By Marcia Coyle, From The National Law Journal

Divided appeals court, creating a split, says warrantless procurement of tower info violated Fourth Amendment.

A federal appellate court on Wednesday widened a split among circuits on a major privacy question that’s pending before the U.S. Supreme Court: Fourth Amendment protection for cellphone location information.

In United States v. Graham, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held that the government’s warrantless search of the cellphone location information of two accused robbery defendants violated their Fourth Amendment rights. However, because the government relied in good faith on court orders issued under the federal Stored Communications Act, the information could be admitted as evidence in their trial.

Last month, the American Civil Liberties Union and private counsel filed a petition for review in the high court in Davis v. United States. In that case, a divided en banc Eleventh Circuit held that the criminal defendant had no reasonable expectation of privacy in cellphone location records held by his service provider. And even if a Fourth Amendment search had taken place, the court said, use of an Stored Communications Act order rather than a warrant was reasonable because the privacy intrusion was minor and the government had a compelling interest in investigating crimes.

The petition asks the justices to decide whether the Fourth Amendment warrant requirement applies to these searches and seizures. It also asks whether the good-faith exception to the exclusionary rule applies when the search was based on a court order sought by a prosecutor, particularly when the relevant statute gave the prosecutor the option of pursuing a warrant.

In the Fourth Circuit case decided Wednesday, the government secured court orders, under the Stored Communications Act (SCA) for 221 days’ worth of cellphone location information from Sprint/Nextel. The government ultimately used the information at trial to establish the defendants’ locations at various times before and after most of the charged robberies.

Senior Judge Andre Davis, joined by Judge Stephanie Thacker, wrote:

Examination of a person’s historical CSLI (cell site location information) can enable the government to trace the movements of the cellphone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Cellphone users have an objectively reasonable expectation of privacy in this information. Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.

The “established exception” in this case, Davis added, was the “good faith” exception to the exclusionary rule.

“Here, the government is entitled to the good-faith exception because, in seeking appellants’ CSLI, the government relied on the procedures established in the SCA and on two court orders issued by magistrate judges in accordance with the SCA,” Davis wrote.

The Stored Communications Act includes no direction on when the government should seek a warrant versus an order, he said.

Before the panel’s ruling, he added, neither his court nor the U.S. Supreme Court had found the government’s conduct in this case unconstitutional.

“And we recognize that, at the time the government obtained the CSLI at issue here, court rulings outside of this circuit were in conflict as to the constitutionality of obtaining this information without a warrant,” Davis wrote.

Judge Diana Gribbon Motz, concurring in the judgment and dissenting in part, disagreed with the majority’s holding that the government had violated the defendants’ Fourth Amendment rights. She wrote that the Supreme Court’s “well-established third-party doctrine” applied.

“The court has long held that an individual enjoys ‘no legitimate expectation of privacy,’ and so no Fourth Amendment protection, in information he ‘voluntarily turns over to a third party,’ ” she wrote. “The provider only receives that information when a cellphone user’s phone exchanges signals with the nearest available cell tower. A cellphone user therefore ‘conveys’ the location of the cell towers his phone connects with whenever he uses the provider’s network.”

The government’s action, she said, did not implicate, much less violate, the Fourth Amendment.

Motz, writing in the conclusion of her dissent, said: “If the majority is proven right, it will only be because the Supreme Court revises its decades-old understanding of how the Fourth Amendment treats information voluntarily disclosed to third parties. Today the majority endeavors to beat the Supreme Court to the punch.”

Thacker wrote separately “to express my concern about the erosion of privacy in this era of rapid technological development. At bottom, this decision continues a time-honored American tradition—obtaining a warrant is the rule, not the exception.”

Nathan Freed Wessler, staff attorney with the American Civil Liberties Union Speech, Privacy, and Technology Project, called the Fourth Circuit ruling “a full-throated defense of Fourth Amendment privacy rights in the digital age.”

“Cellphone location records can reveal some of the most private details about our lives by showing where we go and who we spend time with,” Wessler said in a statement. “Requiring a warrant for access to this information is an important protection against unjustified government intrusions.”

IMAGE: Credit: Manuel Ribeiro/iStockphoto.com

For more on this story go to: http://www.nationallawjournal.com/id=1202733998931/Fourth-Amendment-Protects-Cellphone-Location-Data-Appeals-Court-Says#ixzz3iF25NPpv