S.D.Cal.: An order to obtain historical cell site location information does not require probable cause

An order to obtain historical cell site location information does not require probable cause because it is a mere business record. Real time information does. United States v. Martinez, 2014 U.S. Dist. LEXIS 153485 (S.D. Cal. October 28, 2014):

In this case, the information provided by Sprint Nextel was “subscriber and other information about a subscriber, including cell site location information from its historical databases.” (ECF No. 193-1 at 4). The records are the business records of Sprint Nextel and not entitled to protection under the Fourth Amendment. The third party cellular phone provider created and maintained records. The Court concludes that the Defendant does not have a reasonable expectation of privacy in the third party business records created and maintained by a cellular phone provider derived from information voluntarily conveyed to the cellular telephone provider. Defendant “exposed that information to its equipment in the ordinary course of business.” Smith v. Maryland, 442 U.S. at 744.

When Martinez used her cell phone, she voluntarily conveyed numerical information to the telephone company and exposed that information to the cell phone towers in the ordinary course of business. Congress has authorized such records to be provided to law enforcement from the provider of electronic communication services when the Magistrate Judge finds “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). Those requirements were met in this case. The Court concludes that the Defendant’s Fourth Amendment rights were not violated when the Government obtained historical cell site data pursuant to 18 U.S.C. § 2703(d). Defendant’s motion to suppress the cell site data is denied.