### 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

Appeal s 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 EDITH BROWN CLEMENT, Circuit Judge : The opinion issued August 3 , 2017 is withdrawn by the panel, and the f

ollowing 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 convict ed 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 arr est on January 15, 2015. In two separate cases, United States Court of Appeals Fifth Circuit 

### FILED March 20, 2018 Lyle W. Cayce Clerk Case: 16-40701 Document: 00514394551 Page: 1 Date Filed: 03/20/2018No . 16

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2 Walla ce 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 1 8 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 fugi tive 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 num ber given by the co nfidential 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 Wallac e’s phone had been turne d 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 th e 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 nor th of Victoria, Case: 16-40701 Document: 00514394551 Page: 2 Date Filed: 03/20/2018No . 16

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3 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 felo n 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 b ecause “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 O rder 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. A iding and Abetting Charge Approximately five months after Wallace was indicted for the firearms

c harge, Wallace and two accomplices posted a photograph of the firearms complaint and revealed the individual th ey believed to be the “snitch.” As a result, tha t 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) an d 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. Case: 16-40701 Document: 00514394551 Page: 3 Date Filed: 03/20/2018No . 16

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4 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 aid ing 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 , 56 3 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 a ny 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 G overnment 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 Case: 16-40701 Document: 00514394551 Page: 4 Date Filed: 03/20/2018No . 16

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5 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 . . . prob ation ” 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

- t rap 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 , 76 8 F.3d 351, 35 8 (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 85 3 (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 pen

trap statute provides onl y 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 Te xas 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. Case: 16-40701 Document: 00514394551 Page: 5 Date Filed: 03/20/2018No . 16

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6 “remedies and sanctions described” therein

— namely “injunctive relief,” “a reasonable attorney’s fee and other litigation costs,” and “actual da mages”

— “are the exclusive judicial remedies and sanctions for a violation of this ar ticle.” Tex. Code. Crim. Proc. a rt. 18.21, §§ 12

- 13. Suppression is not an available

recourse. As such, e ven 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 crimin al 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.

conc urring)). Whe ther 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. E ve n if accessing Wallace’s cell phone’s E 911 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 off icers from knowingly violating the Constitution.” United States v. Allen , 625 F.3d 830, 836 (5th Cir. 2010). As Case: 16-40701 Document: 00514394551 Page: 6 Date Filed: 03/20/2018No . 16

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7 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. 3 40, 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 o f 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 c overs the data is not before us. W e assume without deciding that it does

. 3 We decide whether the officers acted in objectively re asonable reliance upon the SCA. This inquiry hinges upon whether the officers “had knowledge, or [could] properly be charged w ith 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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8 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 prohibit s the gov ernment 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. T he district court did not err by denying Wallace’s motion to s uppress. 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. Case: 16-40701 Document: 00514394551 Page: 8 Date Filed: 03/20/2018