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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KENYATTA AKILI MCCONICO, 

Petitioner, 

v. 

UNITED STATES OF AMERICA, 

Respondent.

Criminal Case No. 15-20267 

Civil Case No. 18-12747 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

 / 

ORDER DENYING MOVANT’S MOTION TO VACATE SENTENCE PURSUANT TO 28

U.S.C. § 2255 [53] AND DENYING A CERTIFICATE OF APPEALABILITY 

 Kenyatta Akili McConico petitions the Court to vacate his conviction 

pursuant to 28 U.S.C. § 2255. Mr. McConico’s 2015 arrest was accomplished by use 

of Cell-Site Location Information (“CLSI”), which, prior to the Supreme Court’s 

ruling in Carpenter v. United States, 138 S. Ct. 2206 (2018), could be accessed by 

law enforcement even absent a showing of probable cause. Mr. McConico now asks 

for his conviction to be set aside in light of this ruling, arguing that his right to 

effective assistance of counsel was compromised by his attorneys’ inability to 

suppress evidence stemming from his arrest. 

FACTUAL BACKGROUND

 On March 19, 2015, Mr. McConico sold heroin to a woman who later fatally 

overdosed on the drug. (Dkt. # 1). Law enforcement found his cell-phone number 

on her phone and used this number to track him down. On March 23, 2015, Michigan 
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State Trooper Jacob Liss obtained an order from the 17th District Court of Michigan 

authorizing T-Mobile to generate emails notifying him of the location of Mr. 

McConico’s cell phone, pursuant to 18 U.S.C. §§ 3123-24, (Issuance of a Pen 

Register or Trap and Trace Device) and 18 U.S.C. § 2703(d) (Required Disclosure 

of Customer Communication or Records). (Dkt. 41, pg. 176; Gov’t Ex. 1). The 

officers then received, for about twenty-four hours, emails updating them as to the 

location of the phone. (Id. at 177). They used this information to arrest Mr. 

McConico for an outstanding warrant on the intersection of Evergreen and Grand 

River Avenue. (Dkt. 26, pg. 5). After a quantity of heroin was seized from Mr. 

McConico’s vehicle, he made several incriminating statements to the officers. (Id.). 

PROCEDURAL BACKGROUND

 On May 5, 2015, Mr. McConico was indicted federally for Distribution of 

Heroin Resulting in Death, in violation of 21 U.S.C. § 841. He was represented by 

five attorneys during the pendency of his case. On June 1, 2015, Attorney Andrew 

Wise of the Federal Defender Office made an appearance on Mr. McConico’s behalf 

[8]. Mr. McConico pled not guilty and was released on bond [12]. On September 3, 

2015, Attorney Benton Martin made an appearance for Mr. McConico [20]. He filed 

a Motion to Suppress Evidence on October 27, 2015 [26]. 

 A hearing was held on the motion on February 3, 2016, with Mr. Wise 

representing the Defendant. The Court ruled that the exclusionary rule would not 
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apply in this case, because “the police conducted the search ‘in objectively 

reasonable reliance on binding appellate precedent.’” Order Denying Defendant’s 

Motion to Suppress, Dkt. # 31, citing United States v. Fisher, 745 F.3d 200, 203 (6th 

Cir. 2014). The Court alluded at the hearing to forthcoming Sixth Circuit review of 

the constitutionality of cell-phone tracking activity, but ultimately determined that it 

need not reach that issue.1

 On March 9, 2016, the Federal Defender Office and Mr. Wise moved to 

withdraw as Mr. McConico’s counsel, citing a breakdown in the attorney client 

relationship [34]. On March 21, 2016, following a hearing, the Court granted this 

motion [36]. The following day, attorney Jerome Sabbota made an appearance for 

Mr. McConico [38]. Mr. Sabbota moved to withdraw on May 16, 2016, citing a 

breakdown in the attorney client relationship [42]. A hearing was held, and on July 

12, 2016, Mr. Sabbota’s motion for withdrawal was granted. 

 Jeffrey Lee Edison took over as Mr. McConico’s counsel on July 13, 2016 

[44]. On April 24, 2017, Mr. McConico pled guilty to the distribution of heroin 

resulting in death, in violation of 21 U.S.C. § 841(a)(1). His negotiated oral Rule 11 

plea agreement waived the 20-year mandatory minimum and called for a sentence 

 

1 On April 13, 2016, the Sixth Circuit ruled on United States v. Carpenter, 819 F.3d 

880 (6th Cir. 2016), and, on June 29, 2016, it denied rehearing en banc. That 

decision was reversed by the Supreme Court on June 22, 2018, in Carpenter v. 

United States, 585 U.S. ___ (2018).
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between 10 and 12 years. On September 11, 2017, the Court sentenced him to 10 

years in prison [52]. 

LEGAL STANDARD

To succeed on a motion to vacate, set aside, or correct sentence, a movant 

must allege “(1) an error of constitutional magnitude; (2) a sentence imposed outside 

the statutory limits; or (3) an error of fact or law that was so fundamental as to render 

the entire proceeding invalid.” Pough v. United States, 442 F.3d 959, 964 (6th Cir. 

2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). 

ANALYSIS

Mr. McConico alleges a violation of his constitutional right to the effective 

assistance of counsel. First, Mr. McConico argues that his counsel was deficient for 

not moving to suppress CSLI evidence pursuant to the Court’s query on the silver 

platter doctrine, which Mr. McConico took as a hint. Second, Mr. McConico argues 

that counsel was deficient for failing to advise him that Carpenter was pending and 

could change the law on the warrantless use of CSLI. 

To establish ineffective assistance of counsel, the movant must show that his 

counsel rendered deficient performance and thereby prejudiced the movant’s 

defense so as to render the outcome of the proceedings unreliable. See Strickland v. 

Washington, 466 U.S. 668, 687 (1984). The first Strickland prong requires the 

movant to show that his counsel’s representation “fell below an objective standard 
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of reasonableness.” Id. at 687. The second prong requires showing of prejudice: 

“The defendant must show that there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been 

different.” Id at 698. 

I. The Silver Platter Doctrine

The silver platter doctrine is a long-rejected loop-hole in the exclusionary rule 

which provided that “it is not a search by a federal official [and not subject to the 

exclusionary rule] if evidence secured by state authorities is turned over to the 

federal authorities on a silver platter.” Lustig v. United States, 338 U.S. 74, 78-79 

(1949) (plurality opinion). The doctrine was repudiated in 1960, and a motion based 

on the Supreme Court’s repudiation of the silver platter doctrine would not have 

affected the outcome of the Court’s evidentiary ruling. Indeed, the quotation of the 

Court cited by Mr. McConico is posed as a question to the Assistant United States 

Attorney on the Government’s motivations for bringing the case federally, not its 

ability to do so.2 The Supreme Court in Elkins v. United States, 364 U.S. 206, 224-

25 (1960) dispensed with the silver platter doctrine by ruling that 

 

2

 The colloquy is as follows: 

THE COURT: Why isn't this a state case? Are we getting close to silver 

platter kind of things, Mr. Chadwell? 

MR. CHADWELL: I am not sure what you mean by that. 

THE COURT: Silver platter is where the state does something in 

violation of the Fourth Amendment perhaps or even in violation of their 
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“evidence obtained by state officers during a search which, if conducted 

by federal officers, would have violated the defendant's immunity from 

unreasonable searches and seizures under the Fourth Amendment is 

inadmissible over the defendant's timely objection in a federal criminal 

trial.” 

Had Mr. McConico’s attorney raised the silver platter doctrine in a 

suppression motion, he would have merely been reiterating a holding that has been 

a backbone of fourth amendment jurisprudence for almost 60 years. The Court 

followed the holding in Elkins by deciding evidentiary issues based on federal, not 

state, law. See infra Part III. Indeed, the statutes authorizing the use of CSLI were 

federal statutes. Neither the silver plate doctrine, nor its repudiation, provides a 

ground to challenge the proficiency of Mr. McConico’s counsel. 

II. The Effect of Carpenter v. United States, 138 S. Ct. 2206 (2018) 

Mr. McConico argues that his guilty plea was not made voluntarily and 

knowingly because if he had known that the Supreme Court granted certiorari on the 

Sixth Circuit’s decision in United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016) 

he would have requested the Court reconsider its ruling in light of forthcoming 

Supreme Court review. Such a request could not have changed the outcome of the 

 

own laws so they can't use it in state court so they turn it over to the 

Federal Court? 

MR. CHADWELL: That's not the case. The reason it's in Federal Court 

is because of the death. We took a series of cases where heroin caused 

death where we could prove the distribution, and this is one of those 

cases. 

(Dkt. 41, pg. 5).
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suppression hearing, however, because the Court expressly declined to consider the 

question answered in Carpenter: whether law enforcement’s warrantless use of 

CSLI violated the Fourth Amendment. 

The Court instead based its decision on the good faith exception to the 

exclusionary rule. It held that “the exclusionary rule does not apply because the 

police conducted the search in objectively reasonable reliance on binding appellate 

precedence.” (Dkt. 31, pg. 1) (citing United States v. Fisher, 745 F.3d 200, 203 (6th 

Cir. 2014)). The good faith exception precludes Courts from suppressing otherwise 

admissible evidence where law enforcement conducted a search with a good faith 

desire to follow the law. Davis v. United States, 564 U.S. 229, 236-37 (2011). The 

Supreme Court in Davis expanded the use of the good faith exception announced in 

Herring v. United States, 555 U.S. 135, 139-40 (2009) to encompass not just 

officers’ “objectively reasonable reliance” on faulty warrants, but also their reliance 

on binding judicial precedence that would later be revised. Id. 

The good faith exception would have applied even if the Supreme Court 

decided Carpenter before this Court decided the motion to suppress, as 

demonstrated by its ruling in that decision. 

“I think without deciding that even if there were some illegality in the 

method used in tracking which you are arguing, I think the officer relying 

on the Sixth Circuit case and the pen register and the totality of everything 

was acting in good faith. He thought he had the necessary warrants and so 

on. And therefore, even if you prevail on the illegality of the monitoring 
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for a day or less on mostly public streets, you lose on the good faith 

exception. And therefore I am denying the motion.” 

(Dkt. 33, pg. 17). 

 What mattered for purposes of the suppression ruling was not whether the 

officers’ conduct was ultimately proven legal or illegal, but rather whether their 

conduct comported with what they had reason to believe the law was at the time they 

executed their search. See, e.g., United States v. Williams, 2008 WL 3659585 (Aug. 

2, 2018) (“Carpenter does not govern the outcome in this case where the 

Government relied—in good faith—on then existing law to obtain [Defendant’s] 

CSLI.”). 

CONCLUSION

Mr. McConico has not proved that any of his counsel were ineffective because 

he has not demonstrated any course of action that they could have taken to suppress 

the evidence seized as a result of the CSLI search. The silver platter doctrine was 

not applicable to this case, and the Supreme Court’s holding in Carpenter could not 

have been applied retroactively to exclude evidence that was lawfully obtained at 

the time of the search. 

Accordingly, 

IT IS ORDERED that Mr. McConico’s Motion to Vacate his Sentence [53] 

under 28 U.S.C. § 2255 is DENIED. 
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IT IS FURTHER ORDERED that Petitioner is DENIED a certificate of 

appealability because it is unlikely that “reasonable jurists could debate whether . . . 

the petition should have been resolved in a different manner or that the issues 

presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 

(1983)). 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: January 24, 2019 Senior United States District Judge