When is cell phone location data constitutionally protected private information?

The Eleventh Circuit Court of Appeals held that obtaining a criminal defendant’s cell phone location data without a warrant violated the defendant’s Fourth Amendment privacy rights.

Photo by Jason Howie (Flickr)

The Supreme Court has ruled that cell phone information voluntarily turned over to a service provider is not entitled to privacy protection from warrantless searches.  What about information that a cell phone user does not knowingly transfer to a service provider?  This is the question that the U.S. Court of Appeals for the Eleventh Circuit was faced with in U.S. v. Davis.

The prosecution for the case obtained cell phone location data by court order, without a warrant issued, then offered those records to the court and stressed that evidence to the jury.  The records revealed that the defendant and the co-defendants placed and received cell phone calls within close proximity to the locations of six of the seven crime scenes at or about the time of the robberies.   The defendant was convicted for Hobbs Act robbery, conspiracy to violate the Hobbs Act, and knowing possession of a firearm in furtherance of a crime of violence.

The SCA permitted the government to obtain records by showing “that there are reasonable grounds” and did not require probable cause.

The defendant’s cell phone service provider pulled the cell phone location records for the government pursuant to 18 U.S.C. § 2703(d) of the Store Communications Act (“SCA”).  The SCA permitted the government to obtain records from communication service providers under a court order by showing “that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation” (emphasis added) and did not require probable cause.

No Warrants shall issue, but upon probable cause, supported by Oath or Affirmation

The Fourth Amendment provides that it is the “right of the people to be secure in their persons, . . . and effects, against unreasonable searches and seizure” and that this right “shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation . . .”  The Supreme Court has held that the Fourth Amendment’s right against trespass can protect electronically transmitted location information, such as the placement of a GPS tracker on someone’s vehicle, from warrantless searches; but, the Court did not specifically determine whether it is also protected by the Fourth Amendment’s right against the reasonable expectation of privacy.  In this case, the Eleventh Circuit was faced with the issue of privacy in the absence of trespass.

Regarding telephone subscribers, the Supreme Court of the United States ruled in 1979 that they assume the risk of their service provider revealing the numbers they dial to the police.  The Supreme Court reasoned that a person who voluntarily turns over information to third parties can not legitimately expect the numbers they dial to be private.   However, the Third Circuit concluded in 2010 that the only information cell phone users knowingly and voluntarily convey is the number they dialed; it is unlikely that cell phone users even know that their historical location information is stored by their cell phone providers.

In Davis, the Eleventh Circuit explained that the Fourth Amendment “shields the people from the warrantless interception of electronic data or sound waves carrying communications.”  GPS tracking on a vehicle is warranted privacy protection only when its collection of aggregated data comes together to create “a sufficient mosaic to expose that which would otherwise be private.”  Cell site location information is more private in nature than vehicle GPS vehicle tracking information because unlike a vehicle, a cell phone can accompany its owner anywhere.  Therefore, a “mosaic of data” is not required to trigger privacy protection of cell site location information.

The prosecutor in Davis told the jury that the defendant probably was not aware that he was allowing his cell service provider to follow his movements on the days and times of the charged crimes by bringing his phone with him during those times.  The court concluded that the defendant’s disclosure of his cell site location information to the cell service provider was involuntary.  The defendant had a reasonable expectation of privacy of his cell site location information, which required a warrant upon a showing of probable cause and not merely court order upon a showing of reasonable grounds

Cell site location information is within the subscriber’s reasonable expectation of privacy.

For these reasons, the Eleventh Circuit found that the defendant did not voluntarily disclose his cell site location information in a way that took away his reasonable expectation of privacy.  “In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.”

Despite the court’s holding, the Eleventh Circuit concluded that a good faith exception to the exclusionary rule applied.  The police officers acted in good faith reliance on the court’s order rather than a warrant and were judicially mandated to conduct the search and seizure.  The court found that no governing authority affected the constitutionality of the SCA’s application because the federal statute at hand had no precedent interpreting the SCA as a privacy issue in the context of cell site location information.  Thus, the trial court’s denial of the motions to suppress did not constitute reversible error.

The court’s decision creates a precedent that will limit obtaining cell site location information.  Rather than a court order, which only requires a showing of reasonable grounds for a search, the government may now be required to obtain a warrant by showing a higher burden of probable cause.  As cell phone searches become more popular, circuit courts could split and work this issue up to the Supreme Court.

Laura Tonch, Former Senior Staff Writer/Ethics
About Laura Tonch, Former Senior Staff Writer/Ethics (18 Articles)
Laura Tonch served as the Ethics Staff Writer for the Campbell Law Observer. She is a graduate of the University of Michigan where she earned a degree in General Business with a concentration in Pre-Law and a minor in Psychology. After her first year of law school, Laura studied abroad in Vienna, Austria to study Comparative Civil Liberties through Wake Forest University School of Law. She interned for the NC Department of Justice, Transportation Section during the summer of 2014. Laura graduated from Campbell Law School in May 2015.
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