IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40701

Consolidated with: 16-40702

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

WILLIAM CHANCE WALLACE, 

 Defendant - Appellant

Appeals from the United States District Court 

for the Southern District of Texas

Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

The opinion issued August 3, 2017 is withdrawn by the panel, and the 

following is issued in its place:

William Chance Wallace is a confirmed member of Tango Blast, a Texas 

crime syndicate. As of 2015, Wallace had been convicted of five violent felonies: 

one count of possession of a controlled substance with intent to distribute, two 

counts of aggravated assault with a deadly weapon, one count of possession of 

a controlled substance, and one count of unlawful delivery of a controlled 

substance. Wallace violated his probation for the unlawful delivery charge and 

a warrant was issued for his arrest on January 15, 2015. In two separate cases, 

United States Court of Appeals

Fifth Circuit

FILED

March 20, 2018

Lyle W. Cayce

Clerk

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Wallace was charged with and pleaded guilty to: (1) being a felon in possession 

of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); and 

(2) aiding and abetting retaliation against a witness in a criminal 

investigation, in violation of 18 U.S.C. § 1512(b) and 18 U.S.C. § 2. In this 

consolidated appeal, we are called on to decide whether the district court erred 

in denying Wallace’s motion to suppress. Because we conclude that it did not, 

we AFFIRM in part and DISMISS in part as MOOT.

I.

A. Firearm Case

In May 2015, a confidential informant approached Shawn Hallett, a 

Special Agent with the Texas Department of Safety (“DPS”). The informant 

gave Wallace’s phone number to Hallett and informed him that Wallace was a 

gang member and a wanted fugitive living in Austin. When Hallett verified 

this information, he discovered an outstanding arrest warrant. He then passed 

this information to DPS’s gang unit in Austin. 

DPS Agent Jose Rodriguez (with the help of an assistant district 

attorney) then sought a Ping Order for authorization under both federal and 

state law to (among other things) obtain real-time geolocation coordinates of

the cellular device linked to the number given by the confidential informant. 

This information is referred to as “E911” data. A state district court judge 

granted the requested Ping Order for a period of sixty days going forward. As 

a result, DPS discovered that Wallace’s phone had been turned off.

Hallett reached out to his confidential informant and received a new 

telephone number for Wallace within a few days. Rodriguez then applied for 

and was granted a second Ping Order for this new cell phone number. With 

this Ping Order, DPS obtained the approximate, real-time GPS location of

Wallace’s cell phone from AT&T. Using this information, Hallett located 

Wallace near a pond on private property off U.S. Highway 87 north of Victoria, 

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Texas. Officers arrested Wallace, discovering a Winchester Super X .22 

magnum caliber round of ammunition in his pocket, a black Bersa Thunder 

.380 semi-automatic pistol at the edge of the pond, and a box of ammunition 

for that pistol along with an empty holster in Wallace’s truck. Wallace was 

charged with being a felon in possession of a firearm.

Once charged, Wallace moved to suppress the evidence obtained during 

the execution of the arrest warrant, including the pistol, ammunition, and 

relevant testimony. He argued that the Ping Order used to locate him was 

invalid because “1) the information provided to the State District Judge was 

ambiguous, overbroad and conclusory and 2) law enforcement was not engaged 

in an ‘ongoing criminal investigation’ of the Defendant.” He also argued that 

the statutes authorizing the Ping Order were unconstitutional. The district 

court denied Wallace’s motion, finding that suppression was not a cognizable 

statutory remedy under Fifth Circuit precedent. The district court also upheld 

the statutes as constitutional. Wallace timely appealed.1

B. Aiding and Abetting Charge

Approximately five months after Wallace was indicted for the firearms

charge, Wallace and two accomplices posted a photograph of the firearms 

complaint and revealed the individual they believed to be the “snitch.” As a 

result, that individual, who may or may not have been the actual confidential 

informant, was threatened. Wallace was charged with and pleaded guilty to 

aiding and abetting retaliation against a witness in a federal investigation, a 

violation of 18 U.S.C. § 1513(b) and 18 U.S.C. § 2. Pursuant to his plea 

agreement, Wallace waived his right to appeal his conviction and sentence for 

any reason other than ineffective assistance of counsel. 

 

1 Wallace’s plea agreement preserved his right to appeal the district court’s 

suppression ruling. 

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C. Sentencing

The cases were consolidated for sentencing. The district court sentenced 

Wallace to two concurrent 180-month sentences, followed by three years of 

supervised release. At the sentencing hearing, Wallace’s attorney noted that 

the Guidelines range for the aiding and abetting charge would have been much 

lower had Wallace not been classified an armed career criminal, a threshold he 

would not have reached if he not been convicted on the firearms charge. 

Wallace therefore requested—and the district court agreed—to reconsider his 

sentence should the firearms conviction be overturned on appeal.

II.

“When examining a district court’s ruling on a motion to suppress, we 

review questions of law de novo and factual findings for clear error.” United 

States v. Turner, 839 F.3d 429, 432 (5th Cir. 2016) (quoting United States v. 

Hearn, 563 F.3d 95, 101 (5th Cir. 2009)). The evidence is viewed “in the light 

most favorable to the prevailing party.” Id. We may “affirm the district court’s 

ruling on a motion to suppress based on any rationale supported by the record.” 

United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005).

The party seeking suppression “has the burden of proving, by a 

preponderance of the evidence, that the evidence in question was obtained in 

violation of his Fourth Amendment rights.” United States v. Smith, 978 F.2d 

171, 176 (5th Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 133-34

(1978)). 

III.

Wallace maintains that the district court erred in denying his motion to 

suppress because “[t]he Government failed to show that it sought an order to 

find information relevant to an ongoing criminal investigation” as required by 

the federal pen-trap statute and the Texas Code of Criminal Procedure.

Wallace concedes that the Ping Order was issued pursuant to a valid arrest 

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warrant for violating the conditions of his probation, but he argues that the 

plain meaning of the phrase “ongoing criminal investigation” implies “new

criminal activity” and does not encompass “technical violations of . . . 

probation” or “conduct other than new crime.” Neither the relevant statutes 

nor binding precedent define the term “ongoing criminal investigation.” 

But Wallace’s ultimate problem is that suppression is not a remedy for a 

violation of either the federal pen-trap statute or the Texas Code of Criminal 

Procedure. United States v. German, 486 F.3d 849, 654 (5th Cir. 2007) (holding 

that suppression is not a remedy for a violation of the federal pen-trap statute); 

see also United States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014).2 “Where 

Congress has both established a right and provided exclusive remedies for its 

violation, we would encroach upon the prerogatives of Congress were we to 

authorize a remedy not provided for by the statute.” German, 486 F.3d at 853 

(alteration omitted) (quoting United States v. Frazin, 780 F.2d 1461, 1466 (9th 

Cir. 1986)). Unlike the wire-tap statute which “specifically provides for an 

exclusionary remedy when the statutory requirements are not met,” the pentrap statute provides only for fines and imprisonment for knowing violations. 

Id. at 842. Accordingly, it is clear that “Congress has determined that the 

benefits of an exclusionary rule do not outweigh its substantial social costs.” 

Id.

The same is true with respect to the parallel state statute in Article 18.21 

of the Texas Code of Criminal Procedure. It specifically states that the 

 

2 DPS also sought the Ping Order pursuant to § 2703(d) of the federal Stored 

Communications Act (SCA). Like the federal pen-trap statute and the parallel state 

provision, the SCA requires the government to show that the “information sought, [is] 

relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). Wallace 

does not argue that the government failed to comply with the requirements of the SCA. Even 

if he did, we have held that suppression is not a remedy for violations of the SCA. Guerrero, 

768 F.3d at 358.

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“remedies and sanctions described” therein—namely “injunctive relief,” “a 

reasonable attorney’s fee and other litigation costs,” and “actual damages”—

“are the exclusive judicial remedies and sanctions for a violation of this article.” 

Tex. Code. Crim. Proc. art. 18.21, §§ 12-13. Suppression is not an available 

recourse. As such, even if the Ping Order were issued in violation of federal or 

state law, Wallace is not entitled to suppression. The district court did not err.

IV.

Alternatively, Wallace argues that the district court should have granted 

his motion to suppress because the government violated his Fourth 

Amendment rights when it accessed his phone’s E911 location information

pursuant to a court order supported by “specific and articulable facts” rather 

than a warrant supported by probable cause. Ordinarily, “evidence obtained in 

violation of the Fourth Amendment cannot be used in a criminal proceeding 

against the victim of the illegal search or seizure. This prohibition applies as 

well to the fruits of the illegally seized evidence.” United States v. Calandra, 

414 U.S. 338, 347 (1974) (internal citations omitted). “[A] Fourth Amendment 

search occurs when the government violates a subjective expectation of privacy 

that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 

(2001) (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J. 

concurring)). Whether obtaining E911 data constitutes a search within the 

meaning of the Fourth Amendment is still an open question in this Circuit.

Nor need we reach that issue here.

Even if accessing Wallace’s cell phone’s E911 data did constitute a 

Fourth Amendment search here, DPS’s actions are covered by the good-faith 

exception to the exclusionary rule. “[T]he exclusionary rule is a judicially 

fashioned remedy whose focus is not on restoring the victim to his rightful 

position but on deterring police officers from knowingly violating the 

Constitution.” United States v. Allen, 625 F.3d 830, 836 (5th Cir. 2010). As 

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such, courts have carved out exceptions for police conduct “pursued in complete 

good faith” because the rule’s “deterrence rationale loses much of its force” in 

such circumstances. United States v. Leon, 468 U.S. 897, 919 (1984) (quoting 

Michigan v. Tucker, 417 U.S. 433, 447 (1974)). In particular, the Supreme 

Court has held that the exclusionary rule does not apply when police officers 

“act[ed] in objectively reasonable reliance upon a statute” even if “the statute 

is ultimately found to violate the Fourth Amendment.” Illinois v. Krull, 480 

U.S. 340, 342 (1987).

The plain language of 18 U.S.C. § 2703(c) states that the government 

may obtain “a court order” requiring a cellular telephone company to turn over 

“record[s] or other information” related to its “customer[s].” The officers (with 

the help of an assistant district attorney) interpreted this language to mean 

that they could obtain a court order granting them access to Wallace’s E911 

data. Wallace does not challenge the officers’ interpretation, and so the 

question of whether the SCA actually covers the data is not before us. We 

assume without deciding that it does.3

We decide whether the officers acted in objectively reasonable reliance 

upon the SCA. This inquiry hinges upon whether the officers “had knowledge, 

or [could] properly be charged with knowledge, that the search was 

unconstitutional under the Fourth Amendment.” Leon, 468 U.S. at 919. There 

is no evidence that the officers acted in bad faith or adopted an objectively 

unreasonable interpretation of the SCA’s scope. The officers, after consulting 

the assistant district attorney, obtained a court order granting them access to 

Wallace’s E911 data. Although we do not hold that the SCA necessarily covers 

 

3 The holding of Krull does not extend to scenarios in which an officer “erroneously, 

but in good faith, believes he is acting within the scope of a statute.” Krull, 480 U.S. at 360 

n.17. Our assumption today that the officers acted within the scope of the statute keeps us 

within the confines of Krull. 

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the real-time data at issue here, nothing in the text of the statute suggests that 

“other information” does not encompass E911 data. Given the “strong 

presumption of constitutionality due to an Act of Congress,” United States v. 

Watson, 423 U.S. 411, 416 (1976), and the absence of controlling caselaw that 

prohibits the government from obtaining E911 data under the SCA, see United 

States v. Espudo, 954 F. Supp. 2d 1029, 1044 (S.D. Cal. 2013), it was reasonable 

for the officers to rely on the text of the statute. The district court did not err 

by denying Wallace’s motion to suppress. 

V.

In conclusion, we AFFIRM the district court’s denial of Wallace’s motion 

to suppress the evidence supporting his conviction in the firearms case. Having 

concluded that suppression is not warranted, we need not address Wallace’s 

request for remand for resentencing regarding his aiding and abetting 

conviction, but instead DISMISS that aspect of his appeal as MOOT. 

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