S.D.N.Y.: Sporadic user of cell phone had no standing; gathering provider information not a “search”

Defendant moved to suppress the cell phone data from a phone he sporadically used during a conspiracy, but he has no standing. The date was 334 days worth, and his use was occasional. This is no different that a sporadic user of a car. Even if he had standing, while an open question in this circuit, the majority rule is that it isn’t a “search” to get that information, and the court agrees. United States v. Walker, 2017 U.S. Dist. LEXIS 38102 (S.D. N.Y. March 8, 2017):

Whether the Fourth Amendment protects cell-site information is an open question in the Second Circuit, see United States v. Carabello, 831 F.3d 95, 102 (2d Cir. 2016), but it is far from an issue of first impression nationwide, and the great weight of authority holds that obtaining cell-site information is not a “search” at all. See United States v. Graham, 824 F.3d 421, 428 & n.6 (4th Cir. 2016) (en banc) (collecting district court decisions), petition for cert. filed, No. 16-6308; Carpenter, 819 F.3d at 887-88; United States v. Davis, 785 F.3d 498, 511-13 (11th Cir. 2015) (en banc); In re U.S. for Historical Cell Site Data, 724 F.3d 600, 608-15 (5th Cir. 2013). But see, e.g., In re U.S. for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d 113, 125-26 (E.D.N.Y. 2011) (the “Eastern District Decision”) (denying Section 2703(d) application for 113 days’ worth of cell-site information). The courts finding no constitutional violation have held that this answer is dictated by the third-party doctrine, as applied in Smith v. Maryland, 442 U.S. 735 (1979), and United States v. Miller, 425 U.S. 435 (1976).

The Court agrees. In general, a Fourth Amendment search occurs when the Government violates a person’s reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 360-61 (1967) (Harlan, J., concurring); see also United States v. Jones, 565 U.S. 400, 405-07 (2012). However, under the third-party doctrine, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U.S. at 743-44 (dialed telephone numbers collected through a pen register). This principle applies whether or not a person has a subjective understanding or desire that the information be kept confidential, because an individual “assume[s] the risk” that the company will turn the information over to the police. See id. at 744. Thus, for example, in Miller, bank depositors were found to have no legitimate expectation of privacy in the financial information “voluntarily conveyed to … banks and exposed to their employees in the ordinary course of business.” See 425 U.S. at 442. In other words, collecting this type of information is not a “search” at all, and the Government does not violate the Fourth Amendment by doing so without a warrant.