Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 1 of 13

No. 12-4659

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
____________________
UNITED STATES OF AMERICA,
Plaintiff/Appellee,
v.
AARON GRAHAM,
Defendant/Appellant.
____________________
On Appeal from the United States District Court
for the District of Maryland, Northern Division
(The Hon. Richard D. Bennett)
____________________
CONDITIONAL PETITION FOR REHEARING EN BANC
____________________
JAMES WYDA
Federal Public Defender
District of Maryland
MEGHAN S. SKELTON
Appellate Attorney
6411 Ivy Lane, Suite 710
Greenbelt, MD 20770
(301) 344-0600
Counsel for Appellant

Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 2 of 13

TABLE OF CONTENTS
Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Reasons For Granting The Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A.

The majority found a constitutional violation, but refused to

suppress the illegally obtained evidence. . . . . . . . . . . . . . . . . . . . . . . 2

B.

The panels decision conflicts with cases from the United

States Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Certificate of Compliance
Certificate of Service

Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 3 of 13

TABLE OF AUTHORITIES
Cases
Illinois v. Gates, 462 U.S. 213, 239 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Davis, 131 S. Ct. 2419 (2011). . . . . . . . . . . . . . . . . . . . . . 1, 6,7, 8
United States v. Leon, 468 U.S. 897 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . passim
Statutes and Rules
Fourth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
18 U.S.C. 2703. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
18 U.S.C. 2703(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
18 U.S.C. 2703(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 5, 6
Fed. R. App. P. 35(b)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ii

Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 4 of 13

Preliminary Statement
For reasons that he will explain if ordered to respond to the governments
petition for rehearing, Aaron Graham does not believe that this Court should
reconsider the validity of the warrantless search.1 Nevertheless, if this Court
disagrees and grants the governments petition for rehearing en banc, it should also
rehear en banc whether the good faith exception applies to the governments search
and seizure of 221 days of his historic Cell Site Location Information (CSLI)
without a warrant.
Statement of Purpose
If this Court grants rehearing to consider whether the warrantless search at
issue in this case violated the Fourth Amendment, it should also reconsider the
panels decision that the good faith exception excuses the constitutional violation.
The panels decision conflicts with decisions of the United States Supreme Court.
See Fed. R. App. P. 35(b)(1)(A). Specifically, the panels decision conflicts with
United States v. Leon, 468 U.S. 897 (1984), and United States v. Davis, 131 S. Ct.
2419 (2011).

Not only did the government ultimately prevail in this case, but the issue
of the constitutional violation is already pending in a cert petition before the
Supreme Court. Davis v. United States, Supreme Court Case No. 15-146. As the
majority and dissent commented, this issue should be resolved by the Supreme
Court. (Slip Op. at 59-60, 133-34.)
1

Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 5 of 13

Reasons for Granting the Petition

A.

The majority found a constitutional violation, but refused to

suppress the illegally obtained evidence.

A divided panel of this Court decided that tracking the appellants daily
movements for 221 days using historic CSLI without a warrant supported by probable
cause was an unreasonable search under the Fourth Amendment. The panel,
however, declined to suppress the evidence, finding that the government relied in
good faith on court orders issued under 18 U.S.C. 2703(d), which uses a standard
similar to that for issuing a subpoena instead of probable cause. The majority gave
two principal reasons for refusing to suppress the evidence.
First, the panel treated the 2703(d) order as if it were warrant for good faith
purposes under Leon. Although it acknowledged that the 2703(d) order was not
supported by probable cause (Slip Op. at 7), the majority treated the governments
reliance on the order as equivalent to reliance on a facially valid, albeit defective,
search warrant. Slip Op. at 61-62. Citing Leon, the majority explained that the good
faith exception applies when law enforcement reasonably relies on . . . a search
warrant or other court order issued by a neutral magistrate. Slip Op. at 61
(emphasis added). Focusing on whether the magistrate judges who signed the orders
had abandoned their neutral role, the majority concluded that law enforcement

Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 6 of 13

reasonably relied on the orders even though government agents chose to ignore the
portion of 18 U.S.C. 2703 that required a warrant, instead pursuing an option that
was clearly not based upon probable cause. Slip Op. at 62.
Second, the panel decided that, since this Court had not specifically required
a warrant for this type of search before this case, the exclusionary rule should not
apply. The majority concluded that law enforcement acted reasonably because prior
to [the] ruling today, neither this Court nor the U.S. Supreme Court had deemed the
governments conduct in this case unconstitutional. Slip Op. at 64. Although cases
from numerous courts were in conflict about the constitutionality of the warrantless
search, the majority concluded that the governments conduct was not governed by
disagreements among a handful of courts outside this Circuit. Slip Op. at 65.
B.

The panels decision conflicts with cases from the United States
Supreme Court.

The panel opinion conflicts with Leon and Davis. The panels treatment of the
court order under 2703(d) as analogous to a facially valid warrant for purposes of
objectively reasonable good faith directly conflicts with Leon. In addition, by
requiring an authoritative decision from this Court in order to alert the government
to the unconstitutionality of the warrantless search, the panels decision conflicts with
both Davis and Leon.

Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 7 of 13

The majority decision cites Leon for the proposition that law enforcement may
rely in good faith on a warrant or other court order. Slip Op. at 61. But Leon
applies specifically to searches conducted pursuant to warrants. 468 U.S. at 924.
It does so because the government presumably and demonstrably acts with good faith
when it does the right thing in seeking a warrant supported by probable cause. The
same cannot be said when the government actively attempts to exploit a loophole in
the warrant requirement in order to avoid meeting the rigors of probable cause.
Leon is clear about this. [R]eviewing courts will not defer to a warrant based
on an affidavit that does not provide the magistrate with a substantial basis for
determining the existence of probable cause. Id. at 915 (quoting Illinois v. Gates,
462 U.S. 213, 239 (1983)) (emphasis added). Reviewing courts thus cannot use Leon
as a basis to defer to orders that are not based on probable cause, particularly when
the officer who sought the order, and conducts the search, actively circumvented the
safeguards of the warrant requirement and the burden to demonstrate probable cause.
Leons prerequisite for the good faith exception to apply is an objective belief that the
document the police officer receives from the magistrate is a technically sufficient
warrant based on probable cause. Id. at 922-23.
The decisionleave[s] untouched the probable cause standard. Id. at 922-23.
An order based on less than probable cause, like a 2703(d) order, therefore does not
4

Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 8 of 13

fall within Leons good faith exception. The panels contrary conclusion misapplies
Leon to the point of creating a direct conflict with Supreme Court precedent.
The Court reasoned in Leon that police officers who obtain a warrant that
appears to satisfy the probable cause requirement can literally do nothing more . . .
in seeking to comply with the law. Id. at 921 (internal quotation omitted).
Suppressing evidence after a police officer conducts a search with a warrant in hand
will not serve the exclusionary rules deterrent effect because suppression would not
alter the behavior of individual law enforcement officers or the policies of their
departments. Id. at 918. In that situation, law enforcement followed the explicit
instructions in the Fourth Amendment.
Here, in contrast, law enforcement easily could have, but did not, choose the
constitutionally secure path. They could have followed 18 U.S.C. 2793(c)s explicit
warrant requirement, which clearly satisfies the Fourth Amendment, instead of taking
their chances with the non-warrant procedure of 2703(d). Unlike Leon, the
prosecutor who sought and used the 2703(d) order knew that the order was neither
a warrant nor the equivalent of a warrant, and knew that it was not based upon
probable cause. This was not a case where police had to make a split second
decision. It was a reasoned, strategic decision by an attorney, choosing between a
provision that satisfies the warrant requirement, and one that does not.
Indeed, suppressing the evidence here would alter the behavior of both
5

Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 9 of 13

individual officers and policies of departments and thus would serve the deterrent
purposes of the exclusionary rule. Prosecutors and police departments would be put
on notice that they should not always be looking for loopholes to the warrant
requirement. They would know that in the future, documents that do not satisfy the
Fourth Amendments warrant requirement more likely than not will not justify the
search of a citizens person, papers, and effects. Here, the government was aware that
it could and should do something more to ensure that officers would take a greater
degree of care toward the rights of an accused. Leon, 468 U.S. at 919.
Giving law enforcement the benefit of the good faith exception in this case also
conflicts with Davis. At the time the search was conducted, multiple judicial
opinions interpreting 2703(d) or state analogues required a warrant, and the statute
itself instructed the government to get a warrant. The law was, at best, unsettled and
in no respect could have been deemed to clearly authorize the governments conduct.
Davis establishes a clear standard. Reliance on binding case law may provide
a good faith basis for conducting a warrantless search because police do not act
recklessly or negligently when binding appellate precedent specifically authorizes
a particular police practice. 131 S. Ct. at 2429 (emphasis in original). No such clear
authorization existed for the search in this case. As Justice Sotomayor was careful
to reiterate in Davis, it is a markedly different question whether the exclusionary rule
applies when the law governing the constitutionality of a particular search is
6

Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 10 of 13

unsettled. Id. at 2435 (Sotomayor, J., concurring)

The panel decided that law enforcement may rely in good faith on a lack of
binding authority. Slip Op. at 64-65. This turns Davis on its head and converts the
good faith exception into a form of qualified immunity for the government to exploit
in the context of a criminal trial. But the good faith exception does not allow the
government to cherry pick those judicial decisions that interpret the Fourth
Amendment more permissively and to ignore decisions that enforce a more strict
reading of the Constitution.
Finding good faith when the prosecutor makes a discretionary choice in the
face of conflicting precedent ensures that the Fourth Amendment will only apply
prospectively and guarantees a constant race to the bottom in the protection of
citizens privacy, whenever a new technology offers the opportunity to argue that
prior precedent is distinguishable. Applying the logic of the panel decision, the
government would always enjoy at least one free pass at violating the Fourth
Amendment in each of the eleven federal circuits until each circuit published
binding authority authorizing or prohibiting a particular law enforcement practice.
The Supreme Court, however, has been unwilling to conclude that new Fourth
Amendment principles are always to have only prospective effect. Leon, 468 U.S.
at 912.
Moreover, because the majority decision did not mark a clear break from
7

Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 11 of 13

prior precedent, there is no basis on which to apply the good faith exception. See
Davis, 131 S. Ct. at 2432 n.6. The panels decision did not overrule any case or tread
new ground, but instead applied long standing Fourth Amendment precedent and
principles to new technology. The exclusionary rule thus applies.
Conclusion
The panel opinion extends the good faith exception beyond what the Supreme
Court has ever approved. No reasonable prosecutor would believe that a search based
up on a court order lacking probable cause is the equivalent of relying on a facially
valid search warrant. Therefore, if the Court decides to rehear whether the
government violated Aaron Grahams Fourth Amendment rights, it should also rehear
whether the good faith exception to the exclusionary rule applies.

Respectfully submitted,
JAMES WYDA
Federal Public Defender
________/s/___________________
MEGHAN S. SKELTON
Appellate Attorney
6411 Ivy Lane, Ste. 710
Greenbelt, Maryland 20770
(301) 344-0600

Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 12 of 13

CERTIFICATE OF COMPLIANCE
1.

This Petition for Rehearing has been prepared using WordPerfect X4 software,
Times New Roman font, 14 point proportional type size.

2.

Exclusive of the table of contents, table of authorities, statement with respect

to oral argument, and certificate of service, this brief contains 8 pages.

I understand that a material misrepresentation can result in this Courts striking the
brief and imposing sanctions. If the Court so requests, I will provide an electronic
version of the brief and/or a copy of the word or line print-out.
09/18/15
Date

/s/ Meghan S. Skelton

Meghan S. Skelton
Appellate Attorney

Appeal: 12-4659

Doc: 183

Filed: 09/18/2015

Pg: 13 of 13

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 18th day of September, 2015 a copy of the
foregoing Conditional Petition for Rehearing En Banc was delivered via electronic
filing to:
Sujit Raman, Esq.
Assistant U.S. Attorney
Office of the U.S. Attorney
6500 Cherrywood Lane, Suite 200
Greenbelt, Maryland 20770

________/s/_______________
Meghan S. Skelton
Appellate Attorney