A few months ago I wrote about (and strongly criticized) the Eleventh Circuit’s decision in United States v. Davis, in which the court held that the government needed to obtain a search warrant before it could access cell tower location information that located the defendant’s cell phone. Now the Eleventh Circuit, in an en banc decision, has overturned the three-judge panel and held that the third-party doctrine applies to these records; thus, a warrant is not required.
The court began by citing the Fifth Circuit decision which also applied the third party doctrine in deciding this issue. Then the court applied Smith v. Maryland and found that the Davis case was legally no different from Smith:
For starters, like the bank customer in Miller and the phone customer in Smith, Davis can assert neither ownership nor possession of the third-party’s business records he sought to suppress. Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him. Like the security camera surveillance images introduced into evidence at his trial, MetroPCS’s cell tower records were not Davis’s to withhold. Those surveillance camera images show Davis’s location at the precise location of the robbery, which is far more than MetroPCS’s cell tower location records show.
The Court not only applies the third party doctrine, it presents a robust defense of the doctrine in this context, harkening back to the Katz test:
As to the subjective expectation of privacy, we agree with the Fifth Circuit 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. See In re Application (Fifth Circuit), 724 F.3d at 613-14. Users are aware that cell phones do not work when they are outside the range of the provider company’s cell tower network. Id. at 613. Indeed, the fact that Davis registered his cell phone under a fictitious alias tends to demonstrate his understanding that such cell tower location information is collected by MetroPCS and may be used to incriminate him.
Even if Davis had a subjective expectation of privacy, his expectation of privacy, viewed objectively, is not justifiable or reasonable under the particular circumstances of this case. The unreasonableness in society’s eyes dooms Davis’s position under Katz. In Smith, the Supreme Court presumed that phone users knew of uncontroverted and publicly available facts about technologies and practices that the phone company used to connect calls, document charges, and assist in legitimate law-enforcement investigations. See 442 U.S. at 742-43, 99 S. Ct. at 2581. Cell towers and related records are used for all three of those purposes. We find no reason to conclude that cell phone users lack facts about the functions of cell towers or about telephone providers’ recording cell tower usage.
Although the third party doctrine has been routinely criticized, applying it makes sense in this context. As the court notes, surely every reasonable person knows that the telephone company can track their general location using the person’s cell phone–how else could cell phones function? And, notwithstanding the famous concurrence in United States v. Jones, a person generally does not have a reasonable expectation of privacy in a public place.
The en banc decision also provides an “alternative” justification for its ruling, which is that even if the third party doctrine did not apply, the search was “reasonable” because the intrusion into privacy was minimal, cell tower location information is routinely used by government investigators, Congress has explicitly endorsed this type of investigation in the Stored Communications Act, and the government’s interest in tracking down criminals is “compelling.” Professor Orin Kerr had a number of withering critique of this alternative justification in his blog post; one of which was that the “reasonableness” test (as opposed to the warrant requirement) should only be applied in non-criminal cases:
A basic summary of the Supreme Court’s cases might run something like this: When the search involves some kind of non-criminal investigation or purpose, the warrant requirement is often suspended. In that non-criminal context, reasonableness instead becomes a general balancing of interests. The Court has been expanding the general balancing cases, most recently in Maryland v. King. But the Katz rule of a warrant by default is still the Supreme Court’s blackletter law for a traditional criminal investigation search.
In this case, the Eleventh Circuit appears to take a different approach. It begins with the Supreme Court’s non-criminal cases and then applies them to the context of a classic criminal investigation. Instead of the Katz rule of a warrant, the court begins with general balancing. It’s important to catch criminals, the court reasons, and the statute has some good protections given that this wasn’t such an invasive practice. So on the whole the government’s conduct based on reasonable suspicion seems reasonable and therefore constitutional.
This alternative holding is a major development, I think. It’s at odds with the usual rule that a criminal search requires a warrant, and instead replaces it with a totality of the circumstances inquiry into whether the criminal search was the kind of thing that we would generally say is good or would generally say is bad. There’s not only no warrant requirement, there’s no probable cause requirement: It’s just a free-floating reasonableness inquiry.
Professor Kerr has a good point here, but he might be fighting a losing battle. In reality, the distinction between “criminal searches” and “non-criminal searches” is becoming blurred almost beyond recognition. Special needs searches have always been evaluated on a “reasonableness” standard, and many of them are nothing but criminal searches thinly masquerading as non-criminal searches (for example, testing for drugs in schools, stopping cars to check for drunk drivers, and searching passengers before they board an airplane). Most recently, in Maryland v. King, the Supreme Court applied the reasonableness test to DNA swab of arrestees which was used to determine if the arrestee had committed any other crimes was not a “criminal search.” Applying the reasonableness test to the obtaining of cell phone location data in a bank robbery investigation definitely pushes the envelope even further, but it continues a trend which has been building for a while.
Of course, this aspect of the Davis en banc decision is merely dicta, so perhaps nothing at all will come of it. But as far as the holding of the case is concerned, the court has at least brought consistency back to this area of law.