# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 12, 2014

Decided March 12, 2014

Before

WILLIAM J. BAUER, Circuit Judge

DANIEL A. MANION, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 13

‐ 2599

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

TARA A. THOUSAND,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Western District of Wisconsin.

No. 12

‐ CR

‐ 110

Lynn Adelman,

Judge

.

O R D E R

An investigation of a series of bank robberies in Dane County, Wisconsin, led to

Tara Thousand. Surveillance cameras at several of the robbed banks captured the image

of a suspect resembling Thousand’s then

‐ boyfriend, Michael Benike, climbing into a

silver Toyota Corolla with a sunroof. Thousand was one of 49 registered owners of that

make and model car in Dane County. After authorities interviewed Thousand and

Benike at a motel, a federal prosecutor applied for an order to obtain call records from

Thousand’s and Benike’s wireless carriers, see 18 U.S.C. §§ 2703(c)(1)(B), (d), 3122, 3123,

to determine if their phones were used near the banks around the times of the robberies.

A magistrate judge issued the order, which allowed the investigators to obtain an

engineering map showing the location of all cell towers that relayed signals from these NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 13

‐ 2599 Page 2

suspects’ phones during the period beginning on the date of the first robbery and

ending 60 days from the date of the order.

Authorities later obtained warrants to search Thousand’s home, car, and person.

FBI special agents Joseph Lavelle and Josh Mayers stopped Thousand on a roadway

around six in the morning on July 13, 2012, to execute the warrant for her car. The

agents told her that she was not under arrest and asked that she speak with them at

their office. Thousand agreed and rode in the rear seat of Mayers’s car. She sat with the

agents in a large conference room and, after Miranda warnings, she signed her name

below a preprinted statement on an FBI consent form saying, “I am willing to answer

questions without a lawyer present.” During the interview Thousand explained that

when the agents stopped her she was en route to a medical clinic that would be closing

at 10:30 a.m. to receive methadone, which she was taking while trying to overcome a

heroin addiction. During the interview she recalled details about the robberies and

identified Benike in surveillance stills. When the interview ended the agents placed

Thousand under arrest and escorted her to the methadone clinic, where she received

her dose a little after nine in the morning.

Thousand entered a conditional guilty plea to one count of bank robbery, see 18

U.S.C. § 2113(a), reserving the right to challenge on appeal any adverse decision on her

motions to suppress, which were then pending before the district judge. Thousand was

seeking to suppress the records from her wireless carrier (and all derivative evidence),

particularly the location data gleaned from cell

‐ tower records, and requested a Franks

hearing to attack the truthfulness of information included in the prosecutor’s § 2703(d)

application. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978). She also sought to

suppress her confession on the grounds that the FBI agents had coerced her statements

by telling her that she would miss her methadone appointment if they had to wait for

counsel to arrive.

Before Thousand pleaded guilty, a magistrate judge had already conducted an

evidentiary hearing on her motions and recommended that the district judge deny

them. At the hearing Thousand had testified, as did Agents Lavelle and Mayers.

Thousand testified that she asked during the traffic stop if she could go to the clinic

before being interviewed but was told no. After the agents began questioning her about

the robberies, Thousand testified, she said, twice, “I think I need an attorney.” After

that, Thousand continued, the agents had left the conference room for about 20 minutes

before having her sign another waiver of counsel and resuming the interrogation.

Thousand explained that she inquired again if she would make her appointment, andNo. 13

‐ 2599 Page 3

was told that she might not arrive at the clinic before closing time if she waited for an

attorney to arrive. Thousand added that the thought of missing her appointment had

made her antsy, panicky, and unfocused. In contrast, both agents testified that

Thousand actually had said, “I think I need a lawyer, I don’t know, but I want to

cooperate and talk.” Agent Mayers denied telling Thousand that she risked missing her

appointment if she invoked her right to counsel and testified that he assured her

numerous times that they would take her to the clinic before it closed, no matter what.

Both agents agreed that Thousand appeared relaxed during the interview and showed

no physical signs of withdrawal. In denying Thousand’s motions, the district judge

credited the agents over the defendant, as the magistrate judge also had done.

At sentencing the district court calculated a total offense level of 18 and criminal

history category of I, yielding a guidelines imprisonment range of 27 to 33 months. The

offense level includes a 2

‐ level upward adjustment for making a death threat,

see U.S.S.G. § 2B3.1(b)(2)(F), based on a note Benike handed a teller saying, “I have a

gun,” and a 3

‐ level decrease for Thousand’s minimal role in the offense, see id. § 3B1.2.

The district court imposed a below

‐ guidelines sentence of six months’ imprisonment

and three years’ supervised release.

Thousand filed a notice of appeal, but her appointed lawyer asserts that the

appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 744

(1967). Thousand has not responded to counsel’s submission. See C IR

. R. 51(b). We limit

our review to the potential issues identified in counsel’s facially adequate brief.

See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002). Thousand does not wish

to challenge her guilty plea, and thus counsel appropriately omits discussion about the

adequacy of the plea colloquy and the voluntariness of the plea. See United States v.

Knox, 287 F.3d 667, 671–72 (7th Cir. 2002).

Counsel first considers whether Thousand could argue that the district court

erred in ruling on her motion to suppress the telephone records without conducting a

Franks hearing. A Franks hearing is required only when the defendant “makes a

substantial preliminary showing that authorities deliberately or recklessly made

material misrepresentations” in an application for a search warrant. United States v.

Currie, 739 F.3d 960, 963 (7th Cir. 2014). Yet the government did not use a search

warrant to obtain phone records in this case; rather, the government secured those

records using an order authorized by the Stored Communications Act, Pub. L.

No. 99

‐ 508, 100 Stat. 1861, tit. II, § 201 (codified as amended at 18 U.S.C. §§ 2701 to

2712), and if there was error in the procuring of the records under the statute, theNo. 13

‐ 2599 Page 4

exclusionary rule is not a remedy, see 18 U.S.C. §§ 2707 to 2708; United States v. Chaparro

‐

Alcantara, 226 F.3d 616, 621 (7th Cir. 2000); United States v. Condon, 170 F.3d 687, 689 (7th

Cir. 1999); United States v. Clenney, 631 F.3d 658, 666–67 (4th Cir. 2011); United States v.

Perrine, 518 F.3d 1196, 1201–02 (10th Cir. 2008). More importantly, Franks cannot be

relevant unless the Fourth Amendment is relevant, and that question turns on whether

the defendant has, as counsel assumes but does not assert, a legitimate expectation of

privacy in her carrier’s records and the cell

‐ tower data. See United States v. Scott, 731

F.3d 659, 663 (7th Cir. 2013); United States v. Stefonek, 179 F.3d 1030, 1035 (7th Cir. 1999).

Before the days of mobile phones, the Supreme Court held that a person has no

legitimate expectation of privacy in a phone company’s records of numbers dialed on a

telephone, and thus a defendant cannot invoke the Fourth Amendment when the police

install a pen register without a warrant. Smith v. Maryland, 442 U.S. 735, 745–46 (1979);

see United States v. Kramer, 711 F.2d 789, 792 (7th Cir. 1983). After Smith was decided,

Congress enacted the Electronic Communications Privacy Act of 1986, Pub. L. No. 99

‐

508, 100 Stat. 1848 (1986)

, which statutorily limits the ability of law enforcement to

obtain certain phone records from telecommunication carriers. See Robert A. Pikowsky,

An Overview of the Law of Electronic Surveillance Post September 11

, 2001, 94 Law Libr. J.

601, 608 (2002). The Stored Communications Act is part of that legislation and allows

authorities to obtain a court order compelling disclosure of noncontent records,

including subscriber information and connection data, that are “relevant and material to

an ongoing criminal investigation.” 18 U.S.C. § 2703(c), (d); see Orin S. Kerr, Internet

Surveillance Law after the USA Patriot Act: The Big Brother that Isn’t

, 97 NW. U. L. Rev.

607, 611 (2003). A showing of probable cause is not required. See In re Application of U.S.

for Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d 283, 287 (4th Cir. 2013); In re

Application of U.S. for Order Directing Provider of Elec. Commc’n Serv. to Disclose Records to

Gov’t, 620 F.3d 304, 315 (3d Cir. 2010). Authorities regularly invoke the Stored

Communications Act during criminal investigations to obtain court orders for

information relating to cell

‐ site tower locations. See Am. Civil Liberties Union v. U.S. Dep’t

of Justice, 655 F.3d 1, 3–4 (D.C. Cir. 2011).

We have yet to address whether, notwithstanding Smith, cell

‐ tower information

that telecommunication carriers collect is protected by the Fourth Amendment. Recently

the Fifth Circuit concluded that Supreme Court precedent “does not recognize a

situation where a conventional order for a third party’s voluntarily created business

records transforms into a Fourth Amendment search or seizure,” and thus the court

rejected the contention that using court orders available through the Stored

Communications Act to collect historical cell

‐ tower data without a showing of probableNo. 13

‐ 2599 Page 5

cause is unconstitutional. In re Application of U.S. for Historical Cell Site Data, 724 F.3d

600, 614–15 (5th Cir. 2013); see also In re Application of U.S. for Order Directing Provider of

Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d at 313–15 (concluding that,

although § 2703(d) does not require authorities to show probable cause to obtain

historical cell

‐ tower data, judges have authority in particular cases to reject § 2703(d)

applications and instead require use of search warrant establishing probable cause);

United States v. Forest, 355 F.3d 942, 950–52 (6th Cir. 2004) (concluding that DEA use of

cell

‐ site data was not a “search” under Fourth Amendment because authorities tracked

defendant’s movements along public highways), vacated on other grounds sub. nom.

Garner v. United States, 543 U.S. 1100 (2005). We have not found any federal appellate

decision accepting Thousand’s premise that obtaining cell

‐ site data from

telecommunications companies—under any factual scenario—raises a concern under

the Fourth Amendment.

Like the district court, we would have no reason in this case to express an

opinion about whether a probable

‐ cause standard should govern § 2703(d) applications

seeking cell

‐ tower data that will disclose a subscriber’s location at a particular time. In

her motion to suppress, Thousand never asserted that the prosecutor’s application for a

§ 2703(d) order, if taken at face value, does not establish probable cause. Rather, her

only contention was that a Franks hearing was necessary to explore what Thousand

characterized as a material misstatement in the application; without that misstatement,

Thousand argued, the court would not have granted the § 2703(d) application. The

district court rejected that contention with the explanation that, to the extent that a

showing of probable cause was necessary, the affidavit would have sufficed without the

disputed information. We agree with appellate counsel that a challenge to the district

court’s conclusion would be frivolous.

To obtain a Franks hearing, the allegedly false statement must be material “in the

sense that it was necessary to find probable cause.” United States v. Schultz, 586 F.3d 526,

531 (7th Cir. 2009); see United States v. Robinson, 724 F.3d 878, 886 (7th Cir. 2013).

Thousand had attacked the § 2703(d) application because the prosecutor erroneously

stated that she had a conviction for possessing marijuana. But the application also

disclosed that surveillance video from the banks showed the robber making his

getaway in a silver Toyota Corolla with a sun roof; 49 vehicles registered in Dane

County, Wisconsin, matched that description; Thousand had been observed driving a

silver 2004 Toyota Corolla with a sunroof; Benike could not drive because his license

had been revoked; investigators had not ruled out Thousand and Benike as suspects

after interviewing them; and Benike’s physical appearance matched the robber seen inNo. 13

‐ 2599 Page 6

the banks’ surveillance videos. So whether or not Thousand had a drug conviction, the

application accurately conveyed that she owned a car matching the images captured by

video surveillance and was dating a man fitting the description of the robber, which

together add up to probable cause to believe that the wireless records would be

incriminating. See United States v. Hicks, 650 F.3d 1058, 1065 (7th Cir. 2011).

Appellate counsel next discusses two possible arguments concerning Thousand’s

motion to suppress her confession. The first concerns her assertion that the FBI agents

did not terminate the questioning after she mentioned a lawyer, and the other is

whether the agents coerced her statements by telling her that she would miss her

methadone dose if she insisted on waiting for counsel. For Thousand to be able to cast a

nonfrivolous argument based on the interrogation, however, she would need to

convince us that the district court clearly erred in crediting the agents’ testimony over

hers. Given the special deference we accord credibility determinations made by district

courts, United States v. Knope, 655 F.3d 647, 651 (7th Cir. 2011); United States v. Terry, 572

F.3d 430, 434–35 (7th Cir. 2009), we also would evaluate the version of the interrogation

given by the agents. And we agree with appellate counsel that their version would

doom any argument contesting the denial of this motion to suppress.

Invoking the Fifth Amendment right to counsel requires an unambiguous

request for a lawyer. See Davis v. United States, 512 U.S. 452, 459 (1994); United States v.

Martin, 664 F.3d 684, 688 (7th Cir. 2011). If the request is equivocal, questioning need not

end. United States v. Wysinger, 683 F.3d 784, 793 (7th Cir. 2012). Agent Lavelle testified

that Thousand said, “I think I need a lawyer, I don’t know, but I want to cooperate and

talk.” So we would evaluate whether that statement constitutes an unambiguous

invocation of the right to counsel. But as counsel rightly points out, by immediately

qualifying “I think I need a lawyer” with “I don’t know,” Thousand failed to express a

“clear implication of a present desire to consult with counsel.” See Lord v. Duckworth, 29

F.3d 1216, 1221 (7th Cir. 1994); see also United States v. Hampton, 675 F.3d 720, 727 (7th

Cir. 2012) (noting that using “hedge” words like “but” when referring to counsel would

lead a reasonable officer to understand only that suspect might want attorney present);

United States v. Buckley, 4 F.3d 552, 558–59 (7th Cir. 1993) (concluding that stating “I

don’t know if I need an attorney” was insufficient to invoke right to counsel)

.

As for the alleged coercion, a confession is voluntary “if, under all the

circumstances, it is the product of rational intellect and free will and not the result of

physical abuse, psychological intimidation, or deceptive interrogation tactics that have

overcome the defendant’s free will.” United States v. Carson, 582 F.3d 827, 833 (7th Cir.No. 13

‐ 2599 Page 7

2009) (internal quotation marks and citation omitted). Factors we consider include the

suspect’s mental state and how drug use may have affected that state. United States v.

Vallar, 635 F.3d 271, 282 (7th Cir. 2011). The agents repeatedly assured Thousand that,

no matter what, she would be able to go to the clinic to receive methadone that day.

They also testified that she exhibited no physical signs of withdrawal during the

interview. And as appellate counsel points out, Thousand never contended that any

other aspect of the interrogation coerced her confession. Because we would accept the

agents’ testimony as accurate, we necessarily would reject any assertion that they took

advantage of Thousand’s addiction and dependence on them to make her scheduled

appointment, and so there would be no basis for Thousand to contest the denial of her

motion to suppress her confession.

Counsel next questions whether Thousand could challenge the 2

‐ level upward

adjustment for making a threat of death, see U.S.S.G. § 2B3.1(b)(2)(F), or the district

court’s decision to limit the decrease for her role in the offense to 3 levels instead of 4,

see id. § 3B1.2(b). At sentencing Thousand did not argue that Benike’s note about having

a gun was not an implied threat of death or that his note was not reasonably

foreseeable; rather, she argued that she should not be held responsible for Benike’s

actions because she participated under duress. This contention was really an appeal to

the district court’s sentencing discretion and not an objection that applying the upward

adjustment would lead to miscalculation of her offense level. See United States v.

Gonzalez, 462 F.3d 754, 755 (7th Cir. 2006). Thus, we would review only for plain error

an appellate claim that the court erred by applying § 2B3.1(b)(2)(F). United States v.

Corona

‐ Gonzalez, 628 F.3d 336, 340 (7th Cir. 2010). A defendant is responsible for the

reasonably foreseeable acts of a co

‐ defendant, U.S.S.G. § 1B1.3; United States v. Zhaofa

Wang, 707 F.3d 911, 914–15 (7th Cir. 2013); United States v. Smith, 697 F.3d 625, 636 (7th

Cir. 2012), and Thousand’s admission that she saw Benike write the threatening note

was enough for the court to apply the increase. Nor would we conclude that the court

clearly erred by deciding that Thousand’s role was not so insignificant as to make her a

minimal participant. The guidelines define a minimal participant as someone with a

“lack of knowledge or understanding of the scope and structure of the enterprise.”

U.S.S.G. § 3B1.2 cmt. n.4; see United States v. Garcia, 580 F.3d 528, 538 (7th Cir. 2009). The

district court found that Thousand’s role was limited to driving Benike to and from the

vicinity of the banks and calling some of the banks to confirm their hours. The court

acknowledged that her role was substantially smaller than Benike’s, so she was entitled

to a reduction, but only to three levels because she had a complete understanding of

Benike’s illegal activities. See United States v. Scroggins, 939 F.2d 416, 424 (7th Cir. 1991)

(approving denial of minimal

‐ role reduction for defendant in drug conspiracy whoNo. 13

‐ 2599 Page 8

understood scope of co

‐ defendant’s activities and allowed drug transactions to take

place in his residence). Therefore, any argument that the court misapplied these two

adjustments would be frivolous.

Lastly, counsel evaluates whether Thousand could challenge the reasonableness

of her 6

‐ month sentence and correctly concludes that any appellate claim would be

frivolous. Thousand’s below

‐ guidelines sentence is presumed reasonable, see Rita v.

United States

, 551 U.S. 338, 347 (2007); United States v. Banas, 712 F.3d 1006, 1012 (7th Cir.

2013), and we agree with counsel that the record presents no basis to set that

presumption aside.

Accordingly, the motion to withdraw is GRANTED, and the appeal is

DISMISSED.