Circuit Split: Eleventh Circuit Creates Division on Standard To Obtain Cell Site Location Information

In considering an open issue, the Eleventh Circuit concludes that the Fourth Amendment requires the government to demonstrate probable cause to obtain cell site location information; the opinion creates division with the Third and Fifth Circuits; whether this new holding be extended to other forms of digital data remains to be seen, in United States v. Davis, _ F.3d _ (11th Cir. June 11, 2014) (No. 12-12928)

Cell phone information can provide significant evidence for a case, including about key communications, how a crime or incident unfolded, and locational information, as a few examples. The Supreme Court is presently considering the scope of any search that may be permitted of a cell phone seized incident to arrest. See, e.g., Supreme Court Watch: Cell Phone Argument To Consider Scope Of Fourth Amendment On Electronic Devices ; see also Circuit Split: Courts Divided On Search Of Cell Phones Incident To Arrest. Other evidence issues may involve the manner of presenting testimony concerning cell phone evidence. See, e.g., Open Issue: Whether Expert Or Lay Testimony Is Required On The Relationship Of Cell Phones and Cell Towers.

Last week, the Eleventh Circuit created a circuit split concerning the manner in which cell site location information can be obtained by the government. The circuit concluded that the Fourth Amendment requires a probable cause showing. Earlier in the year, the Federal Evidence Blog asked: Is An Analytical Shift Coming for Fourth Amendment Analysis on the Search and Seizure of Digital Evidence? The Davis case is consistent with this trend.

Trial Court Proceedings: Denying Motions To Suppress Suppression Of Cell Site Location Information Under The Fourth Amendment

Defendant Davis was charged, along with others, with sixteen counts of Hobbs Act robbery and related offenses. The businesses that were robbed included “a Little Caesar’s restaurant, an Amerika Gas Station, a Walgreens drug store, an Advance Auto Parts store, a Universal Beauty Salon, and a Wendy’s restaurant.”

Some of the evidence included cell site information which was obtained a provision of the Stored Communications Act (“SCA”), which requires a showing “that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d) (emphasis added). Another provision of the statute allows this information to be obtained by a warrant based on probable cause. 18 U.S.C. § 2703(c)(A). The cell site information placed defendant Davis and his co-defendants near each robbed business, except one, “around the time that the robberies.” The trial court denied his motion to suppress the cell site location information which was obtained “without a warrant” in violation of his Fourth Amendment rights. The motion was denied by the district court. At trial, the government introduced evidence concerning cell site information. During the trial, defendant Davis again moved to suppress the cell site information. The motion was again denied. The opinion explained that the admitted cell site location information included:

a record of calls made by the providers’ customer, in this case Davis, and reveals which cell tower carried the call to or from the customer. The cell tower in use will normally be the cell tower closest to the customer. The cell site location information will also reflect the direction of the user from the tower. It is therefore possible to extrapolate the location of the cell phone user at the time and date reflected in the call record. All parties agree that the location of the user will not be determined with pinpoint precision, but the information is sufficiently specific that the prosecutor expressly relied on it in summing up to the jury in arguing the strength of the government’s case for Davis’s presence at the crime scenes. Indeed, it is not overstatement to say that the prosecutor stressed that evidence and the fact that the information reflected Davis’s use of cell phone towers proximate to six of the seven crime scenes at or about the time of the Hobbs Act robberies.

Davis, _ F.3d at _.

The jury convicted the defendant. On appeal, he claimed that “the district court’s denial of his motion to suppress the cell site location information and the admission of that evidence violated his constitutional rights under the Fourth Amendment.”

Eleventh Circuit Review: Deciding An Open Issue

The Eleventh Circuit noted that the defendant’s appeal presented “issues of first impression in this circuit, and not definitively decided elsewhere in the country.” The Supreme Court has not considered this question.

As explained below, the circuit held “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.” However, there was no reversible error because the "officers here acted in good faith reliance on an order."

Circuit Split Noted

The Eleventh Circuit noted that the Third and Fifth Circuits had “considered the question, but not in the context of the use of the evidence in a criminal proceeding.” Davis, _ F.3d at _. The Eleventh Circuit found it unnecessary to “ review at this point the reasoning of either of our sibling circuits, given that the context of the cases is different, and one of those circuits [the Third Circuit] opined before issuance of Jones [United States v. Jones, 565 U.S. _, 132 S.Ct. 945, 948, 181 L. Ed. 2d 911 (2012)], the most instructive Supreme Court decision in the field.” Davis, _ F.3d at _.

The two prior decisions involving the issue, include:

Impact Of Jones

The Eleventh Circuit traced “distinct views of the interests protected by the Fourth Amendment’s prohibition of unreasonable searches and seizures” including the older “trespass” theory and the more recent privacy theory. The recent Jones precedent noted both theories but ultimately was based on the former.

The circuit concluded that “it cannot be denied that the Fourth Amendment protection against unreasonable searches and seizures shields the people from the warrantless interception of electronic data or sound waves carrying communications.” The issue then is “whether that protection covers not only content, but also the transmission itself when it reveals information about the personal source of the transmission, specifically his location.” In answering this question, the circuit noted the limits of Jones: “While the Jones case does instruct our analysis of the controversy before us, it does not conclude it.”

In applying a privacy theory, the circuit found a violation of the Fourth Amendment:

Having determined that the privacy theory of Fourth Amendment protection governs this controversy, we conclude that the appellant correctly asserts that the government’s warrantless gathering of his cell site location information violated his reasonable expectation of privacy. The government argues that the gathering of cell site location information is factually distinguishable from the GPS data at issue in Jones. We agree that it is distinguishable; however, we believe the distinctions operate against the government’s case rather than in favor of it.

Davis, _ F.3d at _.

By analogy, the circuit compared the privacy interests in Jones involving movement of an automobile with the locational data from the use of a cell phone:

One’s car, when it is not garaged in a private place, is visible to the public, and it is only the aggregation of many instances of the public seeing it that make it particularly invasive of privacy to secure GPS evidence of its location. As the circuit and some justices reasoned, the car owner can reasonably expect that although his individual movements may be observed, there will not be a “tiny constable” hiding in his vehicle to maintain a log of his movements. 132 S. Ct. at 958 n.3 (Alito, J., concurring). In contrast, even on a person’s first visit to a gynecologist, a psychiatrist, a bookie, or a priest, one may assume that the visit is private if it was not conducted in a public way. One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts. Therefore, while it may be the case that even in light of the Jones opinion, GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy. In that sense, cell site data is more like communications data than it is like GPS information. That is, it is private in nature rather than being public data that warrants privacy protection only when its collection creates a sufficient mosaic to expose that which would otherwise be private.

The United States further argues that cell site location information is less protected than GPS data because it is less precise. We are not sure why this should be significant. We do not doubt that there may be a difference in precision, but that is not to say that the difference in precision has constitutional significance. While it is perhaps possible that information could be sufficiently vague as to escape the zone of reasonable expectation of privacy, that does not appear to be the case here. The prosecutor at trial stressed how the cell phone use of the defendant established that he was near each of six crime scenes. While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene. There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute. Again, we do not see the factual distinction as taking Davis’s location outside his expectation of privacy. That information obtained by an invasion of privacy may not be entirely precise does not change the calculus as to whether obtaining it was in fact an invasion of privacy.

Finally, the government argues that Davis did not have a reasonable expectation of privacy because he had theretofore surrendered that expectation by exposing his cell site location to his service provider when he placed the call. The government correctly notes that “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities . . . .” United States v. Miller, 425 U.S. 435, 443 (1976). In Smith v. Maryland, 442 U.S. 735 (1979), at the request of law enforcement authorities, a telephone company installed a pen register to record numbers dialed from the defendant’s telephone. The Smith Court held that telephone users had no subjective expectation of privacy in dialed telephone numbers contained in telephone companies’ records. Id. at 742–44. While the government’s position is not without persuasive force, it does not ultimately prevail.

Davis, _ F.3d at _.

For two reasons, the circuit rejected the government’s argument. First, the Third Circuit distinguished this point in In re Electronic Communications Service to Disclose, 620 F.3d at 317-18 (concluding “when a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed, and there is no indication to the user that making that call will also locate the caller” and “when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all”). Second, the circuit took note of the government’s closing argument in the Davis case that one of the defendants “probably had no idea that by bringing their cell phones with them to these robberies, they were allowing [their cell service provider] and now all of you to follow their movements on the days and at the times of the robberies . . . .” Consequently, according to the circuit, the defendant did “not voluntarily disclosed his cell site location information to the provider in such a fashion as to lose his reasonable expectation of privacy. “ Davis, _ F.3d at _.

Application Of The Good Faith Doctrince

Notwithstanding the violation of the Fourth Amendment, the circuit concluded that the constitutional error did not require reversal under United States v. Leon, 468 U.S. 897 (1984). As the circuit noted, until its opinion, there was no suggestion that the statute was unconstitutional without a probable cause standard under the Fourth Amendment:

The only differences between Leon and the present case are semantic ones. The officers here acted in good faith reliance on an order rather than a warrant, but, as in Leon, there was a “judicial mandate” to the officers to conduct such search and seizure as was contemplated by the court order. See id. at 920 n.21. As in Leon, the officers “had a sworn duty to carry out” the provisions of the order. Id. Therefore, even if there was a defect in the issuance of the mandate, there is no foundation for the application of the exclusionary rule.

We further add that Leon speaks in terms of the “magistrate’s” error. Here, the law enforcement officers, the prosecution, and the judicial officer issuing the order, all acted in scrupulous obedience to a federal statute, the Stored Communications Act, 18 U.S.C. § 2703. At that time, there was no governing authority affecting the constitutionality of this application of the Act. There is not even allegation that any actor in the process evidenced anything other than good faith. We therefore conclude that under the Leon exception, the trial court’s denial of the motions to suppress did not constitute reversible error.

Davis, _ F.3d at _.

Conclusion

The Davis case appears to be part of a recent judicial trend concerning higher Fourth Amendment standards applied to the government's collection of digital data. The case raises some significant issues. (1) The case does not involve the contents of communications but cell site location information. Generally, it is accepted that the probable cause standard applies to the contents of communications. The Eleventh Circuit applies this higher standard to non-content. If this principle is accepted, to what other non-content form of information will the Davis holding be extended. (2) The role of the recent, divided Jones case in analyzing issues involving the seizure of digital information. While recognizing that Jones was not directly on point, the circuit relied on its analysis to reach its holding. (3) Whether the third-party record doctrines under United States v. Miller, 425 U.S. 435, 443 (1976). In Smith v. Maryland, 442 U.S. 735 (1979), can be distinguished. In Jones, Justice Sonia Sotomayor suggested that it was time for the Supreme Court to revisit this precedent. Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring) ("This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."). Ultimately, it seems that the Supreme Court will have to address these issues, particularly given the split in the circuits caused by Davis concerning the collection of cell site location information.

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