D.Kan.: Just because cell site location data is “less than perfect” doesn’t mean it can’t be sought

Just because cell site location data is “less than perfect” doesn’t mean that the government can’t collect it with a proper application then attempt to use it at a trial. Also, the court concludes that the Tenth Circuit wouldn’t likely follow the Eleventh Circuit’s Davis case, particularly since rehearing en banc was granted there. United States v. Banks, 2014 U.S. Dist. LEXIS 128906 (D. Kan. September 15, 2014):

The Court acknowledges that CSLI is less than a perfect method to establish the location of a target phone. See, e.g., In re United States for an Order Authorizing Disclosure of Historical Cell Site Info. for Tel. Number, __ F. Supp. 2d __, 2014 WL 1395082 (D.D.C. Apr. 17, 2014) (noting disagreement about how precisely CSLI can locate an individual). The legal standard adopted in this case, however, does not require the government to prove a target phone’s location with pin-point accuracy-the government must only establish that the target phone was present anywhere within Kansas’ Eighth Judicial District. CSLI is probative for this purpose.

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Although the Tenth Circuit has not decided whether § 2703(d)’s “reasonable grounds” standard is constitutional, the Court concludes that the Tenth Circuit would not adopt the reasoning in Davis. The Eleventh Circuit’s recent order vacating the decision to rehear the case en banc shows that the soundness of Davis’s holding is subject to question within even that circuit. See United States v. Davis, No. 12-12928, 2014 WL 4358411 (11th Cir. Sept. 4, 2014). Instead, to determine the constitutionality of § 2703’s “reasonable ground standard,” the Court follows the Fifth Circuit’s analysis in In re United States for Historical Cell Site Data, 724 F.3d 600, 602 (5th Cir. 2013) (hereinafter “Cell Site Data”). In that case, the Fifth Circuit held that the government’s acquisition of CSLI is not a search under the Fourth Amendment, and thus the Fourth Amendment’s probable cause requirement does not apply to it. Id. at 615.