NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. DANIEL ASA HITESMAN,

Defendant

- Appellant. No. 16

- 10487

D.C. No. 5:14

- cr
- 00010

- LHK

- 1

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding Submitted August 14, 2020 * * San Francisco, California

Before: HAWKINS and CHRISTEN, Circuit Judges, and GRITZNER, ** * District Judge.
In 2016, Daniel Hitesman was tried and convicted of a July 2013 attempted bank robbery in violation of 18 U.S.C. § 2113(a) , and sentenced to a 192

- month

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa, sitting by designation. 

# FILED

AUG 26 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

term of imprisonment and a 3

- year term of supervised release

. He appeals the

district court ’s den ial of his motion to suppress historical cell

- site location information (CSLI), which the Government obtained in September 2013 through a court order issued pursuant to the Stored Communications Act ( SCA), 18 U.S.C.
§ 2 703(d). We have jurisdiction under 28 U.S.C. § 1291 and, on de novo review,

United States v. Barnes , 895 F.3d 1194, 1199 (9 t h Cir. 2018), we affirm. In 2018, more than five years after the Government secured the order in this

case that authoriz ed the release of the CSLI pursuant to the SCA, the Supreme

Court ruled the acquisition of historical CSLI constitutes a search within the meaning of the Fourth Amendment. United States v. Carpenter , 138 S. Ct. 2206,

22 2 1 (2018)

. However, this court has since held that “ CSLI acquired pre

Carpenter is admissible

— s o long as the Government satisfied the SCA ’s then

lawful requirements

— under Krull ’s good

- faith ex ception.” United States v.

Korte , 918 F.3d 750, 759 (9th Cir. 2019) (applying Illinois v. Krull , 480 U.S. 340, 342 (1987)). “ The statute explicitly authorized retrieval of these records by court

order if the Government ‘ offer[ed] specific and articulable facts showing that there are reasonable grounds to believe that .

. . the records or other information sought, are relevant and material to an ongoing criminal investigation ’

— a more lenient standard than probable cause. ” Id. at 758 (quoting 18 U.S.C. § 2703( d ))

. Here, the Government’s warrantless acquisition of Hitesman’s CSLI meets3

Krull ’s good

- faith exception. The Government satisfied the SCA’s requirements by providing “s pecific and articulable facts” in its application for Hitesman’s

CSLI

— namely the date and location of the robbery, the distribution of s ecurity camera photographs of the suspect, an employee at the half

- way house where

Hitesman lived subsequent ly identif yi ng the suspect as Hitesman, the subject phone number belong ing to Hitesman at the time of robbery, and Hitesman ’s prior bank robbery convictions. See id. Thus, the district court’s denial of Hitesman’s motion to suppress was proper. See i d. at 75 8

– 5 9 (“[I] t is hardly objectively unreasonable to rely on a then

- lawful statute when courts were upholding it or similar legislative schemes

. . . . S everal other circuits have already invoked this good

- faith exception when presented with similar facts

. ” (citi ng Krull , 480 U.S.

358

– 59) ).

AFFIRMED.