United States of America v. Robert Zenas Whipple, Iii

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0022p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT ZENAS WHIPPLE, III,
Defendant-Appellant.
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No. 23-5126
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: December 6, 2023
Decided and Filed: February 8, 2024
Before: BATCHELDER, CLAY, and GIBBONS, Circuit Judges.
_________________
COUNSEL
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.
_________________
OPINION
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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
>

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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

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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
1Examiner Adams explained that too many incorrect attempts at unlocking a cellphone could lock or break
the phone. And he stated that reprogramming the phone would likely wipe the data therein.

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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, 138 S. Ct. 2206 (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
2Whipple also moved to reopen his suppression hearing. That issue is not before this Court.

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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.
3Law enforcement officers never sought Whipple’s entire purchase history, nor did they gain access to it.
Instead, they sought a specific transaction associated with consumer information that was provided by the consumer
on the Walmart application.

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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. 735,
740 (1979)); see also Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
Whipple exhibits neither.
We recognize subjective expectations of privacy for placing trash in an opaque garbage
bag. California v. Greenwood, 486 U.S. 35, 39 (1988). We also recognize the same when a
defendant sets up elaborate security systems and high fences to obstruct street-level view into a
property. See Dow Chem. Co. v. United States, 476 U.S. 227, 229, 237–39 (1986); California v.
Ciraolo, 476 U.S. 207, 211 (1986). Furthermore, letters and emails have a subjective, as well as
objective, expectation of privacy. United States v. Warshak, 631 F.3d 266, 285, 287–88 (6th Cir.
2010). The key to these subjective expectations of privacy is that those defendants showed their
subjective expectations through conduct, doing more than just making statements during
litigation about their expectations. See Mathis, 738 F.3d at 730.
Through his conduct, Whipple did not show that he had a subjective expectation of
privacy in the purchase of “a red rain poncho, markers, and manila envelopes,” which were used
in the bank robberies, or in his subscriber information. He went to Walmart to make his
purchase, in-store. And instead of using a more private purchasing method, Whipple chose to
use the Walmart Pay app after he actively and voluntarily disclosed his name, address, and
payment information to the Walmart Pay app.4 Moreover, he was seen on Walmart surveillance
video leaving the store in his not-so-subtle yellow Dodge Charger. We will not recognize
Whipple’s litigation statements as demonstrating his subjective expectation of privacy in his
4Post-Carpenter, at least four of our sister circuits have recognized that law enforcement can still use
subpoenas to obtain a suspect’s personal internet traffic data, i.e., internet protocol (IP) addresses—something that is
arguably more private than subscriber information voluntarily stored on an application. See, e.g., United States v.
Soybel, 13 F.4th 584, 592 (7th Cir. 2021); United States v. Trader, 981 F.3d 961, 967–68 (11th Cir. 2020); United
States v. Hood, 920 F.3d 87, 92 (1st Cir. 2019); United States v. Contreras, 905 F.3d 853, 857 (5th Cir. 2018). And
one of our district courts has held that subscriber information is subject to subpoena, based on this reasoning and
differentiating subscriber information from the geolocation data at issue in Carpenter. United States v. Maclin, 393
F. Supp. 3d 701, 708 (N.D. Ohio 2019) (“Subscriber information requires an individual’s active participation.”). We
find the same here. Whipple’s subscriber information was subject to the administrative subpoena for his active and
voluntary disclosure of that information.

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specific purchase and subscriber information when his actions do not indicate that he tried to
keep this specific purchase private.
Nor do we find that society is willing to recognize as reasonable an expectation of
privacy such as Whipple claims here. Walmart’s tracking of purchasing history, particularly as
related to one specific purchase, is an example of a business record, which is not subject to a
reasonable expectation of privacy. See, e.g., United States v. Miller, 425 U.S. 435, 440, 443
(1976). Therefore, the third-party doctrine still applies to business records that might reveal
information such as telephone numbers and bank records, and Carpenter does not suggest
otherwise. 138 S. Ct. at 2220, 2222.5
Whipple attempts to analogize his information to cellphone geolocation data, invoking
the application of the third-party doctrine in Carpenter. There, the Supreme Court held that an
individual maintains a reasonable expectation of privacy for information captured by his
cellphone’s geolocation. 138 S. Ct. at 2217. The Court explained that the automatic, involuntary
disclosure of cellphone-geolocation data is not subject to the third-party doctrine, id. at 2217–18,
2219–20, but the Court was careful not to disturb the application of the traditional third-party
doctrine to voluntary disclosures. Id. at 2219–20. In other words, what a person knowingly
exposes to the public is not subject to Fourth Amendment-warrant protection. See Katz, 389 U.S.
at 351; Miller, 425 U.S. at 443 (explaining that when someone reveals his affairs to another, he
can no longer expect that such information will remain private).6 This means that “[t]he
5Whipple cited a California Law Review article to suggest that society recognizes that purchasing history is
subject to a reasonable expectation of privacy. Whipple’s law review citation faces three problems. First, law
enforcement officers sought information about one specific transaction. Second, precedent which binds us today
demonstrates that specific purchasing history and subscriber information are akin to business records. Carpenter,
138 S. Ct. at 2220, 2222; Miller, 425 U.S. at 440, 443. Third, as we explained, Whipple’s actions did not
demonstrate that he had a legitimate expectation of privacy for this one specific transaction.
6There are numerous cases dealing with knowing and voluntary disclosures as related to the third-party
doctrine: Sanchez v. L.A. Dep’t of Transp., 39 F.4th 548, 559–60 (9th Cir. 2022) (explaining the “knowing[] and
voluntar[y]” disclosure of location data when the plaintiff used a third party’s (Lyft’s) e-scooter); United States v.
Gratkowski, 964 F.3d 307, 311–13 (5th Cir. 2020) (explaining the affirmative actions required to partake in
Bitcoin’s blockchain and transactions on Coinbase, which diminish a reasonable expectation of privacy in the
related information); United States v. Caira, 833 F.3d 803, 809 (7th Cir. 2016) (holding that “[b]ecause [the
defendant] voluntarily shared his I.P. addresses with Microsoft, he had no reasonable expectation of privacy in those
addresses”); United States v. Bah, 794 F.3d 617, 633 (6th Cir. 2015) (explaining that the information stored on a
credit or debit card’s magnetic strip is subject to a warrantless search because that data “is intended to be read by
third parties”) (emphasis in original) (citation omitted).

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Government will be able to use subpoenas to acquire records in the overwhelming majority of
investigations.” Carpenter, 138 S. Ct. at 2222.
Unlike what occurred in Carpenter, Whipple’s information was not automatically
disclosed by virtue of his shopping at Walmart. Here, agents asked Walmart about specific
purchases of items such as those used in the bank robberies. Walmart security personnel
identified a single purchase, which included a red rain poncho, markers, and manila envelopes—
all items used by the bank robber. That purchase had been made just three days prior to the first
bank robbery. In turn, agents subpoenaed Walmart’s records for that specific purchase and
identifying information related to the purchaser related to it. Walmart’s business records showed
Whipple as the man behind the purchase, and identified information such as his name and
address.7 Whipple had voluntarily disclosed information to Walmart, via the Walmart-Pay-app.
Moreover, he was seen on surveillance footage at Walmart. See United States v. Knotts, 460 U.S.
276, 282–83 (1983) (explaining that no expectation of privacy extends to visual observation from
public places of one’s whereabouts). Whipple’s actions were not demonstrative of a legitimate or
reasonable expectation of privacy. Therefore, the third-party doctrine applies, and the agents did
not violate Whipple’s Fourth Amendment rights by subpoenaing Walmart’s records for the
specific purchase and subscriber information related to it.8
7Whipple also argues that the authorities could have gone through the entirety of Whipple’s purchasing
history at Walmart, citing Kyllo v. United States, 533 U.S. 27, 38 (2001). This argument is inapposite for two
reasons. First, the assertion only tangentially supports Whipple’s argument. The thermal imaging at issue in Kyllo
could have revealed more than heat signatures. Indeed, there was no way to limit the scope of what the thermal
imaging would reveal. Here, the authorities limited what they were looking at: Whipple’s single transaction
regarding items like those used in the bank robberies. Second, and relatedly, the authorities did not go through all of
Whipple’s purchasing history. They narrowed the subpoena and the information collected from it to a specific
transaction tied to a specific account.
8Whipple alternatively argues in briefing that even if law enforcement could use a subpoena to get
Whipple’s purchasing history and subscriber information, they did not follow the proper procedure. Blue Br., Pg. 31.
Here, Whipple relies on the Right to Financial Privacy Act (RFPA). Id. In relevant part, the RFPA requires that a
government authority only obtain “financial records” by administrative subpoena of customers from “financial
institution[s]” if the records are “reasonably described” and they are disclosed to the customer who has an
opportunity to quash the subpoena. 12 U.S.C. § 3402(2) & 3405. Whipple faces a major problem: he does not offer
any evidence that Walmart is a financial institution for purposes of the RFPA or that his transaction and subscriber
information were financial records protected by RFPA. See 12 U.S.C. §3401(1), (2). Therefore, this alternative
argument fails.

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b. Whipple’s Car
Whipple argues that the warrantless seizure of his car renders the evidence found within
it inadmissible. Whipple’s car was impounded by FBI agents and kept by for three days before
they procured a warrant and searched the car. Whipple’s arguments fail for one reason: the
automobile exception to the warrant requirement applies to this situation.9
The automobile exception relieves law enforcement officers of the requirement to obtain
a warrant before seizing and conducting a search of an automobile where probable cause exists
to believe that evidence of a crime will be found in the car. See Chambers v. Maroney, 399 U.S.
42, 48 (1970) (“[A]utomobiles and other conveyances may be searched without a warrant . . .
provided that there is probable cause to believe that the car contains articles that the officers are
entitled to seize.”); Cardwell v. Lewis, 417 U.S. 583, 593–95 (1974) (holding that the warrantless
seizure of a car from a public parking lot, and subsequent impoundment following the
defendant’s arrest, was “not unreasonable” because there was probable cause that the car
constituted evidence of a crime); United States v. Smith, 510 F.3d 641, 647–48 (6th Cir. 2007).
Ready mobility is one of the principal bases for the automobile exception. California v. Carney,
471 U.S. 386, 391 (1985). A car’s ready mobility creates exigent circumstances that make
“rigorous enforcement of the warrant requirement . . . impossible.” South Dakota v. Opperman,
428 U.S. 364, 367 (1976). Furthermore, cars have a reduced expectation of privacy because they
are subject to “pervasive [travel] regulation.” Id. at 392.
Here, agents had probable cause to believe that Whipple used his yellow Charger during
the bank robberies and that it contained evidence of those crimes. After all, he was seen leaving
Walmart, via surveillance footage, in his Charger after purchasing the materials he used to
commit the robberies. See Cardwell, 417 U.S. at 592, 594–95. Even, as here, when a car has
been immobilized because the owner can no longer drive it, the justification for a warrantless
seizure of a car does not vanish. Michigan v. Thomas, 458 U.S. 259, 261 (1982). What matters
9Warrantless searches are presumptively unreasonable. United States v. Place, 462 U.S. 696, 701 (1983).
However, there are exceptions to that presumption. See, e.g., Missouri v. McNeely, 569 U.S. 141, 148–49 (2013)
(exigent circumstances); Maryland v. Buie, 494 U.S. 325, 333–336 (1990) (warrantless protective sweeps);
Cardwell v. Lewis, 417 U.S. 583, 594–95 (1974) (automobile exception).

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is that the agents had probable cause to search and seize Whipple’s car. Id.; Cardwell, 417 U.S.
at 595 (“Assuming that probable cause . . . exist[s], we know of no case or principle that suggests
that the right to search on probable cause and the reasonableness of seizing a car under exigent
circumstances are foreclosed if a warrant was not obtained at the first practicable moment.”);
United States v. Hofstatter, 8 F.3d 316, 322 (6th Cir. 1993).10 The district court did not err in
holding that both the seizure and the search of the car were lawful.
c. Whipple’s Cellphone
Whipple argues that because law enforcement did not complete the search of his phone
within fourteen days of the initial search warrant for the cellphone, any evidence found within
the phone after the expiration date is inadmissible against him. Whipple’s arguments fail
because a warrant’s execution date does not apply to off-site investigation and analysis of a
cellphone’s contents. Cleveland, 907 F.3d at 430–31.
The “federal rules of criminal procedure give law enforcement the authority to conduct
searches of lawfully seized phones after they are seized.” Id. (quoting United States v. Castro,
881 F.3d 961, 969 (6th Cir. 2018)). “The time for executing the warrant . . . refers to the seizure
or on-site copying of the media or information, and not to any later off-site copying or review.”
Fed. R. Crim. P. 41(e)(2)(B). “A substantial amount of time can be involved in the forensic
imaging and review of information” on cellphones. Cleveland, 907 F.3d at 430 (quoting Fed. R.
Crim. P. 41, advisory committee’s note to 2009 amendments). In other words, law enforcement
is allowed to decode or otherwise analyze data on a seized phone at a later time, even after the
initial warrant expires. Id. at 431 (citing United States v. Huart, 735 F.3d 972, 974 n.2 (7th Cir.
2013)).
10Whipple also argues that United States v. Place, 462 U.S. 696 (1983), supports his argument that the
police should not have warrantlessly seized his car. His reliance on Place is misplaced. There, the Court held that
the extended seizure of baggage (or a container) without justification gave rise to a Fourth Amendment violation.
Place, 462 U.S. at 709–10. Here, there was justification—probable cause—to seize Whipple’s car, and law
enforcement may seize an item based on probable cause and later obtain a search warrant for it. United States v.
Respress, 9 F.3d 483, 486 (6th Cir. 1993). Even after attempting to analogize his situation to Fourth Amendment
container cases, Whipple cannot succeed with this argument.

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Here, the agents seized Whipple’s phone on March 7 while arresting Whipple, and
obtained a warrant for his cellphone on March 10. The search was initiated on March 11, and the
cellphone was sent to CART on March 13 for examination. Contra United States v. Sykes,
65 F.4th 867, 878 (6th Cir. 2023) (explaining that a 31-day delay between a phone’s seizure and
obtaining a search warrant was unreasonable when the defendant had a possessory interest in the
cellphone, and agents failed to exercise diligence (citing United States v. Pratt, 915 F.3d 266,
272 (4th Cir. 2019))). After removing the phone’s SD and SIM cards, the examiner was not able
to crack the cellphone’s passcode, so he contacted the FBI EDAU to unlock the cellphone.
During the height of the COVID-19 pandemic and staff shortages, the EDAU did not respond
until November 13. Ultimately, the cellphone was searched and returned to the examiner on
November 19. Although the warrant for Whipple’s phone expired on March 24, law enforcement
officers began searching the cellphone on March 13, well before the expiration date. Those
officers did not unreasonably delay in obtaining a warrant, nor did they delay after obtaining a
warrant. Rather, law enforcement officers acted reasonably in this situation. Cf. Cleveland, 907
F.3d at 430–31.11 The district court did not err in denying the motion to suppress the evidence
from the cellphone.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of Whipple’s motions
to suppress evidence.
11Further, Whipple had virtually no possessory interest in his phone while he was incarcerated. Sykes,
65 F.4th at 879. When there is a reasonable belief that a cellphone contains evidence of a crime, there is greater
justification for retention of that cellphone, pursuant to a valid warrant. Id. And when there are reasonable excuses
for delaying cell-phone-data extraction, searches after the expiration of a warrant have more justification. Id.

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