Advice to Officers After Graham

As I discussed here, the Fourth Circuit recently ruled in United States v. Graham, __ F.3d __, 2015 WL 4637931 (4th Cir. Aug. 5, 2015), that an officer who obtained two suspects’ cell site location information (CSLI) without a search warrant violated the Fourth Amendment. (The officer used a court order based on a lower standard, as purportedly authorized by the relevant federal statute, 18 U.S.C. § 2703(d).) I’ve had a number of practical questions about Graham from officers, agency attorneys, and judges, and I thought that I would collect some of the questions here.

Does Graham apply to North Carolina? Not directly, but officers probably should act as if it does.

North Carolina’s state courts aren’t bound by the Fourth Circuit’s interpretation of the Fourth Amendment. To use a military analogy, the Fourth Circuit isn’t in the chain of command of the North Carolina courts. See, e.g., Housecalls Home Health Care, Inc. v. State Dep’t of Health and Hum. Svcs., 200 N.C. App. 66 (2009) (noting that “we are not bound by decisions of the Fourth Circuit”).

However, North Carolina judges often pay close attention to the Fourth Circuit’s rulings and they may find Graham persuasive, even though other federal circuits have disagreed with the conclusion reached in Graham. (I discussed the circuit split in my original blog post on Graham.) For that reason, a cautious officer will operate as if Graham were the law of the state. Furthermore, officers who are working on cases that they may wish to turn over to federal authorities must follow Graham, as the Fourth Circuit governs the federal district courts in this state.

Will Graham be appealed? It’s too early to tell.

Although the government lost the Fourth Amendment issue in Graham, it won the case overall as the defendants’ convictions were affirmed. So both sides may be dissatisfied with the outcome, and either one could seek rehearing before the panel that issued the original opinion or before the Fourth Circuit en banc, or could ask the Supreme Court to review the case.

Petitions for rehearing must normally be filed within 14 days of the original judgment. Fed. R. App. P. 40(a)(1). That deadline has come and gone. However, the clerk’s office for the Fourth Circuit informed me that the government sought and received an extension of time until September 18, 2015, to file a petition for rehearing.

Parties have 90 days to file petitions for Supreme Court review. Supr. Ct. R. 13. So, if no petition for rehearing is filed, it may be several months before we know for sure whether either side will seek further review.

What kinds of information trigger the requirement that a search warrant be used? Any information held by a service provider that reflects a suspect’s location over “an extended period of time.”

As I understand it, service providers may have multiple types of location-related information regarding subscribers. The least precise type of information simply reports which cell tower, and which of the three faces of that tower, a subscriber’s phone was connected to at a given time. A single face of a single tower may cover multiple square miles, though it may also cover a much smaller area in a dense urban environment. In some instances, service providers are able to provide much more precise, GPS-type data regarding the location of a subscriber’s phone.

Graham appears to have involved the less precise form of data, and the court nonetheless rejected the government’s argument that the Fourth Amendment was not implicated because CSLI could provide only a “general vicinity” rather than a precise location. The court deemed the distinction between tower data and GPS data “constitutionally insignificant” and noted that “the CSLI at issue here was precise enough, at minimum, to support reasonable inferences about [the suspects’] locations at specific points in time. Otherwise, the information would have lacked any probative value at trial.” Therefore, it appears that Graham applies to any type of location information held by a service provider.

It is important to note that the court ruled that the Fourth Amendment is implicated “when [the government] obtains and inspects a cell phone user’s historical CSLI for an extended period of time.” (Emphasis supplied.) The court did not address whether obtaining CSLI for a short period of time constitutes a Fourth Amendment search, nor did it define an “extended period of time.” The orders at issue in Graham covered 14 days and 221 days, respectively. The court indicated that both orders involved “an extended period of time,” but how the court would have addressed, for example, an order for a few hours or days of CSLI is unknown.

Another caveat is that Graham is limited to location information. Traditional pen register information concerning numbers dialed from a particular phone line, the duration of the calls made, and so on remains available without a warrant under North Carolina’s statutory pen register scheme. See generally G.S. 15A-260 et seq.

Could a court order based on probable cause, rather than a search warrant, satisfy Graham? Probably, although a search warrant is the gold standard.

The Graham court referred repeatedly to search warrants. In summing up its holding, it wrote: “the government’s procurement and inspection of Appellants’ historical CSLI was a search, and the government violated Appellants’ Fourth Amendment rights by engaging in this search without first securing a judicial warrant based on probable cause.” (Emphasis supplied.) However, search warrants come along with some procedural requirements that are difficult to apply to an officer seeking CSLI from a service provider. Consider a North Carolina officer seeking to obtain records from Verizon, which is incorporated in Delaware and headquartered in New York, and which presumably has servers in multiple locations in the United States and abroad. The officer obtains a search warrant and sends a copy to Verizon. The following concerns may arise:

  • S. 15A-247 requires that a warrant be executed by an officer with territorial jurisdiction. Does the officer have territorial jurisdiction over a search that takes place in other states and perhaps in other countries? If not, what sort of officer would have jurisdiction?
  • S. 15A-248 requires that a warrant be executed within 48 hours of issuance. If the officer is prompt in sending the warrant to Verizon but Verizon does not respond for a week, has this requirement been satisfied?
  • S. 15A-249 requires an officer to announce his or her presence “before entering the premises [to be searched].” When and to whom should the officer announce his or her presence?


Officers could avoid these ill-fitting procedures by seeking a court order based on probable cause instead of a search warrant. I have previously recommended the use of court orders rather than search warrants for GPS tracking requests, and I think it’s likely that a court order based on probable cause would work in this context too, assuming the suspect’s interests are protected as discussed above. Still, a search warrant is what Graham referenced, so a search warrant is the gold standard. And I think the procedural hurdles to using one can be overcome, either by having the judge waive inapplicable requirements in the warrant or by interpreting the requirements in a way that is reasonable for this type of search, e.g., by stopping the clock on the 48 hour requirement when the officer transmits the warrant to Verizon.

If Graham requires a search warrant, must an officer use the AOC form? No.

As long as the search warrant application and the search warrant itself meet the requirements of the Fourth Amendment and G.S. 15A-241 et seq., it is not necessary to use the AOC form.

On whom must the search warrant or court order be served? I recommend serving the subscriber — after any delay that is needed to protect an ongoing investigation – as well as the service provider.

G.S. 15A-252 provides that, prior to the execution of a search warrant, “the officer must read the warrant and give a copy of the warrant application and affidavit to the person to be searched, or the person in apparent control of the premises or vehicle to be searched.” A search warrant for CSLI authorizes a search of the service provider’s records, so the statute requires service of the warrant on the service provider, not the suspect. Court orders for this type of information also are typically directed at service providers.

Yet it is the subscriber’s reasonable expectation of privacy in his or her location that concerned the Graham court, not the service provider’s expectation of privacy in its records. That suggests that service should also be made on the subscriber. I recommend that officers err on the side of service until this question is resolved. Of course, sometimes investigators will not know the current location of the subscriber, and in such a case it may be sufficient to mail a copy of the warrant and application to the address on file with the service provider.

When an investigation is ongoing, it may be appropriate to delay service to avoid alerting the suspect to the investigation. Even when a suspect is aware of an investigation, it may be appropriate to delay service until the service provider has produced the records, in order to avoid the risk of the subscriber contacting the service provider and seeking to have the service provider alter or delete its records. A court presumably could authorize a delay in service. Cf. Fed. R. Crim. P. 41(f)(2) (federal law requires search warrants for tracking devices to be served “[w]ithin 10 days after the use of the tracking device has ended,” unless further delayed by court order).

If Graham requires a search warrant, how should the return and inventory be handled? Mostly, as with any other warrant.

There is nothing special about the return of a search warrant for CSLI. Once the warrant has been executed, the officer should bring the warrant back to the clerk and sign the return. See generally G.S. 15A-257.

One copy of the inventory must be given to the “owner, or person in apparent control of the premises or vehicle” where the search took place,” G.S. 15A-254, while another is given to the clerk, G.S. 15A-257. As to the contents of the inventory, I don’t think it’s necessary to attach copies of the records. The statute merely requires an itemized list of what was seized, not duplicates or images of the items. Cf. Fed. R. Crim. P. 41(f)(1)(B) (“In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied.”). As to whether the subscriber should be given a copy of the inventory, I tend to think so, for the reasons and subject to the same caveats discussed above in connection with service of the warrant itself. If a court order is used instead of a search warrant, a court may wish to include some provisions similar to the inventory and return provisions applicable to search warrants.

Which judicial officials may sign warrants or orders for CSLI? Superior court judges are the best choice.

Access to CSLI is governed in part by the Stored Communications Act, 18 U.S.C. § 2701 et seq. That statute requires search warrants and court orders to be issued by a “court of competent jurisdiction.” As I’ve noted on this blog, and as I have explained in more detail in my book on digital evidence, magistrates don’t count as courts of competent jurisdiction under the federal definition of that term, and it’s not clear whether district court judges do, meaning that this type of warrant is best obtained from a superior court judge.

Must warrants for CSLI be filed with the clerk? Yes.

Virtually every piece of paper handled by a judicial official must be filed with the clerk, including search warrants and court orders of all kinds. See generally G.S. 15A-245 (search warrants); G.S. 7A-109 (records generally). Of course, search warrants and other documents may be filed under seal when appropriate.

Other questions?

If you have other questions about how to obtain CSLI in a post-Graham world, please send me an email or post a comment.

A final caveat.

Officers should consult their superiors and/or their agency counsel before following the advice in this post — or any other post for that matter. You can’t read everything you believe on the internet! Besides, reasonable minds may differ on some of the points above, and there is no substitute for local expertise.

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