N.D.Ill.: Cell site location information was properly obtained by court order

Cell site location information was obtained by court order for defendants’ cell phones to connect them to robberies. There is no reasonable expectation of privacy in the location data stored by another and the Stored Communications Act was complied with. United States v. Rogers, 2014 U.S. Dist. LEXIS 145980 (N.D. Ill. October 9, 2014):

Despite the historical nature of the electronic location evidence collected here, the way the records are created by third party telephone carriers in combination with their designed functionality does not elicit Fourth Amendment protection. Electronic location records are created, maintained and produced by third party telephone carriers in the course of their normal business practices. See In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 612 (5th Cir. 2013). The Supreme Court has consistently held that there is no Fourth Amendment privacy right in third party business records that are conveyed to the government. Prior to the utilization of mobile phones, the Supreme Court held that a person has no legitimate expectation of privacy in a phone company’s records of numbers dialed on a stationary telephone, and thus a defendant cannot invoke the Fourth Amendment when the police installed a pen register without a warrant. Smith v. Maryland, 442 U.S. 735, 745-46 (1979). As technology progressed and the emergence of cellular phones allowed third party cellular carriers to determine the location of phones in relation to their cell towers, court have followed Smith’s line of reasoning. The Fifth Circuit recently concluded that Supreme Court precedent “does not recognize a situation where a conventional order for a third party’s voluntarily created business records transforms into a Fourth Amendment search or seizure.” The Fifth Court rejected the argument that using a court order, available through the SCA, to collect historical cell tower data without a showing of probable cause is unconstitutional. In re Application of U.S. for Historical Cell Site Data, 724 F.3d at 614-15; see also United States v. Guerro, 13-CR-50376, 2014 WL 4476565 (5th Cir. Sept. 11, 2014) (determining that Riley v. California, ___ U.S. __, 134 S. Ct. 2473 (2014) did not overturn In re Application of U.S. for Historical Cell Site Data). Although not explicitly addressing the issue of whether a search warrant is required for cell site information, the Seventh Circuit acknowledged the total lack of any federal appellate decision accepting the premise that obtaining cell-site data from telephone carriers raises a Fourth Amendment concern. See United States v. Thousand, 558 Fed. Appx. 666, 670 (7th Cir. 2014); see also United States v. Skinner, 690 F.3d 772 (6th Cir. 2012) (Holding that a criminal defendant does not have a reasonable expectation of privacy in cell phone location data as he traveled on public thoroughfares and therefore the collection of the data was not a search under the Fourth Amendment.).

Historic electronic location records fit squarely into the type of records the Supreme Court contemplated in Smith. Whether the numbers were dialed by the phone in the context of a pen register in Smith or, as here, signals emitted from a phone to allow for its functionality, these records are not an individual’s private effects and belong to the third party cellular providers. Therefore, an individual user has no reasonable expectation of privacy in the historic electronic location evidence detailing the proximity of a cellular phone to the cellular tower. Without a reasonable expectation of privacy, it is unnecessary for the government to obtain a search warrant.