UNITED STATES OF AMERICA, Plaintiff, v. JAMES RONALD JONES and TONY BRITTON, Defendants No. 6:16-CR-34-GFVT-HAI-7,8 United States District Court, E.D. Kentucky Filed: April 13, 2018 Ingram, Hanly A., United States Magistrate Judge RECOMMENDED DISPOSITION *1 Defendant Tony Britton, through counsel, has filed a motion to suppress evidence obtained pursuant to two search warrants issued by North Carolina Superior Court Judge Mark E. Powell on November 16, 2015 (“November 16 Warrant”) and March 28, 2016 (“March 28 Warrant”). D.E. 247; D.E. 269. Specifically, Britton seeks to suppress subscriber registration information from DTC Wireless obtained pursuant to the November 16 Warrant and historical cell-site location information (“CSLI”) from AT&T Mobility obtained pursuant to the March 28 Warrant. Defendant James Ronald Jones, through counsel, has filed a motion to join Britton's motion to suppress. D.E. 250. Fully briefed (D.E. 256, 268, 280, 291), the motions are ripe for review. After a full review of the record, the Court recommends that the motion to suppress (D.E. 247) and the motion to join (D.E. 250) be denied. FACTUAL BACKGROUND AND PROPOSED FINDINGS Britton and Jones face a charge of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. D.E. 181 at 1-2. Britton faces an additional charge of aiding and abetting the burglary of a pharmacy, in violation of 18 U.S.C. § 2 and 18 U.S.C. § 2118(b). Id. at 2-3. Specifically, Britton is charged with entering Stephanie's Down Home Pharmacy in Corbin, Kentucky with the intent to steal controlled substances. Id. at 3. The indictment charges him with traveling in interstate commerce to facilitate entry of the premises. Id. Britton and Jones have pled not guilty, and trial is scheduled to begin on May 1, 2018. D.E. 279. The November 16 Warrant authorized the search of records of DTC Wireless related to thirteen telephone numbers and seizure of the following information from September 21, 2013, to September 30, 2015: subscriber information including, but not limited to name, address, alternative phone numbers, and dates of service; outbound and inbound call detail, including cell tower location; sector, azimuth, and cell tower identification records for call transmissions; all available text/SMS records, including the contents of such messages; associated ISMI, IMEA, or ESN numbers; data records; any GPS location records; and any roaming records. D.E. 247-1 at 3. The affidavit supporting the search warrant described twelve separate pharmacy burglaries committed by similar suspects with nearly identical modus operandi. D.E. 247-1 at 5-8 (describing two or three white male suspects wearing gloves, ski masks, jackets, and hooded sweatshirts, removing the locking mechanism from the front door, entering the pharmacy, and taking controlled substances away in large green and blue plastic tubs). The affidavit stated that the suspects drove a black Range Rover Sport away from each of the burglaries and that co-defendant Robert Nunley was discovered in the Range Rover Sport along with burglary tools similar to those used in each of the robberies. Id. at 6. A search of Nunley's residence produced ski masks, tools, bags of prescription pills packaged for sale, and pharmaceutical labels confirmed to be from one of the burglarized pharmacies. Id. at 7. *2 The affidavit mentioned Britton and Jones twice by name and possibly referenced them once. First, the affidavit stated that “[t]he investigation has additionally linked Anthony Bosio, Christopher Land, Tony Britton, Kenny Britton, Ronnie Jones, and Jamie Sweeton, who are close associates to Robert F. Nunley II, to the pharmacy burglaries and subsequent [sale] and delivery of controlled substances.” Id. at 7-8. Second, it identified Britton's and Jones's cellular phone numbers. Id. at 8. These are the only express references to Britton or Jones in the affidavit. Third, it stated: “[t]he aforementioned [Anthony] Bosio has given investigators statements, implicating himself and other named individuals in this conspiracy.” Id. Pursuant to the search warrant, officials obtained DTC Wireless's records associated with the phone number identified as Britton's -- (931) 235-5332. D.E. 256-1 at 1. From these records, officials were able to determine Britton's address, and confirm that his name and address were associated with that phone number. Id. Additionally, they obtained the activation and deactivation dates for that number and two other phone numbers associated with Britton's account. Id. All of the phone numbers were deactivated on March 19, 2014. Id. DTC Wireless provided no records related to an account belonging to Jones. D.E. 256 at 3, n.2; D.E. 291 at 1. Judge Powell issued the March 28 Warrant authorizing the search of AT&T's records relating to phone number (931) 235-5332 and seizure of the same type of information sought by the November 16 Warrant. D.E. 256-2 at 3. The affidavit supporting the March 28 Warrant was identical to the affidavit supporting the November 16 Warrant, including the same references to Jones and Britton. Id. at 7-8 (“The investigation has additionally linked ... Tony Britton, ... Ronnie Jones ... to the pharmacy burglaries and subsequent [sale] and delivery of controlled substances.... The aforementioned [Anthony] Bosio has given investigators statements, implicating himself and other named individuals in this conspiracy.”). From executing the search authorized by the March 28 Warrant, officials obtained CSLI records from AT&T Mobility related to Britton's number, but did not obtain the contents of any communications. D.E. 256 at 3. AT&T Mobility provided no records related to an account belonging to Jones. D.E. 291 at 2. ANALYSIS Britton filed a motion to extend the deadline to file defensive motions, and District Judge Van Tatenhove extended the deadline to February 5, 2018. D.E. 242 at 2. Then, Britton filed the motion to suppress “the [November 16 Warrant] and any information received from the search warrant” on February 5, 2018. D.E. 247. In support of his motion to suppress, Britton argues that the warrant is invalid on its face because it lacked probable cause and Judge Powell lacked jurisdiction to issue it, and he argues the good faith exception does not apply. Id. at 3-4. Jones filed a motion to join Britton's motion to suppress on February 6, 2018. D.E. 250. The United States responded in opposition to both motions. D.E. 256. In its response, the government notes that it obtained subscriber registration information relating to Britton, not CSLI, from DTC Wireless pursuant to the November 16 Warrant, and that it obtained CSLI relating to Britton, without the contents of any communications, from AT&T Mobility pursuant to the March 28 Warrant. Id. at 2-3. The government makes several arguments based on this information. First, it argues that Jones's motion to join should be denied as untimely because Jones did not articulate good cause or excusable neglect pursuant to Federal Rule of Criminal Procedure 45(b). Id.at 1-2. Second, it argues that Britton's motion to suppress should be denied because (1) Britton has no reasonable expectation of privacy in third-party account records belonging to other individuals; (2) the subscriber registration information obtained pursuant to the November 16 Warrant was not constitutionally protected, so no search occurred for purposes of the Fourth Amendment; and (3) the Sixth Circuit has held that the Fourth Amendment does not protect an individual's interest in CSLI business records, so no search occurred for purposes of the Fourth Amendment when the government obtained that information. Id. at 3-4 (citing United States v. Carpenter, 819 F.3d 880, 887 (6th Cir. 2016), cert. granted, 137 S.Ct. 2211 (2017)). *3 Britton replied, and filed a motion to supplement his initial motion to suppress in which he requests to include the March 28 Warrant, or, alternatively, to file a supplemental motion to suppress. D.E. 268; D.E. 269. In support of his motion to supplement, Britton states that discovery is voluminous and that supplementation would not prejudice the parties because “[t]he search warrant and affidavit issued for AT&T records is substantially the same as the DTC warrant.” D.E. 269 at 1. In his reply, Britton largely reiterates his initial arguments regarding the November 16 Warrant, argues that officials conducted a search of constitutionally-protected information pursuant to the March 28 Warrant despite Carpenter, the affidavits supporting both warrants lacked probable cause, Judge Powell lacked jurisdiction to issue the warrants, and the search does not qualify for the good faith exception to the exclusionary rule. D.E. 268 at 2-10. Jones also filed a reply and argues that the voluminous amount of discovery and technological difficulties amount to good cause and excusable neglect, which justify his untimely motion to join. D.E. 280. In support of suppression, Jones repeats Britton's arguments. See id. The United States filed a sur-reply and clarifies that it intends to introduce Britton's subscriber registration information obtained pursuant to the November 16 Warrant and the historical CSLI records related to Britton's phone number obtained pursuant to the March 28 Warrant. D.E. 291 at 1-2. As to Jones, the United States indicates that it does not intend to introduce any information obtained from the November 16 Warrant or the March 28 Warrant, because neither company produced any information associated with his phone numbers. Id. The warrants at issue sought records relating to thirteen specified phone numbers, only one of which was identified as Britton's and one of which was identified as Jones's. D.E. 247-1 at 8; D.E. 256-2 at 8. The United States first argues that, if Britton seeks to suppress “records regarding accounts belonging to other individuals” he has no privacy interest in the records pertaining to another party. D.E. 256 at 3-4. The Court construes Britton's motion as only seeking to suppress information specific to his number. His motion focuses upon suppression of “all of the information regarding Mr. Britton's cell phone usage and ping data.” D.E. 247 at 6. The Court construes Jones's requested relief in the same limited way. Thus, it is not necessary to address suppression of information not specific to Britton or Jones. I. Defendant Jones A. Untimely-Filed Motion to Join by Jones Jones seeks to join the motion to suppress filed by Britton. D.E. 250. The deadline for Jones to file defense motions was January 14, 2018. D.E. 225 (requiring defensive motions to be filed within thirty days of December 15, 2017). Judge Van Tatenhove entered an order granting an extension with respect to Britton only. D.E. 242 at 2. (“Defendant Tony Britton shall have up to and including Monday, February 5, 2018, to file any Defensive Motions[.]”). Jones did not seek an extension of his filing deadline prior to filing his motion to join the motion to suppress on February 6, 2018. D.E. 250. Therefore, Jones must establish good cause for his failure to file the motion before the deadline. Fed. R. Crim. P. 12(c)(3). “Good cause is a flexible standard heavily dependent on the facts of the particular case as found and weighed by the district court in its equitable discretion. At a minimum, it requires the party seeking a waiver to articulate some legitimate explanation for the failure to timely file.” United States v. Walden, 625 F.3d 961, 965 (6th Cir. 2010). In his reply, defense counsel recounts that he received an initial copy of the discovery on January 5, attempted to view it, but could not because of formatting issues with his computer. D.E. 280 at 1-2. Counsel made the government aware of the issues on January 9, provided the government with an external hard drive on January 26, ultimately received a usable copy of the discovery on February 1, and “out of an abundance of caution sought to join in the motion of Tony Britton.” Id at 2. The United States objects to the late filing, and argues that counsel's inadvertence should not constitute good cause. D.E. 256 at 1 (“[T]he Court should deny Jones's motion because, unlike Britton, he did not seek an extension of his deadline to file defensive motions.”); D.E. 291 at 2 (“However, counsel's inadvertence does not meet the standard of good cause.”). Counsel was aware on a date between January 5 and 9 that he could not access the discovery provided to him, but no extension of the January 14 deadline was sought. No actual explanation for the oversight is provided. See D.E. 280 at 2. Therefore, the undersigned recommends that Jones's motion for joinder (D.E. 250) be denied as untimely. B. Suppression of DTC Wireless and AT&T Mobility Records as to Jones *4 Even if Jones were allowed to join in Britton's motion to suppress, it should be denied as to Jones. No information specific to Jones's phone number was obtained pursuant to either the November 16 Warrant or the March 28 Warrant. D.E. 291 at 1-2. Thus, there is nothing to suppress as to Jones. His argument for suppression is moot and he lacks standing to challenge the search. Jones urges the Court to suppress the subscriber registration information obtained pursuant to the November 16 Warrant and the CSLI data obtained pursuant to either the March 28 Warrant because, he argues, Judge Powell lacked authority to issue the warrants and, therefore, they should be declared void ab initio, or, alternatively, they lacked probable cause as to Jones. D.E. 280 at 2-4. The United States argues that no search occurred under the Fourth Amendment because Jones lacked a reasonable expectation of privacy in others' cell phone records. D.E. 256 at 3-4 & n.2. Additionally, the government argues that, even if Jones has a reasonable expectation of privacy in Britton's (or others') cell phone records, the Fourth Amendment does not protect the subscriber registration information seized pursuant to the November 16 Warrant or the CLSI data seized pursuant to the March 28 Warrant. Id. at 4 (citing Carpenter, 819 F.3d at 887). The government has clarified that, as to Jones, it does not intend to introduce any subscriber registration information received pursuant to the November 16 Warrant because DTC Wireless did not provide any such information specific to Jones's number. D.E. 291 at 1. Similarly, the government will not seek to introduce any AT&T Mobility CSLI records of an account belonging to Jones because no such records were produced pursuant to the March 28 Warrant. Id. at 2. Therefore, the government argues, “Jones's motion seeks suppression solely of business records pertaining to accounts that do not belong to him[.]” Id. Because the government did not seize, and does not intend to introduce at trial, records specific to Jones's cellphone or his accounts, his motion to join the motion to suppress should be denied as moot. D.E. 291 at 1-2; See United States v. Sims, 603 F. App'x 479, 483 (6th Cir. 2015) (finding appeal of suppression ruling moot because government did not introduce any of the contested evidence at trial); United States v. Slaton, No. 5:11-131, 2012 WL 2374241, at *1 (E.D. Ky. June 22, 2012) (denying suppression as moot because the United States stated that it did not intend to use it at trial). Additionally, Jones lacks standing to challenge the search and seizure of Britton's cell phone records. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. Amend. IV. In order to seize property or conduct a search, the government must have a warrant supported by probable cause, unless an exception exists. A search occurs when government action invades a person's reasonable expectation of privacy. Carpenter, 819 F.3d at 886 (internal quotations omitted). A person's reasonable expectation of privacy must meet two requirements: the person asserting the protection must “exhibit[ ] an actual (subjective) expectation of privacy[,]” and “that expectation must ‘be one that society is prepared to recognize as “reasonable.” ’ ” Id. (quoting Katz v. United States, 389 U.S. 347, 361 (1967)). *5 “Fourth Amendment rights are personal rights which ... may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)(quoting Alderman v. United States, 394 U.S. 165, 174 (1969)). A person's Fourth Amendment rights have not been violated when the evidence introduced was the result of a search of a third person's premises or property. Id. at 134 (citing Alderman, 394 U.S. at 174). Only those whose Fourth Amendment rights have been violated may “benefit from [the exclusionary rule's] protections.” Id. “[A] defendant seeking to suppress evidence ‘must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.’ ” United States v. Noble, 762 F.3d 509, 526 (6th Cir. 2014) (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998)). “[S]uppression of evidence as ‘the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.’ ” United States v. Powell, 847 F.3d 760, 768 (6th Cir. 2017) (quoting United States v. Padilla, 508 U.S. 77, 81-82 (1993) (per curiam)). Thus, “codefendants have been accorded no special standing” to challenge a purported Fourth Amendment violation. Alderman, 394 U.S. at 172. Here, Jones would have to establish a reasonable expectation of privacy in Britton's cell phone records to establish standing, which he has not done. United States v. Skinner, No. 3:06-CR-100, 2007 WL 1556596, at *15 (E.D. Tenn. May 24, 2007), aff'd, 690 F.3d 772 (6th Cir. 2012). For all these reasons, the undersigned recommends that Jones's motion to join (D.E. 250) be denied. II. Defendant Britton A. Suppression of DTC Wireless Records Britton seeks suppression of the DTC Wireless records concerning him obtained pursuant to the November 16 Warrant. D.E. 247. The government obtained subscriber registration information including Britton's name, address, phone numbers, activation dates, and deactivation dates for the time period of September 21, 2013, to September 30, 2015. D.E. 256-1 at 1; D.E. 291 at 1. Britton argues that Judge Powell lacked jurisdiction to issue the warrant and that the warrant was not supported by probable cause. D.E. 247 at 3-4. The United States argues that officials did not need a warrant to obtain this information because the Fourth Amendment does not protect basic account information as evidenced by Congress's authorization for law enforcement to obtain this type of information with an administrative subpoena instead of a warrant. D.E. 256 at 4. Officials did not need a search warrant to obtain the basic subscriber registration information because Britton did not have a reasonable expectation of privacy in that information. The United States Supreme Court rejected a similar claim in Smith v. Maryland, 442 U.S. 735, 742 (1979). In Smith, the defendant claimed a reasonable expectation of privacy in the numbers that he dialed when he sought to suppress information obtained from a warrantless pen trap. Smith, 442 U.S. at 737. After noting that the outgoing phone numbers obtained did not include the contents of the communications, the Supreme Court rejected this claim because “we doubt that people in general entertain any actual expectation of privacy in the numbers they dial.” Id. at 741-42. 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 ... [and that] the phone company has facilities for making permanent records of the numbers they dial, for they see a list ... on their monthly bills. Id. Here, Britton did not have a subjective expectation of privacy in the basic subscriber registration information that he voluntarily conveyed to DTC Wireless. The information received by the government included Britton's name, address, phone numbers, and the activation and deactivation dates for the three numbers associated with his name. D.E. 256-1 at 1. None of this information contained the content of communications, or even indicated that Britton used his phone at a particular time or dialed a particular number. As in Smith, Britton would have known that DTC Wireless received that information when he created the account, and that the company stored that information for basic business purposes such as billing and account management. Therefore, he did not have a subjective expectation of privacy in the subscriber registration information. *6 Second, the Supreme Court held in Smith that even if the defendant had a subjective expectation of privacy in the numbers he dialed, that “expectation is not ‘one that society is prepared to recognize as reasonable.’ ” Smith, 442 U.S. at 743 (quoting Katz, 389 U.S. at 361). The Supreme Court has consistently declined to recognize a legitimate expectation of privacy in information a person voluntarily turns over to third parties. Id. at 743-44; see, e.g., United States v. Miller, 425 U.S. 435, 442-43 (1976) (rejecting legitimate expectation of privacy in financial information voluntarily conveyed to banks). Thus, Britton can claim no legitimate expectation of privacy in the basic subscriber registration information. When he created his accounts, he voluntarily conveyed his name and address to the telephone company and “assumed the risk that the company would reveal to police the [information he provided].” Smith, 442 U.S. at 744. Under Smith, Britton did not have a reasonable expectation of privacy in the basic account information he voluntarily conveyed to DTC Wireless. Therefore, there was no search under the Fourth Amendment and no warrant was required. Because no search occurred, it is immaterial whether the officers obtained the information pursuant to a valid search warrant. B. Suppression of AT&T Mobility Records Britton also seeks suppression of the CSLI data obtained pursuant to the March 28 Warrant. D.E. 247; D.E. 268; D.E. 269. He argues that the data should be suppressed because he had a reasonable expectation of privacy in it, Judge Powell lacked jurisdiction to issue the warrant, and the warrant was not supported by probable cause. D.E. 268 at 4-10. The United States argues that Britton did not have a reasonable expectation of privacy in the CSLI data, and, therefore, no search occurred under the Fourth Amendment. D.E. 256 at 4-5; D.E. 291 at 4. Britton did not have a reasonable expectation of privacy in the historical CSLI business records obtained pursuant to the March 28 Warrant. The parties agree that the data at issue here is similar to the historical CSLI at issue in Carpenter. D.E. 256 at 4-5; D.E. 268 at 7.[1] Although Carpenter is pending before the Supreme Court, it remains binding on this Court. In Carpenter, government officials collected historical CSLI records covering a 127-day period and were able to show the approximate location of the defendant's cell phone during and after multiple robberies. Carpenter, 819 F.3d at 885-86. The CSLI was in the form of business records created and maintained by the defendants' wireless carriers: when the defendants made or received calls with their cellphones, the phones sent a signal to the nearest cell-tower for the duration of the call; the providers then made records for billing and other business purposes, showing which towers each defendant's phone had signaled during each call. Id. at 886. Recognizing the distinction between the content of personal communications and the information necessary to route those communications, the Sixth Circuit held that there was no reasonable expectation of privacy in the CSLI business records because they fall into the latter category. Id. at 886-87 (citing Ex parte Jackson, 96 U.S. 727, 733 (1878), Smith, 442 U.S. at 743, and United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)). “[W]hen the government obtained [the CSLI records], it did ‘not acquire the contents of communications.’ Instead, the defendants' cellphones signaled the nearest cell towers – thereby giving rise to the data obtained ... here – solely ‘as a means of establishing communication.’ ” Id. at 888 (quoting Smith, 442 U.S. at 741) (internal citations omitted). The Court also noted that any cellphone user who has seen their phone signal strength fluctuate must know that their phone exposes its location to the nearest cell tower, the cell tower communicates that information to the company that operates the tower, and that the cellphone company has facilities for recording locational information. Id. For the same reasons discussed in Smith, the Court rejected a protected privacy interest in CSLI. Id. *7 Britton urges the Court to view this case under the standard established by Justices Sotomayor and Alito in their concurrences in United States v. Jones, 565 U.S. 400 (2012). D.E. 268 at 5. There, five Justices agreed that attaching a GPS tracking device to an individual's vehicle in order to monitor the vehicle's movements over a four-week period constituted a search under the Fourth Amendment because individuals have a reasonable expectation of privacy in long-term GPS monitoring. Id. at 415 (Sotomayor, J. concurring); Id. at 430 (Alito, J. concurring in the judgment). Justice Alito, distinguishing between short-term and long-term monitoring, found that longer term GPS monitoring impinges on expectations of privacy. Id.(“[S]ociety's expectation has been that law enforcement agents and others would not—and indeed ... could not—secretly monitor and catalogue every single movement of an individual's car for a very long period.”). However, the majority in Jones declined to find a reasonable expectation of privacy, and instead relied upon the trespass theory in holding that a search occurred. Id. at 405-06 (“The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”). The court in Carpenter distinguished Jones. First, “[the collection of CSLI records] involves business records obtained from a third party, which can only diminish the defendants' expectation of privacy in the information those records contain” and longer term GPS monitoring involves attaching “a GPS device to the underside of [the target's] vehicle and then monitor[ing] his movements continuously for four weeks.” Id. at 889. Second, “GPS devices are accurate within about 50 feet, which is accurate enough to show that the target is located within an individual building” and “[CSLI] data could do no better than locate the defendants' cellphones within a 120-(or sometimes 60-) degree radial wedge extending between one-half mile and two miles in length.” Id. The court concluded that CSLI is “as much as 12,500 times less accurate than the GPS data in Jones.” Id. The court noted that Congress has “specifically legislated on [whether the collection of CSLI records is a search], and in doing so has struck the balance reflected in the Stored Communications Act.” Id. “The Act stakes out a middle ground between full Fourth Amendment protection and no protection at all, requiring that the government show ‘reasonable grounds’ but not ‘probable cause’ to obtain the cell-site data at issue here.” Id. Therefore, through Congress, society has determined that it is not prepared to recognize an expectation of privacy in CSLI records. Id. Although Carpenter is pending before the Supreme Court and a decision is expected in the next couple of months, it remains binding on this Court. Because the “business records here fall on the unprotected side” of the line between constitutionally-protected content and “information that facilitate[s] personal communications[,]” this Court must follow Carpenter and find that no search occurred. Id. at 878. Defense counsel also urges the Court to take note of Circuit Judge Stranch's concurrence in Carpenter that expressed concern with content versus non-content separation. D.E. 268 at 4-8. After agreeing with the majority that, due to the reduced accuracy of CSLI, “a person's privacy interest ... may indeed be lesser[,]” Judge Stranch compared the 127-day monitoring at issue in Carpenter with the three-day monitoring of GPS data in United States v. Skinner, 690 F.3d 772 (6th Cir. 2012). Carpenter, 819 F.3d at 894-95 (Stranch, J., concurring). In Skinner, the Sixth Circuit held that monitoring the defendant's vehicle for three days via GPS monitoring did not constitute a search under the Fourth Amendment because the defendant “did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone.” Skinner, 690 F.3d at 777. The court found that the three-day monitoring period did not raise the concern of “extreme comprehensive tracking” expressed by Justice Alito in his Jones concurrence. Id. at 780.[2] However, without recommending an alternative to the test identified by the majority opinion, Judge Stranch expressed concern that the 127-day monitoring period at issue in Carpenter “far exceeds the threshold we identified in Skinner and the warrantless acquisition of such substantial quantities of CSLI implicates the Skinner/Jones [reasonable expectation of privacy] concerns.” Carpenter, 819 F.3d at 895 (Stranch, J., concurring). She urged the Circuit to adopt a new test in light of the long-term, comprehensive, and personal nature of cell phone records. Id. at 896. *8 Here, the warrant authorized the seizure of CSLI records from September 21, 2013, to September 30, 2015, or a period of 739 days. D.E. 256-2 at 3. This far exceeds the 127-day period at issue in Carpenter. The primary basis for the holding in Carpenter is that CSLI records do not include content and are unprotected business records concerning the information necessary to convey content. The CSLI records at issue here are of the same type and nature. Carpenter controls even though the period covered by the records here is much longer. III. Validity of Search Warrants Because the warrants sought information that is not constitutionally protected, the collection of the CSLI records did not constitute a search under the Fourth Amendment, and no constitutional violation occurred. The undersigned believes this is a firm and required outcome. In the alternative and in the event the presiding District Judge disagrees and finds there was a search, Judge Powell had jurisdiction to issue the warrants, but they were not supported by probable cause. Because the affidavits are substantively identical, the following discussion applies to both warrants. Compare D.E. 247-1 at 4-9, with D.E. 256-2 at 4-9. A. Extraterritoriality and Jurisdiction Britton argues that the warrants issued by a North Carolina judge could not extend to his records, as a Tennessee resident, without some factual tie in the affidavit between him and the robbery in North Carolina. North Carolina Superior Court Judge Mark E. Powell issued the November 16 and March 28 Warrants. D.E. 247-1 at 1; D.E. 256-2 at 1. Federal, not state, law governs the validity of a state-issued search warrant in a federal criminal proceeding. United States v. Beals, 698 F.3d 248, 263 (6th Cir. 2012)(quoting United States v. Shields, 978 F.2d 943, 945 (6th Cir. 1992)). So long as the Fourth Amendment is satisfied, a search warrant invalid under state law will not justify suppression. Id. at 264. The Fourth Amendment requires three things for a search warrant to be valid: first, “that they be issued only by ‘neutral and detached’ magistrates ‘capable of determining whether probable cause exists for the requested arrest or search[;]’ ” second, “that search warrants issue only upon a finding of ‘probable cause[;]’ ” and third “that search warrants ‘particularly describe[e] the place to be searched, and the ... things to be seized.’ ” Id.(internal citations omitted). Supreme Court case law permits the states to define the qualifications of a magistrate. Id. at 265. “The qualifications of a magistrate ... are therefore inextricably intertwined with state law and state law determines what person is allowed to approve what warrant.” Id.(quoting United States v. Master, 614 F.3d 236, 240 (6th Cir. 2010)) (internal quotation marks omitted). If a magistrate lacks authority to issue a warrant under state law, then the warrant was never issued by a neutral and detached “magistrate,” and will be declared void ab initio under the Fourth Amendment. See id. at 265. Under North Carolina law, superior court judges are authorized to issue a search warrant valid throughout the state if the application contains: the name and title of the applicant; a statement that there is probable cause to believe that items subject to seizure may be found in or upon a designated or described place, vehicle, or person; one or more affidavits particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places or in the possession of the individuals to be searched; and a request that the court issue a search warrant directing a search for and the seizure of the items in question. N.C.G.S.A. § 15A-243-44. Britton has not provided any support for his argument that, without a nexus between a Tennessee resident and crime in North Carolina, Judge Powell was not authorized to issue the warrants. Suppression certainly is not warranted in the absence of such authority. To the extent Britton argues the facts in the affidavits did not sufficiently link him to any criminal conduct, that argument is addressed within the probable cause analysis below. B. Probable Cause *9 The Fourth Amendment states that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. When determining whether probable cause exists, the issuing officer must “simply make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). An informant's veracity, reliability, and basis of knowledge are “highly relevant in determining the value of his report[,]” but these “closely intertwined” elements should be applied with flexibility. Id. at 230. While a “magistrate's determination of probable cause should be paid great deference by reviewing courts[,]” and “courts should not invalidate ... warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner[,]” an affidavit must provide a substantial basis for determining probable cause, and a wholly conclusory statement will be insufficient. Id. at 236, 239 (internal quotation marks and citations omitted). “Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” Id. at 239. This Court will set aside the issuing judge's probable cause determination only if the judge did not have “a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited.” United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004) (quoting United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)). In Illinois v. Gates, the Supreme Court held that a search warrant accompanied by an affidavit and an anonymous letter was sufficient to support a finding of probable cause because specific facts suggested the defendants' involvement in criminal activity, an independent investigation by police officers corroborated details in the anonymous letter, and the letter contained details of third parties' future actions that are not easily predicted. Gates, 462 U.S. at 243-45. Here, the affidavits supporting the warrants contained no specific factual basis to tie Britton to any suspected criminal activity, and certainly no corroboration of any such basis. Read generally, the affidavits reference Britton three times. First, the affidavits state “[t]he investigation has additionally linked Anthony Bosio, Christopher Land, Tony Britton, Kenny Britton, Ronnie Jones, and Jamie Sweeton, who are close associates to Robert F. Nunley II, to the pharmacy burglaries and subsequent sell and delivery of controlled substances.” D.E. 247-1 at 7-8; D.E. 256-2 at 7-8. The affidavits provide no factual basis for this vague statement. The nature of the “link” is not described in any way. There is no way to assess whether the “link” is incriminating or exculpatory as to Britton. There is no indication of the source, the source's reliability, or any corroboration of information provided. No detail whatsoever concerning Britton's purported involvement is provided. The affidavits then provide Britton's telephone number, again without any mention of the source of this information or tie to suspected criminal activity. D.E. 247-1 at 8; D.E. 256-2 at 8. Finally, the affidavits state that “the aforementioned [Anthony] Bosio has given investigators statements, implicating himself and other named individuals in this conspiracy.” D.E. 247-1 at 8; D.E. 256-2 at 8. This statement does not indicate which individuals Bosio named, or specifically what he said about them. There is no substantial basis to find the affidavits established probable cause to search phone records concerning Britton. IV. Exclusion of Evidence Obtained Pursuant to the Warrants The exclusionary rule forbids the use of evidence obtained in violation of the Fourth Amendment. See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961). The collection of subscriber registration information and CSLI data was not a search under the Fourth Amendment, and the government did not need to obtain a warrant to collect the information.[3] As an alternative finding in the event the District Judge disagrees that Carpenter controls and agrees that the warrants were not supported by probable cause, the good faith exception to the exclusionary rule would allow the introduction of the evidence obtained pursuant to the November 16 and March 28 Warrants. *10 The exclusionary rule serves to deter police misconduct. United States v. Leon, 468 U.S. 897, 916 (1984). Application of the exclusionary rule requires the reviewing court to balance the deterrence benefits of suppression with its heavy costs, focusing on the “flagrancy of the police misconduct” at issue. Davis v. United States, 564 U.S. 229, 237-38 (2011)(quoting Leon, 468 U.S. at 909, 911). “[T]he deterrence benefits of exclusion ‘var[y] with the culpability of the law enforcement conduct’ at issue.” Id. at 238 (quoting Herring v. United States, 555 U.S. 135, 143 (2009)). When police act with deliberate, reckless, or grossly negligent disregard for the Fourth Amendment, “the deterrent value of exclusion is strong and tends to outweigh the resulting costs.” Id. (quoting Herring, 555 U.S. at 144). Evidence will normally not be excluded when an officer “acting with objective good faith” obtains a search warrant from a judge and remains within the warrant's scope. Leon, 468 U.S. at 920. “In most such cases, there is no police illegality and thus nothing to deter.” Id. at 920-21. This is known as the good faith exception to the exclusionary rule. Isolated negligence does not justify suppression. Davis, 564 U.S. at 239. “[T]he crucial finding needed to suppress evidence is whether ‘police [mis]conduct [is] sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.’ ” Master, 614 F.3d at 243 (quoting Herring, 555 U.S. at 144). The good faith exception to the exclusionary rule allows for the admission of evidence, even when the warrant is later held invalid. Davis, 564 U.S. at 238-39 (quoting Leon, 468 U.S. at 922). “[T]he marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Leon, 468 U.S. at 922. “In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient.” Id. at 921. However, suppression remains an appropriate remedy when the officer's reliance on the magistrate's probable cause determination and the technical sufficiency of the warrant is not objectively reasonable. Id. at 922. Suppression is appropriate if the judge was misled by information in an affidavit because the affiant knowingly provided false information or acted with reckless disregard as to its truth, if the judge wholly abandons his judicial role, when the officer relies on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, or when the warrant is facially deficient by failing to identify the place to be searched or the things to be seized. Id. at 923 (internal citations and quotations marks omitted). Here, Officer Nicholas Stott obtained the subscriber registration information and the CLSI data pursuant to search warrants signed by an authorized judge. D.E. 247-1 at 1; D.E. 256-2 at 1. Neither party has argued, or provided any evidence to suggest, that Officer Stott, the affiant for both affidavits, knowingly or recklessly provided false information, that Judge Powell wholly abandoned his judicial role, or that the warrants were facially deficient. Britton argues that the Judge Powell lacked jurisdiction to authorize the warrants and that the affidavits supporting them lacked probable cause, so the warrants were void ab initio. D.E. 268 at 3. Even if Judge Powell lacked jurisdiction to issue the warrants, the exclusionary rule typically would not apply because “the issuing magistrate's lack of authority has no impact on police misconduct, if the officers mistakenly, but inadvertently, presented the warrant to an incorrect magistrate.” United States v. Master, 614 F. 3d at 242 (remanding to determine whether the police officers had an improper motivation to seek warrant from unauthorized judge). No evidence has been presented to suggest that Officer Stott had an improper motivation in seeking the warrant from Judge Powell. Therefore, the exclusionary rule would be inapplicable if a warrant were needed under these facts. *11 For similar reasons, that the affidavits supporting both warrants did not establish probable cause does not bar the application of the good faith exception to the exclusionary rule. The Sixth Circuit has held that “it is entirely possible that an affidavit contains ‘a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer's good-faith belief in the warrant's validity, even if the information provided was not enough to establish probable cause.’ ” United States v. Neal, 577 F. App'x 434, 448 (6th Cir. 2014) (quoting Carpenter, 360 F.3d at 596). Britton contends the affidavits were “bare bones,” meaning they were “so lacking in the indicia of probable cause” as to remove reliance upon them from the good faith exception. D.E. 247 at 5. “[T]he standard by which an affidavit should be judged for purposes of the good faith exception ‘is a less demanding showing than the ‘substantial basis’ threshold required to prove the existence of probable cause in the first place.’ ” United States v. Laughton, 409 F.3d 744, 748 (6th Cir. 2005) (quoting United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004)). Here, the warrants were not supported by probable cause. See supra Part III.B. While this is not an isolated incident because Officer Stott submitted two identical affidavits to support two nearly-identical search warrants, there is no evidence that his conduct was sufficiently deliberate or culpable so that the costs of suppression are outweighed by the deterrence benefits. There was a minimally sufficient nexus between the illegal activity and the information to be searched to support Officer Stott's good faith belief in the warrant's validity. First, the affidavits state that the burglaries involved multiple people, implying a group of conspirators carried out the burglaries. D.E. 247-1; D.E. 256-2. Second, the security footage linked multiple male suspects with the same modus operandi used in many different burglaries. D.E. 247-1 at 5-6; D.E. 256-2 at 5-7. Third, Anthony Bosio provided investigators statements implicating himself and “other named individuals in this conspiracy.” D.E. 247-1 at 8; D.E. 256-2 at 8. Fourth, the affidavits included a statement by Officer Stott that his training and experience taught him that “individuals involved in criminal activity often use cellular communication ... to communicate with other co-conspirators” and that “cellular telephone companies maintain records of the tower location the cellular device utilized when in use. This tower location information has a high likelihood of placing Robert F. Nunley II and other co-conspirators in the area of the aforementioned crime scenes ... or eliminating them as suspects.” D.E. 247-1 at 8; D.E. 256-2 at 8. Although the warrants were not supported by probable cause, the affidavit contained “a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer's good-faith belief in the warrant's validity[.]” Carpenter, 360 F.3d at 596. If a warrant was required to search and seize the subscriber registration information and the CSLI data, the good faith exception applies and the evidence would be admissible despite the lack of probable cause. CONCLUSION Based upon the foregoing, the undersigned RECOMMENDS that: 1. Defendant Britton's motion to supplement the motion to suppress (D.E. 269) be GRANTED; 2. Defendant Britton's motion to suppress (D.E. 247) be DENIED; and 3. Defendant Jones's motion to join (D.E. 250) be DENIED. The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights concerning the recommendations above, issued under subsection (B) of that statute. As defined by section 636(b)(1) and Federal Rule of Criminal Procedure 59(b), within fourteen days after being served with a copy of this Recommended Disposition, any party may serve and file written objections to any or all portions for de novo consideration by the District Court. The parties should consult the aforementioned statute and rule for specific appeal rights and mechanics. Failure to object in accordance with Rule 59(b) waives a party's right to review. *12 This the 13th day of April, 2018. Signed By: Footnotes [1] The record in Carpenter included expert testimony that: cellphones work by establishing a radio connection with nearby cell towers (or “cell sites”); that phones are constantly searching for the strongest signal from those towers; and that individual towers project different signals in each direction or “sector,” so that a cellphone located on the north side of a cell tower will use a different signal than a cellphone located on the south side of the same tower.... [The expert] testified that wireless carriers typically log and store certain call-detail records of their customers' calls, including the date, time, and length of each call; the phone numbers engaged on the call; and the cell sites where the call began and ended. Carpenter, 819 F.3d at 885. [2] The court in Skinner cautioned that “[t]here may be situations where police, using otherwise legal methods, so comprehensively track a person's activities that the very comprehensiveness of the tracking is unreasonable for Fourth Amendment purposes.” Skinner, 690 F.3d at 780. [3] Britton argues that a warrant must issue to obtain historical CSLI under the Stored Communications Act, specifically 18 U.S.C. § 2703(c)(1)(A). D.E. 268 at 9. The majority's decision in Carpenter rejects this argument. But, that is a separate issue from the determination of whether the warrants were supported by probable cause. Moreover, even if the statute were somehow violated, “suppression of evidence is not among the remedies available under the Stored Communications Act.” Carpenter, 819 F.3d at 890. In other words, given that warrants were issued in this case, suppression is a function of Fourth Amendment jurisprudence.