Divided 4th Circuit Rules on Cell Phone Location Data

On August 5, 2015, the 4^th Circuit said “that the government’s warrantless procurement of the [cell site location information] was an unreasonable search in violation of Appellants’ Fourth Amendment rights.” The 5^th Circuit ruled in 2013 that no warrant is required. The 11^th Circuit agreed in May of 2015, ruling that no warrant was required, but in doing so that Court reversed its own opinion from the year prior.

The portion of the appeal that we find most relevant is the Court’s decision regarding the court order that let law enforcement obtain location data covering a 221 day time period. Pages 15-19 of the opinion explain the theory behind cell phone location technology, laws governing cell phone location data and the warrants needed for obtaining that data. Immediately following, we get to the crux of the matter, when the majority opinion holds that the government does indeed conduct “a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical CSLI for an extended period of time” and that “cell phone users have an objectively reasonable expectation of privacy in this information.” (The “extended period of time” caveat may be particularly important in some cases for to defense attorneys).

In the course of the appeal, the Circuit required briefs from both the appellants and the government on how Riley v California may apply in this situation. In Riley, the Supreme Court found that the warrantless search of a cell phone during an arrest is unconstitutional. Case law regarding searches and electronics is also extensively covered (pgs. 21-32). The dissent (pg. 106) later refers to third party doctrine (pg. 109), but the majority explains that cell phone users do not “voluntarily” convey their CSLI to cell providers, and that third-party doctrine precedents “do not categorically exclude third-party records from Fourth Amendment protection.” The majority concludes by opining that their decision “continues a time-honored American tradition – obtaining a warrant is the rule, not the exception.”

In the end, it didn’t matter. The evidence against both appellants was overwhelming, and both convictions were affirmed. The opinion in its entirety can be accessed here.