In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1614
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEWAYNE LEWIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:15-CR-00010-TLS-SLC-1 — Theresa L. Springmann, Judge.
____________________
ARGUED MAY 16, 2022 — DECIDED JUNE 21, 2022
____________________
Before EASTERBROOK, BRENNAN, and ST. EVE, Circuit
Judges.
ST. EVE, Circuit Judge. Dewayne Lewis appeals the denial
of his motion to suppress large quantities of cash and drugs
found in his hotel room. Lewis was a distributor in a drug-
trafficking operation whose leader fled to Mexico. An FBI in-
formant passed along Lewis’s cell phone number, and the
government obtained a tracking order pursuant to the Stored
Communications Act, 18 U.S.C. § 2703(d). Cell-site location
2 No. 21-1614
information (“CSLI”) from Lewis’s cell phone provider
showed that his phone was within a 1,099-meter radius of
Greenwood, Indiana. From there, officers searched parking
lots and hotels where a deal might take place. Officers even-
tually saw a woman resembling Lewis’s wife enter a room at
a hotel, drop off a duffel bag, and drive away in a car regis-
tered in Lewis’s name. After a drug-sniffing dog alerted at the
room, officers applied for a search warrant, and the team ex-
ecuted the warrant the same day. Inside the room, officers
found Lewis, $2 million in cash, and 19.8 kilograms of cocaine.
After a bench trial, the district court found Lewis guilty of
possession with intent to distribute five kilograms or more of
cocaine. Lewis argues that the dog sniff violated his reasona-
ble expectation of privacy. In the alternative, he argues that
the application for the § 2703(d) order lacked probable cause.
Assuming that the court should have suppressed the evi-
dence in his hotel room, Lewis further argues that the evi-
dence presented at trial was insufficient to convict him.
We affirm. Lewis lacked a reasonable expectation of pri-
vacy in the exterior hallway of his hotel, where the dog sniff
occurred. And regardless of whether the government’s use of
real-time CSLI amounted to a search, the good-faith exception
applies. Because the district court correctly denied the motion
to suppress, we do not assess the sufficiency of the remaining
evidence.
I. Background
A. The Drug-Distribution Operation
Lewis reported to a man named Allan Bates. In December
2014, Bates introduced Lewis to Thomas “TJ” Boyle. Lewis
drove a black Mercedes SUV to the meeting and gave Bates
No. 21-1614 3
$125,000 in cash. Unbeknownst to Bates and Lewis, Boyle was
actually an FBI informant. Boyle had agreed to provide the
FBI with evidence of Bates’s drug operation in exchange for
working off a probation revocation. The FBI considered Boyle
very reliable because his information previously led to the sei-
zure of $400,000 from Bates’s right-hand man, Larry Norton.
Boyle also passed on information about a barn near Butler,
Indiana, where the drug-trafficking operation stored cash and
drugs in a hidden compartment.
On January 27, 2015, the FBI served search warrants in In-
diana, Ohio, and Texas in connection with its investigation of
Bates’s operation. Bates fled, and Lewis helped him escape to
Mexico. On February 1, 2015, Bates told Lewis that he and an
associate, Chris Cook, needed to retrieve over $1 million and
20 kilograms of cocaine from the Butler barn. Lewis and Cook
did as Bates instructed, and Lewis told Bates that there were
only 19 kilograms, not the expected 20. At Bates’s direction,
Cook kept $60,000 in cash, and Lewis transferred the remain-
ing cash and drugs to his car.
Meanwhile, the FBI obtained search warrants to review
text messages on a phone that Bates was using in Mexico. On
January 29, Bates texted Lewis and asked him to check on
Boyle. Bates also told Boyle that “Nap” in Indianapolis (mean-
ing Lewis) could help Boyle get cash and a rental car so he
could flee to Texas. Crucially, Bates gave Boyle Nap’s cell
phone number.
B. The Tracking Order
Boyle passed along the cell phone number to FBI Agent
Keszei. FBI Staff Operations Specialist Graff researched the
number and determined that it was assigned to a Sprint
4 No. 21-1614
phone owned by “Dewayne Lewis.” The phone was pre-paid,
so there was no billing address. Graff searched for Dewayne
Lewises in Indianapolis and found one who was born in 1977,
had a prior drug conviction, and was wanted on an outstand-
ing warrant (the “1977 Lewis”). The 1977 Lewis is not the De-
fendant, who was born in 1974 and did not have an outstand-
ing warrant at the time. Complicating matters, Boyle incor-
rectly identified a photograph of the 1977 Lewis as “Nap.”
Both the 1977 Lewis and Defendant Lewis are black.
On January 30, 2015, an officer with the U.S. Marshals’ Vi-
olent Fugitive Task Force applied for and received a court or-
der under the Stored Communications Act, 18 U.S.C.
§ 2703(d). The application sought precision location-based in-
formation for Nap’s cell phone, including cell-site activations,
“twenty-four hour a day assistance … to triangulate target lo-
cation,” and “[h]istorical call detail records for 30 days,”
among other things. In support of the application, Officer
Harshman wrote:
Applicant certifies that the information sought
is relevant and material to a fugitive investigation,
to wit: that the INDIANA STATE POLICE [and]
US MARSHALS SERVICE are conducting an in-
vestigation to locate DEWAYNE LEWIS, a fugi-
tive from justice. DEWAYNE LEWIS has an active
warrant for a PAROLE VIOLATION on an orig-
inal charge of DEALING COCAINE, IC: 35-48-
4-1. On January 30, 2015, Trp. Brian Harshman
was contacted by FBI S/A James Keszei refer-
ence [sic] assisting in locating and arresting
DEWAYNE LEWIS. DEWAYNE LEWIS has an
active warrant out of the Indiana Department of
No. 21-1614 5
Corrections for a parole violation. S/A Keszei
advised that he is currently involved in an in-
vestigation involving a drug trafficking organi-
zation in which DEWAYNE LEWIS is involved.
S/A Keszei advised that during the course of the
investigation it has been learned through in-
formants and additional investigations that
DEWAYNE LEWIS is utilizing a cellular tele-
phone with an associated number of (317)507-
8010. TFO Harshman was able to utilize law en-
forcement contacts within the Sprint Wireless
Law Enforcement Compliance Department that
[sic] (317)507-8010 does indeed belong to their
company. Since DEWAYNE LEWIS is utilizing
this cellular phone with associated number
(317)507-8010, it is believed that the requested
records and information will assist officers in lo-
cating and arresting DEWAYNE LEWIS.
(emphases added). On January 30, an Indiana state court
judge granted the application “for the period of January 1,
2015 to the present and extending thirty (30) days past the
date of this Order.” In doing so, the judge found “that the in-
formation likely to be obtained is relevant and material to an
ongoing criminal investigation.”
Sprint began providing location information for the cell
phone sometime on the morning of February 3, 2015. Sprint’s
data showed that Nap’s phone was within a 1,099-meter ra-
dius (roughly two-thirds of a mile) of Greenwood, a suburb
of Indianapolis. After 11:34 a.m., the phone was no longer
connected to Sprint’s network, possibly because the phone
had been turned off. The phone reconnected to the network at
6 No. 21-1614
3:59 p.m. By that point, as explained below, officers had al-
ready zeroed in on Lewis’s likely location. Between 3:59 p.m.
and 4:21 p.m., Sprint reported that the phone was still within
the same area of Greenwood, but Officer Harshman was no
longer receiving email updates from Sprint. In any event, af-
ter approximately 3:00 p.m., Officer Harshman did not re-
view the location data because he and the other officers were
following another lead.
C. The Dog Sniff
On February 3, 2015, in reliance on the Sprint location
data, eight to ten Marshals’ Task Force Officers checked park-
ing lots across Greenwood for a black Mercedes SUV. They
also asked clerks at five local hotels if a black male had re-
cently checked in. Sometime after 2:00 p.m., Officer Jason
York checked a police database and discovered that Defend-
ant Lewis lived in Greenwood and had two cars registered in
his name: a black Mercedes and a white Cadillac Escalade. Of-
ficer York realized for the first time, however, that there was
a discrepancy between Defendant Lewis’s birth year and the
birth year of the man whose outstanding arrest warrant had
provided the basis for the § 2703(d) order. Officer Harshman
emailed FBI Task Force Officer Martinez about the discrep-
ancy at 2:23 p.m. Officer Martinez told Officer Harshman that
the date of birth in the police database might be wrong, but
he was confident that the vehicle description was correct, so
the Marshals should locate Lewis and take him into custody.
Around 3:00 p.m., an officer on the team learned that a
“Michael Jackson” of Evansville, Indiana had checked into
Room 211 of the Greenwood Red Roof Inn at 10:10 a.m. (Jack-
son is a real person, but Defendant Lewis had apparently
checked in using his name.) Room 211 is on the second floor
No. 21-1614 7
of the hotel and is accessible via an exterior hallway and stair-
case leading directly to the parking lot. Sometime after
3:00 p.m., an officer on the team saw a white Cadillac Escalade
drive into the Red Roof Inn parking lot. The driver was a
woman who resembled a picture of Lewis’s wife from the In-
diana Bureau of Motor Vehicles. A license plate check con-
firmed that the car was registered to Lewis. The woman took
a duffel bag out of the car, brought it inside Room 211, and
left the room less than five minutes later.
At 3:35 p.m., about twenty minutes after the woman left,
several officers approached Room 211 and knocked on the
door. No one answered. At 3:41 p.m., a K-9 handler walked a
trained drug-detection dog up the exterior staircase and along
the second-floor hallway. After passing seven other doors, the
dog alerted at Room 211. Based on the dog sniff, a Greenwood
police sergeant applied for a search warrant for Room 211. A
local judge approved the warrant at 4:50 p.m., and officers ex-
ecuted the warrant at 5:05 p.m. The officers found Lewis,
$2 million in cash, and 19.8 kilograms of cocaine in duct-taped
packages. Lewis later confessed to his role in the drug-traf-
ficking organization.
On the morning of February 4, 2015, one day after Sprint
began providing location information for Lewis’s cell phone,
the Marshals emailed Sprint to discontinue the tracking order.
D. Procedural History
After his arrest, Lewis waived his right to counsel and
generally proceeded pro se. A magistrate judge construed
Lewis’s motion to dismiss the indictment as a motion to sup-
press evidence resulting from the dog sniff. In February 2016,
the magistrate conducted a two-day evidentiary hearing
8 No. 21-1614
focused primarily on the dog sniff, followed by a supple-
mental hearing in January 2017 focused on the § 2703(d) or-
der. The magistrate recommended that the district court sup-
press all evidence from the hotel room and Lewis’s subse-
quent confession, reasoning that the dog sniff violated the
Fourth Amendment. United States v. Lewis, No. 1:15-CR-
00010-TLS-SLC, 2017 WL 9565360, at *8–9 (N.D. Ind. May 24,
2017) (citing United States v. Whitaker, 820 F.3d 849, 853 (7th
Cir. 2016)).
In a July 2017 opinion—before Carpenter v. United States,
138 S. Ct. 2206 (2018)—the district court rejected that recom-
mendation and denied the motion to suppress. The district
judge noted that the Supreme Court had distinguished Kyllo
v. United States, 533 U.S. 27 (2001) in Illinois v. Caballes, 543 U.S.
405 (2005), meaning that dog sniffs do not necessarily infringe
reasonable expectations of privacy. The district court further
distinguished this court’s decision in Whitaker, which held
that a warrantless dog sniff in the interior hallway of an apart-
ment building violated the Fourth Amendment. 820 F.3d at
853. In the district court’s view, the dog sniff in this case did
not invade the curtilage, so there was no Fourth Amendment
violation. The district court further concluded that any error
in the application for the § 2703(d) order was harmless be-
cause the officers were not relying on cell-site location infor-
mation after 11:34 a.m., when Sprint stopped reporting data.
Lewis waived his right to a jury trial. After a three-day
bench trial, the district court found him guilty of possessing
more than five kilograms of cocaine with the intent to distrib-
ute. The judge expressly found that, even if the evidence from
the hotel room and Lewis’s cell phone had been suppressed,
Lewis was still guilty beyond a reasonable doubt. The court
No. 21-1614 9
also found that Bates and Cook testified credibly and consist-
ently as to Lewis’s involvement in the operation. The govern-
ment had presented text messages between Lewis and Bates
discussing the quantity of drugs stored at the barn and a
ledger showing large payments from Bates to Lewis. This ev-
idence showed beyond a reasonable doubt that Lewis knew
the packages he and Cook retrieved on February 1, 2015, con-
tained more than five kilograms of cocaine.
II. Discussion
When a defendant appeals the denial of a motion to sup-
press, we review the district court’s legal conclusions de novo
and its factual findings for clear error. United States v. Ham-
mond, 996 F.3d 374, 383 (7th Cir. 2021).
A. The Dog Sniff
The Fourth Amendment safeguards “[t]he right of the
people to be secure in their persons, houses, papers, and ef-
fects, against unreasonable searches and seizures.” Generally,
a law enforcement officer may not perform a search without
a warrant supported by probable cause, unless an exception
to the warrant requirement applies. Lange v. California, 141 S.
Ct. 2011, 2017 (2021). Conversely, if something is not a search,
then there is no need for a warrant. Illinois v. Caballes, 543 U.S.
405, 408 (2005) (“Official conduct that does not compromise
any legitimate interest in privacy is not a search subject to the
Fourth Amendment.”) (internal quotation marks omitted).
Two lines of precedent govern whether officer conduct
amounts to a search. Under the property-based approach, a
search occurs when an officer enters a constitutionally pro-
tected area, such as the home, for the purpose of gathering
evidence against the property owner. Florida v. Jardines, 569
10 No. 21-1614
U.S. 1, 6 (2013) (explaining that the curtilage is the area “im-
mediately surrounding and associated with the home” and is
“part of the home itself for Fourth Amendment purposes”)
(quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). This
approach derives from common-law trespass. United States v.
Jones, 565 U.S. 400, 405–06 & n.3 (2012) (“Where … the Gov-
ernment obtains information by physically intruding on a
constitutionally protected area, [] a search has undoubtedly
occurred.”).
Alternatively, under the privacy-based approach, courts
ask whether a person has a legitimate expectation of privacy
in a given situation. Katz v. United States, 389 U.S. 347, 361
(1967) (Harlan, J., concurring) (explaining that the Fourth
Amendment applies when “a person [has] exhibited an actual
(subjective) expectation of privacy and … the expectation [is]
one that society is prepared to recognize as ‘reasonable’”). The
privacy-based approach also limits the government’s ability
to exploit technological advances. Kyllo v. United States, 533
U.S. 27, 34–35 (2001) (holding that the use of a thermal imager
to detect heat radiating from a home was a search).
The Supreme Court has sometimes held that the use of
drug-sniffing dogs constitutes a search. Compare Jardines, 569
U.S. at 11–12 (dog sniff for drugs on front porch of home is a
search), with Caballes, 543 U.S. at 410 (dog sniff for drugs dur-
ing a lawful traffic stop is not a search because the sniff “re-
veals no information other than the location of a substance
that no individual has any right to possess”); United States v.
Place, 462 U.S. 696, 707 (1983) (dog sniff of luggage in an
No. 21-1614 11
airport is not a search because it “discloses only the presence
or absence of narcotics, a contraband item”). 1
In Jardines, officers brought a drug-sniffing dog onto the
front porch of a home whose owner they suspected of grow-
ing marijuana. Justice Scalia’s majority opinion reasoned that
the front porch is the “classic exemplar” of the curtilage,
meaning that it is part of the home for Fourth Amendment
purposes. 569 U.S. at 7. Visitors to a home have an implied
license “to approach the home by the front path, knock
promptly, wait briefly to be received, and then (absent invita-
tion to linger longer) leave.” Id. at 8. But the officers in Jardines
exceeded the scope of that license by bringing a drug-sniffing
dog into the curtilage. Id. at 9–10. Justice Kagan’s concurrence
explained that the same outcome would follow under the pri-
vacy-based approach in Kyllo and Katz. Id. at 13 (Kagan, J.,
concurring). In her view, the case was a straightforward ap-
plication of Kyllo because the officers used “a ‘device … not in
general public use’ (a trained drug-detection dog) to ‘explore
details of the home’ (the presence of certain substances) that
they would not otherwise have discovered without entering
the premises.” Id. at 14–15 (quoting Kyllo, 533 U.S. at 40).
Lewis argues that the dog sniff outside his hotel room con-
stituted a search. He asks that we extend this court’s decision
in Whitaker, which held that a dog sniff for drugs in the inte-
rior hallway of an apartment building constituted a search.
1 This case involves a dog sniff for controlled substances, not explosives.
Even the dissenters in Caballes recognized that “[a] dog sniff for explo-
sives, involving security interests not presented here, would be an entirely
different matter.” Caballes, 543 U.S. at 423 (Ginsburg, J., dissenting). “[T]he
immediate, present danger of explosives would likely justify a bomb sniff
under the special needs doctrine.” Id. at 425.
12 No. 21-1614
820 F.3d at 852–54. Notably, we did not conclude in Whitaker
that the area outside the defendant’s apartment door
amounted to curtilage. Id. at 853 (observing that defendant
lacked the right to exclude people from the hallway). Instead,
the court drew upon Justice Kagan’s concurring opinion in
Jardines and reasoned that apartment residents have a reason-
able expectation of privacy in the area outside their doors. We
also distinguished the facts in Whitaker from Caballes and Place
because those sniffs occurred in public places rather than a
home.
1. Property-Based Approach
The key question under the property-based approach is
whether the area outside Lewis’s hotel room door was consti-
tutionally protected. Jardines, 569 U.S. at 6. Recall that the hall-
way of this particular hotel was open-air and accessible via an
exterior staircase that led directly to a parking lot. Unlike the
homeowner in Jardines, Lewis lacked the right to exclude
members of the public from passing through the exterior hall-
way. And as noted above, the Whitaker court did not even con-
clude that the interior hallway of an apartment building
amounts to curtilage. Whitaker, 820 F.3d at 853. The exterior
hallway of the Red Roof Inn is even farther afield from a front
porch than an interior apartment hallway, so there was no
search under the property-based approach.
2. Privacy-Based Approach
Lewis fares no better under the privacy-based approach.
Justice Harlan’s formulation of that approach asks
(1) whether “a person [has] exhibited an actual (subjective)
expectation of privacy,” and (2) whether “the expectation [is]
one that society is prepared to recognize as ‘reasonable.’”
No. 21-1614 13
Katz, 389 U.S. at 361 (Harlan, J., concurring). Even assuming
that Lewis had a subjective expectation of privacy, the Su-
preme Court’s decisions in Caballes and Place demonstrate
that his expectation was not reasonable.
In Place, the Court explained that exposing luggage to a
drug-sniffing dog in an airport was not a search, in large part
because “the sniff discloses only the presence or absence of
narcotics, a contraband item.” 462 U.S. at 707. Unlike an of-
ficer “rummaging through the contents of the luggage,” a dog
sniff “does not require opening the luggage” and “does not
expose noncontraband items that otherwise would remain
hidden from public view.” Id. Similarly, in Caballes, the Court
reasoned that “any interest in possessing contraband cannot
be deemed legitimate, and thus, governmental conduct that
only reveals the possession of contraband compromises no le-
gitimate privacy interest.” Caballes, 543 U.S. at 408 (internal
quotation marks omitted). Caballes also distinguished Kyllo,
which involved a thermal-imaging device “capable of detect-
ing lawful activity,” including “intimate details in a home.”
Id. at 409–10. “The legitimate expectation that information
about perfectly lawful activity will remain private is categor-
ically distinguishable from respondent’s hopes or expecta-
tions concerning the nondetection of contraband in the trunk
of his car.” Id. at 410.
This is not to say that Lewis had no reasonable expectation
of privacy whatsoever inside his hotel room. Lewis is correct
that the Fourth Amendment extends to temporary dwelling
places, such as hotel and motel rooms. Finsel v. Cruppenink,
326 F.3d 903, 907 (7th Cir. 2003) (citing Stoner v. California, 376
U.S. 483, 490 (1964)). A hotel guest has a reasonable expecta-
tion, for example, that there is not a hidden camera in her
14 No. 21-1614
room. But that does not mean an expectation of privacy that
is reasonable in a home (i.e., to be free of warrantless dog
sniffs) is necessarily reasonable in a hotel room. In that re-
spect, the exterior hallway of a hotel adjacent to a parking lot
is much closer to the public settings in Caballes and Place than
the front porch in Jardines.
Lewis was also a mere guest, not a resident. While it is true
that hotel guests have some legitimate expectations of pri-
vacy, they cannot exclude others from entering a hallway—
particularly where, as here, an exterior hallway is accessible
from a staircase leading directly to the parking lot. Indeed, the
Supreme Court in Stoner recognized that “when a person en-
gages a hotel room he undoubtedly gives implied or express
permission to such persons as maids, janitors or repairmen to
enter his room in the performance of their duties.” Stoner, 376
U.S. at 489 (internal quotation marks omitted). If hotel guests
have only a limited right to exclude hotel staff from a room,
then it is hard to see how guests at the Red Roof Inn could
reasonably expect to be free of dog sniffs in the exterior hall-
way.
B. The § 2703(d) Order
Section 2703 of the Stored Communications Act authorizes
courts to “order cell-phone providers to disclose non-content
information” in response to a governmental entity’s request.
Hammond, 996 F.3d at 384–85 (citing 18 U.S.C. § 2703(c)(1)(B)).
Prior to the Supreme Court’s decision in Carpenter v. United
States, 138 S. Ct. 2206 (2018), the government could obtain a
court order by “offer[ing] specific and articulable facts show-
ing that there are reasonable grounds to believe that … the rec-
ords or other information sought[] are relevant and material
No. 21-1614 15
to an ongoing criminal investigation.” 18 U.S.C. § 2703(d)
(emphasis added).
Cell-site location information (“CSLI”) is “location infor-
mation generated by cellular phone providers that indicates
which cell tower a particular phone was communicating with
when a communication was made.” United States v. Curtis, 901
F.3d 846, 847 (7th Cir. 2018). “Because cell phones are in con-
stant communication with the nearest cell site—often affixed
to a cell tower—they can collect CSLI as frequently as several
times a minute.” Id. (citing Carpenter, 138 S. Ct. at 2211–12).
“The precision of this information depends on the size of the
geographic area covered by the cell site.” Carpenter, 138 S. Ct.
at 2211. In dense urban areas, CSLI might be very precise, but
CSLI is generally less precise than GPS tracking.
Courts distinguish between historical CSLI and real-time
CSLI: historical CSLI allows law enforcement to retrace a de-
fendant’s physical movements, while real-time CSLI shows
(roughly) where a defendant’s cell phone is currently located.
Hammond, 996 F.3d at 387; Carpenter, 138 S. Ct. at 2220 (ex-
pressing no opinion on “real-time CSLI”). “As with GPS in-
formation, [historical CSLI] provides an intimate window
into a person’s life, revealing not only his particular move-
ments, but through them his ‘familial, political, professional,
religious, and sexual associations.’” Carpenter, 138 S. Ct. at
2217 (quoting Jones, 565 U.S. at 415 (Sotomayor, J., concur-
ring)).
In Carpenter, the Supreme Court held that the collection of
historical CSLI over the course of a substantial period of time
(127 days) was a search. Carpenter, 138 S. Ct. at 2217. Because
§ 2703(d)’s “reasonable grounds” language poses a lower bar
than probable cause, the government can no longer rely on
16 No. 21-1614
the language of the statute alone. Id. at 2221 (“[A]n order is-
sued under Section 2703(d) of the Act is not a permissible
mechanism for accessing historical cell-site records.”). In-
stead, the government must generally obtain a warrant to ac-
cess those records, subject to common-sense exceptions for
emergencies. Id. at 2222–23.
1. The Good-Faith Exception
The exclusionary rule is a judicially created remedy to de-
ter violations of criminal defendants’ constitutional rights.
Davis v. United States, 564 U.S. 229, 236–37 (2011); Curtis, 901
F.3d at 849. A defendant may invoke the rule to prevent
tainted evidence from being used against him at trial, but the
exclusionary rule “is not a ‘personal constitutional right,’ and
its application ‘exacts a heavy toll on both the judicial system
and society at large.’” Hammond, 996 F.3d at 384 (quoting Da-
vis, 564 U.S. at 236–37).
The Supreme Court has emphasized that the exclusionary
rule does not apply when it would serve no deterrent func-
tion. United States v. Leon, 468 U.S. 897, 922 (1984) (good-faith
reliance on a facially valid warrant); Illinois v. Krull, 480 U.S.
340, 356–57 (1987) (good-faith reliance on then-valid statute);
Davis, 564 U.S. at 232 (good-faith reliance on then-binding cir-
cuit precedent). In Curtis, this court concluded that the good-
faith exception applies to historical CSLI obtained via a
§ 2703(d) order before the Carpenter decision. The Curtis court
reasoned that under Krull, the exclusionary rule does not ap-
ply to the fruits of evidence obtained in good-faith reliance on
a subsequently invalidated statute. 901 F.3d at 848 (citing
Krull, 480 U.S. at 349–50); see also United States v. Rosario,
5 F.4th 706, 711–12 (7th Cir. 2021); Hammond, 996 F.3d at 386;
United States v. Adkinson, 916 F.3d 605, 611 (7th Cir. 2019).
No. 21-1614 17
The government contends Lewis forfeited his argument
that the § 2703(d) order lacked probable cause by failing to
raise it below. 2 We will nonetheless consider it for several rea-
sons. Lewis was pro se below, and he did move to suppress
the fruits of the § 2703(d) order on the grounds that it relied
on inaccurate information (the outstanding warrant for the
1977 Lewis). In any event, his argument lacks merit because
the good-faith exception applies.
a. Historical CSLI
The tracking order in this case seems to have granted the
government permission to obtain historical CSLI between
January 1, 2015, and “thirty (30) days past the date of this Or-
der,” which was entered on January 30, 2015. At oral argu-
ment, however, the government clarified that it did not rely
on historical CSLI either to find Lewis or to prosecute him for
possession with intent to distribute. Indeed, both parties
agree that Sprint did not begin sending data to law enforce-
ment until February 3, 2015, the day of his arrest. Because the
government did not use historical CSLI or the fruits of such
information against Lewis at trial, there is nothing to exclude.
See Wong Sun v. United States, 371 U.S. 471, 487–88 (1963);
Hammond, 996 F.3d at 383 (“[T]here is no need to exclude evi-
dence never admitted at trial or used improperly to obtain ad-
ditional evidence.”).
2 Not to be outdone, Lewis argues the government forfeited reliance on
the good-faith exception by not raising it in the district court. This coun-
terattack is unpersuasive because, when the district court ruled on the mo-
tion to suppress in 2017, neither Carpenter nor Curtis had been issued, so
there was no basis for raising a good-faith exception argument.
18 No. 21-1614
Moreover, this court has repeatedly held that the good-
faith exception applies to historical CSLI collected pursuant
to a § 2703(d) order pre-Carpenter. See Rosario, 5 F.4th at 711–
12; Hammond, 996 F.3d at 386; Curtis, 901 F.3d at 849. The mere
act of applying for a § 2703(d) order suggests that Officer
Harshman made a good-faith attempt to comply with a then-
valid statute. Cf. United States v. Matthews, 12 F.4th 647, 653
(7th Cir. 2021) (“Although it is the Government’s burden to
demonstrate that the officer was acting in objective good faith,
an officer’s decision to obtain a warrant is prima facie evi-
dence of his good faith.”). And there is no evidence that Of-
ficer Harshman knowingly or recklessly misled the judge or
that the affidavit was facially invalid at the time he filed it.
United States v. Rees, 957 F.3d 761, 771 (7th Cir. 2020).
b. Real-time CSLI
In Hammond, we declined to categorically extend Carpenter
to real-time CSLI. Hammond involved three different types of
CSLI: (1) historical CSLI collected pursuant to a § 2703(d) or-
der, (2) historical CSLI collected pursuant to a § 2702 request,
and (3) real-time CSLI collected pursuant to a § 2702 request.
Hammond, 996 F.3d at 383. A § 2702 request “permits carriers
to release records to a governmental entity, ‘if the provider, in
good faith, believes that an emergency involving danger of
death or serious physical injury to any person requires disclo-
sure without delay of information relating to the emer-
gency.’” Id. at 386 (quoting 18 U.S.C. § 2702(c)(4)). Although
the real-time CSLI in Hammond was obtained via a § 2702 re-
quest rather than a court order, any distinction between
§§ 2702 and 2703 did not affect our analysis of how Carpenter
applies to real-time CSLI.
No. 21-1614 19
Law enforcement in Hammond used real-time CSLI for sev-
eral hours on a single day to track the defendant across Indi-
ana. Hammond, 996 F.3d at 381. Of relevance here, the Ham-
mond court held that a request for real-time CSLI did not
amount to a search because the defendant was “a suspect for
multiple armed robberies, for whom officers had probable
cause, where the officers only collected real-time CSLI for a
matter of hours while the suspect travelled on public road-
ways, and law enforcement limited its use of the CSLI to the
purpose of finding the armed suspect who they had reason to
believe was likely to engage in another armed robbery.” Id. at
392. On those facts, the defendant had no reasonable expecta-
tion of privacy, so evidence stemming from the use of real-
time CSLI to arrest Hammond did not have to be suppressed.
Id. at 391. In the alternative, we concluded that the good-faith
exception applied to the collection of real-time CSLI pursuant
to a § 2702 request. Id. at 392–93.
In light of Hammond, even assuming the use of real-time
CSLI in this case amounted to a search, the good-faith excep-
tion applies. The officers here relied on § 2703(d)’s “reasona-
ble grounds” requirement when seeking a court order. Prior
to Carpenter, good-faith reliance on this provision for the col-
lection of historical CSLI was reasonable. Curtis, 901 F.3d at
848. Historical CSLI raises grave privacy concerns because it
allows the government to retrace a person’s movements over
time. Carpenter, 138 S. Ct. at 2217. Real-time CSLI, while still
implicating privacy interests, is more analogous to tracking a
suspect on public roads. Cf. United States v. Knotts, 460 U.S.
276 (1983) (holding that the use of a beeper in a drum of chlo-
roform to track a suspect’s car on public roads was not a
search); Hammond, 996 F.3d at 389–90 (discussing Knotts). It
follows that the good-faith exception applies not only to
20 No. 21-1614
historical CSLI collected under § 2703(d), but also to real-time
CSLI. We leave for another day whether the collection of real-
time CSLI after Carpenter ever amounts to a search.
2. Errors in the § 2703(d) Affidavit
Alternatively, Lewis argues that the officers should have
ceased their investigation when they learned that the in-
tended target was not born in 1977. The mix-up was poten-
tially material to Officer Harshman’s § 2703(d) application be-
cause the 1977 Lewis, unlike the Defendant, had an outstand-
ing warrant for a parole violation. Indeed, Officer Harsh-
man’s affidavit emphasized that information from Lewis’s
cell phone was critical to a “fugitive investigation” and that
Lewis was a “fugitive from justice.” Around 2:00 p.m. on Feb-
ruary 3, Officer York learned that Defendant Lewis was born
in 1974, and Officer Harshman emailed FBI TFO Martinez
about the discrepancy at 2:23 p.m. Officer Martinez asked the
team to continue looking for Lewis, in part because the black
Mercedes registered in Lewis’s name corroborated the tip
from Boyle. It is unclear from the record when the officers
learned that Defendant Lewis did not have any outstanding
warrants. It is also unclear when or if Officer Harshman
pieced together that Boyle’s incorrect photo identification of
the 1977 Lewis as “Nap” undermined Boyle’s credibility.
Lewis is correct that officers must cease executing a search
warrant when they learn of a material error in a probable
cause affidavit. See Maryland v. Garrison, 480 U.S. 79, 86 (1987);
Muhammad v. Pearson, 900 F.3d 898, 904 (7th Cir. 2018) (“Of-
ficers executing warrants … may violate the Fourth Amend-
ment if they know or should know, before execution, that the
warrant has an error or critical ambiguity that risks a search
of the wrong location.”). We are skeptical, however, that the
No. 21-1614 21
facts that were then known to the officers materially under-
mined the basis for the § 2703(d) order. From what we can tell,
the only discrepancy that the officers knew of on the after-
noon of February 3 was Lewis’s birth year—not the fact that
he lacked outstanding warrants or that Boyle had incorrectly
identified Nap. A three-year difference in birth year, alone,
did not require them to stop searching and report to the mag-
istrate judge.
Regardless, any belatedly discovered errors in the
§ 2703(d) affidavit were attenuated from the events that led to
Lewis’s eventual arrest. See Wong Sun, 371 U.S. at 487–88;
United States v. Green, 111 F.3d 515, 520–21 (7th Cir. 1997).
Sprint was not sending any information to law enforcement
between 11:34 a.m. and 3:59 p.m., possibly because Lewis’s
phone was turned off. Between 3:00 p.m. and 3:41 p.m., offic-
ers saw a woman resembling Lewis’s wife drop off a bag in
Room 211, the woman drove away in a car registered in
Lewis’s name, and a drug-sniffing dog had alerted at the
door. Thus, by the time Sprint began sending information
again, the officers were already in the process of seeking a
search warrant for Room 211.
III. Conclusion
For the foregoing reasons, the district court’s denial of the
motion to suppress is
AFFIRMED.