1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, Case No. 14-20780 

 Hon. Matthew F. Leitman 

v. 

CURTIS SCOTT, 

 Defendant. 

__________________________________________________________________/ 

OPINION AND ORDER DENYING DEFENDANT’S 

MOTIONS TO SUPPRESS (ECF ## 15, 16, 17) 

 On December 9, 2014, a grand jury indicted Defendant Curtis Scott 

(“Scott”) on one count of making a false statement to a federal agent in violation of 

18 U.S.C. § 1001. (See ECF #10.) The indictment alleges that Scott lied when he 

told an FBI agent that he (Scott) did not possess a cellular phone that was used by a 

suspected carjacker, Roland Hubbard (“Hubbard”). (See id.) Scott has now filed 

three separate motions to suppress evidence that the Government may introduce 

against him at trial. (See ECF ## 15-17.) For the reasons stated in this Opinion 

and Order, the Court DENIES Scott’s motions. 

RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

 On November 12, 2013, two men approached a custodian at Seaholm High 

School in Birmingham and stole his car at gunpoint. Police later located the car 

driving south on I-75 and pursued the vehicle as it drove into Detroit. The suspects 

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eventually abandoned the car and took off on foot. One of the suspects, Hubbard, 

was eventually captured in a vacant home. Police never found the second suspect. 

 After his arrest, Hubbard agreed to speak with the Detroit Gang Intelligence 

Unit about gang activity unrelated to the carjacking. Two members of the FBI 

Oakland County Violent Gangs Task Force – FBI Special Agent Jeff Jacobs and 

Michigan Department of Corrections Officer Matthew Wieas (collectively, the 

“Agents”) – observed Hubbard’s interview. During this interview, Hubbard 

purportedly said that he lived with Scott, and he identified Scott as his uncle. 

Hubbard also told the gang unit that he had a cellar phone and that the phone was 

in Scott’s possession (the “Hubbard Phone”). 

 Based on the information Hubbard provided in the interview, the Agents 

decided to speak with Scott. They hoped Scott could provide them with additional 

information about Hubbard and the carjacking and that he could lead them to the 

Hubbard Phone, which police had been unable to locate. 

 On November 14, 2013, the Agents travelled to Scott’s place of 

employment, the Coin-O-Matic laundromat in Detroit. They approached Scott, 

identified themselves, and indicated that they wished to speak with Scott. Scott 

and the Agents then went to an area in the back of the laundromat where they 

could speak in private. The Agents asked Scott questions about his relationship 

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with Hubbard and about the carjacking. Scott admitted that he knew Hubbard and 

had acted as Hubbard’s mentor. 

 The Agents also asked Scott questions about the Hubbard Phone. Scott gave 

the Agents the phone number for the Hubbard Phone, but he denied that he was in 

possession of the phone. Scott then agreed to accompany the Agents in their car to 

an abandoned home where Scott believed Hubbard was living and where the 

Hubbard Phone may have been located. When the Agents and Scott arrived at that 

location, however, the door was locked, and the Agents declined Scott’s offer to 

break the door of the home down so they could continue their search. 

The Government says that Scott was lying when he told the Agents that he 

did not have the Hubbard Phone. Scott’s denial forms the basis of the charge that 

Scott violated 18 U.S.C. § 1001. (See ECF #10.) 

Scott has now filed three motions to suppress evidence the Government may 

introduce against him at trial: 

 A motion to suppress the statements Scott made to the Agents on November 

14, 2013 (ECF #17); 

 A motion to suppress evidence seized pursuant to a November 18, 2013, 

search warrant for data from the Hubbard Phone (ECF #15); and 

 A motion to suppress evidence seized pursuant to warrantless orders issued 

on November 18, 2013, and January 9, 2014, for data related to the location 

and call history of the Hubbard Phone and the cellular phone that Scott used 

(the “Scott Phone”) (ECF #16). 

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The Court held an evidentiary hearing and heard legal argument on the three 

motions to suppress on June 23, 2015. It will now address each motion in turn. 

ANALYSIS 

A. Scott’s Motion to Suppress His Statements to the Agents 

Scott seeks to suppress the statements he made to the Agents during his 

encounter with them on November 14, 2013. Scott argues that the Court should 

exclude those statements on the grounds that they were involuntary and that their 

admission into evidence would violate his Fifth Amendment rights. (See ECF 

#17.) 

 At the evidentiary hearing, the Court heard testimony from the Agents and 

from Scott. The Agents and Scott characterized their encounter very differently. 

The Agents explained that they met with Scott to seek his help in their 

investigation into Hubbard, not to gather information to be used against him

(Scott); that the meeting was cordial; that Scott was cooperative; that they never 

restrained nor handcuffed Scott in any way; and that they left the meeting believing 

that Scott would help them in their investigation of Hubbard and the carjacking. 

The Agents further testified that they did not frisk Scott before they placed him in 

their car and sat him directly behind them in the back seat (as they drove to the 

abandoned house where Hubbard may have been living). In contrast, Scott 

testified that the Agents threatened to have him thrown in jail if he did not 

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cooperate with their investigation; were aggressive in their questioning; implied 

that he may have been involved in a series of carjackings; confronted him about his 

past criminal history; and made him feel as if he was not free to stop or leave the 

meeting. Scott did acknowledge, however, that he was neither physically 

restrained nor handcuffed during his meeting with the Agents. 

The Court has carefully considered all of this testimony and the demeanor of 

these witnesses, and it finds the version of events offered by the Agents more 

credible than that offered by Scott. Scott’s testimony cannot logically be squared 

with one undisputed fact. Scott maintains that the Agents regarded him as the 

ringleader of a carjacking gang and confronted him as if he was a criminal. But it 

is undisputed that when Scott accompanied the Agents to the house in which 

Hubbard may have been living, the Agents sat him in the back seat of their car and 

did not restrain him in any way. The Court finds persuasive the Agents’ insistence 

that they never would have proceeded in this manner – i.e., allowing Scott to sit 

unrestrained and out of their view in a spot from which he could have easily 

attacked them1

 – if, as Scott claims, they suspected that Scott was connected to 

violent crime or if the environment of the meeting was as confrontational as Scott 

claims. When the governing law is applied to the Agents’ version of the facts, it 

 

1

 The Agents’ car was not a police cruiser. Instead, it was an ordinary civilian 

vehicle, and it did not have a partition of any kind between the front and back 

seats. 

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becomes clear that Scott’s statements were not involuntary and their admission 

would not violate Scott’s Fifth Amendment rights. 

 “In order to determine whether a [statement] was voluntarily made, a court 

must evaluate the totality of the circumstances surrounding the interrogation to 

determine whether the defendant's will was overborne and his capacity for selfdetermination critically impaired. Coercive police activity is a necessary predicate 

to the finding that a confession is not voluntary.” Loza v. Mitchell, 766 F.3d 466, 

477 (6th Cir. 2014) (internal punctuation and citation omitted). “In addition to the 

crucial element of police coercion, courts consider the length of the interrogation, 

its location, its continuity, the defendant's maturity, education, physical condition, 

and mental health.” Id. at 478 (internal quotation marks omitted). 

 Here, the Court finds that, as the Agents testified, they did not engage in 

conduct that overcame Scott’s will and/or critically impaired his capacity for selfdetermination. Moreover, the meeting between the Agents and Scott lasted a short 

period of time – roughly thirty minutes – and occurred during the middle of the day 

in a location that was familiar to Scott. There is also no indication that Scott was 

in poor physical or mental health during the meeting, nor that Scott asked for a 

lawyer or requested assistance of any kind. All of these facts compel the 

conclusion that Scott’s statements to the Agents were not involuntary. 

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 Furthermore, Scott cites only a single case in which a federal court has 

found a defendant’s statement to be involuntary, and that case – United States v. 

Brown, 557 F.2d 541 (6th Cir. 1977) – is distinguishable. In Brown, the Sixth 

Circuit excluded a nineteen-year-old defendant’s confession as involuntarily 

where, among other things, (1) it was made in the back seat of a police car while 

the defendant was handcuffed and seated between two police officers, (2) the 

defendant “was struck by one of the officers in the car at the time he made the 

incriminating statements,” (3) the confession was “induced by [the defendant’s] 

overwhelming fear that he would be beaten by police,” and (4) the defendant was 

in “hysterics” as he confessed, and was “crying, screaming and thrashing about.” 

Id. at 548, 550, 554. Here, Scott’s statements were made at his place of 

employment, not the “inherently coercive setting” of a police car. Id. at 551. 

Moreover, Scott has never accused the Agents of physically assaulting him or 

placing him in fear of a physical assault. Nor was Scott “crying, screaming, and 

thrashing about” as he spoke with the Agents. Brown thus does not support 

suppression here. 

 Finally, even if Scott’s statements to the Agents had been involuntary, the 

Court would not suppress the statement that forms the basis of the charge against 

him – i.e., Scott’s allegedly-false statement that he did not have the Hubbard 

Phone. Admission of that statement into evidence is permissible because the Fifth 

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Amendment does not “confer[] a privilege to lie.” Brogan v. United States, 522 

U.S. 398, 404 (1998). Indeed, “while the Fifth Amendment may protect [a] 

defendant’s right to remain silent, it does not give him the right to lie once he 

chooses to speak.” United States v. Vreeland, 684 F.3d 653, 660 (6th Cir. 2012). 

Thus, Scott “cannot invoke the Fifth Amendment to protect the [alleged] 

falsehoods ... that resulted in his [prosecution] under 18 U.S.C. § 1001.” Id.2

 

B. Scott’s Motion to Suppress Evidence Seized Pursuant to the November 

 18, 2013, Search Warrant for the Hubbard Phone

On November 18, 2013, Michigan’s 48th District Court issued a warrant for 

data from the Hubbard Phone (the “November 18 Warrant”). (See ECF #15 at Pg. 

ID 56-58.) The November 18 Warrant authorized police to seize “[a]ny/all account 

records, including incoming/outgoing telephone calls [] and incoming/outgoing 

text messages” from the Hubbard Phone for November 11 and 12 of 2013. (Id.) 

Scott now moves to suppress these text messages and calling records on the ground 

that the affidavit supporting the application for the November 18 Warrant failed to 

establish probable cause that the records contained evidence of a crime. (See id. at 

 

2 See also United States v. Melancon, 662 F.3d 708, 712 (5th Cir. 2011) (“The 

exclusionary rule does not act as a bar to the prosecution of a crime where the 

statements themselves are the crime”).

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Pg. ID 48-52.) However, Scott lacks standing to seek suppression of the evidence 

from the Hubbard Phone.3

 “[A] defendant has standing to challenge the admission of evidence only if 

the defendant's own constitutional rights have been violated.” United States v. 

Davis, 430 F.3d 345, 360 (6th Cir. 2005) (concluding that defendant could not 

challenge admission of evidence against him obtained from or resulting from 

unconstitutional search of co-defendant’s car). Courts “determine standing [in this 

context] by deciding whether a defendant can establish a legitimate expectation of 

privacy in the area searched or the items seized.” Id. (internal quotation marks 

omitted). Where a defendant seeks to suppress text messages retrieved from a cell 

phone, he “must show, first, that he had an actual, subjective expectation of 

privacy in the text messages; and second, that his expectation was objectively 

reasonable.” United States v. Gonzalez, 560 Fed. App’x 554, 558 (6th Cir. 2014) 

(internal quotation marks omitted) (holding that defendant failed to satisfy his 

 

3

 The Court acknowledges that the Supreme Court has at times eschewed the term 

“standing” in the Fourth Amendment context and, instead, has focused on whether 

a defendant seeking suppression had a reasonable expectation of privacy in the 

thing being searched. See Rakas v. Illinois, 439 U.S. 128, 140 (1978). However, 

the Court finds the term “standing” to be a helpful shorthand in this context, and 

the Court notes that the Sixth Circuit has used the term “standing” in this context 

within the past month. See United States v. Bah, --- F.3d. ---, 2015 WL 4503253, at 

*5 (6th Cir. July 24, 2015). 

 

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burden of showing reasonable expectation of privacy in text messages retrieved 

from another individual’s phone). 

 Scott has not carried his burden of establishing that he had a reasonable 

expectation of privacy in records of (1) text messages sent to or from the Hubbard 

Phone and/or (2) calls made to or from the Hubbard Phone. In his original motion 

and supporting brief, Scott did not address the issue of whether he had a reasonable 

expectation of privacy in these records. Instead, Scott proceeded directly to the 

merits question and argued only that the affidavit supporting the November 18 

Warrant lacked probable cause. (See ECF #15.) 

 The Government raised the standing issue in its response to Scott’s motion. 

(See ECF #20 at Pg. ID 107-108.) The Government noted that Scott was listed as 

the “subscriber” of the Hubbard Phone, but it argued that that he had no 

expectation of privacy in the text messages or records obtained from that phone 

because Scott gave the phone to Hubbard for Hubbard to use. (See id. at Pg. ID 

107.) In his reply brief, Scott argued that even though he gave the Hubbard Phone 

to Hubbard, his (Scott’s) status as the phone’s “subscriber” gave him a reasonable 

expectation of privacy in the phone’s text messages and call records. (See ECF 

#22 at 2-3, Pg. ID 151-152.) But Scott’s status as the “subscriber” of the Hubbard 

Phone – in effect his ownership of the account associated with the phone – is not 

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enough, standing alone, to give rise to a reasonable expectation of privacy in the 

texts to and from, and records related to, the Hubbard Phone. 

“[O]wnership alone does not justify a reasonable expectation of privacy. 

The Supreme Court has consistently held that privacy interests are not coterminous 

with one's property rights.” Shamaeizadeh v. Cunigan, 338 F.3d 535, 544 (6th Cir. 

2003). “While property ownership is clearly a factor to be considered in 

determining whether an individual's Fourth Amendment rights have been violated, 

property rights are neither the beginning nor the end of [a] [c]ourt's inquiry.” 

United States v. Salvucci, 448 U.S. 83, 91 (1980) (internal citation omitted). “In 

deciding whether someone has a reasonable expectation of privacy for Fourth 

Amendment purposes, courts consider a number of factors,” of which ownership is 

just one: 

the person's proprietary or possessory interest in the place 

to be searched or item to be seized .... whether the 

defendant has the right to exclude others from the place 

in question; whether he had taken normal precautions to 

maintain his privacy; [and] whether he has exhibited a 

subjective expectation that the area would remain free 

from governmental intrusion[.] 

Shamaeizadeh, 388 F.3d at 544-545. 

 Apart from identifying himself as the “subscriber” of the Hubbard Phone, 

Scott has not identified any evidence in the record that would support a reasonable 

expectation of privacy in the phone under the relevant factors. For example, Scott 

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argues in his reply brief that he could have excluded others from using the 

Hubbard Phone, or could have taken it back from Hubbard at any time, but he has 

not presented any evidence of this purported control. Though he testified at the 

evidentiary hearing before the Court, Scott did not attempt to explain the 

circumstances under which he gave the Hubbard Phone to Hubbard, the conditions 

under which Hubbard was permitted to keep and use the phone, and whether he 

(Scott) ever attempted to exclude anyone other than Hubbard from using the 

phone. Moreover, Scott’s attorney candidly acknowledged at the hearing that 

“beyond telling [the Court] that [Scott] is the subscriber, [counsel could not] give 

[the Court] any other information about the usage of the [Hubbard] [P]hone.” 

Scott’s counsel further acknowledged that others (beyond Hubbard) may have had 

access to the Hubbard Phone. In sum, Scott has not presented any evidence that he 

took any precautions to maintain the privacy of the Hubbard Phone once it left his 

possession or that Scott could have, or did, exercise control over the phone. 

 Under nearly identical circumstances, a Pennsylvania federal district court 

recently concluded that a defendant who was listed as the “subscriber” of a cell 

phone that he gave to a third party “failed to satisfy his burden of demonstrating 

that he had an expectation of privacy” in the phone’s messages and content: 

Here, as the phone's subscriber, Brewer [the defendant] 

may have had some unknown property interest in the 

phone. But, considering the other relevant factors, it is 

clear to us that Brewer has failed to satisfy his burden of 

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demonstrating that he manifested a subjective 

expectation of privacy in the phone. First, at the time the 

phone was seized, it was in the possession of Jamell 

Smallwood. Second, Brewer produced no evidence to 

demonstrate that, despite Smallwood's possession, he 

maintained the ability exclude others from the phone or 

took precautions to maintain his privacy in the phone. To 

the contrary, the evidence shows that Brewer voluntarily 

turned the phone over to Smallwood, who subsequently 

claimed complete ownership and control. Therefore, by 

his conduct, Brewer did not exhibit an actual expectation 

of privacy in the phone. Accordingly, we find that 

Brewer had no legitimate expectation of privacy and thus 

lacks the capacity to challenge the search of Smallwood's 

phone. 

United States v. Brewer, 2015 WL 2250150, at *3 (M.D. Pa. May 12, 2015) 

(internal citation omitted). The same is true here. 

C. Scott’s Motion to Suppress Evidence Seized Pursuant to the November 

18, 2013, and January 9, 2014 Warrantless Orders 

As part of their investigation into the Seaholm carjacking, the Agents sought 

and obtained from the 48th District Court two orders compelling the production of 

certain records maintained by cellular phone providers. These orders – dated 

November 18, 2013 (the “November 18 Order”) and January 9, 2014 (the “January 

9 Order”) – were not search warrants; rather, they were orders issued pursuant to 

the federal Stored Communications Act, 18 U.S.C. § 2701 et seq.

4

 The 

 

4

 The Stored Communication Act permits law enforcement to obtain an order 

requiring a cell phone provider to disclose certain historical records upon a 

showing of “reasonable and articulable facts showing that there are reasonable 

grounds to believe that the ... records ... sought[] are relevant and material to an 

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Government has informed the Court that the police did not obtain any information 

or records in response to the January 9 Order (see ECF #31 at ¶3, Pg. ID 199), and 

thus the records produced pursuant to the November 18 Order are the only ones 

now at issue. 

The November 18 Order required the cell phone providers to produce two 

types of records: (1) records identifying which cellular phones were connected to 

cellular towers within one mile of Seaholm High School in the ninety minutes 

surrounding the time of the carjacking (the “Cell Tower Connection Records”) and 

(2) records of calls made during that same 90-minute time period by certain 

cellular phones that connected to the cellular towers near Seaholm (the “Call 

History Records”).5

 According to the Government, the Cell Tower Connection 

Records and the Call History Records show that the Scott Phone and the Hubbard 

 

ongoing police investigation.” 18 U.S.C. § 2703(d). “This showing is lower than 

the probable cause standard required for a search warrant” under the Fourth 

Amendment. United States v. Herron, 2 F.Supp.3d 391, 401 (E.D.N.Y. 2014). 

5

 Specifically, with respect to the Cell Tower Connection Records, the November 

18 Order required cell phone companies to provide “all transactional records 

(including, without limitation, registrations, and connection records) processed 

through any cell site located within 1 (One) miles” of where the carjacking 

occurred between the hours of 4:00 a.m. and 5:30 a.m. on the day of the 

carjacking.” (ECF #24-3 at 8, Pg. ID 181.) With respect to the Call History 

Records, the November 18 Order required the production of the “(A) name; (B) 

address, (C) local and long distance telephone connection records, and records of 

session times and durations; (D) length of service (including start date) and types 

of service utilized; (E) telephone or instrument number or other subscriber number 

or identity...; [and] (F) means and source of payment for such service” of certain 

identified cell phone numbers. (Id.) 

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Phone were in the vicinity of Seaholm around the time of the carjacking. (See ECF 

#19 at 5, Pg. ID 97.) The Government also said during oral argument that these 

records show the Scott Phone and the Hubbard Phone “were communicating” 

during this same time period.

Scott has moved to suppress the Cell Tower Connection Records and the 

Call History Records on the grounds that (1) the collection of the data in question 

was subject to the requirements of the Fourth Amendment and (2) the affidavits 

supporting the requests for the November 18 Order did not satisfy the Fourth 

Amendment’s probable cause standard.6

 (See ECF #16.) As set forth above, in 

order to raise a Fourth Amendment challenge like this, Scott must have had a 

reasonable expectation of privacy in the data obtained. See, e.g., United States v. 

Talley, 275 F.3d 560, 563 (6th Cir. 2001) (“It is well established that a defendant 

claiming that a search violated his Fourth Amendment rights has the burden of 

demonstrating that he had a legitimate expectation of privacy in the place that was 

 

6

 Scott (properly) does not appear to be seeking suppression of the evidence 

obtained from the November 18 Order on the ground that the government failed to 

satisfy the requirements of the Stored Communications Act (i.e., that the 

application in support of the November 18 Order did not contain “reasonable and 

articulable facts showing that there are reasonable grounds to believe that the ... 

records ... sought[] are relevant and material to an ongoing police investigation.” 

18 U.S.C. § 2703(d).) It is well recognized that the Stored Communications Act 

“does not provide an exclusion remedy. It allows for civil damages, and criminal 

punishment, but nothing more.” United States v. Smith, 155 F.3d 1051, 1056 (9th 

Cir. 1998) (emphasis in original; internal citations omitted); United States v. 

Guerrero, 768 F.3d 351, 357-358 (5th Cir. 2014) ([S]uppression is not a remedy 

for a violation of the Stored Communications Act”). 

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searched”). The Court will now analyze Scott’s possible privacy interests in data 

from the Hubbard Phone and the Scott Phone separately. 

1. Scott Has Not Established That He Had a Cognizable Expectation 

 of Privacy in Data Concerning the Location and Call History of 

 the Hubbard Phone 

For the reasons explained in detail above, Scott has failed to carry his burden 

of establishing that he had reasonable expectation of privacy in any data related to 

the Hubbard Phone. (See section B, supra.) Thus, Scott may not seek suppression 

of any data concerning the location and call history of the Hubbard Phone under 

the Fourth Amendment. 

2. Scott Has Not Established That He Had a Reasonable Expectation 

 of Privacy in the Cell Tower Connection Records That Showed 

 the General Historical Location of the Scott Phone 

The Cell Tower Connection Records the police obtained as a result of the 

November 18 Order provided an extremely limited set of data concerning the 

historical location of the Scott Phone. According to the Government, this data 

revealed only that the Scott Phone had been in the vicinity of Seaholm High 

School at some point during a discrete 90-minute period of time. (See ECF #19 at 

5, Pg. ID 97.) Sixth Circuit precedent forecloses Scott’s claim that he had a 

reasonable expectation of privacy in that limited set of historical location data. 

In United States v. Skinner, 690 F.3d 772 (6th Cir. 2012), the Sixth Circuit 

held that a defendant did not have a reasonable expectation of privacy in cellular 

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telephone data that revealed his location in real time over the course of three days. 

In light of Skinner, the Court must conclude here that Scott did not have a 

reasonable expectation of privacy in the data that revealed the general historical 

location7

 of his cell phone for, at most, a ninety-minute period on a single 

morning.8

 And because Scott lacked a reasonable expectation of privacy in that 

data, he may not raise a Fourth Amendment challenge to its collection. 

 

7

 Notably, the location data obtained from the Cell Tower Connection Records did 

not reveal the precise historical location of the Scott Phone; it only indicated 

whether the phone had been within a one-mile radius of Seaholm High School at a 

specific period of time. See United States v. Jones, 785 F.3d 498, 515 (11th Cir. 

2015) (“[h]istorical cell tower location data does not identify the cell phone user’s 

location with pinpoint precision”). Thus, the Cell Tower Connection Records do 

not raise the same concerns as other types of tracking devices and records, such as 

a real-time GPS, which can pinpoint a person’s exact location (and can reveal, for 

example, that a person was at a psychiatrist’s office or an abortion clinic). See, 

e.g., United States v. Jones, 132 S.Ct. 945, 955 (Sotomayor, J. concurring) (“GPS 

monitoring generates a precise, comprehensive record of a person's public 

movements that reflects a wealth of detail about her familial, political, 

professional, religious, and sexual associations”). Moreover, the data obtained 

from the Cell Tower Connection Records did not necessarily allow law 

enforcement to track the Scott Phone’s movement for the entire ninety-minute 

period. The data would have revealed the location of the Scott Phone for the entire 

ninety minute period only if the phone remained in the limited geographical radius 

in question for that entire period. 

8

 The Court notes that the Eleventh Circuit and the Fifth Circuit have concluded 

that a defendant lacks a reasonable expectation of privacy in cellular data that 

reveals his historical location. See Davis, 785 F.3d 498 at 511-512; In re 

Application of the United States for Historical Cell Site Data, 724 F.3d 600, 611–

615 (5th Cir. 2013). While these decisions support this Court’s decision that Scott 

lacked a privacy interest in the data at issue here, this Court need not resolve, and 

expresses no opinion concerning, whether a defendant may ever have a legitimate 

privacy interest in cellular data showing his historical location. The Court 

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This conclusion is not undermined by the primary authority that Scott relied 

upon in support of his request to suppress: In re U.S. ex rel. Order Pursuant to 18 

U.S.C. Section 2703(d), 930 F.Supp.2d 698 (S.D. Tex. 2012). In that case, a 

Magistrate Judge held that law enforcement had to satisfy the Fourth Amendment’s 

probable cause standard in order to obtain an order under the Stored 

Communications Act requiring a cellular service provider to produce historical 

information showing the locations of certain cell phones during an eight-hour 

period. That decision cannot be reconciled with Skinner, which is controlling and 

binding precedent here. Moreover, another Magistrate Judge from the same 

district has opined that the decision has been effectively overruled by a more recent 

decision of the Fifth Circuit. See In Re: Application for Cell Tower Records Under 

18 U.S.C. § 2703(D), 2015 WL 1022018 (S.D. Tex. Mar. 9, 2015) (citing In re 

Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th 

Cir. 2013). Scott is therefore not entitled to suppression of the historical location 

data from the Cell Phone Tower Records. 

 

concludes only that Scott lacked a sufficient privacy interest in the specific and 

narrow set of historical location data at issue in this case. 

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3. Scott Has Not Established That He Had a Reasonable Expectation 

 of Privacy in the Call History Records Showing the Calls Made to 

 and From the Scott Phone During the Ninety-Minute Period in 

 Question 

The Call History Records of the Scott Phone revealed, among other things, 

what numbers the Scott Phone was calling and how long those conversations lasted 

during a single ninety-minute time period. The Call History Records did not reveal 

the content of those communications. Because the type of data reflected in the Call 

History Records is routinely collected and stored in the business records of cellular 

phone providers, Scott did not have a reasonable expectation that this data would 

remain private. Suppression of these records is therefore not warranted.9

 This conclusion follows from the Supreme Court’s decision in Smith v. 

Maryland, 442 U.S. 735 (1979). In Smith, the Supreme Court held that a defendant 

had no expectation of privacy in the numbers he dialed on a telephone. The court 

rested this decision in part on its belief that: 

[P]eople in general [do not] entertain any actual 

expectation of privacy in the numbers they dial. All 

telephone users realize that they must ‘convey’ phone 

numbers to the telephone company, since it is through 

telephone company switching equipment that their calls 

are completed. All subscribers realize, moreover, that the 

 

9

 The Court is not deciding, and does not intend to hold, that an individual may 

never have a reasonable expectation of privacy in records like the Call History 

Records, especially those that encompass a longer period of time. The Court 

decides only that given the limited time period and amount of data retrieved in the 

Call History Records at issue here, that Scott had no reasonable expectation of 

privacy in those records. 

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phone company has facilities for making permanent 

records of the numbers they dial, for they see a list of 

their long-distance (toll) calls on their monthly bills. 

Id. at 742. The Supreme Court then concluded that “[w]hen he used his phone, 

[the defendant] voluntarily conveyed numerical information to the telephone 

company and ‘exposed’ that information to its equipment in the ordinary course of 

business. In so doing, petitioner assumed the risk that the company would reveal 

to police the numbers he dialed.” Id. at 744. 

 The same analysis applies here. Scott used the Scott Phone to make 

telephone calls, and the numbers he dialed and the length of his calls were recorded 

in the business records of his cellular phone provider. Scott voluntarily conveyed 

this information to the phone company, and he thus lacked an expectation of 

privacy in it. 

 The Eleventh Circuit recently reached the same conclusion in Davis, supra. 

In that case, the Eleventh Circuit held that it “did not violate the Fourth 

Amendment” for the government to obtain cell phone company records that 

included, among other things, “(1) telephone numbers of calls made by and to [a 

defendant’s] cell phone; (2) whether the call was outgoing or incoming; [and] (3) 

the date, time, and duration of the call” – records that were nearly identical to the 

Call History Records obtained here. Davis, 785 F.3d at 502-503. The Eleventh 

Circuit determined that “[t]his type of non-content evidence, lawfully created by a 

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21 

third-party telephone company for legitimate business purposes, does not belong to 

[a defendant], even if it concerns him.” Id. at 511. The court then concluded that 

the defendant could “assert neither ownership nor possession of the third-party's 

business records he sought to suppress,” and that he had “no subjective or 

objective reasonable expectation of privacy in [the cellular phone company’s] 

business records.” Id. It thus held “that the government's obtaining a § 2703(d) 

court order for production of [a cellular phone provider’s] business records...did 

not constitute a search and did not violate the Fourth Amendment rights of [the 

defendant].” Id. at 513. 

 Scott faces the same difficulties here. The Call History Records he seeks to 

suppress were compiled by, and belong to, his cellular phone provider, and he has 

provided no basis under which the Court can conclude he had a reasonable 

subjective or objective expectation of privacy in those records. See also United 

States v. Davis, 2011 WL 2036463, *3 (D.Or. May 24, 2011) (“It is well 

established that a reasonable expectation of privacy extends only to the content of 

telephone conversations, not to records that indicate that the conversations 

occurred. Basic subscriber data which identifies a call's origination, destination, 

duration, and time of call enjoy no privacy protection because the data is incidental 

to the use of the telephone, and contains no content information. Telephone users 

realize that telephone companies retain records of this information for a variety of 

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22 

legitimate business purposes, including billing and fraud protection”) (internal 

citations omitted). 

As Scott did not have a reasonable expectation of privacy in the Call History 

Records obtained as a result of the November 18 Order, he is not entitled to 

suppression of the records on the ground that their collection violated the Fourth 

Amendment. 

CONCLUSION 

 For the reasons stated above, IT IS HEREBY ORDERED that Scott’s 

motions to suppress evidence (ECF ## 15, 16, and 17) are DENIED. 

 s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

UNITED STATES DISTRICT JUDGE 

Dated: August 5, 2015 

 

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on August 5, 2015, by electronic means and/or ordinary 

mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113 

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