USA v. Robert Daniel Solove

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11747
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT DANIEL SOLOVE,
Defendant -Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-cr-80025-DMM-1
____________________
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2 Opinion of the Court 21-11747
Before NEWSOM, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Robert Daniel Solove appeals his convictions for two counts
of producing child pornography, in violation of 18 U.S.C. § 2251(a);
two counts of distributing child pornography, in violation of
18 U.S.C. § 2252(a)(2); and one count of possession of child pornog-
raphy, in violation of 18 U.S.C. § 2252(a)(4)(B). He appeals the dis-
trict court’s denial of his motion to suppress his internet protocol
(“IP”) address and e-mail address, obtained without a warrant from
the subscriber records of chat messaging application Kik. On ap-
peal, he argues that IP and e-mail addresses fall into the exception
to the third-party doctrine established by
Carpenter v. United
States, 138 S. Ct. 2206 (2018), because they constitute cell-site loca-
tion information (“CSLI”) for which a warrant is required.
The Fourth Amendment guarantees individuals the right to
be “secure in their persons, houses, papers, and effects, against un-
reasonable searches and seizures.” U.S. Const. amend. IV. Under
the exclusionary rule, evidence obtained as a direct result of an il-
legal search or seizure is subject to exclusion, as is “evidence later
discovered and found to be derivative of an illegality or fruit of the
poisonous tree.”
Segura v. United States, 468 U.S. 796, 804 (1984)
(quotation marks omitted). To suppress evidence based on Fourth
Amendment violations, “a claimant has the burden of proving
(1) that the search was unlawful and (2) that the claimant had a le-
gitimate expectation of privacy.”
United States v. McKennon, 814
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21-11747 Opinion of the Court 3
F.2d 1539, 1542 (11th Cir. 1987). This expectation of privacy must
be subjective to the defendant and one that society recognizes as
reasonable.
United States v. Trader, 981 F.3d 961, 967 (11th Cir.
2020),
cert. denied, No. 21-5323 (Oct. 4, 2021). Under the third-
party doctrine, an individual has no reasonable expectation of pri-
vacy in information conveyed to third parties, even if they only re-
vealed that information for a limited purpose.
United States v.
Gayden, 977 F.3d 1146, 1151 (11th Cir. 2020),
cert. denied, No.
20-7896 (Oct. 4, 2021).
In
Carpenter, however, the Supreme Court held that indi-
viduals have a reasonable expectation of privacy in CSLI, such that
the government must obtain a warrant to obtain CSLI records
from cell phone carriers.
Carpenter¸ 138 S. Ct. at 2223. The Court
found that the “unique nature of cell phone location records” sub-
jected them to Fourth Amendment protection, noting that cell
phones automatically connect to the nearest cell tower several
times per minute without any action on the part of the user.
Id. at
2217. The Court expressly held, however, that its decision was “a
narrow one” and did not impact “business records that might inci-
dentally reveal location information.”
Id.
In
Trader, we held that the
Carpenter exception to the third-
party doctrine does not extend to e-mail and IP addresses. 981 F.3d
at 967-68. We rejected Trader’s argument that IP and e-mail ad-
dress constitute CLSI, because they are neither location records nor
cell phone records.
Id. at 968-69. IP addresses, we explained, only
reveal an individual’s location indirectly, if the government
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4 Opinion of the Court 21-11747
examines an internet company’s business records to see where a
particular network is registered.
Id. at 968. We stated that both IP
addresses and e-mail addresses, further, are associated with any de-
vice that can access a wireless internet network, including comput-
ers and tablets, rather than cell phones specifically.
Id. at 969.
Under our prior precedent rule, we are bound to follow the
binding precedent of this Court unless and until it is overruled by
this Court sitting
en banc or the Supreme Court.
United States v.
Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008). “The prior
panel precedent rule applies regardless of whether the later panel
believes the prior panel’s opinion to be correct, and there is no ex-
ception to the rule where the prior panel failed to consider argu-
ments raised before a later panel.”
United States v. Gillis, 938 F.3d
1181, 1198 (11th Cir. 2019).
Solove’s claim that law enforcement needed a warrant to
obtain his e-mail and IP address is foreclosed by our holding in
Trader, to which we are bound under the prior precedent rule. For
this reason, we affirm Solove’s convictions.
AFFIRMED.
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