Historical cell site location information is governed by the SCA, and it has sufficient Fourth Amendment protection because a showing of something is required to get the information without probable cause. Besides, the good faith exception would have to apply. But, importantly, the court adds that what the states are doing while Congress is not is still indicative of societal expectations of privacy in the information. [This case has an excellent summary of the statutes and case law on CSLI.] United States v. Cooper, 2015 U.S. Dist. LEXIS 25935 (N.D.Cal. March 2, 2015):
Technological advances, coupled with declining cost, have rendered cell phones ubiquitous, and for many, an indispensible gizmo to navigate the social, economic, cultural and professional realms of modern society. See Jones, 132 S. Ct. at 963 (there are “more than 322 million wireless devices in use in the United States.”). This dynamic dictates that many, if not most, will find their cell phone quite literally attached to their hip throughout the day. See Riley v. California, 134 S. Ct. 2473, 2484, 189 L. Ed. 2d 430 (2014) (cell phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”). All the while, these phones connect to cell towers, and thereby transmit enormous amounts of data, detailing the phone-owner’s physical location any time he or she places or receives a call or text. Cell phone users may assume that the numbers they dial will be transmitted to the phone company, thus defeating any reasonable expectation of privacy. However, “there is no indication to the user that making that call will also locate the caller; when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.” In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 317-18 (3d Cir. 2010). A cell phone user’s reasonable expectation of privacy in his or her location is especially acute when the call is made from a constitutionally protected area, such as inside a home, but is also reasonable even when the call is made in public. See Davis 754 F.3d at 1207; cf. Katz 389 U.S. at 352 (“[Defendant] did not shed his right [to privacy] simply because he made his calls from a place where he might be seen.”); Smith 442 U.S. at 743 (the “site of the call is immaterial for purposes of [Fourth Amendment] analysis.”).
Society’s expectation of privacy in historical cell site data is also evidenced by many state statutes and cases which suggest that this information exists within the ambit of an individual’s personal and private realm. See Tracey v. State, 152 So. 3d 504, 526 (Fla. 2014) (reasonable expectation of privacy in real-time cell site data under US Constitution); Commonwealth v. Augustine, 467 Mass. 230, 255, 4 N.E.3d 846 (2014) (under state constitution, defendant had reasonable expectation of privacy in cell site data, requiring government to obtain a warrant before seeking it); State v. Earls, 214 N.J. 564, 588, 70 A.3d 630 (2013) (same); Colo. Rev. Stat. Ann. § 16-3-303.5(2) (requiring warrant to obtain cell site data); 16 Me. Rev. Stat. § 648 (same); Minn. Stat. Ann. §§ 626A.28(3)(d), 626A.42(2) (same); Mont. Code Ann. § 46-5-110(1)(a) (same); Utah Code Ann. § 77-23c-102(1)(a) (same); cf. People v. McKunes, 51 Cal. App. 3d 487, 492, 124 Cal. Rptr. 126 (Ct. App. 1975) (finding a right to privacy in phone records, reasoning that “in this age and place, it is virtually impossible for an individual or a business entity to function in the economic sphere without a telephone and that a record of telephone calls also may provide a virtual current biography.”) (internal citations omitted). While state law is, of course, not dispositive on this question, “the recognition of a privacy right by numerous states may provide insight into broad societal expectations of privacy.” United States v. Velasquez, No. CR 08-0730 WHA, 2010 U.S. Dist. LEXIS 118045, 2010 WL 4286276, at *5 (N.D. Cal. Oct. 22, 2010); see also Trujillo v. City of Ontario, 428 F. Supp. 2d 1094, 1106 (C.D. Cal. 2006) aff’d sub nom. Bernhard v. City of Ontario, 270 F. App’x 518 (9th Cir. 2008) (the “laws that prohibit or regulate conduct in locker rooms … represent society’s understanding that a locker room is a private place requiring special protection.”); Maynard, 615 F.3d at 564 (“state laws are indicative that prolonged GPS monitoring defeats an expectation of privacy that our society recognizes as reasonable.”).
The government has many important and appropriate reasons for tracking the cell site data of suspected criminals. Today, the Court only holds that the Fourth Amendment provides the appropriate mechanism to balance the government’s interest in law enforcement and the people’s right to privacy in their physical location as conveyed by historical cell site data over a period of 60 days.
To be clear, the SCA makes no mention of cell site data, but rather speaks in general terms of “records concerning electronic communication.” As a matter of statutory construction, it is axiomatic that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575, 108 S. Ct. 1392, 99 L. Ed. 2d 645 (1988). Accordingly, the Court does not find the SCA to be constitutionally deficient. Rather, the Court assumes, as it must, that Congress could not have intended the SCA to be used to obtain constitutionally protected information absent a showing of probable cause.
D. Good Faith Exception
The government urges that even if the Court finds that probable cause is required to obtain cell site data, the evidence in this case should not be suppressed, because of operation of the good faith exception to the exclusionary rule.
In United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), the Supreme Court “held that the exclusionary rule does not apply when the police conduct a search in ‘objectively reasonable reliance’ on a warrant later held invalid.” Davis v. United States, 131 S. Ct. 2419, 2428, 180 L. Ed. 2d 285 (2011). “If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Leon, 468 U.S. at 919 (citing United States v. Peltier, 422 U.S. 531, 542, 95 S. Ct. 2313, 45 L. Ed. 2d 374 (1975)). “For exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs.” Davis, 131 S. Ct. at 2422 (2011). In general, evidence will not be suppressed when the magistrate, not the officer, errs. United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir. 1993). Evidence should be suppressed only if: (1) the magistrate has abandoned his detached and neutral role, (2) the officers were dishonest or reckless in preparing their affidavit, or (3) the officers could not have “harbored an objectively reasonable belief that probable cause existed.” Leon, 468 U.S. at 926.
When presented with the same issue, the Eleventh Circuit found that
The only differences between Leon and the present case are semantic ones. The officers here acted in good faith reliance on an order rather than a warrant, but, as in Leon, there was a ‘judicial mandate’ to the officers to conduct such search and seizure as was contemplated by the court order. As in Leon, the officers ‘had a sworn duty to carry out’ the provisions of the order. Therefore, even if there was a defect in the issuance of the mandate, there is no foundation for the application of the exclusionary rule.
Davis, 754 F.3d at 1218 (internal citations omitted).
The Court concurs with this reasoning. While the magistrate court’s order required resolving an unsettled question of law — namely, whether the SCA allows the government to obtain cell site data absent a showing of probable cause — there is nothing in the record to suggest that it “abandoned its detached and neutral role” in arriving at its ultimate conclusion. Contrary to Cooper’s suggestions, 1/16/15 Def. Sealed Brf. at 21-22, the Court can find nothing to show that the government was dishonest or misleading in its applications for cell site data. Nor can the Court conclude, given the lack of binding precedent to the contrary, that “a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” United States v. Luong, 470 F.3d 898, 902 (9th Cir. 2006) (citing Leon, 468 U.S. at 922); see also Leon, 468 U.S. at 898 (“Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law, and penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.”). The Court therefore finds that the good faith exception applies, and accordingly, DENIES Cooper’s motion to suppress pen register and trap and trace data on this basis alone.
