Warrantless Use of Cell Phone Location Data by Police Remains Controversial

Gary Scott [FreeImages.com Content License (http://www.freeimages.com/license)], via Freeimages.comThe use of cell phone location data by police to establish a suspect’s approximate location at a particular time continues to raise Fourth Amendment and privacy concerns. The Stored Communications Act (SCA), 18 U.S.C. §§ 2703(c) – (d), allows police to obtain this information from cell phone service providers with a court order, but it does not require a search warrant. Courts around the country have reached different conclusions on the issue, but the Fifth Circuit Court of Appeals, whose jurisdiction includes Texas, has held that obtaining cell phone location data with a court order, but no warrant, is not “per se unconstitutional.” In re App. of the U.S. for Historical Cell Site Data, 724 F.3d 600, 602 (5th Cir. 2013). More recently, the Eleventh Circuit ruled that a warrant is not necessary in United States v. Davis, No. 12-12928, slip op. (11th Cir., May 5, 2015).

The defendant in Davis was charged with multiple counts of robbery and other offenses. The prosecution’s evidence included testimony from witnesses and accomplices, surveillance footage, and telephone records from the defendant’s cell phone service provider placing him—or at least his phone—in the vicinity of several of the robberies. This data shows approximately where a cell phone is located at a given time based on interactions with particular cell towers. The defendant was convicted and sentenced to a total of 1,941 months’ imprisonment.

The Eleventh Circuit affirmed the conviction in June 2014, 754 F.3d 1205, but it later vacated the opinion prior to an en banc rehearing. The full circuit affirmed the conviction on different grounds in May 2015. The court first held that cell site location data does not involve any “trespassory intrusion on property,” which was once the primary concern in Fourth Amendment cases. Davis, slip op. at 17. See also Kyllo v. United States, 533 U.S. 27 (2001). The question, instead, is whether the defendant has a “reasonable expectation of privacy” in this data. The court described the two-part test established in Katz v. United States, 389 U.S. 347 (1967):  (1) a defendant’s “subjective expectation of privacy in the object of the challenged search,” and (2) an objective expectation of privacy, i.e., society’s recognition of the defendant’s expectation as reasonable. Davis at 18.

The court held that obtaining cell site data is not a “search” within the meaning of the Fourth Amendment. No reasonable expectation of privacy exists, subjective or objective, with regard to “certain business records owned and maintained by a third-party business.” Id. at 19, citing United States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979). It rejected the defendant’s argument based on United States v. Jones, 565 U.S. ___ (2012) (placing a GPS tracking device on the defendant’s car without a warrant was unconstitutional). Jones, the court held, was based on “the physical intrusion of the government placing a GPS device on a private vehicle.” Davis at 33.

Even if obtaining cell site location data is a “search” for Fourth Amendment purposes, the court held, perhaps rather ominously, that “the Fourth Amendment prohibits unreasonable searches, not warrantless searches.” Id. at 39. It held that the use of SCA orders, instead of search warrants, to obtain cell site records is a reasonable means of balancing between the “societal interest in apprehending criminals and preventing them from committing future offenses” and “vindicating the rights of innocent suspects.” Id. at 43.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

If you have been charged with an alleged criminal offense in west Texas, you should consult with an experienced criminal defense attorney who knows the law and the local court system. Michael J. Brown has defended people in west Texas criminal cases at the state and federal levels for over 20 years. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with a member of our team.

More Blog Posts:

Police Use of Surveillance Technology Without Warrants Prompts Court Challenges, Legislation, Texas Criminal Lawyer Blog, May 15, 2015

Court Rules that State May Compel Fingerprint, but Not Passcode, Access to Cell Phone, Texas Criminal Lawyer Blog, January 8, 2015

Courts Rule on Issues of Data Privacy, with Important Implications for Electronic Monitoring and Searches, Texas Criminal Lawyer Blog, October 30, 2014

Photo credit: Gary Scott [FreeImages.com Content License], via Freeimages.com.