Must Police Have a Search Warrant Before They Can Compel Mobile Phone Service Providers to Turn Over Data That Pinpoints a Suspect’s Physical Movements?

By: Jacey Mann

Student Materials Editor, American Journal of Trial Advocacy

With the “drop” of the new iPhone 8, and with the Android companies ever competing to stay “the best in the industry,” technology is advancing at miraculous speeds. Further, with companies, employers, and other business ventures hopping on the “social media train,” our generation is not only encouraged, but rather nearly forced to always have their smartphones with them. As children, and even as adults, we are cautioned to “be careful what you post on the Internet,” and constantly reminded that what gets posted will live on forever. But until recently, there has been little done about encouraging people to “hide” their “locations.” I try to be prudent about my knowledge of the technology I surround myself with, but because “updates” are forced every couple of months, I admit, it is incredibly hard to stay “in the know” about what all my device does. Cell phones have always used towers to communicate with one another, but with the rise of cell phone applications (“apps”), more and more location information is being shared. The warnings we hear warn us of “stranger danger” and other despicable happenings, but how many have stopped to think about the information their network providers receive and store? The network providers have your volunteered permission to store your call logs, your text messages, and even your every move. This cell site location information (“CSLI”) that your network provider lawfully collects is frequently requested by the state and other investigators to pinpoint a suspect’s location during the time of a criminal act.[1] The Fourth Circuit Court of Appeals, in the United States v. Graham,[2] explained:

[h]istorical CSLI identifies cell sites, or ‘base stations,’ to and from which a cell phone has sent or received radio signals, and the particular points in the time at which these transmissions occurred, over a given timeframe. Cell sites are placed at various locations throughout a service provider’s coverage area and are often placed on towers with antennae arranged in sectors facing multiple directions to better facilitate radio transmissions. A cell phone connects to a service provider’s cellular network through communications with cell sites, occurring whenever a call or text message is sent or received by the phone. The phone will connect to the cell site with which it shares the strongest signal, which is typically the nearest cell site. The connecting cell site can change over the course of a single call as the phone travels through the coverage area. When the phone connects to the network, the service provider automatically captures and retains certain information about the communication, including identification of the specific cell site and sector through which the connection is made.[3]

Using the tower information, the CSLI can help pinpoint the location of a person carrying a cell phone, and provides an almost “real-time” movement tracker.[4] The Stored Communications Act (“SCA”) allows government entities to request CSLI through procedural matters pursuant to 18 U.S.C. Section 2703(d).[5] However, because section 2703(d) does not provide direction as to when a warrant is necessary, the courts have frequently had to deal with this topic.[6]

The Third, Fifth, and Eleventh circuits held that no warrant was required to obtain the CSLI.[7] However, when the Fourth Circuit stepped up to tackle this privacy issue, specifically in regards to extensive warrantless searches, it created a circuit split by holding “the government invades a matter in which a person has an expectation of privacy that society is willing to recognize as reasonable.”[8] The Court further explained, “in terms of reasonable expectation of privacy, the salient consideration is the length of time for which a person’s CSLI is requested, not the time covered by the person’s CSLI that the Commonwealth ultimately seeks to use as evidence at trial.”[9] However, this circuit split was later dissolved after an en banc hearing held “that the Government’s acquisition of historical CSLI from Defendant’s cell phone provider did not violate the Fourth Amendment.”[10]

Even though the circuit split has still seemingly “dissolved,” the issue has again entered the courts for consideration. The Supreme Court of Indiana in Zanders v. State,[11] considered whether the police must obtain a search warrant prior to compelling service providers to turn over historical CSLI.[12] Marcus Zanders was a suspect, who was eventually charged with four counts for his involvement in an armed-robbery incident.[13] During the course of the investigation into his involvement, the police obtained historical CSLI from his cell phone provider, Sprint.[14] After his convictions, Zanders “appealed arguing that obtaining the CSLI violated his Federal and State Constitutional rights …” Upon a hearing, the Court of Appeals reversed the state court holding, finding that “obtaining the historical CSLI without a warrant violated the Fourth Amendment, reasoning that Zanders had a reasonable expectation of privacy in the records.”[15] After granting certiorari, the Supreme Court of Indiana agreed to hear the case, eventually reversing the Court of Appeals’ opinion, and finding that the collection of historical CSLI without a search warrant was not improper and was not a violation of the Fourth Amendment.[16] The court’s holding turned on their interpretation of the “third-party doctrine[,]” which is in reference to the Fourth Amendment that “does not require police to obtain a search warrant to gather information an individual has voluntarily relinquished to a third party.”[17] This “doctrine compels that asking a provider for a user’s historical CSLI is not a Fourth Amendment ‘search.’”[18] The legal significance of the Zanders case is that the holding aligns itself with the Fourth, Fifth, Sixth, and Eleventh circuits. However, the Third Circuit now states that a warrant is required, whereas before, they were aligned with the majority.[19]

The defendants in the United States v. Carpenter,[20] Timothy Carpenter and Timothy Sanders, argued that the cell phone carrier’s “business records” contained the historical CSLI information that the FBI requested in regards to a string of armed robberies the two were convicted of committing.[21] They further contended “that the government’s collection of those records constituted a warrantless search in violation of the Fourth Amendment.”[22] Similar to Graham, the FBI in Carpenter collected the historical CSLI “pursuant to a court order issued under the Stored Communications Act, which required the government to show “reasonable grounds” for believing that the records were ‘relevant and material to an ongoing investigation.’”[23]

Upon review of Carpenter, the Sixth Circuit Court of Appeals agreed that “[t]his case involves an asserted privacy interest in information related to personal communications,” but quickly reminded readers that “the federal courts have long recognized a core distinction: although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.”[24] Also in its review, the Court of Appeals explained that “[t]o fall within [Fourth Amendment] protections, an expectation of privacy must satisfy ‘a twofold requirement’: first, the person asserting it must ‘have exhibited an actual (subjective) expectation of privacy’; and second, that expectation must ‘be one that society is prepared to recognize as reasonable.’”[25] The Court held that “the CSLI is unprotected because it deals with routing or conveying information, not the content of the related communications.”[26]

On June 5, 2017, the Supreme Court of the United States granted certiorari in the previously mentioned case of United States v. Carpenter.[27] While some might say that this comes a little late, hopefully the Supreme Court will put an end to the inconsistent holdings and uncertainty surrounding this issue.


[1] U.S. v. Graham, 796 F.3d 332, 341 (4th Cir. 2015); Commonwealth v. Estabrook, 38 N.E.3d 231, 234-35; see also Richard Wolf, Supreme court to rule on cellphone location privacy, USA Today (June 5, 2017 4:08 PM), https://www.usatoday.com/story/news/politics/2017/06/05/supreme-court-rule-cellphone-location-privacy/102191128/ (stating, “Police conducting criminal investigations routinely get court orders to obtain records from cellphone service providers showing where suspects have traveled, based on which cell towers they used.”). 

[2] 796 F.3d 332 (4th Cir. 2015).

[3] Id. at 343.

[4] Id.

[5] Id. at 343-44 (citing 18 U.S.C. §§ 2701-2711 (2010)).

[6] See id. at 344 (providing “[t]he statute offers no express direction as to when the government should seek a warrant versus a § 2703(d) order.”).

[7] See In re Application of the U.S. for and Order Directing a Provider of Elec. Commc’n Serv. To Disclose Records to the Gov’t, 620 F.3d 304, 309 (3d. Cir. 2010) (focusing on the fact that CSLI information is dissimilar from tracking device information.); United States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014) (relying on the notion of “voluntary exposure” for not requiring a warrant); U.S. v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (determining that “cell users know that they must transmit signals to cell towers within range, that the cell tower functions as the equipment that connects the calls, that users when making or receiving calls are necessarily conveying or exposing to their service provider their general location within that cell tower’s range, and that cell phone companies make records of cell-tower usage.”).

[8] Graham, 796 F.3d at 344 (citing Katz v. U.S., 389 U.S. 347, 353 (1967) and U.S. v. Davis, 690 F.3d 226, 241-42 (4th Cir. 2012)).

[9] Commonwealth v. Estabrook, 38 N.E. 231, 237 (Mass. 2015) (emphasis added).

[10] United States v. Graham, 824 F.3d 421, 424 (4th Cir. 2016).

[11] 73 N.E.3d 178 (Ind. 2017).

[12] Id. at 181.

[13] Id. at 179.

[14] Id.

[15] Id. at 181.

[16] Id. at 189

[17] Zanders, 73 N.E.3d at 179, 183.

[18] Id. at 189.

[19] See In re Application of the U.S. for and Order Directing a Provider of Elec. Commc’n Serv. To Disclose Records to the Gov’t, 620 F.3d 304, 309 (3d. Cir. 2010) (focusing on the fact that CSLI information is dissimilar from tracking device information.).

[20] 819 F.3d 880 (6th Cir. 2015).

[21] Carpenter, 819 F.3d at 884-85.

[22] Id. at 884.

[23] Id. at 885; see also Graham, 796 F.3d at 343-44.

[24] Id. at 886 (referring to Ex parte Jackson, 96 U.S. 727, 733 (1878) (holding “that postal inspectors needed a search warrant to open letters and packages, but that the ‘outward form and weight’ of those mailings – including, of course, the recipient’s name and physical address – was not constitutionally protected.”)); see also Katz v. United States, 389 U.S. 347, 353 (1967) (holding that “‘[t]he Government’s activities in electronically listening to and recording the petitioner’s words’ was a search under the Fourth Amendment.”).

[25] Carpenter, 819 F.3d at 886 (citing Katz v. United States, 389 U.S. 347, 361 (1967)) (internal citations omitted).

[26] Carpenter, 819 F.3d at 895.

[27] 819 F.3d 880 (6th Cir. 2015); Carpenter v. United States, 137 S.Ct. 2211; see also Supreme Court Today Tracker, Bloomberg Law, https://www.bloomberglaw.com/product/blaw/tracker/048777e089718f33676774d6fae0e64d/summary/98342164/offset/0.

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