{"id":27056,"date":"2017-05-05T12:23:56","date_gmt":"2017-05-05T17:23:56","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=27056"},"modified":"2017-05-06T08:29:30","modified_gmt":"2017-05-06T13:29:30","slug":"in-csli-is-third-party-information-for-which-sw-not-required-noting-pending-cert-petitions","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=27056","title":{"rendered":"IN: CSLI is third-party information for which SW not required [noting pending cert. petitions]"},"content":{"rendered":"

The third party doctrine is still alive and well, and the collection of CSLI does not implicate Fourth Amendment concerns. Zanders v. State<\/a>, 2017 Ind. LEXIS 339 (May 4, 2017):
\n<\/p>\n

Cell phones\u2014once figments of science fiction\u2014now live in most Americans\u2019 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)\u2014business 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. <\/p>\n

Here, in an effort to locate Marcus Zanders\u2014an armed-robbery suspect at large\u2014police asked his cell-phone service provider, Sprint, to provide historical CSLI. At Zanders\u2019s trial, the State presented that CSLI, along with a detective\u2019s 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. <\/p>\n

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 \u201cthird-party doctrine,\u201d applies here, so Zanders had no reasonable expectation of privacy in Sprint\u2019s historical CSLI. And under Indiana precedent, Article 1, Section 11 of our State Constitution does not prohibit police from taking reasonable actions\u2014like 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\u2019s convictions. <\/p>\n

…<\/p>\n

1. The third-party doctrine is well-settled United States Supreme Court precedent, and
\nmost federal circuits addressing the issue apply the doctrine to CSLI.<\/em>
\nEn route to our conclusion that this was not a \u201csearch,\u201d 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\u2019s bank for checks, deposit slips, and other account records. 425 U.S. at 437\u201338. The question was straightforward: did the suspect have a \u201clegitimate expectation of privacy\u201d in those documents? Id. at 442. The Court answered \u201cno,\u201d reasoning that when an individual \u201cvoluntarily convey[s]\u201d information to a third-party bank and exposes that information to the bank\u2019s employees in the ordinary course of business, the information is not the individual\u2019s \u201cprivate papers,\u201d but rather the bank\u2019s \u201cbusiness records.\u201d Id. at 440\u201343. The individual \u201ctakes the risk\u201d 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\u201352 (1971)). The Court thus held that no search occurred. Id. at 445.<\/p>\n

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 \u201cpen register\u201d on the defendant\u2019s landline to record any numbers dialed. Id. at 737. As in Miller, the Court found no Fourth Amendment violation because the defendant \u201cvoluntarily conveyed\u201d the dialed numbers to the telephone company, \u201cexpos[ing] that information to its equipment in the ordinary course of business.\u201d Id. at 744\u201346. The Court also emphasized that the government learned only the numbers dialed, not the \u201ccontents of communications.\u201d Id. at 741, 743. The Supreme Court found again that there was no search. Id. at 745\u201346.<\/p>\n

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<\/sup> Five federal circuits, however, have answered that question\u2014four saying \u201cyes,\u201d and only one saying \u201cno.\u201d3<\/sup>
\n\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/p>\n

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).<\/p>\n

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\u201311 (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\u201306 (D. Kan. 2014); United States v. Gordon, No. CRIM.A. 09-153-02, 2012 WL 8499876, at *2 (D.D.C. Feb. 6, 2012).\n<\/p><\/blockquote>\n

The four circuits applying the third-party doctrine\u2014the Fourth, Fifth, Sixth, and Eleventh\u2014reason 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\u2019s historical CSLI because, as in Smith, cell-phone users presumably know \u201cpublicly available facts about technologies and practices that the phone company used to connect calls, document charges, and assist in legitimate law-enforcement investigations.\u201d 785 F.3d at 511\u201312 (citing Smith, 442 U.S. at 742\u201343). The court acknowledged that technology has skyrocketed since Smith and Miller, but noted that those cases \u201cdid not turn on assumptions about the absence of technological change.\u201d Id. at 512.<\/p>\n

The minority position\u2014including the Third Circuit and dissenting judges from other circuits\u2014offers 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 \u201cin any meaningful way.\u201d In re Application of U.S. for an Order Directing a Provider of Elec. Commc\u2019n Serv. to Disclose Records to the Gov\u2019t, 620 F.3d 304, 317\u201318 (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\u201345 (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). <\/p>\n

…<\/p>\n

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\u201348 (Cal. 1979) (en banc); Charnes v. DiGiacomo, 612 P.2d 1117, 1120\u201321 (Colo. 1980) (en banc); Shaktman v. State, 553 So. 2d 148, 151 (Fla. 1989); State v. Walton, 324 P.3d 876, 906\u201308 (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\u201342 (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. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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):<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[84,79],"tags":[],"class_list":["post-27056","post","type-post","status-publish","format-standard","hentry","category-cell-site-location-information","category-third-party-doctrine"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/27056","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=27056"}],"version-history":[{"count":5,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/27056\/revisions"}],"predecessor-version":[{"id":27065,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/27056\/revisions\/27065"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=27056"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=27056"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=27056"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}