Eleventh Circuit Finds Cell Site Location Data Requires Warrant
By Sheri Pan – Edited by Sarah O’Loughlin
United States v. Quartavious Davis, No. 12-12928 (11th Cir. 2014) Slip Opinion hosted by American Civil Liberties Union
On June 11, 2014, the United States Court of Appeals for the Eleventh Circuit reached a decision in United States v. Quartavious Davis, affirming in part and vacating in part a February 2011 grand jury indictment of Quartavious Davis and five co-defendants for participating and conspiring in several robberies. During the pre-trial and trial proceedings, Davis moved to suppress cell site information, location data from cellphone service providers that indicate the cell towers near which an individual placed and received phone calls. The specific cell site data in question showed Davis near the crime scenes of six out of the seven robberies. Both the pre-trial and trial courts denied his motions, and the jury convicted him on all counts.
On appeal, Davis argued that the court erroneously admitted the cell site location information because the government obtained the data through a court order, not a search warrant. The Stored Communications Act (“SCA”), the statute under which a government entity can obtain subscriber information from electronic communications providers, requires probable cause for a warrant, but only “reasonable grounds to believe that . . . the records are relevant and material” for a court order. § 2703(c)–(d).
The question was one of first impression for the court. Reviewing past search and seizure cases, the court concluded that the Fourth Amendment protects against unreasonable searches and seizures of electronic communications. Next, it analyzed the Supreme Court’s opinion in United States v. Jones, where the government had installed a GPS device on the defendant’s vehicle to capture location data. While Jones involved physical trespass and thus could not conclusively determine the case at hand, the appellate court relied on the Supreme Court’s majority and concurring opinions to determine that the idea that the Fourth Amendment protects a person’s privacy rights regardless of whether a trespass has occurred, is “alive and well.” Because a person carries his cellphone into private spaces, even one point of cell site information is within a subscriber’s reasonable expectation of privacy. Further, that expectation does not diminish when a subscriber shares the information with a third party such as a communications provider, because most customers are likely unaware that their providers are collecting such information. Consequently, the government cannot obtain cell site location data without a search warrant. Despite the court’s finding, however, it ruled that the district court did not commit reversible error under the Leon Exception because the officers acted in good faith in obtaining the court order.
Jennifer Granick, a Director of Civil Liberties at the Stanford Center for Internet and Society, in a blog post for Just Security argued that Davis may help undermine legal support for the NSA’s bulk metadata collection by asserting that people have a reasonable expectation of privacy to records kept by a third party communications provider. On the other hand, Orin Kerr, writing for the Washington Post, critiqued the decision, arguing that a reasonable expectation of privacy is based not on the information involved, but the means through which the government obtains the information. He also questioned the court’s conclusion that most people are unaware that they are sending their information to the provider of their services.
Just Security and Washington Post provide commentary.