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. Continue reading
Tag Archives: cell site location information
Last week, the court of appeals decided State v. Perry. It’s the appellate division’s first foray into cell site location information and a case that raises questions about the status of the exclusionary rule in North Carolina. Continue reading →
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. Continue reading →
On Tuesday, the Eleventh Circuit ruled, en banc, that law enforcement may obtain historical cell site location information without a search warrant, using a court order based on less than probable cause. There’s a controversy over what legal standard should govern law enforcement access to location information, and the Eleventh Circuit’s ruling is likely to be influential in the debate. This post explains the issue and puts the new decision in context. Continue reading →
The 2014 Cumulative Supplement to Arrest, Search, and Investigation in North Carolina (4th ed. 2011) is now available. It is called a cumulative supplement because it includes the material in the 2013 supplement so you only need the book and the 2014 cumulative supplement to be current. You may order it online here or contact the School of Government Bookstore Manager at 919.966.4120. Continue reading for additional details.
More and more criminal cases involve electronic tracking. Sometimes the defendant is tracked using GPS, other times using cell site location information. Either way, interesting evidentiary questions arise. May an officer who knows how to use a tracking device testify about tracking, even if she doesn’t know much about how the underlying technology works? Who can testify about cellular towers and how cellular telephones connect to them? Is such testimony lay witness testimony or expert testimony?
GPS tracking. The recent case of State v. Jackson, __ N.C. App. __, 748 S.E.2d 50 (2013), provides helpful guidance regarding GPS tracking. The defendant in that case sexually assaulted a woman on the street. He was wearing an ankle bracelet, apparently as a condition of pretrial release on other charges. At trial, the supervisor of the Charlotte-Mecklenburg Police Department’s electronic monitoring unit testified about the ankle bracelet and introduced a video tracking the defendant’s movements during the time period in question. On appeal, the defendant contended that “the State failed to establish a proper foundation to verify the authenticity and trustworthiness of the data” and needed to verify the accuracy of the data before it could be admitted, but the court ruled that the officer’s “testimony established a sufficient foundation of trustworthiness.” The court also stated that the officer’s testimony was admissible as lay witness testimony based on his review of the tracking data, rather than as expert testimony. Both the fact that the court approved of testimony from an officer – rather than a scientist or an engineer – and the fact that the court deemed the testimony lay testimony are significant.
As an aside, Jackson makes an interesting contrast to State v. Meadows, 201 N.C. App. 707 (2010), where the court of appeals ruled that an officer could not testify as an expert regarding the use of the NarTest machine to identify controlled substances, because there was insufficient evidence of the machine’s reliability and the officer had no training in chemistry to allow him to assess the functioning of the machine.
Cell site tracking. I’m not aware of a North Carolina appellate case addressing the evidence issues surrounding cell site tracking testimony. However, there are some relevant cases from appellate courts around the country. Some cases involve officer witnesses, while others involve witness from telecommunications service providers. Let’s look at those cases separately.
Testimony by officers. Several courts have allowed officers to testify as lay witnesses regarding at least basic cell site tracking procedures. See, e.g., United States v. Feliciano, 300 Fed. Appx. 795 (11th Cir. 2008) (unpublished) (holding that a trial judge did not abuse his discretion in allowing an officer to testify “about cell tower sites”; the officer “simply reviewed the cellular telephone records . . . which identified cellular towers for each call, and based on his personal knowledge concerning the locations of certain cellular towers, testified that, at the time of the call [a specific phone was not near a specific location]”); United States v. Evans, 892 F.Supp.2d 949 (N.D. Ill. 2012) (holding that an officer would be allowed to testify as a lay witness regarding the location of cell towers and regarding which towers the defendant’s cell phone used at what time, and that the officer would be allowed to plot the towers on a map without qualifying as an expert; however, any testimony about how cellular networks work and “granulization theory” would require qualification as an expert). On the other hand, Wilder v. State, 991 A.2d 172 (Md. Ct. App. 2010), ruled that “the use of cell phone site location evidence and the accompanying testimony of a law enforcement officer who explain[s] its use require the qualification of the sponsoring witness as an expert.” It seems to me that the more technical and complicated the tracking procedure is, the more likely a court would be to require an officer to qualify as an expert in order to testify about it.
Testimony by employees of telecommunications service providers. Courts have also considered testimony from employees of cellular service providers. Most courts seem to have allowed relatively low-level employees to testify as lay witnesses about cell site tracking. See, e.g., Gosciminski v. State, __ So.3d __, 2013 WL 5313183 (Fla. Sept. 12, 2013) (a Nextel engineer testified during a murder case regarding “maps of the cell towers, the coverage areas of the towers, propagation information, and specific cell phone calls made or received by [the defendant]” and introduced diagrams regarding tower locations and sector information; this was properly admitted and did not require that the engineer be qualified as an expert because “such information is understood by the average juror who owns a cell phone”); Woodward v. State, __ So.3d __, 2011 WL 6278294 (Ala. Ct. Crim. App. Dec. 16, 2011) (lay witnesses employed by cell phone company were properly allowed to testify that cell phone records “indicated the locations of the callers at certain times”; the testimony did not require specialized knowledge and was limited to information regarding “cell towers used during certain phone calls”); Malone v. State, 73 So.3d 1197 (Miss. Ct. App. 2011) (cell phone company employees properly testified as lay witnesses regarding cell phone records, tower locations, tower coverage information, and tower usage; none of this was “so complex or technical as to render it expert testimony”). Again, the more complex the testimony is, the stronger the argument for requiring the witness to qualify as an expert.
Conclusion. The evidence issues surrounding tracking technology may prove difficult to settle. In part, this is because tracking technology itself changes so rapidly that decisional law struggles to keep up. But it is also because the line dividing lay and expert testimony is unstable. A witness must testify as an expert if the witness’s testimony involves “scientific, technical or other specialized knowledge,” N.C. R. Evid. 702, that is beyond the experience of a typical juror. But a typical juror today knows far more about GPS satellites and cellular towers than a typical juror a decade ago. And of course, tomorrow’s jurors likely will know even more.
I wrote here about how law enforcement officers may obtain historical information about the location of a suspect’s cellular phone. There have been several developments in the law since then, including earlier this week when the Fifth Circuit rendered its decision in In re Application of the United States of America for Historical Cell Site Data.
Summary of Prior Law. Law enforcement usually seeks historical cell site location information under the Stored Communications Act, 18 U.S.C. § 2701 et seq. The SCA generally prohibits providers of “electronic communications services,” such as cellular telecommunications companies, from disclosing subscribers’ records or other information absent appropriate legal authority. 18 U.S.C. § 2702(a)(3). What legal process is necessary? Under 18 U.S.C. § 2703(c)(1), law enforcement may obtain a “record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications)” by obtaining a search warrant or by obtaining a court order. Officers tend to prefer to seek a court order, because the standard for issuance is lower. To obtain a court order, the applicant need only present “specific and articulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). This showing is less than the probable cause required for a search warrant.
Most courts have found no Fourth Amendment problem with this statutory scheme because the subscriber voluntarily conveys his or her location to the cellular service provider by choosing to have a cellular phone and to turn the phone on. Cf. Smith v. Maryland, 442 U.S. 735 (1979) (no expectation of privacy in telephone numbers dialed, because the numbers are conveyed voluntarily to the phone company). On this view, by requiring a court order, the SCA actually provides more protection than the Constitution requires.
Origins of the Fifth Circuit Case. The Fifth Circuit case began when “the United States filed three applications under § 2703(d) of the Stored Communications Act . . . seeking evidence relevant to three separate criminal investigations. Each application requested a court order to compel the cell phone service provider for a particular cell phone to produce sixty days of historical cell site data and other subscriber information for that phone.” The applications were submitted to a federal magistrate judge, who “granted the request for subscriber information but denied the request for the historical cell site data,” even though the Government met the “specific and articulable facts” standard. The magistrate judge concluded – contrary to the conventional analysis set forth above – that cell site location information was subject to a reasonable expectation of privacy, and that “warrantless disclosure of cell site data violates the Fourth Amendment.” The district court judge agreed, and the Government appealed.
The Fifth Circuit’s Ruling. In a 2-1 decision, the court ruled for the Government. The majority endorsed the conventional view of the Fourth Amendment issue. It stated that subscribers are aware that their cell phones are communicating with cell towers, and that service providers may record that information. When the Government “merely comes in after the fact and asks a provider to turn over records the provider has already created,” it is obtaining the provider’s records, not the subscriber’s, and is obtaining information that the subscriber has voluntarily conveyed to the provider. Under Smith and other “business records” cases, this does not intrude on the subscriber’s reasonable expectation of privacy.
National Context and Impact on North Carolina. Whether law enforcement access to location information collected by cellular service providers implicates the Fourth Amendment is a hot question right now, fueled in part by the Supreme Court’s ruling on the related issue of GPS tracking in United States v. Jones, 556 U.S. __ (2012) (holding, as I discussed here, that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’”). For example, the New Jersey Supreme Court just ruled unanimously in State v. Earls, __ A.3d __, 2013 WL 3744221 (July 18, 2013), that the New Jersey Constitution generally requires a warrant before obtaining cell site location information. The Third Circuit ruled a few years ago that judicial officials may, but are not required to, require a showing of full probable cause rather than merely specific and articulable facts before issuing an order for disclosure of historical cell site location information. In re Application of the United States, 620 F.3d 304 (3d Cir. 2010). And several similar cases are pending in other federal appellate courts, including the Fourth Circuit. (Readers interested in the Fourth Circuit case can check out this brief, signed in part by IDS Director Tom Maher in his capacity as Vice Chair of the NACDL’s Fourth Circuit Amicus Committee.)
There’s no case on point from our appellate division. A North Carolina judge considering an application for cell site location information is bound by none of the above cases, but may be persuaded by any of them. Unless and until the United States Supreme Court or a North Carolina appellate court rules on these issues, they remain open questions. Because there is at least some uncertainty about the Fourth Amendment issue, a cautious officer may prefer to use a full probable cause warrant or order rather than a specific and articulable facts order when possible.
Further Reading. The New York Times has a story about the Fifth Circuit case here. Leading network surveillance scholar Orin Kerr, who was involved in the case as an amicus, analyzes the opinion here.
I’ve had several questions lately about the authority of law enforcement to track a suspect by obtaining information about contacts between the suspect’s cellular telephone and cellular towers. I’m also going to be teaching about some related issues in the near future. So I’ve prepared a short summary of the law in this area, which I’m making available here as a PDF. I’ve watermarked the document “draft” because I reserve the right to tinker with it some more, so if you read it and have comments, criticisms, or suggestions, please let me know. That said, I believe the summary is accurate as is. I hope it’s helpful.