Extended Access to Cell-Site Records Constitutes Fourth Amendment Search, Which Requires Showing of Probable Cause

Law enforcement must establish probable cause to obtain a suspect’s cell-site-location records according to a recent federal decision, In Re Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information.  In that case, Judge Nicholas G. Garaufis of the United States District Court for the Eastern District of New York ruled that a prosecutor’s application for access to a criminal defendant’s cell-site-location records pursuant to the Stored Communication Act (“SCA”) was insufficient to allow their release. Judge Garaufis determined that access to records revealing a criminal defendant’s movements over an extended period of time constitutes a “search” under the Fourth Amendment. Accordingly, such information can only be released upon a showing of probable cause and the issuance of a warrant.

In its sealed application, the U.S. Attorney sought an order authorizing the release of 113 days worth of cell-site-location records relating to an individual who was a target in a criminal case. The prosecution relied on the SCA, which authorizes the release of electronic communications upon a showing of “specific and articulable facts” suggesting that the “contents of an electronic communication are relevant and material to an ongoing criminal investigation” (a standard lower than a probable cause).

Judge Garaufis acknowledged that “electronic surveillance of an individual’s location as he travels in public has traditionally not been construed as a Fourth Amendment search,” while electronic surveillance within one’s home has been. However, the Fourth Amendment can be implicated when use of electronic means allows law enforcement to obtain information that it could not obtain by physical observation “outside the curtilage of the house.” In rendering his decision, Judge Garaufis relied on the D.C. Circuit’s opinion in United States v. Maynard, which held that use of a GPS to track a defendant over a four-week period qualified as a search under the Fourth Amendment. The Maynard Court determined that while there is no reasonable expectation of privacy concerning a single trip between two points, an individual does have an expectation of privacy in the “totality” of one’s movements.

Relying on this precedent, Judge Garaufis concluded that society recognizes an individual’s expectation of privacy in his or her movements over an extended period of time. Accordingly, the Judge determined that the government’s request for cell-site records revealing the defendant’s movements over 113 days implicated the protections of the Fourth Amendment because the defendant had a reasonable expectation of privacy concerning electronic records that showed his location at practically every moment for almost four months. Therefore, the records sought could only be released upon a showing of probable cause. (Judge Garaufis rejected the argument that because the records were in the possession of a third party (i.e. the cell phone provider), the defendant had no privacy interest in these records).

The Court further reasoned that cell phone users do not consent to warrantless monitoring of their movements, writing “[t]he fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by ‘choosing’ to carry a cell phone must be rejected.” In so doing, the Court emphasized Fourth Amendment jurisprudence must evolve with the technology developments “to preserve [a] cell-phone user’s reasonable expectation of privacy in cumulative cell-site-locations records.” Although the court relied on existing Fourth Amendment jurisprudence when it denied the application for these “cumulative” records, it acknowledged that “revolutionary changes in technology [may] require changes” to that body of law.

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