C.D.Cal.: CSLI doesn’t yet require a SW; if it now did, Davis GFE would apply

Obtaining Cell site location information doesn’t yet require a search warrant on probable cause under ECPA or the Fourth Amendment in the Ninth Circuit or in any district court in the circuit. Even if all those courts are wrong, the good faith exception would apply. United States v. Bailey, 2015 U.S. Dist. LEXIS 23693 (C.D.Cal. February 23, 2015):

As stated above, the statute pursuant to which the orders were issued requires that law enforcement support an application with “specific and articulable facts showing that there are reasonable grounds to believe that … the records sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d) (emphasis added). Below, the Court first explains that the Fourth Amendment does not apply to the orders at issue (and that even if it did, the subscriber information and historical cell site data would likely be admissible under the good faith exception). Second, the Court concludes that the orders at issue met the applicable SCA standard for historical cell site data—and even if they did not, that statute would not permit the Court to suppress any evidence on that basis.

1. The Fourth Amendment Does Not Apply.

Although the Ninth Circuit has not yet ruled on the issue, the vast majority of courts to have done so—including every district court within this circuit—have held that § 2703(d) does not require the government to show probable cause to obtain historical cell site data pursuant to the SCA, and that this lower standard does not violate the Constitution.

The Fifth Circuit recently examined § 2703(d) in the case of In re Application of United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013). The court explained that the “‘specific and articulable facts’ standard is a lesser showing than the probable cause standard that is required by the Fourth Amendment to obtain a warrant.”9 Id. at 606. The court then held that this lower standard does not violate the Fourth Amendment because a search and seizure does not occur “[w]here a third party collects information in the first instance for its own purposes,” and the government later obtains that information through a § 2703(d) order.” Id. at 610. The court reasoned that when a person “‘communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities.’” Id. (emphasis in original) (quoting SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743 (1984)). The court concluded that because “cell site information is clearly a business record” and does not reveal the contents of communications, and because a person voluntarily uses a cellular telephone, which necessarily sends a signal to a nearby cell tower, a person has no reasonable expectation of privacy in cell site information. Id. at 611-15; accord United States v. Skinner, 690 F.3d 772, 777-81 (6th Cir. 2012) (no reasonable expectation of privacy in cell site data). The Third Circuit has also decided that § 2703(d) “does not require the traditional probable cause determination,” but is instead “governed by the text of § 2703(d).” In re Order Directing Provider, 620 F.3d at 313. Examining the legislative history, that court concluded that the “specific and articulable facts” language “creates a higher standard than that required by the pen register and trap and trace statutes,” but “less stringent than probable cause.” Id. at 315.

District courts within this circuit have universally decided that historical cell site information may be obtained pursuant to a § 2703(d) order without a showing of probable cause. For example, in United States v. Martinez, No. 13CR3560-WQH, 2014 WL 5480686 (S.D. Cal. Oct. 28, 2014), the court found no “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.” Id. at *5 (citing Smith v. Maryland, 442 U.S. 735, 742 (1979)). That court denied a motion to suppress cell site data and rejected an argument—similar to the one Bailey makes in his reply brief, Dkt. No. 72 at 6-8—that the Supreme Court’s recent decisions in United States v. Jones, 132 S. Ct. 945 (2012), and Riley v. California, 134 S. Ct. 2473 (2014), compelled a different conclusion. The court reasoned that obtaining historical cell site location information under § 2703(d) does not involve (1) physical intrusion on a defendant’s property, (2) real-time tracking, or (3) the search or seizure of a cell phone, communication contents, or other information subject to a reasonable expectation of privacy, so as to implicate Riley or Jones. Id. at *4. Rather, the court found that by using her cell phone, the defendant “voluntarily conveyed numerical information to the telephone company and exposed that information to the cell phone towers in the ordinary course of business.” Id. at *5.11

11. See also United States v. Moreno-Navarez, No. 13-CR-0841-BEN, 2013 WL 5631017, at *1-2 (S.D. Cal. Oct. 2, 2013) (upholding § 2703(d) and noting that “even if the statute were to be held unconstitutional, the good faith exception to the warrant requirement would apply”); United States v. Salas, No. CR F 11-0354 LJO, 2013 WL 4459858, at *3 (E.D. Cal. Aug. 16, 2013) (“With regard to the argument applying the . . . Fourth Amendment to cell site location information, there is no reasonable expectation of privacy since such records are in the hands of third parties.”); United States v. Rigmalden, No. CR 08-814-PHX-DGC, 2013 WL 1932800, at *10 (D. Ariz. May 8, 2013) (“Courts have rejected . . . arguments that historical cell-site records cannot be obtained under the SCA.”); United States v. Ruby, No. 12CR1073 WQH, 2013 WL 544888, at *3-7 (S.D. Cal. Feb. 12, 2013) (similar); United States v. Davis, Crim No. 10-339-HA, 2011 WL 2036463, at *3 (D. Or. May 24, 2011) (“It is well established that a reasonable expectation of privacy extends only to the content of telephone conversations, not to records that indicate that the conversations occurred. Basic subscriber data which identifies a call’s origination, destination, duration, and time of call enjoy no privacy protection because the data is incidental to the use of the telephone, and contains no content information.” (citations omitted)).

Jurisprudence involving cellular telephones and related technology is evolving. See United States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014) (“It may be that the ‘technology is different’ rationale that led the Riley Court to treat an arrestee’s cell phone differently from his wallet will one day lead the Court to treat historical cell site data in the possession of a cellphone provider differently from a pen register in the possession of a pay phone operator.”). But absent contrary direction from a higher court, this Court concludes that the government may constitutionally acquire subscriber information and historical cell site data pursuant to a § 2703(d) order by showing “specific and articulable facts showing that there are reasonable grounds to believe that … the records sought, are relevant and material to an ongoing criminal investigation.”

Even if this Court—along with every other district court within this circuit to have addressed the issue and two Courts of Appeal—is wrong about the inapplicability of the Fourth Amendment, the evidence at issue would likely be admissible under the good faith exception first articulated in United States v. Leon, 468 U.S. 897 (1984), which also applies to “an officer acting in objectively reasonable reliance on a statute” authorizing a warrantless search or seizure of evidence, Illinois v. Krull, 480 U.S. 340, 350-56 (1987). Because the vast majority of courts has upheld the constitutionality of § 2703(d), and because the orders were supported by affidavits containing some grounds for suspicion, the officers involved in executing the orders at issue could, at the very least, have reasonably relied on the Superior Court’s issuance of the orders. See Moreno-Navarez, 2013 WL 5631017, at *2 (law enforcement officers relying on § 2703(d) order issued by neutral magistrate would qualify for good faith exception); United States v. Graham, 846 F. Supp. 2d 384, 405-06 (D. Md. 2012) (“Even if the government’s acquisition of historical cell site location records in this case had been in violation of the Defendants’ Fourth Amendment rights, it obtained those records in good faith reliance on a constitutional statute and valid Orders issued by [neutral judicial officers].”); United States v. Jones, 908 F. Supp. 2d 203, 214-16 (D.D.C. 2012) (similar). Indeed, even the Eleventh Circuit’s since-vacated opinion in Davis, which decided contrary to the majority of cases cited herein that the Fourth Amendment does protect historical cell site data, applied the good faith exception and declined to suppress the evidence at issue. 754 F.3d at 1218.13 Accordingly, while the Court joins its sister district courts in concluding that the Fourth Amendment does not apply to historical cell site data, a contrary conclusion would still not lead to the suppression of the evidence at issue.

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