United States v. Whipple

92 F.4th 605

UNITED STATES of America, Plaintiff-Appellee, v. Robert Zenas WHIPPLE, III, Defendant-Appellant.

No. 23-5126

United States Court of Appeals, Sixth Circuit

Argued: December 6, 2023

Decided and Filed: February 8, 2024

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:20-cr-00031-1—Katherine A. Crytzer, District Judge.

ARGUED: Joshua D. Hedrick, WHITT, COOPER, HEDRICK & WOJCIK, Knoxville, Tennessee, for Appellant. Samuel R. Fitzpatrick, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Joshua D. Hedrick, WHITT, COOPER, HEDRICK & WOJCIK, Knoxville, Tennessee, for Appellant. Samuel R. Fitzpatrick, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Before: BATCHELDER, CLAY, and GIBBONS, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Robert Whipple appeals the denial of his motions to suppress evidence. Whipple argued that law enforcement violated his Fourth Amendment rights when officers subpoenaed Walmart for his purchase history, searched his phone after the expiration of the warrant for his phone, and impermissibly seized his car. The district court denied Whipple's motions. Finding no merit to these claims, we AFFIRM.

I. Background and Procedural History

a. Background

Between March 5 and 7 of 2020, three Knoxville, Tennessee, banks were robbed. The first two robberies were committed by a "a heavy-set white male" who "wore a thin red rain poncho, light-colored shorts, white shoes, and disposable gloves." The robber used a manila envelope to write his demand letters for each robbery. The third robbery was committed by a large white male, this time wearing "a tan jacket, a curly wig, blue jeans, and white sneakers." But he still wrote his demand letter on a manila envelope.

On March 7, FBI agents contacted a nearby Walmart, asking specifically about recent purchases of red rain ponchos and tan Dickies-brand jackets. Walmart security personnel responded that a purchase was made using the "Walmart Pay app" on March 2 at 10:15 a.m. for "a red rain poncho, markers, and manila envelopes." The agents reviewed Walmart's security footage from that day and time, and they observed a large white male, wearing white sneakers, leave Walmart in a yellow Dodge Challenger. Agents then subpoenaed Walmart's transactional data and subscriber information for that specific purchase and obtained information including an email copy of the specific transaction and Robert Whipple's name, address, and telephone number that were associated with the Walmart Pay account. Agents also pulled Whipple's Tennessee driver's license records. They observed that Whipple's photograph, height, and weight resembled that of the robber on the banks' surveillance footage. The records also revealed that Whipple owned a yellow Dodge Challenger with license plate number CLN097.

Later that day, after a police officer observed Whipple's Challenger at a Red Roof Inn in Knoxville, FBI agents went to the hotel. The hotel clerk told them that Whipple was in room 354 and provided them with a key to that room. The agents then forced entry into the room, arrested Whipple, and secured the room while FBI Agent Leatham obtained a federal search warrant for the room. It was issued at 10:58 p.m., and it was executed that night. Agents arrested Whipple, impounded his car, and on March 10, obtained a search warrant for it. Agent Leatham later testified that agents had probable cause to believe that Whipple used his car in the commission of his robberies, having observed Whipple via surveillance video enter that car after the Walmart purchase. Agent Leatham also testified that the agents did not want the car to be stolen or moved within the hotel parking lot because the lot was an open and unsecured space. The car was searched on March 11 pursuant to the warrant. Inside, agents found a red rain poncho, a brown wig-and-beard costume kit, a manila envelope with a demand note, an opened package of manila envelopes, black pens, a tan Dickies jacket, suspected crack cocaine, and bank receipts.

Agents seized Whipple's phone during his arrest and obtained a warrant for it on March 10. On March 11, Agent Leatham requested that the FBI Computer Analysis Response Team (CART) search Whipple's phone. On March 13, CART examiner, Leyton Adams attempted to access the phone. Examiner Adams removed both the SIM and SD cards from Whipple's phone and extracted data from them. Examiner Adams then found that the cellphone was passcode protected. After determining that he could not enter Whipple's phone himself, Examiner Adams requested that the FBI's Electronic Device Analysis Unit (EDAU) unlock the phone.¹ He submitted that request on March 13. Examiner Adams received an email from EDAU eight months later, on November 13, stating that he could send the phone to the Tennessee Valley Regional Computer Forensics Laboratory in Huntsville, Alabama for unlocking. Examiner Adams believed that the March to November timeline was not unusual, given the COVID-19 pandemic and staff shortages. On November 19, Examiner Adams received the cellphone's data and analyzed it.

b. Procedural History

A federal grand jury charged Whipple with bank robbery for the March 5 through 7 bank robberies. Whipple moved to suppress any evidence found as a result of the administrative subpoena, the seizure of his car, and the search of his phone.² The motions were consolidated and referred to the magistrate judge for recommendation.

The magistrate judge recommended that the district court deny Whipple's motion to suppress the Walmart subpoena because it was reasonable in scope, seeking only one transaction and the identity of that purchaser's name, address, and telephone number. Whipple objected to the magistrate judge's report and recommendation both factually and legally. Factually, Whipple argued that the subpoena was too broad in scope. The district court explained that the agents sought a specific transaction and the Walmart-Pay-app account-holder's identifying information, not a general sweep of purchasing history. Therefore, the court overruled the factual objection. The court overruled the legal objection as well. Relying on the third-party doctrine, the court reasoned that Whipple voluntarily chose to put his information on the Walmart Pay app and to use the app to complete his in-store purchase. Whipple analogized his situation to that in Carpenter v. United States, 585 U.S. 296, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), but the district court noted that Carpenter was a narrow decision that did not call into question conventional surveillance tools or the use of business records, such as purchase receipts.

The magistrate judge also examined "whether the officers could seize and impound . . . Whipple's car without a warrant and hold the car for three days, while obtaining a search warrant for the car." Applying the automobile exception, the magistrate judge recommended that Whipple's motion to suppress be denied. Whipple objected. The district court agreed with the magistrate judge and concluded that the automobile exception applied to this situation. The district court reasoned that where there is probable cause to believe that a car is associated with criminal activity, a warrantless seizure is appropriate even if a warrant could have been obtained. The district court overruled Whipple's objection.

The magistrate judge recommended that Whipple's motion to suppress the evidence found in his cellphone be denied as well. The magistrate judge applied the reasonable-continuation rule, explaining that a more detailed search of a device may occur even months or years after the initial warrant's expiration, so long as the later search does not exceed the probable cause in the initial warrant. Whipple factually and legally objected to this recommendation. The district court agreed with the magistrate judge, stating that Whipple never had the opportunity to regain his phone after incarceration and that the months-later search of his phone was a continuation of the search from the initial warrant.

In sum, the district court overruled Whipple's objections to the magistrate judge's recommendation, adopted the relevant portions of the recommendation, and denied Whipple's motions. Whipple entered a guilty plea pursuant to a plea agreement, but he reserved the right to appeal the denial of his motions to suppress.

II. Legal Standard

When reviewing district court decisions on motions to suppress, we review factual findings for clear error and legal conclusions de novo. United States v. Cleveland, 907 F.3d 423, 430 (6th Cir. 2018). Because the district court denied the motions to suppress evidence, we review the evidence in a light most favorable to the government. Id.

III. Discussion

On appeal, Whipple raises three legal issues related to (1) the subpoena to Walmart, (2) the seizure and subsequent search of his car pursuant to a warrant, and (3) the unlocking of his cellphone after the initial warrant for it expired. We affirm.

a. Whipple's Specific Walmart Purchase

The entirety of Whipple's purchase history at Walmart was neither accessed nor sought by the administrative subpoena. However, Whipple argues that his Walmart-Pay-app purchasing history and subscriber information is subject to a reasonable expectation of privacy, meaning that the government needs a warrant before it can access that history.³ This argument fails because the subpoena was narrowly tailored and because of our application of the third-party doctrine to Whipple's voluntary actions.

It is the defendant's burden to show that he had a reasonable expectation of privacy in the area searched or items seized. United States v. Mathis, 738 F.3d 719, 729 (6th Cir. 2013). The defendant must exhibit by his conduct (1) an actual, subjective expectation of privacy that (2) society is willing to recognize as reasonable. Id. (quoting Smith v. Maryland, 442 U.S....