Appellate Courts Split on Question of Cell Phone Tracking Technology and the Fourth Amendment

The law never advances as fast as technology, and law enforcement agencies, legislatures, and courts are constantly working to keep up with the latest gadgets. It took decades for our legal system to account for the automobile and the telephone, inventions that are now more than a century old. Today, the disconnect between law and technology is especially notable with digital communications. As mobile telephone technology advances, law enforcement looks for ways to keep track of how it is being used, and sometimes these ways infringe on the Fourth Amendment’s prohibition on warrantless searches and seizures. Several federal appellate courts have reached differing conclusions on the issue. A split between circuits like this is often a sign of future review by the Supreme Court.

The Fourth Amendment specifically guards against warrantless intrusions into people’s “persons, houses, papers, and effects.” People use cell phones, including devices known as “smartphones,” for a variety of reasons, with the “telephone” aspect of the device often having low priority. Considering the amount of data people put into their phone, the Supreme Court has held that the cell phone itself, and the information that it contains, falls under the Fourth Amendment’s protection. Riley v. California, 573 U.S. ___ (2014).

Courts have held that people have a reasonable expectation of privacy with regard to data stored on a phone, but phones are also communications devices that provide information regarding their location and, by implication, the location of the phone’s owner or user. A question that courts are currently facing is whether people have a reasonable expectation of privacy in this information, which their phones transmit to the world at large.

Cell phones routinely send out signals to the nearest cellular tower in order to maintain contact with the cellular network. The service providers that operate these networks keep records of these signals. Law enforcement agencies have been able to obtain these records without a warrant by obtaining a court order under the Stored Communications Act (SCA), 18 U.S.C. § 2703(d). Some law enforcement agencies use a device known as a stingray, which emits a signal like a cell phone tower in order to trick cell phones in the vicinity into sending location information.

The Fifth Circuit Court of Appeals, whose jurisdiction includes Texas, has held that the use of cell tower data obtained with an SCA court order, but without a warrant, does not violate the Fourth Amendment. In re: Application of the U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013). A three-judge panel of the Eleventh Circuit, which used to be part of the Fifth Circuit, ruled in 2014 that police needed a warrant to obtain cell tower data, but the court reversed this ruling and reinstated the defendant’s conviction after an en banc rehearing. U.S. v. Davis, 754 F.3d 1205 (11th Cir. 2014), rev’d en banc 785 F.3d 498 (11th Cir. 2015). The Fourth Circuit, however, ruled last summer that police violated the Fourth Amendment by obtaining cell tower data without a warrant. U.S. v. Graham, 796 F.3d 332 (4th Cir. 2015). Several courts have now taken up the issue of whether stingrays, which actually induce cell phones to give up information, violate the Fourth Amendment.

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.

Michael J. Brown, a board-certified criminal defense lawyer, fights for the rights of people charged with alleged white-collar and drug offenses in west Texas state and federal courts. To schedule a confidential consultation with an experienced and knowledgeable legal advocate, contact us today online or at (432) 687-5157.

More Blog Posts:

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

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

Devices that Track Cell Phone Signals Violate Fourth Amendment, Say Privacy Advocates, Texas Criminal Lawyer Blog, February 28, 2013


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