Fourth Circuit cell-site info decision creates circuit split

By Jonathan Biran[1]

On August 5, a divided panel of the Fourth Circuit decided United States v. Graham, a Hobbs Act robbery case originating in the District of Maryland. Although the Appellants raised several challenges to their convictions, the most interesting issue was whether the Court should extend Fourth Amendment protections to records about where and when a mobile phone connected to antennas and electronic communications equipment on a cellular network, data called “cell-site location information” (CSLI). Senior Judge Andre Davis, one of the Fourth Circuit judges from Maryland, wrote the majority opinion, holding that users of cellphones have a reasonable expectation of privacy in historical CSLI, at least where such information covers an extensive period of time. Judge Davis was joined by Judge Thacker in that conclusion. One of the other Maryland judges on the Court, Judge Diana Motz, dissented from that portion of the majority opinion.

Aaron Graham and Eric Jordan committed rather unremarkable crimes—a series of six armed robberies in just under three weeks, taking place at various restaurants and stores in Baltimore City and Baltimore County. U.S. v. Graham, Slip Op. at 4-7. At trial, most of the evidence against Graham and Jordan was similarly unremarkable: Officers testified that they spotted the two men soon after the sixth robbery, in a vehicle and clothing matching the description provided by victims on the scene. Id. at 7. Graham and Jordan attempted to evade capture by pursuing officers, driving their pickup truck onto a sidewalk and accelerating before they became boxed in. Id. The two men were arrested with a gun matching the description of the weapon used in the fifth and six robberies (which occurred on the same day), and $1,100 in cash on their persons and in plain view in the vehicle. Id. at 7-8. Eyewitnesses from the fifth and sixth robberies were brought to the scene, and identified Graham and Jordan as the perpetrators. Id.

In addition to this and other non-electronic evidence, the government introduced CSLI at trial that it had obtained from Sprint/Nextel—the service provider for both phones found in the truck at the time of Graham and Jordan’s arrests—via a court order issued under 18 U.S.C. § 2703(d) rather than a search warrant. Id. As the majority opinion explained, CSLI

identifies cell sites, or “base stations,” to and from which a cell phone has sent or received radio signals, and the particular points in time at which these transmissions occurred, over a given timeframe…. A cell phone connects to a service provider’s cellular network through communications with cell sites, occurring whenever a call or text message is sent or received by the phone. The phone will connect to the cell site with which it shares the strongest signal, which is typically the nearest cell site….

By identifying the nearest cell tower … CSLI can be used to approximate the whereabouts of the cell phone at the particular points in time in which transmissions are made.  The cell sites listed can be used to interpolate the path the cell phone, and the person carrying the phone, travelled during a given time period.

Id. at 15-16 (footnote omitted). However, location tracking by use of CSLI can be imprecise. In urban areas, “which have the greatest density of cell sites,” and therefore “tend to have smaller radii of operability,” law enforcement still cannot pinpoint a cell phone user’s location. The CSLI at issue in this case covered areas with a maximum radius of two miles. Id. at 16.

The government sought, from what they believed to be Graham and Jordan’s phones, CSLI for a period spanning seven months. Id. at 9-10. By seeking court orders pursuant to 18 U.S.C. 2703(d), the government was essentially required to merely demonstrate a reasonable suspicion of criminal activity rather than the more demanding standard of probable cause necessary to secure a search warrant. Graham and Jordan filed a motion to suppress the CSLI at trial, arguing that the government violated the Fourth Amendment by obtaining the information without a warrant. Slip Op. at 14.

The district court denied the motion, ruling that the government had not conducted an unreasonable search by obtaining the CSLI, and that, even if it had, the good-faith exception to the exclusionary rule justified admission of the evidence. At trial, the government used the CSLI to establish Graham and Jordan’s locations at various times before and after the majority of the charged robberies. They were convicted and then appealed to the Fourth Circuit.

Although the Court could have limited its consideration to whether the agents acted in good faith in obtaining the CSLI evidence pursuant to the 2703(d) orders, thereby sidestepping the thorny Fourth Amendment issue, see, e.g., United States v. Garcia, 393 F.3d 457, 460 (4th Cir. 2004), the Court decided to address the constitutional question head on.[2] In contrast with the Fifth and Eleventh Circuits, the majority held that the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical CSLI for an extended period of time. The majority also created a split with the Eleventh Circuit by holding that, because “[e]xamination of a person’s historical CSLI can enable the government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user,” users of cell phones “have an objectively reasonable expectation of privacy in this information. Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies,” Slip Op. at 19-20 (footnote omitted). Compare United States v. Davis, 785 F.3d 498, 516-18 (11th Cir. 2015) (en banc); In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013).

The majority relied on the U.S. Supreme Court’s holdings in United States v. Knotts, 460 U.S. 276 (1983), United States v. Karo, 468 U.S. 705 (1984), and Kyllo v. United States, 533 U.S. 27 (2001), as well as the concurrences in United States v. Jones, 132 S. Ct. 945 (2012). Knotts and Karo were radio transmitter cases. In each case, the government placed a radio transmitter into a chemical container sold to suspected manufacturers of illicit drugs, and tracked that container’s movement back to what the government suspected to be the site of manufacture. Knotts, 460 U.S. at 278-79; Karo, 468 U.S. at 708-09. Knotts affirmed that such activity did not violate the Fourth Amendment. 460 U.S. at 282.

In Karo, however, the government not only monitored transmissions up to the place of manufacture, but further monitored transmissions of the device once it was inside. The Supreme Court held that doing so without a warrant violated the Fourth Amendment. Karo, 468 U.S. at 715. Kyllo further reinforced that the Fourth Amendment protects homes from warrantless searches aided by technology. 533 U.S. at 40 (holding that thermal heat imaging of the interior of a home was a search “and is presumptively unreasonable without a warrant”).

The majority considered the examination of CSLI comparable because it can “allow the government to place an individual and her personal property – specifically, her cell phone – at the person’s home and other private locations at specific points in time.” Slip Op. at 24. Indeed, according to the majority, inspection of long-term CSLI is an even deeper intrusion than the search challenged in Karo, because, unlike the transmitter in that case, a cell phone is typically carried on the person. And the private-location information here “covered a remarkable 221 days, potentially placing each Appellant at home on several dozen specific occasions, far more than the single instances discovered in Karo and Kyllo.” Slip Op. at 24-25.

The majority then looked to Justice Sotomayor’s and Justice Alito’s concurring opinions in Jones, a GPS tracking case from 2012. Those concurring opinions, which spoke for five justices of the Court, expressed independent constitutional concern about the length of the GPS monitoring period at issue in that case. Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring); id. at 964 (Alito, J., concurring in the judgment) (“longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy” and the line where constitutional protection begins “surely was crossed before the 4-week mark”). The majority in Graham reasoned that examination of long-term CSLI data is similarly concerning because, as is the case with GPS monitoring, “long-term location information disclosed in cell phone records can reveal both a comprehensive view and specific details of the individual’s daily life.” Slip Op. at 27.

Indeed, according to Judge Davis, “[t]he privacy interests affected by long-term GPS monitoring, as identified in … [the] Jones concurrences, apply with equal or greater force to historical CSLI for an extended time period.”  Id. While the GPS monitoring at issue in Jones “was limited to movements of an automobile on public roads…, [q]uite unlike an automobile, a cell phone is a small hand-held device that is often hidden on the person of its user and seldom leaves her presence.” Id. at 28. Thus, the majority concluded that “the government engages in a Fourth Amendment search when it seeks to examine historical CSLI pertaining to an extended time period like 14 or 221 days.”  Id. at 32.

It is telling that Judge Davis equated 14 days and 221 days for purposes of this analysis. I think Judge Davis was trying tell the government that it should get a search warrant for pretty much any amount of historical CSLI. This will definitely have an effect on the ability of the government (in the Fourth Circuit, at least) to use historical CSLI as an investigative tool early in an investigation when there is suspicion that an individual was involved in an offense but not much other evidence pointing at him or her as a perpetrator. Once the government has developed probable cause through other means (as occurred in Graham), it will be able to apply for search warrants to strengthen its case against the individual (or help rule the individual out as a perpetrator).

Judge Motz dissented from the portion of the majority opinion that extended Fourth Amendment protection to historical CSLI maintained by cell phone service providers. She would have held that Graham’s and Jordan’s CSLI was, on the basis of the third-party doctrine, not entitled to protection. Slip Op. at 106 et seq. Under that doctrine, “an individual enjoys ‘no legitimate expectation of privacy,’ and so no Fourth Amendment protection, in information he ‘voluntarily turns over to [a] third part[y].’” Id. (quoting Smith v. Maryland, 442 U.S. 735, 743-44 (1979)). Judge Motz considered Graham’s and Jordan’s CSLI to be entitled to no greater protection than the phone numbers they dialed or their financial records–both of which, as the Supreme Court has held, a person has no reasonable expectation of privacy in when he or she discloses the information to third-party institutions (the phone company in the case of a phone call, a bank in the case of a financial transaction) to facilitate the transactions. See generally Smith, 442 U.S. 735; United States v. Miller, 425 U.S. 435 (1976). Judge Motz reasoned that the Appellants voluntarily exposed their locations to their service provider when they made or received a call and sent or received a text message. Slip Op. at 111.

The majority opinion went to great lengths to take this case out of the realm of the third-party doctrine—a doctrine Judge Davis referred to as “the Lochner of search and seizure law.” Slip Op. at 57 (quoting Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561, 563 (2009)). The majority reasoned that cell phone users do not voluntarily convey CSLI to wireless carriers. See, e.g., id. at 46 (“We cannot accept the proposition that cell phone users volunteer to convey their location information simply by choosing to activate and use their cell phones and to carry the devices on their person.”). Rather, the majority explained, carriers keep and compile CSLI, and phone users are generally unaware when and to what cell towers their phones are connected. Id. at 48. That the collection and retention of CSLI was disclosed in Sprint/Nextel’s Privacy Policy was also of no moment to the majority. See id. at 20-21 (“[S]tudies have shown that users of electronic communications services often do not read or understand their providers’ privacy policies. There is no evidence that Appellants here read or understood the Sprint/Nextel policy.”).

Nor was it relevant to the majority that CSLI only supplies vague and dated approximations. Rather, the majority expressed a principle, which Judge Thacker further stressed in her concurring opinion, that more precise tracking of unsuspecting citizens in the technological march forward does not necessarily come at the cost of diminishing reasonable expectations of privacy:

It turns out that the proliferation of cellular networks has left service providers with a continuing stream of increasingly precise information about the locations and movements of network users. Prior to this development, people generally had no cause for concern that their movements could be tracked to this extent. That new technology has happened to generate and permit retention of this information cannot by itself displace our reasonable privacy expectations; nor can it justify inspection of this information by the government in the absence of judicially determined probable cause.

Id. at 56. But in Judge Motz’s view, this principle is not only grounded in no precedent, it is also at odds with a dichotomy that exists in Fourth Amendment law.

CSLI, according to Judge Motz, is “non-content” information. Id. at 124-25. Such non-content information, like the phone numbers we dial, the to/from bar in our emails, or the outside of an envelope, does not receive Fourth Amendment protection. Id. at 124 (citing Smith, 442 U.S. at 743-44; United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2007); Ex Parte Jackson, 96 U.S. 727, 733 (1877)). But the content of those communications is protected. Id. While Judge Motz acknowledged that CSLI tracks a person’s movements, she found no constitutionally relevant distinction between the information expressed in CSLI and that in the postmark on a letter, a pen register, or a credit card statement. Id. at 125.

While the Appellants in Graham won the battle about Fourth Amendment protection for CSLI, they lost their own private war, because the Court held unanimously that the government had relied in good faith on the issuance of the 2703(d) orders that directed Sprint/Nextel to disclose the CSLI to law enforcement. See Slip Op. at 60-65.

The majority in Graham arguably showed more concern about CSLI than – at least currently – is warranted, given its imprecision.[3] The majority, like the five concurring justices in Jones, seemed to be concerned that, if they did not reassert the Fourth Amendment’s primacy and curtail the third-party doctrine now, the constitutional protection may end up being swallowed by that exception as technology providers gather increasingly extensive and precise information about their customers. Whether or not our expectations of privacy have remained the same, Graham reminds us that threats against privacy are multiplying exponentially. The tone of Judge Motz’s opinion suggests that she would not mind at all if the Supreme Court were to revisit the third-party doctrine and figure out a way to distinguish information created in the digital age from more ancient forms of information, such as postmarks and bank records. However, she believes it is the Supreme Court’s job, not the Fourth Circuit’s, to sort this out.

Judge Motz and the rest of us may not have to wait long to hear from the Supreme Court. As noted above, the Fourth Circuit has created a significant circuit split with Graham. The defendant in the Eleventh Circuit CSLI case, United States v. Davis, recently filed his certiorari petition. Now that the majority in Graham has said that it believes Davis was wrongly decided, see Graham, Slip Op. at 20 n.2, Davis’s cert petition may get more traction than it otherwise would have had.[4]

In both Davis and Graham, the Courts of Appeals held that the good-faith exception to the Exclusionary Rule was applicable, and it seems to me that this holding is not in jeopardy should either Davis or Graham, or both, ultimately make it to the Supreme Court. The likelihood of an affirmance of the convictions may persuade some members of the Court that more circuits should be given time to weigh in on the CSLI issue before the Court considers it. However, given the undeniable interest in the intersection between technological advances and the Fourth Amendment, as well as the fact that law enforcement authorities within the Fourth Circuit now lack an investigative tool (in the absence of probable cause) that their counterparts around the country have, it seems likely that the Supreme Court will review this issue sooner rather than later.

[1]           Jordan Rosenfeld, an associate at Biran Kelly LLC, contributed significantly to the creation of this post.

[2]           Notably, Judge Motz’s dissenting opinion advocated affirming on the basis of the good-faith exception to the Exclusionary Rule, but did not suggest that the Court should have bypassed the Fourth Amendment issue entirely.

[3]           The majority noted that cell phone service providers have begun to increase network capacity and to fill gaps in network coverage by installing low-power cells such as “microcells” and “femtocells,” which cover areas as small as 40 feet. According to the majority, “[t]he intense competition among cellular networks provides ample reason to anticipate increasing use of small cells and, as a result, CSLI of increasing precision. We must take such developments into account.” Id. at 34-35.

[4]           It will be interesting to see if the government petitions for rehearing en banc in Graham and/or files a cert petition. Both the government and the defendants filed motions to extend the normal 14-day deadline to file a petition for panel rehearing and/or rehearing en banc. The Court granted those motions and gave the parties until September 18, 2015, to file any petitions for rehearing.


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