CSLI information is not protected by the probable cause requirement of the Fourth Amendment. The government sought the information by court order and the USMJ denied it, and the government appealed to the District Judge who granted it. CLSI information is subject to the Smith v. Maryland no reasonable expectation of privacy standard. In the Matter of the Application of the United States of America for an Order Authorizing Disclosure of Historical Cell Site Information for Telephone Number [Text Redacted by the Court], 2011 U.S. Dist. LEXIS 156744 (D. D.C. October 3, 2011):

This Court agrees with the government that the text of the SCA permits the government to apply for compelled disclosure of CSLI records relating to a customer's past use of a cellular telephone company's phone services without meeting the probable cause requirement for a warrant. See, e.g., Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208, 66 S. Ct. 494, 90 L. Ed. 614 (1946) (holding that the probable cause requirement does not apply to compulsory process).

The Court of Appeals' opinion in United States v. Maynard does not compel a contrary result. The Court in Maynard determined that law enforcement installation of a GPS tracking device on a suspect's car that continuously registers the car's location constitutes a "search" under the Fourth Amendment. United States v. Maynard, 615 F.3d 544, 555-56, 392 U.S. App. D.C. 291 (D.C. Cir. 2010). In so holding, the Court did not address compelled disclosure under Section 2703(d) -indeed, the law enforcement officers in Maynard sought no official process sanctioning their conduct before installing the GPS device at issue. See id. at 555. Maynard thus does not bear on the relevant evidentiary standard under Section 2703(d).

In finding that Maynard applied to this case, Magistrate Judge Facciola presumably concluded that obtaining CSLI is tantamount to the sort of continuous GPS surveillance at issue in Maynard. If the analogy holds, collection of historical CSLI may constitute a "search" that requires a warrant under the Fourth Amendment, the SCA notwithstanding. Cf. In re Application of the United States, 620 F.3d at 308-09 (describing magistrate judge's opinion comparing collection of historical CSLI to installation of a tracking device); In re United States Order, 736 F. Supp. 2d 578, 595 & n.6 (E.D.N.Y. 2010) (arguing that "[s]tatutory authority ... is not sufficient if such authority purports to allow, without a showing of probable cause, a search or seizure that must be considered unreasonable under the Fourth Amendment").

Unsealed and posted to Lexis this week.

Defendant refused to stop when the patrol car’s lights and siren came on, and that was not a seizure until he was actually stopped. His flight was reasonable suspicion, and the movement of his hands in flight added to it. United States v. Rhone, 2012 U.S. Dist. LEXIS 181135 (E.D. Mo. September 19, 2012):

The Supreme Court has held that presence in an area with a high rate of crime with unprovoked flight can satisfy the reasonable suspicion standard for a Terry stop. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Here, prior to the seizure and search of defendant, the officers found him in the Jeff Vanderlou area, an area with a high rate of crime, and defendant fled from the officers with no provocation. Additionally, while in pursuit of defendant, Officer Anderson observed defendant's hands moving around his jacket pocket. See United States v. Cornelius, 391 F.3d 965, 968 (8th Cir. 2004) (placing hands in jacket pocket and failure to remove hands upon direction by an officer sufficiently justifies a frisk); United States v. Davis, 202 F.3d 1060, 1063 (8th Cir. 2000) (placing hands in jacket pocket and moving to officer's backside upon witnessing the frisk of a companion sufficiently justifies a frisk); see also United States v. Roggeman, 279 F.3d 573, 579 (2002) (bulge in the clothing alone can establish a reasonable suspicion).

Defendant was seen leaving the scene of a burglary wearing all black and carrying a large black bag. When a man matching all that was seen by the officer, he had reasonable suspicion for a frisk when he saw a screwdriver sticking out of a pocket. Defendant then acquiesced in a consent search of the bag which produced evidence of the burglary. State v. Watkins, 2012 Tenn. Crim. App. LEXIS 1053 (December 19, 2012).*

Defendant in a blocked-in car with three officers with flashlights shining in windows was subjected to a stop governed by Terry. “[T]he police officers had only three justifications: the recent high-crime history of this lot, pat-downs of Julian's patrons, and Young's reclined position in the passenger seat of a parked car.” United States v. Young, 707 F.3d 598 (6th Cir. 2012).*

Defendant was in pretrial detention for three years, and both sides were responsible for delay, the government superceding the indictment multiple times, and the defendant for requesting extensions for filing pretrial motions, and only recently got the search warrant materials from the government. The defendant is ordered released on conditions, including cash deposit, third party custodians, drug testing, and searches of his home by USPO. [The opinion doesn’t tell us whether the defendant offered this condition. A home search as a condition of release is extremely hard to justify, and the court makes no effort to do so.] United States v. Rodriguez, 2012 U.S. Dist. LEXIS 181111 (W.D. N.Y. December 21, 2012).

The discrepancies noted by the defense between the search warrant affidavit and the discovery were not material enough to justify an evidentiary hearing. United States v. Dixon, 2012 U.S. Dist. LEXIS 180431 (N.D. Ohio December 17, 2012).*