calls the
government had intercepted pursuant to wiretap orders entered by Judge David R.
Platt, a state court judge sitting in the Eighth Judicial District of Kansas. Judge
Platt had issued wiretap orders for target phones used by Thompson, Banks, and
Ivory. Based in part on information derived from intercepts conducted pursuant
to the wiretap orders, law enforcement applied for search warrants of various
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locations and residences, including Thompson’s residence. When law
enforcement carried out the search of Thompson’s residence, officers seized cell
phones, cash, miscellaneous documents, drug paraphernalia, and credit cards.
Thompson filed a motion to suppress the intercepted calls, arguing law
enforcement had intercepted his communications outside the territorial
jurisdiction of the Eighth Judicial District. Co-defendant Ivory joined the motion.
Following a hearing, the federal district court ruled that Kansas law required
suppression of evidence about any calls made from a phone that was physically
located outside the boundaries of the Eighth Judicial District, since Judge Platt’s
jurisdiction only extended that far. The court therefore concluded the government
could introduce evidence about the wiretapped calls only if it could show that the
tapped phones were physically located within the Eighth Judicial District at the
time the calls were intercepted. The court postponed its rulings on Thompson’s
motion to suppress pending the government’s coming forth with evidence
showing the physical locations of the phones.
The government filed an application for orders pursuant to § 2703(d) of the
SCA, asking the court to require the electronic service providers for the target
phones—those used by Thompson, Banks, and Ivory—to disclose historical CSLI
relating to those phones. Section 2703(d) does not require the government to
show probable cause to obtain a court order; rather, the government must simply
show there are reasonable grounds to believe the material is relevant to an
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ongoing criminal investigation. Thompson filed a response in opposition to the
government’s application, arguing § 2703(d) is unconstitutional, because a cell-
phone user’s location is constitutionally protected by the Fourth Amendment.
Banks and Ivory joined the motion.
The district court granted the government’s application. The court
concluded that a cell-phone user has no reasonable expectation of privacy in his
CSLI, because CSLI records are business records that fall within the Fourth
Amendment’s third-party doctrine. Alternatively, the court ruled that even if the
Fourth Amendment did apply to CSLI, the government had shown probable cause
to support the issuance of the search warrants.
After obtaining the CSLI, the government sought to establish the location
of the intercepted phone calls by showing that a call had “pinged” certain cell
towers in and around the Junction City area within the Eighth Judicial District.
At a pretrial evidentiary hearing, the government presented the CSLI and
testimony from two experts who agreed that if the CSLI showed a phone
connected to one of the Junction City towers, then it was highly likely the phone
was physically located in the Eighth Judicial District. The district court found
that this evidence—along with other circumstances, including the fact that many
of the defendants’ residences and meeting places were located in and around
Junction City—established by a preponderance of the evidence that a phone was
physically located in the Eighth Judicial District if it had pinged one of the
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Junction City towers. Accordingly, the court ruled that if a call had pinged one of
those towers, it was admissible. Calls that had not pinged the towers, however,
were suppressed.
After the court’s ruling, Thompson, Banks, and Ivory filed a second round
of suppression motions, seeking to suppress evidence they claimed was obtained
derivatively of the suppressed calls and arguing, among other things, that
insufficient probable cause remained to support the search warrants once the
suppressed calls were excised from the affidavits supporting the warrants. The
district court denied the motions. The court found that, even excluding the
suppressed calls, the affidavits established probable cause to support issuing the
warrants. At trial, the government introduced calls that had pinged on three
towers in or immediately surrounding Junction City, along with some of the
evidence found during the searches of Banks’s and Ivory’s residences. The
government did not present any evidence found during the search of Thompson’s
residence. Thompson now appeals the district court’s rulings.
* * *
The SCA provides two different routes for the government to obtain
historical CSLI. The government may (1) “obtain[] a warrant using the
procedures described in the Federal Rules of Criminal Procedure”; or (2)
“obtain[] a court order for such disclosure under subsection (d).” 18 U.S.C.
§ 2703(c)(1). Subsection 2703(d) provides that such a court order “shall issue
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only if the governmental entity offers specific and articulable facts showing that
there are reasonable grounds to believe that the contents of a wire or electronic
communication, or the records or other information sought, are relevant and
material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).
We review de novo Thompson’s challenge to the constitutionality of
§ 2703(d). See United States v. Yelloweagle, 643 F.3d 1275, 1279 (10th Cir.
2011). In doing so, our analysis is guided by the Supreme Court’s business
records cases and the opinions of the four other circuit courts of appeals that have
considered this precise question. Those circuits held, as we do today, that cell-
phone users lack a reasonable expectation of privacy in their historical CSLI,
because they voluntarily convey CSLI to third parties who create records of that
information for their own business purposes. In reaching this conclusion, we do
not write on a blank slate. Perhaps if we did, we would reach a different
conclusion—we wholeheartedly recognize that Thompson raises valid concerns
about the application of the third-party doctrine in the digital age. But until the
Supreme Court instructs us otherwise, we are bound to follow its third-party
doctrine precedents. 2
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
2
The Supreme Court recently granted certiorari in United States v.
Carpenter, 819 F.3d 880 (6th Cir. 2016), to address whether the Fourth
Amendment permits the warrantless seizure and search of historical CSLI.
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seizures.” U.S. Const. amend. IV. Historically, the Fourth Amendment was
understood as guarding primarily against physical governmental trespass upon the
areas enumerated in its text. See United States v. Jones, 565 U.S. 400, 405
(2012). But since 1967, the Supreme Court has recognized a second, privacy-
based approach to the Fourth Amendment as consistent with its original public
meaning. See Katz v. United States, 389 U.S. 347 (1967). Under that approach,
we ask (1) whether the individual asserting an expectation of privacy has
“exhibited an actual (subjective) expectation of privacy”; and (2) whether that
expectation is “one that society is prepared to recognize as reasonable.” See id. at
361 (Harlan, J., concurring). Where an expectation of privacy satisfies both of
these requirements, government invasion of that legitimate expectation of privacy
generally constitutes a search. Smith v. Maryland, 442 U.S. 735, 740 (1979).
Relying on Katz, Thompson contends cell-phone users have a legitimate
expectation of privacy in their historical CSLI, given the ubiquity of cell phones
in modern American life and their ability to store and generate large amounts of
personal information, including information about a cell-phone user’s location.
We are not the first circuit court to confront this issue: four other circuits
have already considered and rejected Thompson’s position. First, in 2013, the
Fifth Circuit held that the government’s acquisition of CSLI under § 2703(d) does
not constitute a search or seizure subject to the Fourth Amendment’s warrant
requirement. In In re Application of the United States for Historical Cell Site
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Data, 724 F.3d 600 (5th Cir. 2013), the court explained that historical CSLI “is
clearly a business record” created by a third party from information that cell-
phone users turn over voluntarily. Id. at 611–13. Writing for the majority, Judge
Clement explained that “who is recording an individual’s information initially is
key,” because when an individual “knowingly exposes his activities to third
parties, he surrenders Fourth Amendment protections.” Id. at 610 (quoting
Reporters Comm. for Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d 1030,
1043 (D.C. Cir. 1978)).
Judge Clement therefore analyzed the constitutionality of § 2703(d) under a
pair of Supreme Court cases dealing with business records created by a third
party—namely, United States v. Miller, 425 U.S. 435 (1976), and Smith v.
Maryland, 442 U.S. 735 (1979). The Fourth, Sixth, and Eleventh circuits have
since done the same. See United States v. Graham, 824 F.3d 421, 426 (4th Cir.
2016) (en banc) (“[T]he question before us is whether the government invades an
individual’s reasonable expectation of privacy when it obtains, from a third party,
the third party’s records, which permit the government to deduce location
information. . . . [T]he cases that establish the third-party doctrine provide the
answer.”); United States v. Carpenter, 819 F.3d 880, 888–89 (6th Cir. 2016)
(“Whether a defendant had a legitimate expectation of privacy in certain
information depends in part on what the government did to get it. . . . This case
involves business records obtained from a third party . . . .”) (citing Miller, 425
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U.S. at 443), cert. granted, 2017 U.S. App. LEXIS 3686 (U.S. 2017) ; United
States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (en banc) (“[L]ike the bank
customer in Miller and the phone customer in Smith, Davis has no subjective or
objective reasonable expectation of privacy in MetroPCS’s business records
showing the cell tower locations that wirelessly connected his calls. . . .”).
These circuit decisions also generated thoughtful dissents. In United States
v. Davis, for example, Judge Martin dissented from the en banc majority opinion,
because she would have distinguished CSLI from the conventional telephone and
bank records in Smith and Miller and therefore would have held § 2703(d)
unconstitutional. Judge Martin warned of the potential consequences of the
majority’s holding in an era of rapid technological change, stating “the majority’s
blunt application of the third-party doctrine threatens to allow the government
access to a staggering amount of information that surely must be protected under
the Fourth Amendment,” such as a person’s web-search history. See Davis, 785
F.3d at 535–36 (Martin, J., dissenting). And because she would not have decided
the issue under the third-party doctrine, Judge Martin explained that in today’s
digital world, she believes cell-phone users have a legitimate, reasonable
expectation of privacy that their location information will be kept private. Id. at
539.
Similarly, in United States v. Graham, Judge Wynn dissented in part from
the opinion of the court, because he believed cell-phone users do not voluntarily
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convey their CSLI. Judge Wynn explained his view that voluntary conveyance
has two components: “knowledge of particular information and an action
submitting that information.” Graham, 824 F.3d at 443 (Wynn, J., dissenting).
Unlike the majority, Judge Wynn found “no reason to think that a cell phone user
is aware of his CSLI, or that he is conveying it.” Id. at 445. He also pointed out
that CSLI can be automatically generated even when a user receives a call. Id. In
the absence of voluntary conveyance, then, Judge Wynn would have continued to
the Fourth Amendment reasonableness inquiry and held the government violates
reasonable expectations of privacy when it obtains CSLI without a warrant. And
like Judge Martin, Judge Wynn also highlighted his concerns about the
application of the third-party doctrine to new technology, given heightened
privacy interests and the potential for government overreach.
Although these dissents raise some valid points, we agree with the majority
opinions that Miller and Smith provide the applicable framework for considering
whether § 2703(d) violates the Fourth Amendment. In Miller, the question before
the Supreme Court was whether the defendant had a reasonable expectation of
privacy in subpoenaed copies of his checks and other bank records maintained in
accordance with the Bank Secrecy Act. 425 U.S. at 437. The Court held the
defendant did not have a legitimate expectation of privacy in the subpoenaed
records, reasoning the defendant could “assert neither ownership nor possession”
of the documents; instead, the records were “the business records of the banks”
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and related to transactions to which the banks were a party. Id. at 440–41. The
Court explained the bank records were “not confidential communications,” but
rather “contain[ed] only information voluntarily conveyed to the banks and
exposed to their employees in the ordinary course of business.” Id. at 442. And
the Court reiterated it had repeatedly held that the Fourth Amendment does not
forbid “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 and the confidence
placed in the third party will not be betrayed.” Id. at 443.
Several years later, in Smith, the Court held the third-party doctrine applied
to the warrantless installation of a pen register used to record telephone numbers
dialed from the defendant’s home. 442 U.S. at 743–46. Applying the
reasonableness test from Katz, the Court rejected the defendant’s claim that he
had a legitimate expectation of privacy in the phone numbers dialed on his home
telephone. Id. at 742. In doing so, the Court distinguished the device used in
Katz, where the government had listened to the contents of a phone conversation,
from the pen register at issue in Miller, which recorded only the numbers dialed
from the phone. Id. at 741. And, the Court reasoned, telephone users “typically
know that they must convey numerical information to the phone company; that
the phone company has facilities for recording this information; and that the
phone company does in fact record this information for a variety of legitimate
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business purposes.” Id. at 743. Because the defendant voluntarily turned over his
numerical information to a third-party phone company, he lacked a legitimate
expectation of privacy in that information. Id. at 743–44.
So too here. To begin, fundamentally it is not the government who is
initially gathering users’ historical CSLI, but rather third-party service providers
who create records for their own business purposes. This distinction matters a
great deal, as the Supreme Court has repeatedly emphasized in its third-party
cases. See Miller, 425 U.S. at 443 (listing cases). The Fourth Amendment is a
bulwark against government action. And indeed, every other circuit has likewise
focused on who is collecting CSLI in the first instance. For example, in
Carpenter, Judge Kethledge wrote, “[w]hether a defendant had a legitimate
expectation of privacy in certain information depends in part on what the
government did to get it. . . . This case involves business records obtained from
a third party, which can only diminish the defendants’ expectation of privacy in
the information those records contain.” 819 F.3d at 888; see also Davis, 785 F.3d
at 514 (“MetroPCS, not the government, built and controlled the electronic
mechanism (the cell towers) and collected its cell tower data for legitimate
business purposes.”).
Furthermore, under the same rationale the Court articulated in Miller and
Smith, cell-phone users voluntarily turn over their CSLI to service providers, thus
relinquishing any reasonable expectation of privacy. In Miller, the Court stated,
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“The depositor takes the risk, in revealing his affairs to another, that the
information will be conveyed by that person to the Government . . . .” 425 U.S.
at 443. And in Smith, the Court explained that when the defendant used his
phone, he “voluntarily conveyed numerical information to the telephone company
and ‘exposed’ that information to its equipment in the ordinary course of
business,” thus “assum[ing] the risk that the company would reveal to police the
numbers he dialed.” 442 U.S. at 744. The Court also noted that “[t]he fortuity of
whether or not the phone company in fact elects to make a quasi-permanent
record of a particular number” had no bearing on the constitutional question. Id.
at 745.
Applying this reasoning here, we agree with the other circuits that “any
cellphone user who has seen her phone’s 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.” See Carpenter, 819 F.3d
at 888 (first citing Davis, 785 F.3d at 511; then citing In re Application for
Historical Cell Site Data, 724 F.3d at 614). And we agree with the Fifth Circuit
that, “[e]ven if this cell phone-to-tower transmission was not ‘common
knowledge’ . . . cell phone service providers’ and subscribers’ contractual terms
of service and providers’ privacy policies expressly state that a provider uses a
subscriber’s location information to route his cell phone calls.” Id. at 613. These
documents also “inform subscribers that the providers not only use the
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information, but collect it” and “will turn over these records to government
officials if served with a court order.” Id. In fact, such disclaimers go above and
beyond what the Constitution requires: Smith tells us users’ knowledge that
business records are being created does not “make any constitutional difference.”
442 U.S. at 745.
Nevertheless, Thompson contends the third-party doctrine has no
application here, because that doctrine presumes a voluntary relinquishment of
information. And since a cell phone’s transmission of location information is
“automatic and surreptitious,” Thompson argues, and providers gather and retain
location information whenever calls, text messages, or data are sent or received,
individuals do not voluntarily disclose their CSLI to service providers. We
disagree. Cell-phone users voluntarily enter arrangements with service providers
knowing they “must maintain proximity to the provider’s cell towers” in order for
their phones to function. Graham, 824 F.3d at 430; see also Davis, 785 F.3d at
520 (Pryor, J., concurring) (“[C]ell phone users realize that their calls are routed
through nearby cell towers. It is no state secret that cell phones work less
effectively in remote areas without cell towers nearby.”).
Finally, we emphasize that like the phone numbers recorded by the pen
register in Smith, CSLI is not a record of conversations between individuals, but
rather a record of the transmission of data that occurs to facilitate those
conversations. As Judge Kethledge explained in Carpenter, “federal courts have
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long recognized a core distinction” between the content of personal
communications and the information necessary to convey that content. 819 F.3d
at 887. In other words, “although the content of personal communications is
private, the information necessary to get those communications from point A to
point B is not.” Id. Thus, like the numerical information in Smith, CSLI is not
protected by the Fourth Amendment, because it functions merely “as a means of
establishing communication.” See 442 U.S. at 741.
In reaching our holding today, we recognize the difficulties inherent in
applying longstanding precedent to new technology, which has progressed at an
exponential pace in the four decades since Miller and Smith were decided. We
are acutely aware of the privacy concerns accompanying technological
advancement, particularly in our society, where using a cell phone has become a
near necessity in the modern American economy. And we acknowledge that
distinguishing between the content of communication and the means of
transmission may be more difficult for other types of data, such as web-browsing
history. But today we focus on the narrow question before us: whether Thompson
has a reasonable expectation of privacy in his historical CSLI. And for the
reasons above, we hold he does not.
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Thompson relies on the Supreme Court’s decision in United States v. Jones
to argue that societal expectations of privacy have changed. 3 He points to Justice
Sotomayor’s concurrence, where she opined, “it may be necessary to reconsider
the premise that an individual has no reasonable expectation of privacy in
information voluntarily disclosed to third parties,” characterizing this approach as
“ill suited to the digital age, in which people reveal a great deal of information
about themselves to third parties in the course of carrying out mundane tasks.”
Jones, 565 U.S. at 417 (Sotomayor, J., concurring). This may well be true. But
Justice Sotomayor’s concurrence was not the opinion of the Court. And in any
event, she merely called into question the future of the third-party doctrine. Until
3
As part of his Fourth Amendment argument, then, Thompson contends
cell-phone users have a reasonable expectation of privacy in their CSLI because
societal expectations of privacy have changed in light of technological advances.
The government believes Thompson has waived this argument by failing to raise
it below. But in his objection to the government’s application for § 2703(d)
orders, Thompson argued that “a phone user’s location is constitutionally
protected by the Fourth Amendment,” citing for support the Eleventh Circuit’s
panel opinion in United States v. Davis, 754 F.3d 1205 (2014), overruled in part
by United States v. Davis, 785 F.3d 498 (2015) (en banc). After reviewing the
record, we conclude Thompson adequately preserved his arguments for appeal.
Our conclusion is bolstered by the district court’s discussion of the Fourth
Amendment issue in its order granting the government’s application. In rejecting
Thompson’s arguments, the court decided not to follow Davis. Instead, the court
relied on the Fifth Circuit’s decision in In re Application for Historical Cell Cite
Data, where the court held cell-phone users lack a reasonable expectation of
privacy in their CSLI, because users voluntarily convey that information to third
parties. The court’s thorough discussion of reasonable expectations of privacy in
CSLI further indicates Thompson sufficiently preserved his Fourth Amendment
arguments for our review.
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a majority of justices on the Court instructs us otherwise, we are still bound by
the third-party doctrine as it exists today.
Ultimately, Jones tells us very little that is relevant here, since its holding
did not rely on a privacy theory of the Fourth Amendment. Instead, five justices
agreed the government’s installation of a GPS device on the defendant’s vehicle
after the search warrant had expired constituted a physical trespass contrary to the
Fourth Amendment. Writing for the majority, Justice Scalia explained the
government’s installation and use of a GPS device surely “would have been
considered a ‘search’ within the meaning of the Fourth Amendment when it was
adopted.” Id. at 404–05. Justice Scalia expressly stated “the present case” did
not require the court to consider whether electronic surveillance of the defendant,
“without an accompanying trespass,” would be “an unconstitutional invasion of
privacy.” Id. at 412.
To be sure, like Justice Sotomayor and the dissenting judges in other
circuit-level CSLI cases, Thompson raises valid concerns about the third-party
doctrine in the digital age. The aggregation of an individual’s location data can
tell the government a great deal about that person. As Justice Sotomayor stated in
Jones, “GPS monitoring generates a precise, comprehensive record of a person’s
public movements that reflects a wealth of detail about her familial, political,
professional, religious, and sexual associations.” 565 U.S. at 415 (Sotomayor, J.,
concurring). The same could be said about a person’s web-browsing history.
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And we, too, fear the Orwellian-style surveillance state that could emerge from
unfettered government collection of personal data.
At this point, however, we can only speculate how the Supreme Court will
address these concerns, now that it has taken up the question of historical CSLI
by granting certiorari in Carpenter. Perhaps the Supreme Court will revisit the
third-party doctrine in light of evolving technology, especially given the ubiquity
of cell phones in Americans’ lives, possible changing societal expectations of
privacy, and their implications on the national economy. And in fact, in Riley v.
California, 134 S. Ct. 2473 (2014), Chief Justice Roberts famously recognized
that modern cell phones “are now such a pervasive and insistent part of daily life
that the proverbial visitor from Mars might conclude they were an important
feature of human anatomy.” Id. at 2484. The Chief Justice went on to distinguish
cell phones from the types of physical objects in earlier cases involving the search
incident to arrest doctrine, citing rapid technological change and heightened
privacy interests, since cell phones store “vast quantities of personal information”
and raise unique concerns about government overreach. Id. at 2484–85. The
Court may well draw on these types of cell-phone-specific concerns to expressly
limit the reach of the third-party doctrine to business records created from the use
of conventional telephones or bank statements. If the Court were to hold that
cell-phone users enjoy a reasonable expectation of privacy in their historical
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CSLI, then law enforcement would simply be required to obtain a warrant
supported by probable cause pursuant to § 2703(c)(1)(A) of the SCA.
But again, today our analysis of the narrow issue of historical CSLI is
governed by the third-party doctrine as it currently exists. In the meantime, we
believe privacy concerns about historical CSLI are best directed to legislative
bodies, which are better equipped to evaluate the types of empirical studies and
policy arguments Thompson presents and weigh the interests on both sides. And
indeed, at least six states—Colorado, Maine, Minnesota, Montana, Tennessee, and
Utah—have legislated privacy protections for CSLI. See Colo. Rev. Stat. Ann.
§ 16-3-303.5(2) (West 2014); Me. Rev. Stat. Ann. tit. 16, § 648 (West 2014);
Minn. Stat. Ann. §§ 626A.28(3)(d), 626A.42(2) (West 2014); Mont. Code Ann.
§ 46-5-110(1)(a) (West 2013); Tenn. Code Ann. § 39-13-610(b) (West 2014);
Utah Code Ann. § 77-23c-102(1)(a) (West 2016). These state statutes generally
require law enforcement to procure a warrant before obtaining CSLI, with most
allowing for certain exceptions such as exigent circumstances or other exceptions
to the warrant requirement.
So for now, at least, as Judge Clement advised in In re Application for
Historical Cell Site Data, the recourse for cell-phone users’ desire for their
historical CSLI to remain private “is in the market or the political process: in
demanding that service providers do away with such records (or anonymize them)
or in lobbying elected representatives to enact statutory protections. The Fourth
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Amendment, safeguarded by the courts, protects only reasonable expectations of
privacy.” 724 F.3d at 615 (emphasis added).
In sum, we hold that cell-phone users lack a reasonable expectation of
privacy in their historical CSLI, which users voluntarily convey to third-party
cell-service providers. Therefore, the district court did not err in granting the
government’s application for orders requesting historical CSLI under § 2703(d) or
in admitting some of that CSLI at a pretrial proceeding. 4
C. Denial of Motion to Suppress
Thompson next contends the district court erred in denying his motion to
suppress evidence obtained from a search of his residence, because there was
insufficient probable cause to support the search warrant after any suppressed
calls were excised from the affidavits. 5 But Thompson conceded at oral argument
that the CSLI issue is a “lynchpin” for him: if the CSLI was properly admitted,
then so were the calls that pinged the three towers in the Junction City area.
Having concluded the CSLI was properly obtained and admitted, the affidavits
supporting the application for a warrant to search Thompson’s residence
sufficiently alleged probable cause.
4
In so holding, we also reject Thompson’s alternative argument that
obtaining CSLI requires a Title III wiretap warrant. Although the government
certainly could have chosen to apply for a Title III warrant, it was not required to.
5
We reject Thompson’s suppression arguments on the merits. But in any
event, none of the evidence Thompson challenges was admitted at trial.
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We also reject Thompson’s contention that the district court should not
have admitted any of the intercepted calls at trial, because the court erred in
requiring the government to prove the phones were in Kansas’s Eighth Judicial
District by a preponderance of the evidence, rather than clear and convincing
evidence. This argument lacks merit. For one thing, Thompson fails to cite any
authority for this proposition. And for another, this court has applied a
preponderance standard in reviewing the sufficiency of the evidence on venue in a
criminal case—an element of every crime which has constitutional underpinnings.
See United States v. Kelly, 535 F.3d 1229, 1233 (10th Cir. 2008); cf. United
States v. Bowers, 660 F.2d 527, 531 (5th Cir. 1981). If a preponderance is the
proper standard for determinations of venue in criminal cases, then surely the
same standard applies to the jurisdictional question that was at issue here.
Even if the court erred in analogizing to venue in criminal cases—and we
do not believe it did—the Supreme Court has stated, “the controlling burden of
proof at suppression hearings should impose no greater burden than proof by a
preponderance of the evidence.” See United States v. Matlock, 415 U.S. 164, 177
n.14 (1974). The use of the preponderance standard in the Fourth Amendment
context therefore also suggests the same standard applies for questions of
jurisdictional fact involving a wiretap order. And under a preponderance
standard, the government clearly met its burden of proving the calls from the
target phones were made in the Eighth Judicial District.
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Accordingly, we hold the district court did not err in denying Thompson’s
motion to suppress evidence obtained from a search of his residence.
D. Reasonable Doubt Instruction
Thompson next contends the district court’s reasonable doubt instruction
was constitutionally deficient. Pursuant to Federal Rule of Appellate Procedure
28(j), Thompson joins in and adopts by reference the arguments raised by his co-
defendant Ivory.
The factual background is the same as that described in United States v.
Ivory, No. 15-3238 (10th Cir. 2017). And like Ivory, Thompson cannot meet his
burden of establishing plain error. As we explain in Ivory, our recent decision in
United States v. Petty, 856 F.3d 1306 (10th Cir. 2017), forecloses any possibility
of error here. In Petty, we reviewed de novo the constitutionality of a materially
identical reasonable doubt instruction and squarely rejected the precise challenges
Ivory and Thompson now assert on appeal.
For the same reasons articulated in Ivory, we discern no error in the court’s
reasonable doubt instruction and affirm Thompson’s convictions.
E. Challenges to Thompson’s Sentence
Finally, Thompson challenges his sentence in two ways, arguing the court
erred in (1) relying on an extrapolation method to calculate the drug quantity
attributable to him as relevant conduct; and (2) imposing a four-level leadership
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enhancement without sufficient evidentiary support. We first explain the relevant
background information and then consider Thompson’s arguments in turn.
Before sentencing, the probation officer prepared the PSR. To calculate the
quantity of drugs attributable to Thompson, the PSR extrapolated from two
sources: (1) a recorded encounter between Thompson and a confidential informant
in which Thompson said he was purchasing approximately nine ounces of cocaine
every week; and (2) a telephone call in which Thompson purchased approximately
five ounces of powder cocaine from one of his suppliers. Using these amounts,
the PSR attributed seven ounces of powder cocaine (the midpoint between five
and nine) to Thompson and multiplied by forty-eight weeks, the amount of time
Thompson was involved in the conspiracy. The PSR converted that amount to
cocaine base, which yielded a total of 8.477 kilograms and a corresponding base
offense level of 36. The PSR then applied a four-level enhancement for being a
leader or organizer of a criminal activity involving five or more participants to
reach a total offense level of 40, a criminal history category of IV, and a
corresponding advisory guidelines range of 360 months to life in prison.
Thompson objected to both the drug-quantity calculation and the leadership
enhancement.
At sentencing, the court rejected Thompson’s objections, finding the
extrapolation method was reliable and attributing 8.477 kilograms of cocaine base
to Thompson. The court also found the factors in the application note to the
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leadership enhancement guideline supported applying the enhancement. The
court acknowledged that one factor—how the co-conspirators distributed the
proceeds of the conspiracy—was ambiguous, but it stated the other factors clearly
supported a finding that Thompson served in a leader or organizer role.
Accordingly, the court imposed the four-level enhancement, which yielded a
guidelines range of 360 months to life in prison. The court sentenced Thompson
to 360 months in prison.
1. Extrapolation Method for Drug-Quantity Calculation
Thompson first argues the district court erred in relying on the
extrapolation method in the PSR, which attributed 8.477 kilograms of crack
cocaine to Thompson as relevant conduct.
We review for clear error a district court’s determination of the drug
quantity attributable to a defendant, including the scope of jointly undertaken
criminal activity. United States v. Sells, 541 F.3d 1227, 1235 (10th Cir. 2008).
We will reverse a drug-quantity finding “only if the district court’s finding was
without factual support in the record or we are left with the definite and firm
conviction that a mistake has been made.” United States v. Ryan, 236 F.3d 1268,
1273 (10th Cir. 2001).
In conspiracy cases, the Guidelines require a district court to make
particularized findings regarding both jointly undertaken criminal activity and the
reasonably foreseeable acts of others in connection with that criminal activity
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before determining the drug quantity attributable to a defendant. See USSG
§ 1B1.3. Extrapolation can be a permissible method of calculating that quantity.
We have previously recognized that “when the actual drugs . . . are not seized, the
trial court may rely upon an estimate to establish the defendant’s guideline
offense level so long as the information relied upon has some basis of support in
the facts of the particular case and bears sufficient indicia of reliability.” United
States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005) (quotation marks omitted).
But we have cautioned, “the ‘need to estimate drug quantities at times is not a
license to calculate drug quantities by guesswork.’” Id. (quoting United States v.
Richards, 27 F.3d 465, 469 (10th Cir. 1994)). Thus, in considering whether a
drug-quantity estimation is clearly erroneous, we look for other corroborating
evidence to determine whether the estimation has sufficient factual support. See
Dalton, 409 F.3d at 1251.
Thompson makes several challenges to the district court’s drug-quantity
calculation. None has merit. First, Thompson claims the court clearly erred in
crediting expert testimony that interpreted a recorded conversation between
Thompson and a confidential informant. When asked how much cocaine he was
distributing, Thompson responded, “‘bout a nine. I ain’t trying to do too much.”
Aplt. Br. at 37. A Kansas Bureau of Investigation Agent testified that this meant
when Thompson received crack cocaine from his suppliers, he received
approximately nine ounces of it each time. The expert’s interpretation is a
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plausible basis for extrapolating from the nine-ounce amount as part of the drug-
quantity calculation. At sentencing the district court referenced other portions of
the PSR which described numerous instances of Thompson selling various
amounts of cocaine. Viewing the record as a whole, then, the court’s decision to
credit this expert testimony for the nine-ounce quantity was not clearly erroneous.
Thompson next challenges the PSR’s reference to intercepted phone calls in
which Thompson discussed purchasing five ounces of powder cocaine from a co-
defendant, Steven Clark. At sentencing, Thompson objected to the district court’s
consideration of the call, because both sides agreed it was a suppressed call. The
court overruled the objection, finding there was an alternative source of the
information: Clark gave the government the same information through proffer
statements and as part of the factual basis for his guilty plea. Thompson now
argues for the first time that the proffer statement was not a true alternative
source, because the suppressed call started a chain of events that led to Clark’s
proffer statement, which in turn was tainted fruit. But Thompson has waived this
argument by failing to argue for plain error, “surely mark[ing] the end of the road
for an argument for reversal not first presented to the district court.” See
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011).
Finally, Thompson argues the district court clearly erred by not attributing
200.48 grams to him—an amount that excludes the quantities extrapolated from
the conversation with the confidential informant and the Clark phone call/proffer
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statement. But as the district court recognized at sentencing, “one of the
problems with relevant conduct findings in this context is drug traffickers don't
keep good records. There are not inventory records on when we got this and
when it went out, that sort of thing.” R., Vol. VII at 4307. The court thus
decided to credit the extrapolation in paragraph 119 of the PSR, finding it was
sufficiently supported by other reliable evidence in the record. We agree. If
anything, the figure derived from the extrapolation was likely a conservative
estimate, given the numerous other drug transactions Thompson was involved in.
In sum, finding no clear error in the district court’s drug-quantity findings,
we affirm Thompson’s sentence.
2. Four-Level Leadership Enhancement
Thompson next contends the court erred in imposing the four-level
leadership sentencing enhancement, because there was not sufficient evidence in
the record to support the court’s finding that Thompson was a leader or organizer
of the conspiracy for purposes of the enhancement.
We review challenges to the imposition of guidelines enhancements for
clear error as to findings of fact and de novo as to questions of law. United States
v. Irvin, 682 F.3d 1254, 1276–77 (10th Cir. 2012). In doing so, we give “due
deference to the district court’s application of the guidelines to the facts.” United
States v. Reed, 1 F.3d 1105, 1110 (10th Cir. 1993) (quoting 18 U.S.C. § 3742(e)).
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Section 3B1.1(a) of the Guidelines provides for a four-level increase in a
defendant’s total offense level “[i]f the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise
extensive.” The application notes explain,
Factors the court should consider include the exercise of
decision making authority, the nature of participation in
the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the
fruits of the crime, the degree of participation in planning
or organizing the offense, the nature and scope of the
illegal activity, and the degree of control and authority
exercised over others.
USSG § 3B1.1 cmt. n.4.
We have previously stated, “[i]n considering these factors, the sentencing
court should remain conscious of the fact that the gravamen of this enhancement
is control, organization, and responsibility for the actions of other individuals,
because § 3B1.1(a) ‘is an enhancement for organizers or leaders, not for
important or essential figures.’” United States v. Torres, 53 F.3d 1129, 1142
(10th Cir. 1995) (quoting United States v. Roberts, 14 F.3d 502, 523 (10th Cir.
1993)). And we have clarified, “[t]his is not a particularly onerous showing: ‘The
Guideline requires only a conclusion that the defendant supervised at least one
such participant; it does not require the court to identify specific examples.’”
United States v. Gallant, 537 F.3d 1202, 1241 (10th Cir. 2008) (quoting United
States v. Aptt, 354 F.3d 1269, 1287 (10th Cir. 2004)).
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Here, Thompson argues the district court clearly erred because the record is
completely devoid of evidence to support the application of the enhancement.
But Thompson mischaracterizes the record, which is replete with instances of
Thompson recruiting and directing other members of the conspiracy. For
example, the PSR recounts how Thompson recruited co-conspirator Charles
Foster as a customer and then began using him to facilitate drug transactions with
third persons. And the PSR provides specific examples of Foster and another co-
conspirator, Patricia Foy, completing drug transactions on Thompson’s behalf.
Both Foster and Foy acknowledged serving as middlemen for Thompson in
Mirandized, videotaped statements made upon their arrests. Likewise, the PSR
details how co-conspirator Barbara Shaw served as a distributor for Thompson.
Intercepted phone calls and text messages showed Shaw had repeatedly contacted
Thompson requesting crack cocaine for herself and others.
On this record, we cannot agree with Thompson that the district court
clearly erred in applying the four-level leadership enhancement. Accordingly, we
affirm Thompson’s sentence.
III. Conclusion
For the foregoing reasons, we AFFIRM Thompson’s convictions and
sentence.
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