United States v. Adkinson - 916 F.3d 605 (7th Cir. 2019)

Rule:

A search or seizure by a private party does not implicate the Fourth Amendment unless the private party is acting as an instrument or agent of the government. 

Facts:

Adkinson and others, in July 2015, robbed a T-Mobile phone store in Clarksville, Indiana, and then a Verizon store in Kentucky the next day. With handguns drawn, they stole approximately 100 cell phones and other items. They later robbed nine additional stores, including three more T-Mobile stores. T-Mobile investigated the first robberies. As part of its investigation, T-Mobile conducted "tower dumps": it pulled data from cell sites near the first two victim stores to identify which phones had connected to them—and thus were close to the crimes. From these dumps, T-Mobile determined that only one T-Mobile phone was near both robberies and that Adkinson was an authorized user on that phone's account. Each time a phone connects to any cell site, it also generates a time-stamped record known as cell-site location information. From its records, T-Mobile determined where Adkinson's phone traveled. T-Mobile voluntarily gave this data to the FBI. The record does not reflect whether T-Mobile did so on its own or at the FBI's request. T-Mobile delivered similar data after two more of its stores were robbed. It must be noted that T-Mobile's privacy policy allowed T-Mobile to disclose information about its phones' users. It may do so "[t]o satisfy any applicable ... legal process or enforceable governmental request" or "[t]o protect [its] rights or interests, property or safety or that of others." Law enforcement used the information from T-Mobile to obtain a court order under the Stored Communications Act, 18 U.S.C. § 2703, granting the FBI access to additional cell-site data. The government charged Adkinson in the Southern District of Indiana, New Albany Division (which encompasses Clarksville). Before his trial, Adkinson brought two motions relevant to this appeal. One of these motions is a motion to suppress "any and all evidence obtained through cellphone records and/or triangulation of cellphone numbers" because, he argued, the government obtained it without a warrant, in violation of the Fourth Amendment. The district court denied the motion. A jury convicted Adkinson of conspiracy to commit robbery, conspiracy to brandish a firearm to further a crime of violence, robbery, and brandishing a firearm to further a crime of violence. 

Issue:

Did the district court err in denying Adkinson’s motion to suppress the cell-site data?

Answer:

No.

Conclusion:

First, T-Mobile is a private party, and Adkinson has not shown that it was the government's agent. To demonstrate agency, Adkinson must establish either that T-Mobile agreed to act on the government's behalf and to be subject to its control or that the government ratified T-Mobile's conduct as its own. T-Mobile, however, acted in its own interest to prevent more robberies of its stores and recover its property when the company furnished data to the government; there is no evidence that it expected to receive any benefit from the government. Providing that data did not transform T-Mobile into an agent of the state. Nor is T-Mobile, as a carrier of cellular service, a government agent simply because it is part of that industry. And the government's mere receipt of T-Mobile's data is not a ratification of T-Mobile's conduct.

Second, regardless of agency, Adkinson's Fourth Amendment rights were still not violated because Adkinson consented to T-Mobile collecting and sharing his cell-site information. A defendant can voluntarily consent in advance to a search as a condition of receiving contracted services. As a condition of using a phone serviced by T-Mobile, Adkinson agreed to T-Mobile's policy that T-Mobile could disclose information when reasonably necessary to protect its rights, interests, property, or safety, or that of others. And T-Mobile, in accordance with its policy, shared information with law enforcement after one of its stores was robbed at gunpoint.

Finally, even if Adkinson sought to challenge the cell-site location data that the government later collected through the order it obtained under the Stored Communications Act, the challenge would be meritless. Adkinson did not challenge the admission of such data below and cannot do so now. As in Thomas, "though the Supreme Court's Carpenter decision indicates a potential Fourth Amendment problem with the cell-site data used here, [Adkinson] cannot raise this argument now, after failing to raise it in the district court." He has not attempted to show good cause and Thomas suggests the intervening Carpenter decision would not constitute good cause. In any event, the good-faith exception to the exclusionary rule would apply. Law enforcement reasonably relied on settled law that the information from T-Mobile was proper, and the Supreme Court had not yet decided Carpenter when the government received the information.