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In re Application of United States of America For an Order For Authorization to Obtain Location Data Concerning an AT&T Cellular Telephone

United States District Court, N.D. Mississippi

March 30, 2015

IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER FOR AUTHORIZATION TO OBTAIN LOCATION DATA CONCERNING AN AT& T CELLULAR TELEPHONE

For In Re: In the Matter of the USA for a Warrant and Order for Authorization to Obtain Location Data Concerning a Cellular Telephone, Clyde McGee, IV, Jamiel M. Wiggins, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE - Oxford, Oxford, MS; William Chadwick Lamar, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Oxford, MS.

ORDER

MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.

This cause comes before the court on the motion of the government, appealing the Magistrate Judge's denial of its application for a warrant, pursuant to 18 U.S.C. § 2703(c)(1)(A) of the Stored Communications Act (SCA), which sought to compel the disclosure of cell phone records to be used as part of an ongoing drug trafficking investigation in this district. The warrant which the government sought to obtain was a " prospective" one, which would have compelled phone providers to provide cell phone location data to be generated in the future, which the government intended to use to track the location of drug suspects. The government's application in this regard gives rise to a number of difficult Fourth Amendment and statutory interpretation issues, and, in the absence of binding U.S. Supreme Court precedent on point, this court can only give its best guess regarding what the law in this context actually is. With that caveat, this court, having considered the briefing of the government and that of the Federal Public Defender as amicus curiae, concludes that the government's appeal is well taken and should be sustained, for reasons which it will presently explain.

The issues in this case are, it appears, an inevitable result of advances in cell phone technology, which seem to have outpaced the legal standards to deal with them. The government has filed applications similar to this one in a large number of jurisdictions nationwide, thereby giving rise to a significant, and divergent, body of case law on this subject. In her February 10, 2015 order denying the government's application for a warrant, Magistrate Judge Alexander found persuasive and expressly relied upon a 2014 order by U.S. Magistrate Judge William Smith, of the Southern District of Texas, in In the Matter of the Application of the United States of America for an ORDER AUTHORIZING PROSPECTIVE AND CONTINUOUS RELEASE OF CELL SITE LOCATION RECORDS, 31 F.Supp.3d 889 (S.D. Tex. 2014).

In particular, Judge Alexander relied upon Judge Smith's ruling that, when prospective (rather than historical) cell phone location data is sought by the government, it is required to proceed under the Tracking Device Statute, 18 U.S.C. § 3117, rather than the SCA. In Judge Smith's case, however, the government sought an " order" under § 2703(d) of the SCA, which is an entirely different SCA provision than the one the government uses in this case, and one which imposes a " specific and articulable facts" standard that requires a considerably lesser showing of proof than the probable cause standard to which the government has agreed to subject itself here. This is significant since, while Judge Smith wrote that his analysis applied regardless of " [w]hether or not cell site data is ultimately held worthy of Fourth Amendment protection," In the Matter of the Application, 31 F.Supp.3d at 900, he approvingly cited and appeared to tacitly rely upon a 2005 decision in which he wrote that " permitting surreptitious conversion of a cell phone into a tracking device without probable cause raises serious Fourth Amendment concerns, especially when the phone is monitored in the home or other places where privacy is reasonably expected." In Re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F.Supp.2d 747, 765 (S.D. Tex. 2005).

In his 2014 decision, Judge Smith appeared reluctant to re-state his earlier view that the government's use of cell phone data implicates Fourth Amendment protection, perhaps in recognition of the fact that a number of federal courts have, since his 2005 decision was written, reached a contrary conclusion. In so noting, this court emphasizes that the U.S. Supreme Court has not yet clarified exactly what Fourth Amendment protection, if any, exists when the government seeks to obtain physical location data generated by a suspect's cell phone. In United States v. Jones, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012), the Supreme Court did hold that the attachment of a GPS tracking device to a vehicle without the owner's permission was a " search" within the meaning of the Fourth Amendment. Jones does not resolve the Fourth Amendment issues arising from applications for cell phone location data, however, since its rationale was expressly based upon the physical placement of a tracking device on a suspect's car, which the Supreme Court found " would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." Jones, 132 S.Ct. at 949.

In the absence of relevant U.S. Supreme Court authority, lower federal courts have analyzed the constitutional issues in this context in different ways. There is, however, broad agreement that those issues should be analyzed under the Fourth Amendment standard set forth by the U.S. Supreme Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and its progeny, which deem a Fourth Amendment violation to have occurred when government officers violate a person's " reasonable expectation of privacy." See also Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). What those words actually mean in their application to cell phone tracking data is very much in dispute, however. A number of federal courts have concluded that there is no reasonable expectation of privacy in location data emanating from one's cell phone, while others have disagreed and concluded that when the government seeks to obtain such data from cell phone providers it must demonstrate probable cause and obtain a warrant. This court will first discuss select cases adopting the former view.

In United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012), the Sixth Circuit Court o Appeals held that a defendant convicted of drug running " did not have a reasonable expectation of privacy in the GPS data and location of his cell phone" while traveling on public thoroughfares and accordingly affirmed his conviction based on location data from his phone. I Skinner, law enforcement officers tracked the defendant's phone for three days while he transported drugs on public highways, utilizing an order from a magistrate judge which authorized prospective, real-time monitoring of the location data from his phone. Skinner, 690 F.3d at 776. In concluding that he had no reasonable expectation of privacy in that prospective cell phone data, the Sixth Circuit wrote that:

When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them. This is not a case in which the government secretly placed a tracking device in someone's car. The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the crosscountry shipment of drugs. Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.

Id. at 774. The Sixth Circuit further stressed that the three-day monitoring of the defendant's location was a limited one, and it acknowledged concerns expressed by Justice Alito in his concurring opinion in Jones (joined by three other Justices), 132 S.Ct. at 957-64, that a lengthy surveillance might well violate a defendant's reasonable expectation of privacy. Id. at 780.

Other federal courts, in reaching similar results, have found that no reasonable expectation of privacy existed based upon the so-called " third party disclosure doctrine" set forth by the U.S. Supreme Court in Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). In Smith, the Supreme Court held that there was no reasonable expectation of privacy in dialing information gleaned from pen registers, concluding that telephone users were aware that phone companies (1) had facilities for recording phone numbers, and (2) did in fact record that information for legitimate business purposes. 442 U.S. at 742.

In U.S. v. Booker, 2013 WL 2903562 (N.D.Ga. 2013), a Georgia district judge deemed the Smith analysis as controlling in the cell phone location data context, writing that:

Similarly, today, mobile telephone users sufficiently understand that the cell phone company (1) has facilities for recording the cellular tower information employed in dialing a number, and (2) does in fact record that information for legitimate business purposes, such as billing different rates when the customer is " roaming." . . . Accordingly, the cell phone user assumes the risk that the company could reveal that legitimate business information to others, including law enforcement authorities, as part of an investigation. See Smith, 442 U.S. at 744. As the Supreme Court " consistently has held that a person has no legitimate expectation of privacy in information he voluntarily conveys to third parties" any expectation of privacy defendants assert in cell site location information contained in cell phone company records " is not one that society is prepared to recognize as reasonable" and as such, the information is not protected by the Fourth Amendment. Id. at 743-44.

Booker, 2013 WL 2903562 at *9. Citing a number of decisions from other district courts reaching a similar conclusion,[1] the Georgia court declined to suppress tracking data which had been obtained based on § 2703(d)'s " specific and articulable facts" standard, pursuant to an order from a Magistrate Judge which provided for prospective monitoring of cellular site location data for a period of sixty days. The Georgia district court rejected the argument that the SCA was inapplicable to applications for prospective cell data, finding that " [t]he SCA makes no distinction between historical and prospective cell site location information." Id. at *6.

In a 2-1 split panel decision in In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013), the Fifth Circuit held that the use of § 2703(d)'s " specific and articulable facts" standard, rather than a Fourth Amendment probable cause standard, was not per se unconstitutional, in cases where the government sought to compel cell phone service providers to produce historical cell site information. In rejecting the arguments of the ACLU as amicus curiae to the contrary, the Fifth Circuit wrote that:

[T]o obtain an order for the historical cell site records of a particular cell phone owner, the Government may apply to a court that has jurisdiction. And that court must grant the order if the Government seeks an order (1) to " require a provider of electronic communication service or remote computing service" (2) " to disclose a [non-content] record or other information pertaining to a subscriber to or customer of such service" when the Government (3) meets the " specific and articulable facts" standard. If ...

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