Search and Seizure - Gps Devices and Cell Site Location Information

United States v. Jones, 132 S. Ct. 945 (2012)

The Supreme Court affirmed the decision of the D.C. Circuit in United States v. Maynard, though on somewhat different grounds. In the majority decision, the Court held that placing a GPS device on a car (a trespass), coupled with the effort to acquire information by exploiting that trespass, constitutes a search. The Court held that placing the device on the car was a form of “trespass” and under traditional and historical Fourth Amendment jurisprudence a trespass qualifies as a search if the trespass is conducted for the purpose of acquiring information. In a concurring opinion, which also garnered five votes, Justice Alito questioned the trespass theory, but held that the continuous monitoring of the defendant’s car for 28 days amounted to a search.

Grady v. North Carolina, 135 S. Ct. 1368 (2015)

Placing a GPS device on a probationer as part of his sex offender registry conditions is a Fourth Amendment search that requires application of the “reasonableness” requirement of the Fourth Amendment.

United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc)

Reversing the panel opinion, the en banc Eleventh Circuit holds that 18 U.S.C. § 2703 is not unconstitutional and there is no constitutional requirement that law enforcement establish probable cause, or obtain a search warrant, prior to obtaining historical cell tower information.

In re Application of the United States For Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013)

The Fifth Circuit holds that for historical cell site data (this opinion does not involve real time cell site data), the government may rely on a § 2703(d) application to the court and it is not necessary to establish probable cause in order to obtain such information from a cell phone provider. The data requested applied to data generated when the phone was in service and when it was idle but the government told the court that the providers do not keep records when the phone is in an idle state. Thus, only information relating to when a phone is in service was sought by the application. The Fifth Circuit rejected the Third Circuit approach (see below), which held that the Magistrate can require a showing of probable cause. The Fifth Circuit held that the statute is mandatory and directs the court to issue the order upon a showing that the information is needed for an ongoing investigation. In United States v. Guerrero, 768 F.3d 351 (5th Cir. 2014), the court held that the Supreme Court decision in Riley which held that the police need a search warrant to search a cell phone, has no impact on the Fifth Circuit’s earlier ruling that held that obtaining GPS tracking information is not a Fourth Amendment search.

United States v Pineda-Moreno, 688 F.3d 1087 (9th Cir. 2012)

The Ninth Circuit, in a decision that predated Jones, held that attaching a GPS device to a vehicle was not a search. The Supreme Court remanded that decision in light of Jones for reconsideration. This is the decision that reconsidered the holding in light of Jones. This time, the Ninth Circuit held that the officers acted in good faith reliance on existing law when they attached the GPS device to the vehicle and therefore, the evidence would not be suppressed.

United States v. Skinner, 690 F.3d 772 (6th Cir. 2012)

A magistrate issued an order directing the phone company to provide “ping” information to law enforcement. The agents were then able to “ping” the target’s phone and determine his location while he was en route delivering drugs. The Sixth Circuit held that the defendant had no expectation of privacy in the data emanating from his phone that showed its location. The Sixth Circuit distinguished Jones with the observation that the plurality in Jones relied on the trespass that occurred when the GPS device in that case was planted on the defendant’s car. No such intrusion occurred in this case. The court also distinguished Justice Alito’s concurring opinion in Jones (which did not rely on the trespass), because the tracking in this case only lasted three days, which does not reach the threshold for “intensive monitoring” that Justice Alito described as sufficient to invoke the Fourth Amendment.

In re Application of U.S. for Records From Provider of Electronic Communication Service, 620 F.3d 304 (3rd Cir. 2010)

The Third Circuit canvasses the law regarding the government’s effort to obtain Cell Site Location Information (“CSLI”) from a provider. The government sought records that would show where a certain cell phone was located at various times, based on the cell tower data. The appellate court considers what statute governs the government’s request (Stored Communications Act, 18 U.S.C. § 2703(d)) and what the government must show (specific and artiuculable facts establishing that there are reasonable gournds to believe that the contents of a wire or electronic communication, or the records or other information from a cell tower are relevant and material to an ongoing criminal investigation). The court distinguished United States v. Knotts, 460 U.S. 276 (1983), because the CSLI will not reveal information about what is occurring in a home, which the court views as the limit of Knotts’ holding. The court holds that the trial court may require a warrant.