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11th Circuit: Warrant is Not Required to Obtain Cell Tower Records

May 27, 2015

In United States v. Davis, the U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that the government was not required to get a search warrant to obtain the defendant’s cell phone location data from his cell provider.

The defendant was convicted of federal bank robbery charges. At trial, over the defendant’s objection, the government used cell tower location data that placed the defendant near the scene of the crime. The prosecution acquired the location data from MetroPCS through a request made pursuant to the Stored Communications Act. The Act requires a court order before producing this type of data, but does not require a showing of probable cause, which would be necessary to obtain a search warrant.

The defendant appealed his conviction to the Eleventh Circuit, where a panel held that a search warrant should be required to obtain cell tower records, but nevertheless affirmed the defendant’s conviction. The panel held that, because there was no binding case law on the issue, the government acted in good faith in obtaining the evidence without a warrant. Thus, the evidence did not need to be excluded.

Due to the importance of this issue and the split among the federal circuits, the Court granted a petition to have the case reheard by the entire Court en banc. At the rehearing, the American Civil Liberties Union and the National Association of Criminal Defense Lawyers filed amicus briefs supporting the defendant’s position that the warrantless acquisition of cell phone location data violated the Fourth Amendment.

In an opinion written by Judge Frank Hull, a majority of the Court held that the State’s acquisition of the cell tower records did not require a search warrant. It was first noted that the defendant did not own the records, rather they belonged to his cell phone provider, thus he could not have a reasonable expectation of privacy as to those records. Additionally, because cell phone users know that providers have tower location data and that they may turn it over to the government, the court order compelling MetroPCS to turn over the records did not constitute a search, and could not violate the Fourth Amendment. Addressing fears of the decision’s implication for advanced technology, Judge Hull noted that the case involved records from an older phone that was not equipped with GPS tracking. She emphasized that the decision was limited to the facts of the case.

Judge Beverly Martin dissented, pointing out the large scope of the location evidence the government obtained in this case. The cell tower data gave the prosecution 11,606 data points regarding the defendant’s location during a 67-day time period. She also wrote that cell phone users, including the defendant, have a reasonable expectation of privacy as to their locations. “People do not expect the government to track them simply as a consequence of owning and using what amounts to a basic necessity of twenty-first century life.” Though she disagreed with the Court’s holding as to whether a search warrant was required, she agreed with the panel’s finding that the government’s actions fell within the good faith exception.

Defense attorney David Markus said that the majority opinion’s reach was “breathtaking,” and that it meant “the government can get anything stored by a third party: your Facebook posts, your Amazon purchases, your Internet search history, even the documents and pictures you store in the cloud, all without a warrant.” He stated that he would be requesting the United States Supreme Court to review the case.

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