A 30 day cell phone GPS tracking order requires probable cause and particularity; otherwise it is a general warrant. Intercepted calls, however, led to a search warrant for his house. The search of the house has a different basis, and was in good faith. United States v. White, 2014 U.S. Dist. LEXIS 166444 (E.D. Mich. November 24, 2014):
In a similar case, my distinguished colleague in this district held that long-term surveillance by means of cellular tracking data constituted a search that must be justified by probable cause and a warrant. United States v. Powell , 943 F. Supp. 2d 759, 770 (E.D. Mich. 2013) (Stephen J. Murphy, J.). Other courts have concurred. See United States v. Davis , 754 F.3d 1205, 1217 (11th Cir. 2014) (“C]ell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that information without a warrant is a Fourth Amendment violation.”), vacated and rehearing en banc granted , — F. App’x —, 2014 WL 4358411 (11th Cir. Sept. 4, 2014); Com. v. Augustine, 467 Mass. 230 (2014) (recognizing a reasonable expectation of privacy in cellular site location information); State v. Earls , 214 N.J. 564, 587-88, 70 A.3d 630, 643 (2013) (finding, under New Jersey’s state constitution, that individuals have a reasonable expectation of privacy in the location of their cell phones); In re Application of United States for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel. , 849 F. Supp. 2d 526, 539-42 (D. Md. 2011) (finding that “the subject here has a reasonable expectation of privacy both in his location as revealed by real-time location data and in his movement where his location is subject to continuous tracking over an extended period of time, here thirty days,” and that the Fourth Amendment requires a showing of probable cause for this information); United States v. Benford, No. 2:09 CR 86, 2010 WL 1266507, at *2 (N.D. Ind. Marc. 26, 2010) (“[D]efendant had no legitimate expectation of privacy in records held by a third-party cell phone company identifying which cell phone towers communicated with defendant’s cell phone at particular points in the past … [but] Fourth Amendment concerns might be raised if cell-site data were used to track the present movements of individuals in private locations.”); United States In re Application of the United States for an Order Authorizing the Monitoring of Geolocation and Cell Site Data , No. 06-0186, 187, 188, 2006 WL 6217584, at *4 (D.D.C. Aug. 25, 2006) (agreeing with the “majority rule” that Criminal Rule 41 governs the request for prospective cell-site location information and finding a Fourth Amendment privacy interest in location); In re the Application of the United States for an Order Authorizing (1) Installation and Use of a Pen Register and Trap and Trace Device or Process, (2) Access to Customer Records, and (3) Cell Phone Tracking , 441 F. Supp. 2d 816, 837 (S.D. Tex. 2006) (“[D]etailed location information, such as triangulation and GPS data, [ ] unquestionably implicate Fourth Amendment privacy rights.”); In re Application of the United States for an Order Authorizing Installation and Use of a Pen Register and a Caller Identification System on Telephone Numbers (Sealed) , 402 F. Supp. 2d 597, 604-05 (D. Md. 2005) (recognizing that monitoring of cell phone location information is likely to violate a reasonable expectation of privacy); In re the Application of the United States for an Order (1) Authorizing the Use of a Pen Register and a Trap and Trace Device , 396 F. Supp. 2d 294, 323 (E.D.N.Y. 2005) ( “Because the government cannot demonstrate that cell site tracking could never under any circumstance implicate Fourth Amendment privacy rights, there is no reason to treat cell phone tracking differently from other forms of tracking … which routinely require probable cause.”).
It is not difficult to reach the same conclusion here. White certainly had a subjective expectation in his movements over time. In fact, the second search warrant affidavit made the point of noting that White’s trip to West Virginia took place at night, and that criminals frequently travel during those hours to conceal their movements. And there are several reasons to conclude that society would recognize that privacy interest as legitimate. For one, White’s movement into private spaces, including the interior of his own house, touches on privacy interests that lie “‘[a]t the very core’ of the Fourth Amendment.” Kyllo v. United States , 533 U.S. 27, 31 (2001) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)); see also United States v. Karo , 468 U.S. 705, 717 (1984) (rejecting the idea that the government “should be able to monitor beepers in private residences without a warrant if there is the requisite justification in the facts for believing that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity”). In Kyllo, the Court endorsed the general principle that the use of technology to collect information that otherwise could not have been obtained without a physical intrusion amounts to a search.
Moreover, Congress has obligated cell phone service providers to protect the proprietary information of its customers, including location data. 47 U.S.C. § 222(a) (stating that “[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of [its] … customers”). Using a cell phone does not amount to consenting to the dissemination of “call location information.” 47 U.S.C. § 222(f)(1) (stating that “without the express prior authorization of the customer, a customer shall not be considered to have approved the use or disclosure of or access to … call location information concerning the user of a commercial mobile service” except in cases of defined emergencies). Customers reasonably may expect their providers to comply with the law.
One more reason for recognizing White’s expectation as objectively reasonable was expressed by Justice Sotomayor in Jones:
In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.
Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring) (citing People v. Weaver , 12 N.Y.3d 433, 441-42, 882 N.Y.S.2d 357, 909 N.E.2d 1195, 1199 (2009) (“Disclosed in [GPS] data … will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”)). It is safe to say that society would recognize that an interest in keeping these movements private is “reasonable.”
. . .
The police could have satisfied the particularity requirement by presenting a more tailored application for a warrant to track White’s movements. For instance, the agent could have explained in his application that he wanted to track White for a limited period based on credible information that White was planning to engage in a drug transaction with the confidential informant at a particular time and place. Or he could have offered information that White was traveling to meet with his Canadian, Arizona, or Alabama suppliers, even if White stayed at motels or the homes of co-conspirators along the way. Or if the agent wanted to track White between his home in Detroit and his mother’s home in Romulus, he could have averred that White stored drugs in one location and sold them out of another. That may have required more investigative work (although it appears that the police invested considerable time and resources into this investigation). See Powell , 943 F. Supp. 2d at 780 (noting that “[i]n practical terms, the consequences of requiring a tailored showing in this instance might be no more than that the government would seek cell-site data for a shorter duration, or would invest more time in physical surveillance to gather necessary facts prior to seeking a warrant”). The resulting search warrant then could have been limited accordingly. But none of that information was offered to the magistrate, and the police failed to provide any specific reason why they needed to track White for a prolonged duration and in protected areas such as White’s home.
The search warrant in this case allowed the police to track White at all times, night and day, on public streets and in private places, and into areas traditionally protected by the Fourth Amendment. See Karo , 468 U.S. at 714 (holding that the police may not use a beeper to track a suspect’s location in a protected area, such as a residence, without a warrant, because “private residences are places in which the individual normally expects privacy free of governmental
intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable”). The government concedes that it tracked White even when he “was not on public thoroughfares.” Gov.’s Resp. at 5. The warrant contained no minimization requirement, cf. 18 U.S.C. § 2518(5) (requiring communication intercepts authorized under Title III to “be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under” law), or any other provision that defined “the discretion of the officer executing the warrant,” Marron , 275 U.S. at 196, or “the limits of his power to search,'” Groh v. Ramirez, 540 U.S. 551, 561 (2004) (quoting United States v. Chadwick , 433 U.S. 1, 9 (1977)). The tracking warrants were akin to the general warrants condemned by the Founders, see Steagald v. United States , 451 U.S. 204, 220 (1981), and are repugnant to the Fourth Amendment.
