After Appeals Court Flip-Flop, Aaron Graham Asks Supreme Court To Examine Warrantless Access To Cell Location Info

from the one-more-time dept

Aaron Graham — the defendant at the center of a Fourth Amendment dispute over the warrantless acquisition of cell site location info — is hoping to get one more court to take a look at his case.

Last summer, the 4th Circuit Court of Appeals became the first appeals court to institute a warrant requirement for historical CSLI. As was noted then, the court found that the records generated by cell phones (and held by phone companies) had an expectation of privacy — at least when obtained for a significant period of time. In Graham’s case, the government obtained 221 days of historical cell site location data — the sort of extended period the Appeals Court found troubling… originally.

The government appealed and attempted to differentiate its long-term, post-facto tracking of Graham’s movements with eight months of CSLI from the Supreme Court’s Jones decision — which (sort of) found that deploying a surreptitious GPS tracker required the use of a warrant. It claimed this form of location tracking was completely different than the other form of location tracking, mainly because in Graham’s case the tracking was done by the phone company. The government simply benefitted from the warrantless collection of records the phone company was already compiling.

The court bought the government’s arguments the second time around. The short-lived warrant requirement was removed and the 1979 definition of the Third Party Doctrine (Smith v. Maryland) was reinstated. The dissent correctly pointed out that no cell phone user voluntarily turns over location data to service providers. It’s just something that has to happen for phones to make calls or access data. It also pointed out that, unlike other third-party records, customers aren’t allowed to access their own cell site location data. Only the phone company and the government can do that, even though it’s the customer generating the records and paying for their collection and storage.

Graham is now petitioning [PDF] the Supreme Court to review the case. (h/t Gitmo Watch) If it does, things could get interesting. Unfortunately, there’s no telling which version of “interesting” we’ll get.

As it stands now, there’s no cohesive stance on CSLI in the nation’s courts. If there are precedential findings, most side with the government’s Third Party Doctrine theory. A few lower courts have recognized an expectation of privacy in these auto-generated records, but at the Appeals Court level, nothing else has come down in favor of this finding. There are some open pending appeals, but no rulings have been handed down yet.

The cert petition notes that courts should not be so quick to extend a benefit of a doubt to law enforcement agencies who do everything they can to avoid filling out a search warrant application.

Leon explains that police officers who obtain a warrant that appears to satisfy the probable cause requirement can “literally” do “nothing more . . . in seeking to comply with the law.” Id. at 921 (internal quotation omitted). Suppressing evidence after a police officer conducts a search with a warrant in hand will not serve the exclusionary rule’s deterrent effect because suppression would not “alter the behavior of individual law enforcement officers or the policies of their departments.” Id. at 918.

The Fourth Circuit’s contrary conclusion misapplies Leon to the point of creating a direct conflict with this Court’s precedent. Here, in contrast, law enforcement easily could, but chose not to, follow the constitutionally secure path. They could have followed 18 U.S.C. § 2703(c)’s explicit warrant requirement, which clearly satisfies the Fourth Amendment, instead of taking their chances with the non-warrant procedure of § 2703(d). Unlike Leon, the prosecutor who sought and used the § 2703(d) order knew that the order was neither a warrant nor the equivalent of a warrant, and knew that the constitutionality of his choice was already in doubt.

Graham argues the evidence obtained should be suppressed, rather than put back into service on the back of the good faith exception and a multitude of conflicting court decisions. A deterrent only works if you actually apply it.

Indeed, suppressing the evidence here would alter the behavior of both individual officers and policies of departments and thus would serve the deterrent purposes of the exclusionary rule. Prosecutors and police departments would be put on notice that they should not always be looking for loopholes to the warrant requirement. They would know that in the future, documents that do not satisfy the Fourth Amendment’s warrant requirement more likely than not will not justify the search of a citizen’s person, papers, and effects.

Whether or not the Supreme Court will take also remains to be seen. The court has been rather schizophrenic on its Fourth Amendment decisions in recent years and it may not be in any hurry to handle something with this many future implications while it’s still short a justice.

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Comments on “After Appeals Court Flip-Flop, Aaron Graham Asks Supreme Court To Examine Warrantless Access To Cell Location Info”

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Quiet Lurcker says:

Most cellular providers include language in their terms of use which indicate that they’ll turn over CSLI for proper law enforcement purposes – read when they have a warrant in hand.

The contracts (of adhesion since most of them contain similar if not identical terms provider notwithstanding, so only questionably legal here) under which cellular service is provided generally generally include the terms of service by reference.

So, when is some enterprising suspect going to sue his/her cell provider for turning over that data to the cops when they ask but don’t cough up a warrant?

Josh B. (profile) says:

Keep your phone from tracking you whenever you want

You don’t have to turn it off or worry that it’s tracking you if you drop it into one of our Faraday sleeve products. Not even sure how many people are aware these products exist, so I’m here to tell you.

Using shielding material embedded into the leather, the sleeves become a functioning Faraday cage which blocks ALL signals to and from your phone. This includes cellular, wifi, gps, bluetooth, rfid, and nfc.

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