Federal Appellate Court Holds that Third-Party Doctrine Allows Warrantless Use of Cell-Site Location Information

The question of whether police must obtain a warrant for historical cell-site location information (CSLI) has received considerable attention in recent years. The Fourth Circuit Court of Appeals, ruling en banc, recently held that the government does not violate the Fourth Amendment by obtaining CSLI without a warrant. United States v. Graham (“Graham II”), Nos. 12-4659, 12-4825, slip op. (4th Cir., May 31, 2016). The court based its ruling on the third-party doctrine, which holds that individuals have no reasonable expectation of privacy in materials or information that they have voluntarily turned over to a third party. It partly overturned the ruling of a three-judge panel that held that police violated the defendant’s Fourth Amendment rights. United States v. Graham (“Graham I”), 796 F.3d 332 (4th Cir. 2015).

The U.S. Supreme Court articulated the third-party doctrine in United States v. Miller, 425 U.S. 435 (1976), which held that a defendant had no reasonable expectation of privacy in records maintained by two banks where he had accounts. It expanded the doctrine to telecommunications technology when it held that the warrantless use of a pen register to record the numbers of outgoing phone calls did not violate the Fourth Amendment. Smith v. Maryland, 442 U.S. 735 (1979). The recent Graham decision used multiple citations to Smith.

Numerous methods of tracking the location of mobile devices exist, but historical CSLI is one of the simplest, least-intrusive methods. Cell-service providers allow users to access their mobile networks through a system of cell towers. Mobile devices periodically emit a signal that these towers use to determine the most effective means of routing calls to that device. Cell-service providers retain all of the data obtained from mobile devices, and this data can indicate the location of a particular device at a specific time.

CSLI can only show the general vicinity of a device’s location, based on the nearest cell tower. Other methods of location tracking are more precise but require direct access to the device. Law enforcement officers can use CSLI without needing to interact with the person under surveillance or their mobile device. Current law states that they only need a court order issued under the Stored Communications Act (SCA), rather than a warrant. 18 U.S.C. §§ 2703(c), (d).

Prosecutors in Graham used CSLI to show the defendants’ alleged locations during multiple armed robberies. The defendants challenged this on Fourth Amendment grounds. The trial court denied a motion to suppress the CSLI evidence, and a jury convicted both defendants.

A divided three-judge panel of the Fourth Circuit affirmed the conviction. The majority opinion held that the government violated the defendants’ Fourth Amendment rights by obtaining CSLI without a warrant, but also the government “relied in good faith” on court orders issued under the SCA. Graham I, 796 F.3d at 338.

The en banc Fourth Circuit held that no Fourth Amendment violations occurred, stating that “Supreme Court precedent mandates this conclusion.” Graham II at 5. A partial dissent, joined by a total of three justices, noted a split among federal appellate circuits on the question of CSLI and the Fourth Amendment, with four other circuits issuing five decisions that include “seven concurring or dissenting opinions.” Id. at 47 n. 2 (J. Wynn, dissenting).

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.

Board-certified criminal defense attorney Michael J. Brown fights for the rights of people in West Texas charged with alleged offenses in state and federal courts. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with an experienced and skilled advocate.

More Blog Posts:

Appellate Courts Split on Question of Cell Phone Tracking Technology and the Fourth Amendment, Texas Criminal Lawyer Blog, February 26, 2016

Warrantless Use of Cell Phone Location Data by Police Remains Controversial, Texas Criminal Lawyer Blog, September 9, 2015

Court Rulings Affirm Fourth Amendment Rights Against Warrantless Cell Phone Searches, Texas Criminal Lawyer Blog, May 14, 2014


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