Eleventh Circuit Holds that the Collection of Cell Tower Location Data Does Not Violate the Fourth Amendment

In United States v. Davis, 785 F.3d 498 (11th Cir. 2015), the Eleventh Circuit affirmed the lower court’s order compelling production of a third-party telephone company’s business records containing cell tower location information on the defendant. In doing so, the court ruled that production did not violate the defendant’s Fourth Amendment rights. The defendant was convicted for committing seven armed robberies in a two-month period. At trial, the government presented telephone records obtained from MetroPCS, which showed the defendant’s number and the number of the cell tower that connected his calls during this two-month period. The cell tower sites were in the general vicinity of the robbery sites.

The testimony of a MetroPCS witness revealed: (1) the cell tower used is typically the tower closest to the user; (2) the cell tower has a circular coverage radius; and (3) although the tower sector indicates a cardinal direction (e.g. north, south, etc.) of the user from the tower, the user can be anywhere in the tower’s coverage radius.  Despite this lack of precision, the cell tower evidence did give the government a basis for arguing that the defendant’s calls connected him to the scenes of the robberies.

The Government acquired the telephone records by requesting a court order from a federal magistrate judge, pursuant to the Stored Communications Act (“SCA”). 18 U.S.C. §§ 2701-2712 (2012).  The SCA provides that a governmental entity may require a telephone service provider to disclose a record pertaining to one of its customers if a court finds specific and articulable facts showing that there are reasonable grounds to believe that the record is relevant and material to an ongoing criminal investigation. Here, it was undisputed that the Government’s application met this requirement.

The defendant argued that the Government violated his Fourth Amendment rights by obtaining the telephone records without a search warrant and a showing of probable cause.  A panel of the Eleventh Circuit agreed that the defendant’s Fourth Amendment rights were violated, but affirmed his conviction based on the good-faith exception to the exclusionary rule.  The court vacated the panel’s decision and granted the Government’s petition for rehearing en banc.

The court held that while the SCA’s standard was less than the probable cause standard required for a search warrant, it does not lower the bar for a warrant; rather, an order under the SCA raises the bar from an ordinary subpoena to one with additional privacy protections built in.  The court then analyzed whether the Government’s retrieval of telephone records was a “search” within the meaning of the Fourth Amendment by determining whether the Government’s conduct involved some trespassory intrusion on property and by applying Katz’s reasonable-expectation-of-privacy test, which requires both a subjective and objective expectation of privacy. See Katz v. United States, 389 U.S. 347 (1967).  The court concluded that the retrieval of MetroPCS’s business records did not constitute a “search” because: (1) the defendant could not assert a property right over a third-party’s business records, namely, MetroPCS’s cell tower location data; and (2) the Supreme Court already determined, in United States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979), that individuals have no reasonable expectation of privacy in certain business records owned and maintained by a third-party business.

The court also discussed In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013), where the Fifth Circuit held that an SCA order compelling production of cell tower location information did not violate the Fourth Amendment. The Court agreed with the Fifth Circuit that if phone customers did not want telephone companies compiling cell tower location data when customers used their phone because of some expectation of privacy, then the recourse for those desires lied in the market or the political process, not the judiciary.

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