Seventh Circuit Ignores Two Supreme Court Decisions To Hand Out Bad Precedent On Cell Site Location Info

from the doing-nothing-would-have-been-more-useful dept

The Seventh Circuit Appeals Court has issued a dubious ruling [PDF] on cell tower dumps — one that appears to ignore the Supreme Court’s decision declaring warrants are needed to obtain cell site location info. The criminal conduct leading to this questionable finding clearly shows robbing cellphone stores is a particularly bad idea. (h/t Orin Kerr)

[Lawrence] Adkinson and others, in July 2015, robbed a T-Mobile phone store in Clarksville, Indiana, and then a Verizon store in Kentucky the next day. With handguns drawn, they stole approximately 100 cell phones and other items. They later robbed nine additional stores, including three more T-Mobile stores.

T-Mobile investigated the first robberies. As part of its investigation, T-Mobile conducted “tower dumps”: it pulled data from cell sites near the first two victim stores to identify which phones had connected to them—and thus were close to the crimes. From these dumps, T-Mobile determined that only one T-Mobile phone was near both robberies and that Adkinson was an authorized user on that phone’s account.

T-Mobile shared this information with law enforcement, leading to Adkinson’s arrest and conviction. Adkinson sought to suppress the evidence law enforcement obtained from T-Mobile, citing the Carpenter decision. If the appeals court had simply pointed out the Carpenter decision does not apply retroactively and moved on, it would have avoided the number of issues it has created with this published opinion, which will set precedent for the circuit.

The least troubling holding is this: T-Mobile did not act as a government agent when it forwarded the results of its internal investigation to law enforcement.

The government responds that the Fourth Amendment was not violated, and we agree for three primary reasons. First, T-Mobile is a private party, and Adkinson has not shown that it was the government’s agent. “A search or seizure by a private party does not implicate the Fourth Amendment” unless the private party “is acting as an instrument or agent of the government.” United States v. Shahid, 117 F.3d 322, 325 (7th Cir. 1997) (internal quotation omitted). To demonstrate agency, Adkinson must establish either that T-Mobile agreed to act on the government’s behalf and to be subject to its control or that the government ratified T-Mobile’s conduct as its own. United States v. Aldridge, 642 F.3d 537, 541 (7th Cir. 2011) (citing RESTATEMENT (THIRD) OF AGENCY §§ 1.01, 4.01 (2006)). T-Mobile, however, acted in its own interest to prevent more robberies of its stores and recover its property when the company furnished data to the government; there is no evidence that it expected to receive any benefit from the government. Providing that data did not transform T-Mobile into an agent of the state.

When a private party hands info to the government, the government doesn’t need a warrant to look at whatever has been provided. As long as the government isn’t actively encouraging this sharing of information with promises of payments or perks, the Fourth Amendment won’t be violated.

But the court goes further than that, suggesting the Carpenter decision doesn’t cover tower dumps.

The case did not invalidate warrantless tower dumps (which identified phones near one location (the victim stores) at one time (during the robberies)) because the Supreme Court declined to rule that these dumps were searches requiring warrants. 138 S. Ct. at 2220. Adkinson also relies on policy guidance from the Department of Justice about cell-site data. But that policy guidance, by its own terms, “is not intended to and does not create any right, benefit, trust, or responsibility.”

But that’s not what the Supreme Court said. The court said cell site location info is protected by the Fourth Amendment. It did not stick a time limit on historical cell site data, declaring collections over x amount of days to be a search under the Fourth Amendment. Instead, it simply noted the obvious: cellphones are tracking devices people carry with them everywhere they go. This vast amount of precise location info should not be only a subpoena away from the government’s possession.

[W]e hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.

There was no carve-out for tower dumps in the Supreme Court’s decision. There’s one now in the Seventh Circuit.

More troubling is the court’s declaration that — contrary to the Supreme Court’s finding — clicking OK on a EULA somehow waives the privacy protections the Supreme Court extended to cell site location info.

Adkinson’s Fourth Amendment rights were still not violated because Adkinson consented to T-Mobile collecting and sharing his cell-site information. A defendant can voluntarily consent in advance to a search as a condition of receiving contracted services. See Medlock v. Trustees of Indiana Univ., 738 F.3d 867, 872 (7th Cir. 2013). As a condition of using a phone serviced by T-Mobile, Adkinson agreed to T-Mobile’s policy that T-Mobile could disclose information when reasonably necessary to protect its rights, interests, property, or safety, or that of others. And T-Mobile, in accordance with its policy, shared information with law enforcement after one of its stores was robbed at gunpoint.

If this is what the court wants to believe, then the Carpenter decision no longer exists in the Seventh Circuit. Every cellphone owner agrees to have information collected when they purchase a phone and use the provider’s phone service. They may agree this information can be handed over to law enforcement, but the Supreme Court clearly said this does not negate their privacy interest in the information shared with service providers.

As Orin Kerr points out, this ruling also ignores precedent set by another recent Supreme Court ruling. In Byrd, the court held that people who rent cars have a privacy interest in the rented vehicle, one that isn’t overcome by the driver not being “authorized” by the rental agreement. In both cases, the court stated that contractual agreements with private companies are not enough to eliminate citizens’ Fourth Amendment protections.

What could have been an open-and-shut case reaffirming two obvious conclusions — the lack of inherent retroactivity in the Carpenter decision and the inability of private searches (T-Mobile’s investigation) to violate Fourth Amendment protections — is instead a mess of precedential hot takes that directly contradict two recent Supreme Court decisions. Citizens residing in this circuit have just been informed their Fourth Amendment isn’t worth as much as it is elsewhere in the country.

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Comments on “Seventh Circuit Ignores Two Supreme Court Decisions To Hand Out Bad Precedent On Cell Site Location Info”

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Anonymous Coward says:

Re: Re:

And that’s the point of the article. Instead of going against Supreme Court decisions and creating a great big precedential mess (and now that there’s a tower dump exception, you know it’ll be used), the 7th could have avoided all of that with different reasoning leading to the same conclusion.

Anonymous Coward says:

Re: Actual Power [was ]

… how much power does it functionally have?

The Seventh Circuit hears appeals from the US district courts in Wisconsin, Illinois, and Indiana.

The Supreme Court grants certiorari in so few cases that in any particular case the odds are just about certain that the circuit court of apeals is the final stop on the appeal train.

So who, really, does the district court listen to? A US judge does have enough independence to tell the circuit they got it wrong—without jeopardizing the judge’s salary. But a case can be reassigned on remand from the circuit, too.

Bergman (profile) says:

Re: Re: Actual Power [was ]

Son basically, because the judges of the 7th Circuit Court of Appeals are behind on their readings, we have them setting a precedent that would get overturned instantly if SCOTUS grants cert to an appeal of it, but…

We can only hope the 7th Circuit catches up in their reading, realizes that contrary to their own finding, SCOTUS has in fact ruled on the matter and reverse themselves.

Anonymous Coward says:

Re: Re: Re: Actual Power [was ]

… instantly if SCOTUS grants cert…

“Instantly” is a relative term in connection with the Supreme Court.

You may have caught last week’s Supreme Court news (ScotusBlog, Feb 25, 2019).

The late Judge Stephen Reinhardt, who served for 38 years on the 9th Circuit, once famously said that the Supreme Court “can’t catch ‘em all” – that is, it can’t reverse all of his opinions, because it takes so few cases each year. The liberal lion died on March 29, 2018, but today the Supreme Court sent one of his final opinions, released 11 days after he died, back to the 9th Circuit for reconsideration.

Ninth Circuit Judge Reinhardt died over eleven months ago now. After he died, his opinion for the majority of the en banc court was filed at the beginning of last April, a little less than eleven months ago. Just last week the Supreme Court, in an unsigned per curiam order (p.13 ff.), vacated and remanded — “instantly”.

[F]ederal judges are appointed for life, not for eternity.

“Instantly” is a relative term in connection with the Supreme Court.

Anonymous Coward says:

Re: Re: Re: Actual Power [was ]

… a precedent that would get overturned…

Always remember and never forget that the federal courts decide cases(*). The Supreme Court does not decide opinions. The Supreme Court does not decide precedents.

The Supreme Court sets precedent in deciding cases.

In the district court, Lawrence Adkinson moved to suppress certain evidence. That motion was denied. In the further course of proceedings — a trial was had — a jury convicted — and the district court finally adjudged guilt. Mr Adkinson appealed. The Seventh Circuit affirmed the district court’s judgment.

Based on the limited record we have seen here, I would not predict that the Supreme Court would order a new trial for Mr Adkinson.

Mr Adkinson is guilty.


(*) Technically, “cases” and “controversies”.

madasahatter (profile) says:

Private Information

There is a bit of confusion about the role of private parties to an investigation. Private parties can give the police evidence they possess voluntarily whether they are the victim or bystander. The police can ask for any evidence a private party may have without a warrant. If the private party refuses, a very rare occurrence, the police can get a warrant for the evidence. Thus, the police can get quite a bit of evidence without a warrant but the key is that is voluntarily given to them.

A side note, the police routinely try to track down any surveillance video that might be useful; often asking the owner for a copy. The owners almost always voluntarily give a copy.

One problem here is the miscreants are idiots and are counting on the court to say T-Mobile cannot voluntarily give any information they have to the police. If you are going to commit a crime, do not bring along a device that can be used to track your movements. Also, consider that are likely video cameras watching the target and you will be on video also.

Anonymous Coward says:

Re: Private Information

This totally sidesteps both what the judge did in this case and what this article is about: The judge said all that you did, and then added "but it doesn’t matter because tower dumps aren’t a fourth amendment issue and the police are within their rights to demand the information."

The judge had no need to say this, as he had already made the same point you did — but he DID say it, which is why this article was written. The judge, with absolutely no need to even comment on the issue, carved out a chunk of Fourth Amendment space for law enforcement, despite what the Supreme Court had already ruled to the contrary. Unless cases in the seventh circuit that run afoul of this in the future are voluntarily taken up by the SCOTUS, this ruling is the final say in the matter.

Anonymous Coward says:

Re: Doesn’t the phone belong to T-mobile?

If the phone was stolen then…

Page 2 in the per curiam opinion

T-Mobile investigated the first robberies. As part of its investigation, T-Mobile conducted “tower dumps”: it pulled data from cell sites near the first two victim stores to identify which phones had connected to them—and thus were close to the crimes. From these dumps, T-Mobile determined that only one T-Mobile phone was near both robberies and that Adkinson was an authorized user on that phone’s account.

(Emphasis added.)

Page 6—

At oral argument, Adkinson clarified that he is principally challenging the court’s ruling regarding the data collected from the tower dumps, rather than the cell-site location information . . .

(Emphasis added again.)

So the tower dumps identified appellant as an “an authorized user”. That’s not a stolen phone.

Anonymous Anonymous Coward (profile) says:

Re: Re: Doesn’t the phone belong to T-mobile?

What I want to know is what other evidence did they have to convict Adkinson and others? Owning a cellphone that just happens to be within the cell-towers range at the time of some crime might be an indicator, but it is not conclusive of behavior. He could have been at the extreme opposite end of the cell-towers reach, in both instances.

Unless there are multiple cell-towers involved, thus ‘triangulating’ a certain position, the cell-tower cannot pinpoint a location. Unless you believe what you see on TV. Even then, the cell-tower cannot determine what activity the holder, not the owner, of the cell phone might be up to.

I do hope they had a lot more than the cell-tower dumps for a conviction.

Dean Archer Armstead, Lackawanna Research Station says:

The prior decision is VERY narrow, doesn't actually apply.

the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.

And besides that, was 3rd parties which did the search, then turned over results. You muddle through that key distinction because doesn’t suit your preference for criminals to evade justice.

If one were to rob a convenience store on one street corner, then go across the intersection — on the diagonal cause a criminal — and rob another, there is absolutely no question that the two store owners could pool whatever information they have.

You just have the unworkable notion that cell phone are to be somehow put beyond reach of police. That cannot and will not stand.

If you choose to carry a tracking device on your person, then you will be tracked and all records of it used, regardless what you think the prior case held (5-4, too).

Anonymous Coward says:

Tower Dump Carve-Out

There was no carve-out for tower dumps in the Supreme Court’s decision.

Chief Justice Roberts’ opinion for the court in Carpenter v US (2018)

Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or "tower dumps" (a download of information on all the devices that connected to a particular cell site during a particular interval).

(Emphasis added.)

In connection with this Seventh Circuit panels’ reading of the above passage in Carpenter (“Third … the Supreme Court declined to rule that these dumps were searches”), Professor Orin Kerr argues

The third argument also seems highly dubious. Whether Carpenter applies to cell tower dumps is a rich and complex question (I think it does). Saying Carpenter "does not help" b/c didn’t necessarily answer Q doesn’t answer whether the reasoning of Carpenter should apply.

But whether or not “the reasoning of Carpenter” should apply, there is plainly an explicit carve-out in Chief Justice Roberts’ opinion for the court. The Supreme Court is not then and there deciding about tower dumps. It’s reserving the issue.

Anonymous Coward says:

Re: Re: Tower Dump Carve-Out

Was not the issue of cell dumps before the SCOTUS?

In the 2018 case of Carpenter v US, the appeal of Timothy Ivory Carpenter was heard and decided by the Supreme Court.

One way to look at what was in front of the court then —one good way to look at the issue— was that the Supreme Court was considering the Sixth Circuit’s 2016 decision in Timothy Ivory Carpenter’s appeal to that intermediate court.

In turn, the Sixth Circuit had been considering, among other matters, the Eastern District of Michigan’s 2013 opinion and order(*) in the case of Timothy Ivory Carpenter.

The E.D. Michigan’s 2013 opinion and order made further reference to a pair of earlier “§ 2703(d) orders” issued by that same district: May 2, 2011 and June 7, 2011(†). Those orders covered the “(313) 412-6845 Metro PCS telephone number”.

Going back up to the Supreme Court, the question presented there was, abstractly:

Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

But one way to look at it —one good concrete way— is that question simply was, given the facts, and arguments, and opinions, and orders in the case of Timothy Ivory Carpenter, just what to do about him?


(*) See Carpenter’s cert petition table of contents on p. iv – v (p.5 – 6 in PDF), showing opinions in appendix.

(†) While E.D.Mich. references “D.E. 221-3” and “D.E. 196-2”, here I’ve substituted a link to D.E. 221-4 for the June 7, 2011 order. See D.E. 221 government response p.4, “Copies of these applications and orders are attached hereto as Exhibits B and C.”

Anonymous Coward says:

Unmade arguments

Seventh Circuit, per curiam, p.8 —

Finally, even if Adkinson sought to challenge the cell-site location data that the government later collected through the order it obtained under the Stored Communications Act, the challenge would be meritless. Adkinson did not challenge the admission of such data below and cannot do so now.

United States District Judge Tanya Walton Pratt, p.9 —

Adkinson has presented no authority to support his contention that there is a Fourth Amendment protected expectation of privacy in historical cell cite connection data.

Ok, maybe appellant made some kind of “contention” but didn’t effectively challenge admission of historical CSLI, because he presented no authority.

Or maybe it just doesn’t matter because, Leon, and everybody always be acting in god-damn good faith, all the damn time, good faith dontcha know.

Anonymous Coward says:

non-retroactive 4th amendment?

I’m confused- and probably missing something here- Why are the carpenter/byrd decisions non-retroactive if they assert an existing constitutional 4th amendment protection? Shouldn’t the 4th be absolutely retroactive?

Also- this search seams limited in scope and procedure such that these might not be relative comparisons at all? The other searches were much wider in scope and done by the gov iirc….this was narrow, and done by private party. Not trying to argue that’s ethically ok, or a good thing long term and outside of this particular circumstance- just that it’s generally categorically different in the way the law treats it.

I’m sure I’m off- but where?

Anonymous Coward says:

Re: non-retroactive 4th amendment?

Why [is] the carpenter … decision[] non-retroactive…?

I’m going to point you to the Aug 24, 2018 Seventh Circuit opinion in US v Curtis. Note that Curtis is cited on p.9 of the Adkinson opinion, and you may also note that it’s mentioned towards the end of oral arguments. Further, observe that judges Wood and Kanne sat on both the Curtis panel and on the Adkinson panel.

Here’s an excerpt from Seventh Circuit Chief Judge Wood’s opinion in Curtis:

Curtis . . . argues that the district court should have excluded evidence of his cell-site location information ("CSLI"), which he alleges was obtained in violation of the Fourth Amendment. . . .

The Supreme Court resolved Curtis’s Fourth Amendment argument in Carpenter v. United States (2018). There it decided that a person in Curtis’s position, for whom data was collected for a substantial time, maintains a legitimate expectation of privacy for Fourth Amendment purposes in the records of his physical movements disclosed by CSLI. . . . It remanded the case for further proceedings.

Our case stands in the same position as the Carpenter remand. The Court has resolved the question whether an SCA order obviates the need for the warrant, but it has not spoken to what should happen next. We must decide . . .

If you’re inclined to read further than one case, then I’d guide you in from Curtis’s citations to Illinois v Krull (1987), and further down to US v Leon (1984).

While Leon and Krull have been the nation’s law for decades now, you should not presume that they’re entirely uncontroversial.

Anonymous Coward says:

Re: non-retroactive 4th amendment?

The other searches were much wider in scope…

Besides the cell tower dumps performed on the initiative of T-Mobile’s Loss Prevention Investigations Team, Adkinson’s case also involved a § 2703 order for historical CSLI similar to the § 2703 orders involved in Carpenter (and Curtis).

Entry on Motion to Suppress (S.D.Ind. 2017)

On September 3, 2015, the Government applied for and obtained an order, pursuant to 18 U.S.C. § 2703, to retrieve historical phone records for phone number (708) 543-7900, including call records and tower connection data. . . .

The Seventh Circuit’s unsigned per curiam decision appears to contain a mistatement of fact on pp.8-9, in their treatment of the arguments, and while, ultimately, it might not change the disposition of Adkinson’s case, it hasn’t escaped my notice.

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