NC: CSLI that was 5-7 minutes old when received was not “real time” information, so PC and a warrant not required

Cell site location information that was sent to the police periodically that was tracking the defendant was not “real time” information when it was 5-7 minutes old when received. Thus, a warrant on probable cause was not required. State v. Perry, 2015 N.C. App. LEXIS 769 (September 15, 2015):

Defendant asserts the AT&T records obtained via his cell phone constituted “real-time” information, and argues a search warrant supported by probable cause was required. We disagree. Courts in other jurisdictions, which have considered disclosure of records under the SCA, have concluded the federal statute permits the disclosure of “historical,” as opposed to “real-time,” information.

The majority of federal courts which have considered the issue have concluded that “real-time” location information may only be obtained pursuant to a warrant supported by probable cause. See United States v. Espudo, 954 F. Supp. 2d 1029, 1034-35 (S.D. Cal. 2013). The distinguishing characteristic separating historical records from “real-time” information is the former shows where the cell phone has been located at some point in the past, whereas the latter shows where the phone is presently located through the use of GPS or precision location data. See In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013) (holding the receipt of cell site location information under the SCA does not categorically violate the Fourth Amendment as to historical information, but expressly limiting this holding [*14] to historical information only); 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, 307-08 (3rd Cir. 2010) (“[T]here is no dispute that historical [cell site location information] is a ‘record or other information pertaining to a subscriber … or customer[.]'”).

Several courts have held the SCA permits a government entity to obtain cell tower site location information from a third-party service provider in situations where the cell tower site location information sought pre-dates the court order and where the cell tower site location information is collected after the date the court order issues. Although the former may technically be considered “historical” while the latter is “prospective” in relation to the date of the court order, both are considered “records” under the SCA. The government entity only receives this information after it has been collected and stored by the third-party service provider. See United States v. Booker, No. 1:11-CR-255-1-TWT, 2013 WL 2903562, at *6 (N.D.Ga. June 13, 2013) (holding “[t]he SCA makes no distinction between historical and prospective cell site location information”); In re Application of the U.S. for an Order for Disclosure of Telecomms. Records & Authorizing the Use of a Pen Register and Trap and Trace, 405 F. Supp. 2d 435, 444 (S.D.N.Y. 2005) (holding prospective cell site data is “information” under the SCA “inasmuch as cell site information is transmitted to the Government only after it has been in the possession of the cell phone company” and noting nothing in the SCA limits when “information may come into being” leaving it “susceptible to an interpretation that the ‘information’ sought might come into being in the future”); In re Application of the U.S. for an Order Authorizing the Use of Two Pen Register and Trap and Trace Devices, 632 F. Supp. 2d 202, 207 n.8 (E.D.N.Y. 2008) (“The prospective cell-site information sought by the Government … becomes a[n] ‘historical record’ as soon as it is recorded by the [third-party] provider.”).

Defendant cites two cases in his brief from the state courts of New Jersey and Florida, which held an individual’s reasonable expectation of privacy is implicated by “real-time” cell phone tracking, and a warrant is required. See Tracey v. Florida, 152 So. 3d 504 (2014) (holding police officers’ use of “real-time” cell tower site location information to track defendant was a search falling under the purview of the Fourth Amendment); State v. Earls, 214 N.J. 564, 70 A.3d 630 (2013) (holding a warrant is required for the use of “real-time” cell tower site location information because Article I, Paragraph 7 of the New Jersey Constitution provides greater protection against unreasonable searches and seizures than the Fourth Amendment).

After careful review of the record and trial transcripts, we conclude the cell tower site location information acquired and stored by AT&T and provided to the officers were historical records. The cases Defendant relies on are inapplicable to the facts before us. North Carolina appellate courts have held Article I, Section 20 of the Constitution of North Carolina provides the same protections against unreasonable search and seizure as the Fourth Amendment to the Constitution of the United States. See State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254, 260 (1984) (citation omitted).

Detective Mitchell testified the emails he received of records from AT&T consisted of latitudinal and longitudinal coordinates of the cell towers Defendant’s cell phone “pinged” when connected. He further testified “[t]hey’re historical hits; they’re not active [or] right on time” and there is “probably a five- or seven-minute delay.” Other evidence shows AT&T emailed the delayed recorded information to Detective Mitchell every fifteen minutes.

Detective Mitchell and the other officers followed Defendant’s historical travel by entering the coordinates of cell tower “pings” provided by AT&T into a Google Maps search engine to determine the physical location of the last tower “pinged.” Defendant’s cell phone was never contacted, “pinged,” or its precise location directly tracked by the officers. The officers did not interact with Defendant’s cell phone, nor was any of the information received either directly from the cell phone or in “real time.” All evidence shows the cell tower site location information provided by AT&T was historical stored third-party records and properly disclosed under the court’s order as expressly provided in the SCA. 18 U.S.C. § 2703(d). This argument is overruled.