The Eleventh Circuit handed down a groundbreaking decision this past week, holding in United States v. Davis that the Fourth Amendment protects information about a person’s cell site data.

Cell site data reveals a cellphone’s physical address at call origination, duration, and termination. In Davis, that information was provided without a proper warrant to convict the defendant of several robberies. Building on the Supreme Court’s decision in United States v. Jones, the Davis court held that police must show probable cause (and secure a warrant) to obtain such information.

The decision deviates from the Fifth Circuit’s ruling on the same issue last year in Smith v. Maryland. As a result of this circuit split, the issue may go to the Supreme Court to resolve.

The thrust of the Davis court’s 38-page decision is that because most people don’t realize that their cellphones can reveal their locations via cell towers, they have a “reasonable expectation of privacy” when carrying them around:

“While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene. There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.”

Fourth Amendment jurisprudence militates that the government obtain a warrant where a search would violate a person’s reasonable expectation of privacy. Nonetheless, the court declined to overturn Davis’ conviction under the “Leon exception” because the legal principle was not yet clear at the time of the investigation.

In Leon, the Supreme Court held that “when an officer acting with objective good faith has obtained a search warrant from a judge . . . and acted within its scope,” the fruits of that search should not be excluded, because exclusion under those facts “cannot logically contribute to the deterrence of Fourth Amendment violations.”

Although the police in Davis relied on a court order rather than a warrant (as in Leon), the Eleventh Circuit held that the difference was “semantic.”

Morgan Morrison

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One Response to “Can You Hear Me Now?”: Cellphone Tracking and the Fourth Amendment

  1. Daniel Rheiner says:

    Great post. It will be interesting to see how the Supreme Court reacts to this circuit split, after having ruled aggressively in favor of cellphone privacy in Riley v. California. It will also be interesting to see how this series of cases contributes to the still developing jurisprudence regarding NSA surveillance programs, another issue that may be taken up by the Court in the near future.