The third party doctrine is still alive and well, and the collection of CSLI does not implicate Fourth Amendment concerns. Zanders v. State, 2017 Ind. LEXIS 339 (May 4, 2017):
Cell phones—once figments of science fiction—now live in most Americans’ pockets and purses. These devices are double-edged swords, increasing convenience at the expense of privacy. Each time they make or receive calls, they leave a trail of digital crumbs known as historical cellsite location information (CSLI)—business records kept by service providers identifying which cell towers routed which communications. That CSLI is the focus of this case, which tests search and-seizure protections under the Federal and Indiana Constitutions.
Here, in an effort to locate Marcus Zanders—an armed-robbery suspect at large—police asked his cell-phone service provider, Sprint, to provide historical CSLI. At Zanders’s trial, the State presented that CSLI, along with a detective’s explanatory testimony. Following his convictions on four robbery-related counts, Zanders appealed arguing that obtaining the CSLI violated his Federal and State Constitutional rights, and that the detective improperly testified as an expert witness. We disagree.
Under federal precedent, the Fourth Amendment does not require police to obtain a search warrant to gather information an individual has voluntarily relinquished to a third party. We hold that this rule, the “third-party doctrine,” applies here, so Zanders had no reasonable expectation of privacy in Sprint’s historical CSLI. And under Indiana precedent, Article 1, Section 11 of our State Constitution does not prohibit police from taking reasonable actions—like obtaining minimally intrusive historical CSLI from a service provider to prevent an armed-robbery suspect from striking again. Finally, since the detective sponsoring the CSLI at trial simply used his training to summarize those records, he properly testified as a skilled witness. We accordingly affirm Zanders’s convictions.
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1. The third-party doctrine is well-settled United States Supreme Court precedent, and
most federal circuits addressing the issue apply the doctrine to CSLI.
En route to our conclusion that this was not a “search,” we look first to the two seminal United States Supreme Court cases applying the third-party doctrine to business documents: United States v. Miller, 425 U.S. 435, and Smith v. Maryland, 442 U.S. 735. In Miller, federal agents subpoenaed a tax-fraud suspect’s bank for checks, deposit slips, and other account records. 425 U.S. at 437–38. The question was straightforward: did the suspect have a “legitimate expectation of privacy” in those documents? Id. at 442. The Court answered “no,” reasoning that when an individual “voluntarily convey[s]” information to a third-party bank and exposes that information to the bank’s employees in the ordinary course of business, the information is not the individual’s “private papers,” but rather the bank’s “business records.” Id. at 440–43. The individual “takes the risk” that the bank will share those records with the government down the road. Id. at 443 (citing United States v. White, 401 U.S. 745, 751–52 (1971)). The Court thus held that no search occurred. Id. at 445.The same logic held sway three years later in Smith. 442 U.S. 735. There, a robbery victim started receiving threatening calls from the defendant, so police had the telephone company install a “pen register” on the defendant’s landline to record any numbers dialed. Id. at 737. As in Miller, the Court found no Fourth Amendment violation because the defendant “voluntarily conveyed” the dialed numbers to the telephone company, “expos[ing] that information to its equipment in the ordinary course of business.” Id. at 744–46. The Court also emphasized that the government learned only the numbers dialed, not the “contents of communications.” Id. at 741, 743. The Supreme Court found again that there was no search. Id. at 745–46.
Phone technology, of course, has exploded in the decades since Smith, and the United States Supreme Court has not yet clarified whether the third-party doctrine applies to historical CSLI.2 Five federal circuits, however, have answered that question—four saying “yes,” and only one saying “no.”3
2. The United States Supreme Court is currently considering two petitions for certiorari on this issue. United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), petition for cert. filed (U.S. Sept. 26, 2016) (No. 16-402); United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc), petition for cert. filed (U.S. Sept. 26, 2016) (No. 16-6308).
3. Even in circuits that have not yet weighed in, district courts have. In the Seventh, Eighth, Tenth, and District of Columbia Circuits, district courts have applied the third-party doctrine to CSLI. See United States v. Wheeler, 169 F. Supp. 3d 896, 910–11 (E.D. Wis. 2016); United States v. Hudson, No. 4:15CR3078, 2016 WL 1317090, at *4 (D. Neb. Feb. 19, 2016), report and recommendation adopted, No. 4:15CR3078, 2016 WL 1301116 (D. Neb. Apr. 1, 2016); United States v. Banks, 52 F. Supp. 3d 1201, 1204–06 (D. Kan. 2014); United States v. Gordon, No. CRIM.A. 09-153-02, 2012 WL 8499876, at *2 (D.D.C. Feb. 6, 2012).
The four circuits applying the third-party doctrine—the Fourth, Fifth, Sixth, and Eleventh—reason that cell-phone users generally know that their phones must connect with towers to make and receive calls, and that service providers archive those connections for billing purposes. See United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc); In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013); United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016); United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc). The Eleventh Circuit in Davis, for example, held that an armed-robbery defendant had no legitimate expectation of privacy in Metro PCS’s historical CSLI because, as in Smith, cell-phone users presumably know “publicly available facts about technologies and practices that the phone company used to connect calls, document charges, and assist in legitimate law-enforcement investigations.” 785 F.3d at 511–12 (citing Smith, 442 U.S. at 742–43). The court acknowledged that technology has skyrocketed since Smith and Miller, but noted that those cases “did not turn on assumptions about the absence of technological change.” Id. at 512.
The minority position—including the Third Circuit and dissenting judges from other circuits—offers three main reasons why the third-party doctrine should not apply to historical CSLI. The position first asserts that cell users are likely unaware that historical CSLI is collected, so they cannot voluntarily share it “in any meaningful way.” In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 317–18 (3d Cir. 2010). Next, the minority position argues that cell-phone users, unlike the telephone user in Smith who affirmatively dialed a number, do not affirmatively enter their location when they make and take calls. Graham, 824 F.3d at 444–45 (Wynn, J., dissenting in part and concurring in the judgment). And finally, the minority position reasons that because historical CSLI is often voluminous, people do not share it voluntarily. Davis, 785 F.3d at 538 (Martin, J., dissenting).
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And Indiana is hardly alone in this decision. A growing number of states have declined to import the third-party doctrine into their state constitutional search-and-seizure protections. See People v. Blair, 602 P.2d 738, 747–48 (Cal. 1979) (en banc); Charnes v. DiGiacomo, 612 P.2d 1117, 1120–21 (Colo. 1980) (en banc); Shaktman v. State, 553 So. 2d 148, 151 (Fla. 1989); State v. Walton, 324 P.3d 876, 906–08 (Haw. 2014); State v. Thompson, 760 P.2d 1162, 1167 (Idaho 1988); People v. DeLaire, 610 N.E.2d 1277, 1282 (Ill. App. Ct. 1993); State v. Earls, 70 A.3d 630, 641–42 (N.J. 2013); State v. Thompson, 810 P.2d 415, 418 (Utah 1991); State v. Gunwall, 720 P.2d 808, 816 (Wash. 1986) (en banc). In these cases, courts apply their own constitutions, rather than trying to fit a square federal-doctrinal peg into a round state-constitutional hole.
