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United States v. Goldstein

United States Court of Appeals, Third Circuit

January 22, 2019

UNITED STATES OF AMERICA
v.
JAY GOLDSTEIN a/k/a Yaakov JAY GOLDSTEIN, Appellant

          Argued on January 25, 2017

          Panel Rehearing Granted on August 30, 2018

          On Appeal from the United States District Court for the District of New Jersey (D. C. No. 3-14-cr-00287-003) District Judge: Honorable Freda L. Wolfson

          Aidan P. O'Connor [Argued] Pashman Stein Walder Hayden Counsel for Appellant.

          Mark E. Coyne Office of United States Attorney Norman Gross [Argued] Glenn J. Moramarco [Argued] Office of United States Attorney Camden Federal Building & Courthouse Counsel for Appellee.

          Before: CHAGARES, RESTREPO and ROTH, Circuit Judges

          OPINION

          ROTH, CIRCUIT JUDGE

         I.

         We granted Appellant Jay Goldstein's petition for rehearing to address the effect of the Supreme Court's recent decision in Carpenter v. United States[1] on our prior panel decision, United States v. Stimler.[2] In Stimler, we held that the District Court properly denied Goldstein's motion to suppress his cell site location information (CSLI) because Goldstein had no reasonable expectation of privacy in his CSLI, and, therefore, the government did not need probable cause to collect this data.[3] Carpenter sets forth a new rule that defendants do in fact have a privacy interest in their CSLI, and the government must generally obtain a search warrant supported by probable cause to obtain this information.[4] However, we still affirm the District Court's decision under the good faith exception to the exclusionary rule because the government had an objectively reasonable good faith belief that its conduct was legal when it acquired Goldstein's CSLI.

         II.

         We recited a comprehensive factual background in our previous decision.[5] The facts relevant to this decision follow. Goldstein was arrested for his involvement in a kidnapping scheme. Hoping to find evidence placing Goldstein at the scene of the kidnapping, the prosecutors obtained a court order under the Stored Communications Act (SCA)- specifically 18 U.S.C. § 2703(d)-compelling Goldstein's cell phone carrier to turn over 57 days' worth of his CSLI. CSLI is a type of metadata that is generated every time a user's cell phone connects to the nearest antenna. The user's cell phone service provider retains a time-stamped record identifying the particular antenna to which the phone connected. Because most people constantly carry and frequently use their cell phones, CSLI can provide a detailed log of an individual's movements over a period of time.

         The legal question in this case centers on whether Section 2703(d), the statutory provision under which the government obtained Goldstein's CSLI, complies with the Fourth Amendment. The Fourth Amendment protects against unreasonable searches. In order for the acquisition of CSLI to be a "search" under the Fourth Amendment, an individual must have a reasonable expectation of privacy in his CSLI.[6]In order for a search to be "reasonable," it generally must be conducted pursuant to a search warrant supported by probable cause, unless an exception to the warrant requirement applies.[7] Consequently, if there is no reasonable expectation of privacy as to CSLI, then its acquisition does not require a search warrant; if there is, then a warrant is generally required. Section 2703(d) does not require a showing of probable cause to obtain CSLI. Rather, it calls for a more lenient standard, requiring "specific and articulable facts showing that there are reasonable grounds to believe" that the CSLI is relevant and material.[8]

         Before trial, Goldstein moved to suppress the CSLI, arguing that this provision violates the Fourth Amendment because it authorizes disclosure of CSLI without a warrant supported by probable cause. The District Court rejected this argument and denied the motion. Through the testimony of an FBI agent, the government introduced the CSLI at trial, which placed him in the vicinity of the kidnapping site. Goldstein was convicted and sentenced to 96 months in prison.

         In our previous decision, we affirmed the District Court's denial of Goldstein's motion to suppress, holding that Section 2703(d) complied with the Fourth Amendment because cell phone users have no reasonable expectation of privacy in their CSLI.[9] We relied on our decision in In re Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government (In re Application), [10] which also found no reasonable expectation of privacy in CSLI, [11] and we reasoned that there were no intervening changes in law undermining In re Application.[12]

         Goldstein petitioned for rehearing, and we held the petition curia advisari vult pending the Supreme Court's decision in Carpenter, which was set to address essentially the same question we answered in Stimler: whether obtaining CSLI without a warrant supported by probable cause under Section 2703(d) violates the Fourth Amendment's protection against unreasonable searches. The Supreme Court decided Carpenter, and we granted Goldstein's petition for panel rehearing.[13] Carpenter came to the opposite conclusion that we came to in In re Application and Stimler and held that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured though CSLI" and that the government's collection of CSLI requires a showing of probable cause under the Fourth Amendment.[14]Consequently, Section 2703(d) may not be used to access CSLI because it requires less than probable cause.

         Applying Carpenter to Goldstein's case, we find that the government did violate Goldstein's Fourth Amendment rights when it acquired his CSLI under Section 2703(d) of the SCA. However, we will still affirm the District Court's admission of Goldstein's CSLI because the government was acting under an objectively reasonable good faith belief that obtaining CSLI under Section 2703(d) was constitutional at the time.

         III. [15]

         It is clear that under Carpenter, acquiring Goldstein's CSLI was an unconstitutional search under the Fourth Amendment because the government did not obtain a warrant supported by probable cause.[16] However, evidence obtained in violation of a defendant's Fourth Amendment rights is not automatically suppressed. Evidence will be suppressed under the exclusionary rule when suppression would further the exclusionary rule's primary objective: to deter Fourth Amendment violations.[17] One instance where suppressing evidence will not encourage deterrence is where the government acted "upon an objectively reasonable good faith belief in the legality of [its] conduct" when conducting a search.[18] Indeed, "applying the exclusionary rule would not 'yield appreciable deterrence'" when government actors have a ...


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