FOURTH CIRCUIT HOLDS NO REASONABLE EXPECTATION IN CELL-SITE LOCATION INFORMATION
by Brian S. Batterton, Attorney
©2016 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On May 31, 2016, the Fourth Circuit Court of Appeals decided United States v. Graham [i], which discussed the constitutionality of police obtaining cell-site location information (CSLI) from cellular providers without obtaining a search warrant. CSLI indicates which cell tower transmitted the cellular signal that a particular cell phone used to make or receive calls or texts. In Graham, the government obtained historical CSLI information on the defendants in accordance with the Stored Communications Act (CSA) which states that, in order to obtain non-content records, the government must demonstrate either (1) probable cause for a warrant or (2) “specific and articulable facts showing that there are reasonable grounds to believe that . . . the records . . . are relevant and material to an on-going criminal investigation" for a court order. 18 U.S.C. § 2703(c), (d) (2012).” [ii] The government, in Graham, used the second method, particularly the court order based on “reasonable grounds” that the records are relevant to a criminal investigation. These records were obtained from Sprint/Nextel and were used by the government to place the defendant in the area of certain armed robberies at the time the robberies occurred.
Graham filed a motion to suppress the CSLI evidence. Ultimately, the district court’s decision was appealed to a panel for the Fourth Circuit Court of Appeals. The panel held that the probable cause and warrant are required to obtain such information but because the government acted in good faith, relying on the CSA, the evidence should not be suppressed. The government appealed this ruling and asked the Fourth Circuit for a hearing en banc (with all the judges on the court of appeals hearing the case) based on their belief that a warrant should not be required because a person has no reasonable expectation of privacy in CSLI. The Fourth Circuit agreed to hear the case en banc.
The issue before the court was “whether the government invades a person’s reasonable expectation of privacy when it obtains, from a third party, the third party’s records, which permit the government to deduce location information.” [iii]
The court first noted that since the government did not surreptitiously view, listen to, record, or engage in any direct surveillance of the defendants in this case, the case law that concerns electronic surveillance of individuals is not applicable to this case. Rather, the court stated that they must examine precedent concerning the “third party doctrine.” The Fourth Circuit stated:
[T]he Court has long held that an individual enjoys no Fourth Amendment protection "in information he voluntarily turns over to [a] third part[y]." Smith v. Maryland, 442 U.S. 735, 743-44 (1979). This rule -- the third-party doctrine -- applies even when "the information is revealed" to a third party, as it assertedly was here, "on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." United States v. Miller, 425 U.S. 435, 443 (1976). [iv]
The court specifically noted that, when a person places a cellular phone call, they voluntary convey this CSLI to cellular provide and that information is obtained and retained in the ordinary course of business, rather than for investigatory purposes. This information is used by the cellular providers so they know where to route the calls and texts.
The Fourth Circuit then stated:
Under the third-party doctrine, an individual can claim "no legitimate expectation of privacy" in information that he has voluntarily turned over to a third party. Smith, 442 U.S. at 743-44. The Supreme Court has reasoned that, by "revealing his affairs to another," an individual "takes the risk . . . that the information will be conveyed by that person to the Government." Miller, 425 U.S. at 443. The Fourth Amendment does not protect information voluntarily disclosed to a third party because even a subjective expectation of privacy in such information is "not one that society is prepared to recognize as 'reasonable.'" Smith, 442 U.S. at 743 (internal quotation marks and citation omitted). The government therefore does not engage in a Fourth Amendment "search" when it acquires such information from a third party. [v] [emphasis added]
Further, the Fourth Circuit examined other federal circuits that have decided this same issue. They noted that three other federal circuits, particularly, the Fifth, Sixth, and Eleventh Circuits, have all held that a person does not have a reasonable expectation of privacy in their CSLI that is captured and stored by a cellular provider. [vi]
The court then held that the defendants did not have a reasonable expectation of privacy in the CSLI and as such no search warrant is needed to obtain the information; rather, the court order provided for in the CSA was sufficient to lawfully obtain such information.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 12-4659, No. 12-4825 (4th Cir. Decided May 31, 2016)
[ii] Id. at 8
[iii] Id. at 9
[iv] Id. at 5
[v] Id. at 10
[vi] Id. at 6 (citing See United States v. Carpenter, Nos. 14-1572/1805, 2016 WL
1445183, at *4-6 (6th Cir. Apr. 13, 2016) (holding that "for the same reasons that Smith had no expectation of privacy in the numerical information at issue [in Smith], the defendants have no such expectation in the [CSLI] locational information here"); United States v. Davis, 785 F.3d 498, 511-13 (11th Cir.) (en banc) (holding that defendant has no "objective[ly] reasonable expectation of privacy in MetroPCS's business records showing the cell tower locations that wirelessly connected his calls"), cert. denied, 136 S. Ct. 479 (2015))