Fourth Circuit Reverses Graham: No Warrant Required for Historical Cell Site Location Information

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Last year, a panel of the Fourth Circuit decided United States v. Graham, 796 F.3d 332 (4th Cir. 2015). The panel ruled that “the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical [cell site location information (CSLI)] for an extended period of time. . . . Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.” I discussed Graham here and here. Last week, the en banc Fourth Circuit reversed the panel, ruling that under the third-party doctrine, a cell phone subscriber has no reasonable expectation of privacy in historical cell site location information that he or she shares with a service provider, so it isn’t a Fourth Amendment “search” when law enforcement obtains such information, and a warrant isn’t required. The en banc opinion is here. This post discusses the opinion and considers the possibility of Supreme Court review or action by Congress.

Facts. Defendants Graham and Jordan committed a string of armed robberies of Baltimore businesses. They were arrested as they drove away from one of the crimes. Their cell phones were in the truck they occupied. In an effort to link the defendants to the other robberies, officers sought court orders under 18 U.S.C. § 2703(d), a provision in the federal Stored Communications Act, for historical records regarding the phones.

Under the statute, such orders may be issued based on a showing akin to reasonable suspicion and less than probable cause. Using this standard, the officers ultimately obtained two sets of orders, one that covered a total of 14 days, scattered around each of the previous robberies, and one that covered a continuous seven-month period encompassing all of the robberies. Sprint produced records in response to the orders, including CSLI that placed the defendants at or near the locations of most of the robberies.

Procedural history. The defendants were charged with assorted federal crimes. They moved to suppress the CSLI, arguing that the officers engaged in an unreasonable search when they obtained that information without a full-fledged search warrant based on probable cause. The district court judge denied the motion to suppress, the defendants were convicted on all counts, and they appealed.

Panel opinion. As noted above, a panel of the Fourth Circuit ruled, 2-1, that cell phone subscribers have a reasonable expectation of privacy in their CSLI. The panel majority rejected the idea that the terms of a typical wireless subscriber agreement destroy such an expectation. It also disagreed with the Government’s argument that the defendants had no expectation of privacy in their CSLI under the third-party doctrine, because they voluntarily conveyed their location to Sprint:

We cannot accept the proposition that cell phone users volunteer to convey their location information simply by choosing to activate and use their cell phones and to carry the devices on their person. Cell phone use is not only ubiquitous in our society today but, at least for an increasing portion of our society, it has become essential to full cultural and economic participation. . . . People cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking active participation in society through use of their cell phones.

The majority nonetheless affirmed the defendants’ convictions, finding that the officers acted in good faith so the exclusionary rule did not apply. The dissenting judge would have ruled that the third-party doctrine precluded any reasonable expectation of privacy.

En banc opinion. The en banc court reversed by a 12-3 vote. The majority opinion was written by Judge Motz, who was the panel dissenter. (As an aside, I wonder whether there is a custom of allowing a dissenting panelist whose views are vindicated by an en banc court to write the en banc opinion.) The main thrust of the opinion is that subscribers voluntarily disclose their location to cellular service providers in the course of using their cellular telephones, and so have no reasonable expectation of privacy in that information:

[T]he [Supreme] Court has long held that an individual enjoys no Fourth Amendment protection “in information he voluntarily turns over to [a] third part[y].” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). This rule — the third-party doctrine — applies even when “the information is revealed” to a third party, as it assertedly was here, “on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443 (1976). All of our sister circuits to have considered the question have held, as we do today, that the government does not violate the Fourth Amendment when it obtains historical CSLI from a service provider without a warrant. In addition to disregarding precedent, Defendants’ contrary arguments misunderstand the nature of CSLI, improperly attempt to redefine the third-party doctrine, and blur the critical distinction between content and non-content information.

The Supreme Court may in the future limit, or even eliminate, the third-party doctrine. Congress may act to require a warrant for CSLI. But without a change in controlling law, we cannot conclude that the Government violated the Fourth Amendment in this case.

The en banc dissent was written by Judge Wynn, joined by the two judges who had comprised the panel majority. Its analysis is in line with the original panel decision.

Scope of the opinion. Graham involved only historical CSLI. The Government didn’t collect the defendants’ CSLI in real time, and the opinion doesn’t address whether the collection of CSLI in real time would require a warrant. (The extent to which federal statutory law limits the collection of CSLI in real time is discussed in my book on digital evidence, but suffice it to say that statutory law isn’t very clear on this point.) The court’s rationale would seem to apply equally to real-time data collection, but some courts have distinguished between historical and real-time collection.

Implications for North Carolina. The en banc opinion in Graham adopts the same basic rule that the North Carolina Court of Appeals adopted in State v. Perry, a case I discussed here. In January of this year, the Supreme Court of North Carolina declined to review Perry, so the law is relatively settled at the moment: law enforcement may obtain historical CSLI without a warrant, under the “reasonable grounds to believe” standard of 18 U.S.C. § 2703(d). Out of an abundance of caution, I suppose that I would still recommend that an officer seeking historical CSLI obtain a warrant or a similar full probable cause court order when possible, but using the lower statutory standard seems fairly safe right now.

Prospects for Supreme Court review. Even as the Fourth Circuit was relying on the third party doctrine to decide Graham, it was inviting the Supreme Court to revisit the doctrine, stating that “although the Court formulated the third-party doctrine as an articulation of the reasonable-expectation-of-privacy inquiry, it increasingly feels like an exception. A per se rule that it is unreasonable to expect privacy in information voluntarily disclosed to third parties seems unmoored from current understandings of privacy.” So even though Graham basically eliminated a circuit split, I don’t think it necessarily closed off the possibility of Supreme Court review. This is an important and recurrent issue, and the Court may still decide to address it at some point.

Prospects for statutory reform. Whether or not the Supreme Court decides to weigh in, there’s some momentum in Congress to reform the Stored Communications Act. A bill has passed the House, though its prospects in the Senate are uncertain. However, the bill focuses on increasing protections for the contents of emails and other electronic communications. At least in current form, it doesn’t address location information. That could change, and of course, we will keep you posted on any significant statutory amendments.

2 comments on “Fourth Circuit Reverses Graham: No Warrant Required for Historical Cell Site Location Information

  1. Of course, nothing would prevent the NC Supreme Court from adopting Graham as the law in our state.

  2. […] For a more through look at the decision, click here for the N.C. Criminal Law Blog’s post on the matter. […]

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