6/15/2014
Federal Appeals Judge Says Cell-Site Location Is Within Subscriber's Reasonable Expectation of Privacy
A federal appeals court said police need a warrant to track a criminal suspect's movements through cellphone-tower location records. Getty Images
Police need a warrant to track the cellphones of criminal suspects, a federal appeals court ruled Wednesday in a development that could help resolve a privacy issue that has split judges nationwide.
The 11th U.S. Circuit Court of Appeals in Atlanta held that the government violated the privacy rights of Quartavius Davis, who was convicted of robbing seven stores in 2010—including a Little Caesar's restaurant, a Walgreens WAG +0.81% drugstore and a jewelry shop—and sentenced to roughly 162 years in prison.
At trial, prosecutors presented cellphone records that placed Mr. Davis and his cohorts near the scene of the robberies. The evidence included records of the cell towers to which their phones were connected when they placed and received calls, according to court documents.
To obtain a court order for the records, prosecutors needed to show only that the records were relevant and material to an ongoing investigation. But after Wednesday's ruling, prosecutors in the 11th Circuit, which encompasses Alabama, Florida and Georgia, will have to meet a higher standard: probable cause, or a reasonable belief that a person committed a crime.
"Cell site location information is within the subscriber's reasonable expectation of privacy," wrote Judge David B. Sentelle for a unanimous three-judge panel. "The obtaining of that data without a warrant is a Fourth Amendment violation."
Though the court held that Mr. Davis's rights were violated, his convictions will stand, as will most of his punishment, which sentencing-overhaul advocates have criticized as overly harsh. The 11th Circuit said police acted in good faith when they sought a court order instead of a warrant because they were following a federal law.
Mr. Davis's legal team is evaluating its options, said Jacqueline Shapiro, one his lawyers. They could ask the 11th Circuit to rehear the case, or petition the Supreme Court to review it.
Peter Carr, a spokesman for the Justice Department, said, "We are reviewing the decision and considering our options."
Two other federal appeals courts, the New Orleans-based Fifth Circuit and the Cincinnati-based Sixth Circuit, have ruled that police can obtain cellphone location data without a warrant. The Third Circuit, in Philadelphia, has held that federal magistrate judges have discretion to decide whether a warrant is required.
"This is the first time a court has addressed this issue after a criminal conviction based on a full set of facts," said Nathan Freed Wessler, a lawyer with the American Civil Liberties Union, which filed a brief in the case in support of a warrant requirement.
The U.S. Supreme Court hasn't ruled on the issue. In 2012, the justices held that attaching a Global Positioning System tracker to a suspect's vehicle triggered the Fourth Amendment's protection against unreasonable searches, but stopped short of saying a warrant was required.
The Supreme Court currently is considering whether police need a warrant to search the contents of a suspect's cellphone. A ruling is expected later this month.
In Wednesday's opinion, Judge Sentelle said cellphones presented unique privacy considerations. "One's cellphone, unlike an automobile, can accompany its owner anywhere," he wrote. "Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one."
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