UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 23-5126 │ v. │ │ ROBERT ZENAS WHIPPLE, III, │ Defendant-Appellant. │ ┘ 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.

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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 _________________

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 No. 23-5126 United States v. Whipple Page 2

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