Divided appeals court, creating a split, says warrantless procurement of tower info violated Fourth
National Law Journal
Fourth Amendment Protects Cellphone Location Data, Appeals Court Says
Divided appeals court, creating a split, says warrantless procurement of tower info violated Fourth Amendment.
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In United States v. Graham, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held that the government's warrantless search of the cellphone location information of two accused robbery defendants violated their Fourth Amendment rights. However, because the government relied in good faith on court orders issued under the federal Stored Communications Act, the information could be admitted as evidence in their trial.
Last month, the American Civil Liberties Union and private counsel filed a petition for review in the high court in Davis v. United States. In that case, a divided en banc Eleventh Circuit held that the criminal defendant had no reasonable expectation of privacy in cellphone location records held by his service provider. And even if a Fourth Amendment search had taken place, the court said, use of an Stored Communications Act order rather than a warrant was reasonable because the privacy intrusion was minor and the government had a compelling interest in investigating crimes.
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Senior Judge Andre Davis, joined by Judge Stephanie Thacker, wrote:
Examination of a person’s historical CSLI (cell site location information) can enable the government to trace the movements of the cellphone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Cellphone users have an objectively reasonable expectation of privacy in this information. Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.
The "established exception" in this case, Davis added, was the "good faith" exception to the exclusionary rule.
"Here, the government is entitled to the good-faith exception because, in seeking appellants’ CSLI, the government relied on the procedures established in the SCA and on two court orders issued by magistrate judges in accordance with the SCA," Davis wrote.
The Stored Communications Act includes no direction on when the government should seek a warrant versus an order, he said.
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