News
>BACK

U.S. Supreme Court Requires Warrants for Cellphone Location Records

Posted on Saturday, September 01, 2018 at 12:00AM

CHRISTOPHER NISSEN
Associate Attorney
Rains Lucia Stern St.
Phalle & Silver, PC

On June 22, the U.S. Supreme Court, in a 5–4 decision, held that the government’s acquisition of records from wireless carriers that show a cellphone user’s location based on cell-site connections constitutes a search under the Fourth Amendment1 and requires that the government obtain a search warrant based on probable cause.2

The underlying case involved an investigation of Timothy Carpenter, the alleged leader of an organized robbery ring. After the FBI identified the cellphone numbers of several robbery suspects, including Carpenter, the government obtained a court order to obtain the suspects’ cellphone records under the Stored Communications Act. (18 USC §2703[d].) The wireless carriers produced the cellphone records for Carpenter’s cellphone for a 127-day period, and the government was able to obtain without a warrant 12,898 location points cataloging his movements — an average of 101 data points per day. 

Before trial, Carpenter moved to suppress the records, arguing that the government’s seizure without obtaining a warrant supported by probable cause violated the Fourth Amendment. The District Court denied the motion, and prosecutors used the records at trial to show that Carpenter’s phone was near four of the robbery locations at the time those robberies occurred. Carpenter was convicted. On appeal, the Sixth Circuit affirmed, holding that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers.

The U.S. Supreme Court overturned the Sixth Circuit Court’s decision, stating that Carpenter’s cell-site records were obtained wrongfully. By obtaining a court order under the Stored Communications Act, requiring only a showing of “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation,” the government fell “well short” of the probable cause requirement for a warrant. The Court specifically held that a court order under Section 2703(d) of the Stored Communications Act is not a permissible mechanism for accessing historical cell-site records. 

In its decision, the Court addressed two interrelated lines of decisions addressing Fourth Amendment protections: 1) cases involving a person’s expectation of privacy in his physical location and movements3 and 2) cases involving a person’s expectation of privacy in information voluntarily turned over to third parties (such as wireless carriers).4  The data at issue here — personal location information maintained by a third party — implicates both concerns. On the one hand, cell-service location information (“CSLI”) shares many of the qualities of GPS monitoring, which was considered in the Jones case; yet at the same time, the process by which a cellphone continuously shares a person’s location with the wireless carrier falls in line with the concerns in Smith and Miller about privacy rights in information voluntarily shared with a third party.

The Court’s decision, written by Chief Justice John Roberts, noted that privacy interests are frequently implicated by advancements in technology. The Court held that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through” a cellphone. Given the unique nature of cell-site records, the Court declined to extend the Smith and Miller decisions to cover CSLI. The Court noted that CSLI records present even greater privacy concerns than the GPS monitoring considered in the Jones decision in that they can provide the government the ability to essentially “travel back in time” and re-create with near-perfect precision a person’s movements and whereabouts. Compounding this concern, by obtaining a court order based only on “reasonable grounds” under the Stored Communications Act without the need to establish probable cause, the government may perform warrantless searches and seizures subject only to the five-year retention policy followed by most wireless carriers.

In so holding, the Court rejected the government’s argument that cell-site records are “business records” maintained by a third party to whom a person voluntarily turned over information, and as such, there is a reduced expectation of privacy. The Court noted the unique nature of CSLI and cellphone location data, observing that such information is not truly “shared” by an individual as that term is understood in cases like Smith and Miller. “First, cellphones and the services they provide are ‘such a pervasive and insistent part of daily life’ that carrying one is indispensable to participation in modern society.”5 Additionally, the Court determined that a person does not “voluntarily” agree to turn over location information to wireless carriers since “a cellphone logs a cell-site record by dint of its operation, without any affirmative act on the user’s part beyond powering up.”

The Court did make clear that this ruling was narrow and meant only to address the specific concerns involving CSLI and cellphone location records. This means that the concept developed in the Smith and Miller line of cases (i.e., a reduced expectation of privacy in information provided voluntarily to third parties) remains the law as to conventional surveillance techniques and tools (e.g., security cameras). The Court ruling also does not take a position on whether the government’s efforts to seek other types of business records that might incidentally reveal location information would constitute a search, thus triggering the probable cause requirement of the Fourth Amendment. Finally, the Court clarified that this ruling does not affect the government’s ability to obtain CSLI without a search warrant where “exigent circumstances” exist — such as cases involving foreign affairs or national security interests.

What the holding means for law enforcement and the government where cellphone location information may aid in a routine criminal investigation is that a search warrant based on probable cause must be obtained to satisfy the privacy interests protected by the Fourth Amendment. “Reasonable cause” under the Stored Communications Act will not suffice. As this article notes, most wireless carriers follow a five-year records retention policy. An investigator should determine the wireless carrier’s records retention policy, and if a warrant cannot be obtained in a timely fashion, should consider sending the wireless carrier a preservation or litigation hold letter to preserve the records until such time as a warrant has been obtained.

About the Author
Christopher D. Nissen is an associate with Rains Lucia Stern St. Phalle & Silver and is based out of the firm’s Santa Monica office. Nissen is a member of the firm’s Labor Law and Litigation practice groups. He handles traditional labor relations work, labor litigation and various legal defense matters. 

Resources:
1 In general, the Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.
2 Carpenter v. U.S. (June 22, 2018), No. 16-402, 585 U.S. ____.
3 See, e.g., United States v. Jones (2012) 565 U.S. 400 (five justices concluding that privacy concerns would be raised by GPS tracking).
4 See United States v. Miller (1976) 425 U. S. 435 (no expectation of privacy in financial records held by a bank), and Smith v. Maryland (1979) 442 U.S. 735 (no expectation of privacy in records of dialed telephone numbers conveyed to telephone company). The Smith decision that allowed for warrantless collection of calling data was decided prior to the advent of cellphones and the technology that allows for collection of cellphone location data by wireless carriers.
5 Citing Riley v. California (2014) 573 U.S. ___, 134 S. Ct. 2473.
 

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.