FL4: Cell site historical information obtainable by court order, search warrant not required

Florida holds in a case of first impression for a state court that applications for historical cell site information was obtainable by court order and not a search warrant. Mitchell v. State, 25 So. 3d 632 (Fla. App. 4th DCA 2009):

In a case of first impression, the District Court for Massachusetts held that historical cell site information was obtainable through a court order issued pursuant to subsections 2703(c)(1)(B) and (d) of Title 18 of the United States Code. In re Applications of the U.S. for Orders Pursuant to Title 18 U.S.C. § 2703(d), 509 F. Supp. 2d 76 (D. Mass. 2007) (reversing a decision by the Magistrate Judge which required a warrant to obtain historical cell site information).

The district court applied a three-part test to determine if section 2703 provided a proper means to obtain the information. First, the court determined that a cell phone service provider fits within the statutory definition of a “provider of electronic communication service[s],” as defined by the SCA. Id. at 79 (quoting 18 U.S.C. § 2510(15)). Second, the court determined that historical cell site information was “a record or other information pertaining to a subscriber to or customer of” an electronic communications service because it contained “data specific to the handling of a customer’s call.” Id. at 79-80 (quoting 18 U.S.C. § 2703(c)(1)). Third, the court determined that the information was not “content” information because the location of a cell tower disclosed nothing about the “substance, purport, or meaning” of the call. Id. at 80 (quoting 18 U.S.C. § 2510(8)). Lastly, the court found that because historical cell site information disclosed only information in the past and not the current location of the defendant, it did not implicate the Fourth Amendment. Id. at 80-81.

We now adopt the reasoning of the District Court of Massachusetts because our statutory scheme is so similar to the federal statute. We hold that historical cell site information is not content-based. The user of a cell phone has no expectation of privacy in those records. See Smith v. Maryland, 442 U.S. 735 (1979). And, because historical cell site information discloses only the defendant’s past location and does not pinpoint his current location in a private area, it does not implicate Fourth Amendment protections. See United States v. Knotts, 460 U.S. 276 (1983). In short, law enforcement need only comply with the provisions of section 934 to obtain historical cell site information.