Circuit Court Cases

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.


Ohio’s Supreme Court is beginning to get a reputation for aggressively protecting Fourth Amendment rights in the digital age.  Six years ago in State v. Smith it held that police officers may not search a cell phone incident to an arrest, foreshadowing the United States Supreme Court’s Riley decision by five years.  Today the Court released a decision which set out strict requirements for law enforcement officials who are seeking search warrants for computers.  The Court held that the search warrant in question lacked particularity because it essentially authorized a limitless search of the defendant’s computer.

egged cartext








In the case, State v. Castagnola, the defendant was initially being prosecuted for selling alcohol to a minor.  He then took the ill-advised step of egging the prosecutor’s car to show his displeasure with the case.  He then took an even less-advised step and bragged about the egging to a friend, first by text and then in person.  The “friend” ended up being a police informer, who was wearing a wire at the time of the defendant’s verbal confession.  The police then obtained a search warrant and searched the defendant’s home (including his computer) for evidence of the egging incident.  Instead, they found evidence of child pornography.  The defendant was ultimately convicted of the child pornography charge.

The issue at the Ohio Supreme Court was two-fold:

First, the defendant told the police informant that he found the prosecutor’s address by tracing him through a parking ticket the prosecutor had received a few years earlier.  In the detective’s affidavit seeking a warrant, the detective erroneously said that the defendant had mentioned that he found the prosecutor’s address after conducting an “online” search–thus supporting the detective’s request to search the defendant’s computer in order to find evidence of the search.  But the defendant in fact never mentioned how he searched for the prosecutor.  The detective had inferred that the search occurred online, but the Court held that such an inference was not strong enough to rise to the level of probable cause that the defendant had used a computer, noting that “[a]lthough we are in the computer age, records of court activity still exist in paper form and are available to the public in clerk of courts’ offices around the state.”  In other words, even though the defendant had admitted that he had searched through court records for the prosecutor’s address, the likelihood that he did so using a computer does not suffice to establish probable cause.

Second, the warrant’s language, which copied the language from the detective’s affidavit, authorized the police to search:

Records and documents either stored on computers, ledgers, or any other electronic recording device to include hard drives and external portable hard drives, cell phones, printers, storage devices of any kind, printed out copies of text messages or emails, cameras, video recorders or any photo imaging devices and their storage media to include tapes, compact discs, or flash drives.

The Ohio Supreme Court noted that this language violated the Fourth Amendment’s particularity requirement because it did not include any “limitation on what records or documents” were allowed to be searched.  Event though the warrant later specified that any evidence that was recovered was to be used as evidence in a retaliation and criminal damaging case, the warrant was still overly broad.  Thus, the evidence should have been excluded–which almost certainly means that the child pornography case will now be dismissed.

The Court’s first conclusion seems a bit strained–is it really feasible to think that the defendant actually went to the county clerk’s office in person to look up the prosecutor’s old parking ticket?  An inference that the defendant conducted an online rather than a physical search seems not only reasonable (and thus sufficient to support probable cause) but almost certain.

But the Court’s second conclusion is surely correct–courts are already struggling with how to draft warrants in order to properly limit searches of computers, and a broad warrant that permits the police to search through every digital file on every digital device does seem overbroad.  Indeed, the law enforcement technician gave a somewhat weak explanation of why she was looking at picture files when she was allegedly looking for evidence of a search for the prosecutor’s court files.  (She explained that she “went to the images [folder] to find images associated with court websites.”)  On this point, at least, the Ohio Supreme Court’s message is clear: narrow your computer search (and your language in the search warrant) to items that are related to the crime you are investigating.







In the recent Supreme Court case of Hein v. North Carolina, the Supreme Court held that a police officer’s reasonable mistake of law can still validly provide reasonable suspicion for a traffic stop.  Although the case caused some concern that police officers would now be able to ignore (or at least creatively interpret) the law when making a traffic stop and then later argue that they made a “reasonable mistake,” I argued that the holding would end up having a very limited application, since a police officer’s mistake of law would almost never be deemed “reasonable” by a reviewing court.

stop sign changing-lanes

Recently the Hein decision has been applied by two lower courts, one of which found that the mistake by the police officer was reasonable under Hein, and one of which did not.  In People v. Guthrie, the defendant ran a stop sign at the edge of a supermarket parking lot in the Village of Newark in New York.  The police officer pulled the defendant over, noticed that he was intoxicated, and charged him with driving while under the influence.  Upon further investigation, the parties learned that the stop sign had not been officially registered in the Newark Village Code, and therefore the sign was not legally authorized under the state vehicle and traffic law.  Thus, the defendant had no legal duty to stop at the stop sign, and the police officer had no legal right to pull him over after he ran through the stop sign.  The trial court therefore dismissed the evidence, and the appellate court agreed.

On appeal, the New York Court of Appeals reversed, holding that under Hein and the applicable New York state law, the officer’s mistake of law was reasonable, and therefore the stop was valid.  The Guthrie Court did not say much about how to determine whether a mistake of law is reasonable or unreasonable; it spent most of its time explaining why the Hein rule was consistent with New York state law and why it was good policy.  Essentially The Guthrie Court adopted the Hein Court’s theory that there should be no distinction between a police officer’s mistake of law or mistake of fact–as long as the mistake is reasonable, the police officer’s stop is still justified.  In discussing the facts of the Guthrie case, the Court provided this rather unhelpful explanation:

[W]e are not saying that it would have been objectively reasonable for the arresting officer to have claimed ignorance of the requirement in Vehicle and Traffic Law § 1100 (b) that a stop sign in a parking lot be registered to be valid. We are saying that the stop was nonetheless constitutionally justified because the officer was not chargeable with knowing each and every stop sign that was registered under the Newark Village Code.

This explanation seems a bit circular: it doesn’t seem to matter whether the officer is expected to know about the requirement that a stop sign be registered if the officer is not required to know which stop signs are in fact registered.  On the other hand, it does seem reasonable that a police officer would believe it was legal to pull someone over for running a stop sign.  The only other options would be to require the police to memorize all of the stop signs in the precinct which are registered, or to require the officer to always look up the status of a stop sign after seeing a suspect run through it.  Neither of these options seems very feasible.

Meanwhile, the Fifth Circuit was deciding the case of United States v. Alvarado-Zarza, in which the police officer pulled over the defendant for failing to signal 100 feet in advance of making a turn.  The stop lead to a consent search, and the search led to a discovery of cocaine in the car.  In a suppression hearing, the defendant pointed out that he was only making a lane change, not making a turn.  The trail court denied the suppression motion, holding that the defendant made the lane change and then made a turn from the new lane, so that the lane change and subsequent turn were equivalent to “one prolonged turn.”  The Fifth Circuit disagreed, holding not only that the turn signal law did not apply to lane changes, but also that applying the law to lane changes was unreasonable:

In Texas, “[a]n operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.” Section 545.104(b) is unambiguous.  Its 100-foot requirement only applies to turns; lane changes are not mentioned.  Further, the statute elsewhere refers to turns and lane changes separately, thereby setting out a distinction between the two.  This distinction is further indicated by the Texas Driver’s Handbook, which defines a lane change as a “lateral maneuver moving the vehicle from one lane to another” and a turn as a “vehicle maneuver to change direction to the left or right.”  See  Mahaffey v. State, 316 S.W. 3d 633, 641 (Tex Crim App. 2010).  The former definition confirms that a lane change, as its name implies, occurs when moving from one lane to another.  A “turn,” on the other hand, involves a change to a vehicle’s direction.  The terms “turn” and “lane change,” therefore, signify distinct actions.   This, Section 545.104(b), by its plain terms, does not apply to lane changes.  

Second, seven months prior to Alvarado-Zarza’s stop, the Texas Court of Criminal Appeals in Mahaffey addressed the distinction between a turn and a lane change.  In that case, a policeman mistakenly concluded that a driver was “turning” by moving out of a lane that was ending.  Although the court did not discuss Section 545.104(b)’s 100-foot requirement, it drew a clear distinction between a turn and other movements, including a lane change.   The court deemed this distinction “plain and unambiguous.”  We interpret Mahaffey to be a rejection of Officer Barrientos’ view.  

Because the caselaw far predates the stop in this case, and because the statute facially gives no support to Officer Barrientos’ interpretation of the 100-foot requirement, we conclude that his mistake of law was not objectively reasonable.

Since the Fifth Circuit was overturning a lower court ruling, it was not merely holding that the police officer’s mistake of law was unreasonable, but also that the district court’s interpretation was unreasonable.  In other words, even when a police officer’s understanding of the law has been confirmed by a trial court judge, it could still be unreasonable.

What lessons can we learn from these two early applications of Hein?   Perhaps the most troubling issue from either of these cases is that the district court in Alvarado-Zarza was willing to construe the turn-signal law so broadly against the criminal defendant, even in the face of all of the arguments to the contrary.  But this is not really a critique of how Hein was applied, since the district court didn’t even think any mistake of law had been made.

In the end, both courts seem to have arrived at the correct result, though the Guthrie Court could have explained its rationale it a bit more detail.  It is hard to argue that the police officer in Guthrie violated the defendant’s rights by pulling him over after he drove through a stop sign–even an “unregistered” one–while the Alvarado-Zarza case refused to give the police office the benefit of the doubt in construing a traffic law, even when a trial court judge agreed with him.  Thus, it seems that so far the Hein decision has not provided police officers with an opportunity to ignore or aggressively interpret the law in their pursuit of traffic stops.

This week the foundation that runs Wikipedia filed a lawsuit against the National Security Agency (“NSA”), arguing that the “upstream” internet surveillance conducted by the NSA violates the agency’s statutory authority, as well as the First and Fourth Amendments to the Constitution.  This is only the latest in a series of legal actions against the NSA in the wake of the revelations about its surveillance by Edward Snowden.  The organization Pro Publica has complied this helpful list which describes thirty-eight different lawsuits that have been filed since 2006 against the NSA, other branches of the Obama administration, or private companies who were complying with NSA orders.  Most of these lawsuits can be roughly divided into four different categories:

(1) The first wave of cases, from 2006 to 2008, which alleged that the government surveillance programs violated the First and Fourth Amendment.  These cases were all effectively disposed of by the 2008 Supreme Court decision of Clapper v. Amnesty International, in which the Supreme Court held that the plaintiffs lacked standing because they could not prove that they themselves had been surveilled by the government.

(2) Lawsuits which seek to release information–either forcing the NSA to reveal more information about its surveillance program, or permitting private companies to reveal the fact that they have provided information to the NSA.  For the most part, these lawsuits have been successful, although many are still pending.

(3) Criminal defendants who are challenging the use of covert NSA surveillance evidence in their case.  Many of these cases are still pending, but so far none have been successful.

(4) A second wave of cases, post-Clapper v. Amnesty International, in which various organizations claim that the NSA surveillance programs violate its statutory authority and the Constitution.  The new case filed by Wikimedia falls under this category.

There are three separate NSA programs that are being challenged by this second wave of lawsuits.  The first is the “bulk metadata collection” program, in which the NSA collects massive amounts of non-content data from private companies, such as telephone numbers, email addresses, and other “address” information.  Because the NSA was collecting this information pursuant to Section 215 of the USA Patriot Act, this surveillance is sometimes referred to as “Section 215 collection.”  The second program is codenamed “PRISM,” and it involves the NSA collecting information that is stored by private companies (Microsoft, Facebook, Google, Apple, etc.).  PRISM data included content information, but (allegedly) the surveillance would only take place if the NSA agent has a “reasonable belief” (defined as at least 51% assurance) that the specified target is a foreign national who is overseas at the time of the data collection.  Because this program is allegedly authorized by Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), it is sometimes referred to as “Section 702 surveillance.”  The third program is codenamed “UPSTREAM,” and it involves realtime interception of data and communication flowing across the fiber cables and other infrastructure of the internet (sometimes called the “backbone” of the internet).  The UPSTREAM program collects large amounts of data as it is transmitted, but then uses software filters to filter out purely domestic transmissions and then further filters the data to look for specific target words that would make the message of particular interest to the NSA.

upstream-slide    prism-slide-2

With the new Wikipedia lawsuit, there are now five lawsuits pending in federal court which challenge these programs:

Jewell v. NSA (filed in 2008) — This case was filed in the Northern District of California by the Electronic Frontier Foundation, an advocacy group for digital privacy, on behalf of Carolyn Jewel and other AT&T customers.  The plaintiffs were seeking an injunction against the NSA’s bulk collection of telephone metadata and against the NSA’s UPSTREAM  surveillance program.  The case was originally dismissed in 2010 for lack of standing, but was re-instated by the Ninth Circuit in 2011.  Most recently, the plaintiffs suffered a setback in February of 2015 when the district judge granted the government’s motion for summary judgment on the issue of UPSTREAM surveillance, holding that the publicly available information was not sufficient to support the plaintiff’s standing in the case, or to adjudicate the substantive Fourth Amendment issues:

Notwithstanding the unauthorized public disclosures made in the recent past and the Government’s subsequent releases of previously classified information about certain NSA intelligence gathering activities since 2013, the Court notes that substantial details about the challenged program remain classified. The question of whether Plaintiffs have standing and the substantive issue of whether there are Fourth Amendment violations cannot be litigated without impinging on that heightened security classification. Because a fair and full adjudication of the Government Defendants’ defenses would require harmful disclosures of national security information that is protected by the state secrets privilege, the Court must exclude such evidence from the case.

The trial court noted that this was a “frustrating” ruling:

The Court is frustrated by the prospect of deciding the current motions without full public disclosure of the Court’s analysis and reasoning. However, it is a necessary by-product of the types of concerns raised by this case. Although partially not accessible to the Plaintiffs or the public, the record contains the full materials reviewed by the Court. The Court is persuaded that its decision is correct both legally and factually and furthermore is required by the interests of national security.

Notwithstanding this recent ruling, the Jewell case is still pending, since the court only granted summary judgment on the UPSTREAM surveillance question, not on the bulk collection of telephone metadata.
Klayman v. Obama (filed in 2013) — This case was filed in the District of Columbia District Court by customers of Verizon Wireless, and it challenges the NSA’s bulk metadata collection program.  In December of 2013, District Court Judge Leon ruled in favor of the plaintiffs and granted an injunction that would bar the NSA from continuing the surveillance.  The judge then stayed the injunction pending appeal.  The most controversial aspect of Judge Leon’s opinion was his rejection of the Supreme Court case Smith v. Maryland, which held that the Fourth Amendment does not protect telephone numbers that an individual dials, both because of the third party doctrine and because the telephone numbers are merely “address” information as opposed to “content” information.  The government understandably relied heavily on Smith in its argument that the surveillance program did not violate the Fourth Amendment, but Judge Leon essentially held that Smith‘s reasoning–and therefore, presumably, its holding–was hopelessly outdated:

The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable. 

The case is now on appeal to the D.C. Circuit, and oral argument took place in November of 2014.


ACLU v. Clapper (filed in 2013) — This case was filed in the Southern District of New York by the ACLU as Verizon subscribers, challenging the NSA’s bulk metadata collection program.  In December of 2013, just a few days after Judge Leon ruled against the government in Klayman, Judge William Pauley ruled in favor of the government in this case.   Judge Pauley cited Smith v. Maryland as binding Supreme Court precedent, and also noted the necessity of this kind of surveillance in the modern world:

No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific, Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the Government’s counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda’s terror network.

The case is now on appeal to the Second Circuit, and oral argument took place in September of 2014.


Paul v. Obama (filed in 2014) — This is a lawsuit filed in the District of Columbia District Court  by Senator Rand Paul and FreedomWorks, challenging the warrantless collection of cell phone records and metadata by the NSA.  it is currently pending in the D.C. District Court.  Although this lawsuit has more political overtones than the others, since the lead plaintiff is likely to be a contender for the Republican nomination in the 2016 Presidential Contest, the plaintiffs claim it is different from the others because it has been filed as a class action on behalf of “all Americans.”


Wikimedia vs. NSA (filed in 2015) — This lawsuit was filed just this week in the District of Maryland.  Like the Jewel case, Wikimedia’s case challenges the NSA’s UPSTREAM surveillance program.  And like the Jewel case, this case could be dismissed in whole or in part because national security secrecy makes the plaintiffs unable to establish a cause of action.  However, if the case is able to go forward, the case will likely turn on when (if ever) the NSA is held to have “searched” and “seized” the data in the UPSTREAM program.  The following graphic (which comes from the Electronic Frontier Foundation’s website) explains the case from Wikimedia’s point of view, arguing that the internet traffic is “seized” when it is copied as it flows along the internet backbone, and then “searched” when the NSA’s computer software sifts through it to identify messages and data that include the suspicious words or terms.


One question that a court will eventually have to decide is whether this information is actually ever being “seized.”  A seizure occurs when the government exercises “some meaningful interference” with an individual’s possessory interest in the property.  But merely copying data as it flows through the fiber-optic cables is not really a seizure–it does not interfere at all with the individual’s possessory interest.  Under current Supreme Court doctrine, merely making a copy of information does not constitute a “seizure”–although this doctrine has been criticized by some commentators, it is hard to see how any other rule would be consistent with existing law.

The real question is: when is the information “searched?”  If the government has copies of all of the data flowing across the internet, it does not help the government at all (nor does it meaningfully infringe on our privacy rights) unless the government actually looks at the data–and once the government looks, it has committed a search.

But what exactly constitutes “looking” at the data?  When a computer program sifts through the data looking for specific key words, can we classify that as a “search,” even if no human being ever sees the data?  In a 2005 article, I wrote that using software in this way could be a valuable new tool for police–increasing the efficiency of law enforcement with very little intrusion into our privacy.

As technology gets more sophisticated, software will be better able to focus on illegal behavior and thus narrow the scope of the surveillance—perhaps even to the point where the surveillance only alerts a human law enforcement agent when there is a near certainty of illicit conduct.  At that point, only the mindless computers  will “know” the private information about what we are writing, and they will quickly and unconsciously examine and discard any private innocent information they discover.  In the meantime, the human law enforcement agents will leave us alone. 

The NSA collection methods are coming close to reaching this point, but we are not there yet.  Unfortunately, the NSA filters still allow a large amount of innocent data to come through–and as soon as the NSA officers look at innocent information, they are conducting a “search.”  It may be a very efficient search, with a very high probability of leading to illegal activity, but it is still a search.  Perhaps the filters are refined enough such that there is probable cause to believe that any data that survives the filter is evidence of a crime.   Perhaps the filters are effective in removing all purely domestic communications, and so can all be justified under a FISA warrant.  But until we get a full, public review of the program, we will be unable to answer these questions.

Next week the Eleventh Circuit will hear the en banc appeal of United States v. Davis.  This case involves the use of cell tower location information to track the movements of a suspect.  Last year a three judge panel ruled that the government needed to obtain a warrant before it could acquire this information from the phone company.  Next week, the Eleventh Circuit will re-hear the case en banc and decide whether they will pull back from the broad holding and expansive reasoning of the original decision.

cell tower location display

In the Davis case, the government suspected the defendant of numerous armed robberies.  During its investigation, the government obtained a court order to acquire the cell tower location data from the defendant’s phone pursuant to the Stored Communications Act (“SCA”).  At the outset, it should be noted that this information is the least intrusive and least precise type of location information that is available from an individual’s cell phone.  Cell tower location information merely tells the phone company (and in this case, the government) the one or two towers which were used to contact the suspect’s phone when he made or received a phone call, as well as the direction the suspect was in relation to the tower(s).  These are usually, but not always, the closest cell phone towers to the suspect at the time he or she used the cell phone.  The data is only created when the suspect actually uses the cell phone–usually when he or she is making or receiving a call.  In contrast, when law enforcement officers have the phone company “ping” a cell phone, or when it uses the GPS device built into the cell phone,the officers obtain a real-time, continuous, precise location of the suspect, regardless of whether the suspect is using the cell phone at the time.

Under the SCA, the government need only show “specific and articulable facts” that the information could be linked to a crime in order to obtain a court order.  Davis argued (and the three judge panel agreed) that acquiring this location information was a Fourth Amendment search, and so the government needed to obtain a warrant based on probable cause before gaining access to this data.  The three-judge panel acknowledged that this was a case of first impression, and so it relied heavily on Justice Alito’s four justice concurrence in the Jones case in its reasoning.  In Jones, four justices found that a twenty-eight day continuous surveillance using a GPS was a Fourth Amendment search because of the “mosaic doctrine”–i.e., the government learned so much public information about the defendant that it created a mosaic which revealed private, protected information.  The three-judge panel in Davis acknowledged the difference between the two fact patterns, but argued that the case was “sufficiently similar” to make it “clearly relevant” to their analysis.

In fact, the distinctions between Davis and Jones are significant, and they all point to the conclusion that the search in Davis does not deserve Fourth Amendment protection.  The only reason the Alito concurrence found that the government surveillance in Jones constituted a search was because of the large number of trips that were tracked; in the Davis case, the government only examined a small number of incidents (specifically, the times when a robbery was occurring).  But the Davis three judge panel ignored this distinction, arguing that tracking a person’s public location even once could constitute a search: “…[E]ven on a person’s first visit to a gynecologist, a psychiatrist, a bookie, or a priest, one may assume the visit is private if it was not conducted in a public way.”  The Jones case also involved tracking an individual at all times, while the police in Davis only gained location information from the defendant when he voluntarily provided that information to the phone company by using his cell phone.  And finally, the Jones location information was much more precise, showing the police exactly where the defendant’s car was located; the Davis location information only showed the general area where the defendant was located.  (The three judge panel brushed this difference aside, arguing that because the prosecutor claimed the cell phone location placed the defendant “near each of six crime scenes,” it could place him “near any other scene” as well, including the “home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.”)

Essentially the Davis panel appeared to be arguing that since an individual may want to keep his general location at any given time private from the government, the Fourth Amendment protects the government from learning that information unless it first obtained a warrant.  This is certainly not supported by Jones and directly contradicts Knotts, which allows the government to use electronic means to track an individual over the course of one trip.

The only significant difference the Davis panel found between its case and the Jones case was that the Jones case involved tracking a car, whereas the Davis case involved tracking a cell phone.  The Davis court concluded that a person has less reasonable expectation of privacy in the movements of a car, because it is easily visible when in public, than it does in the movements of an individual (as tracked through a cell phone), which may not be so easily visible.  Unfortunately for the Davis court, no other court has made any such distinction.  The only distinction that matters is whether the location being tracked is in public (as in Knotts) or in private (as in Karo)–and, after Jones, whether there is so much information that it creates a mosaic.  Neither of those distinctions existed in Davis.

Finally, the Davis court had to overcome one more obstacle in order to come to its extraordinary conclusion: it had to deal with the third party doctrine.  As a general rule, a person loses all Fourth Amendment protection for any information that he or she turns over to a third party (such as a phone company).  The Davis court argued that the third party doctrine only applies when a person “voluntarily and knowingly” conveys information to a third party, and then claimed that a cell phone user has no idea that he or she is conveying her location to the phone company when he or she makes a cell phone call.  The first step of this argument seems questionable as a matter of law (there is no strong support for the proposition that the third party doctrine only applies to “voluntary and knowing” transfer of information) and the second step of this argument seems flat out wrong as a matter of fact (regardless of what the defendant in Davis might have thought, most people must know that the cell phone company needs to determine the location of their phone in order to send calls to it).

The Davis court ultimately ruled for the government and refused to suppress the evidence based on the good faith exception to the exclusionary rule, but its reasoning and dicta regarding cell phone location information still stands.  If the en banc court does not overturn that aspect of the case, it will represent a radical expansion of the Jones case–an expansion that is not consistent with the rest of Fourth Amendment doctrine in this area.


Last year, the United States Marshal’s Service tracked down a fugitive named Steven Denson to a house in Witchita, Kansas.  Before they stormed the house, however, they took a sensible precaution and placed a radar device on the outside of the wall to determine the location of the individual in the house.  They then entered the house, arrested the fugitive, and found a number of illegal guns as well.

ranger-radarradar through wall

The marshals had a warrant for Denson’s arrest, but they did not have a search warrant for the home.  Thus, they were only permitted to enter the home if they had “reason to believe” that Denson was inside the home at the time.  Denson challenged the entry into the home, arguing that the police officers only developed a reason to believe he was inside after using the radar device, which violated his Fourth Amendment rights.

The Tenth Circuit rejected Denson’s argument  and held that the officers did not violate the Fourth Amendment.  According to the court, the officers already had reason to believe that Denson was inside even before they used the radar device.  Thus, the court applied the independent source doctrine from the Supreme Court’s holding in Murray v. United States and allowed the search to stand without resolving the question of whether the radar device violated Denson’s Fourth Amendment rights.  Here is the Tenth Circuit’s description of the device:

the government brought with it a Doppler radar device capable of detecting from outside the home the presence of  “human breathing and movement within.”  All this packed into a hand-held unit “about 10 inches by 4 inches wide, 10 inches long.”  The government admits that it used the radar before entering — and that the device registered someone’s presence inside.  It’s obvious to us and everyone else in this case that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions.  New  technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights.  See, e.g., Kyllo v. United States, 533 U.S. 27, 33-35 (2001) (holding that using warrantless thermal imaging to show activity inside a home violated the Fourth Amendment).  Unlawful searches can give rise not only to civil claims but may require the suppression of evidence in criminal proceedings.  We have little doubt that the radar device deployed here will soon generate many questions for this court and others along both of these axes.  At the same time, in a criminal proceeding like ours the government is free to rely on facts gleaned independently from any Fourth Amendment violation.

This analysis seems cautious to a fault.  There is no conceivable way that the use of the radar device is consistent with the Kyllo case.  If law enforcement officers are conducting a Fourth Amendment search when they use a thermal imager to detect the emanations of heat inside of a home, then they are certainly conducting a Fourth Amendment search when they use a radar to detect the presence, movement, and location of individuals inside a house.  And although these devices are apparently becoming more and more popular among law enforcement, they have certainly not risen to the level of being “in general public use,” as required by Kyllo.

The use of the radar device to establish probable cause is even more clearly unconstitutional given the Supreme Court’s recent case of Florida v. Jardines, which held that a drug-dog sniff at the front door of a house constituted a Fourth Amendment search.  In Jardines, the court held that the use of a surveillance tactic which ordinarily does not implicate the Fourth Amendment becomes an unconstitutional search when it is used at the front door of a home.  In the Tenth Circuit’s case, the court was reviewing a surveillance tactic that is more intrusive than the thermal imager in Kyllo and which involved a United States Marshall placing the device directly on the outer wall of a home–a location where an individual arguably has a greater expectation of privacy than the front door.

Regardless, the Tenth Circuit’s holding in this case was almost certainly correct.  Even without the information from the radar device, the United States Marshals had sufficient evidence to establish probable cause (or at least “reason to believe,” which may be an even lower standard) that Denson was in the home.  Denson was the primary account holder on the utility for the home; and he was unemployed and running from the police, and the electric meter was  “going faster than normal”–all of which would lead the officers to believe that someone was home at the time.  Furthermore, the use of the radar device by the marshals seems perfectly legitimate in this case–once the marshals had established probable cause to believe that Denson was inside, they used the device to ensure their safety for when they entered the house.  This is a perfectly reasonable, non-investigatory use of the technology.

But even though the marshals acted properly and the Tenth Circuit reached the proper result, one could still hope that the court had been a little bolder with its dicta regarding the radar device.  Surely the question of whether the use of the radar gun was consistent with Kyllo had been fully briefed and argued by both sides, and thus there was no reason not to firmly state that the use of this device to establish probable cause violates the Fourth Amendment.  Instead, the court decided to avoid the issue and save it for another day.  This inevitably means that in some future case, a law enforcement officer will use a radar device to establish probable cause in the fruitless hope that this kind of surveillance is constitutional–with the result that the defendant’s conviction will be overturned and a criminal will walk free.  Stronger guidance on this point might have avoided that unfortunate result.

In  Griffin v. Wisconsin and United States v. Knights, the Supreme Court upheld warrantless searches of the homes of probationers as justified by the Fourth Amendment’s “special needs” doctrine.   According to the Court, probation conditions served two purposes: rehabilitation and protecting society from future criminal violations by the probationer.  Under the creative logic of the special needs doctrine, these are purposes unrelated to crime control and thus the usual requirements of warrants and probable cause to not apply to law enforcement searches of probationers.  Also, probationers (like school children) have a lesser Fourth Amendment privacy interest than ordinary citizens.  The Supreme Court also noted that in both Griffin and Knights, the sentencing court had explicitly set out a probation condition that allowed the police to conduct a warrantless search the probationer’s home.   But the Court left open the question as to whether or not the constitutionality of the warrantless search depended on such an explicit condition, or whether the non-law enforcement purpose and reduced privacy interests of probationers alone was sufficient to permit such searches.

The Fifth and Eleventh Circuits ruled that probationers could not object to warrantless searches of their home even if this was not an explicit condition of their probation, but recently the Fourth Circuit came down on the other side of this issue.   In United States v. Hill, 13-4806 (4th Cir. 2015), the court held that the probationers’ knowledge of the warrantless search condition in Griffin and Knights were “critical” to the Supreme Court’s determination that the probationers had a diminished expectation of privacy in their home.   (A pre-Griffin case in the Fourth Circuit had already come to this conclusion, and the Fourth Circuit determined that none of the Supreme Court case law since then had explicitly overruled this principle).   Thus, the police officers violated his rights when (acting with what was likely only reasonable suspicion) they entered his home with a drug dog and found narcotics behind a ceiling tile in the bathroom.

This creates a circuit split on this issue, though the issue is narrow enough that it seems doubtful that the Supreme Court will take notice.  Meanwhile, the Fourth Circuit decision is unlikely to result in a significant setback for the government; the most probable effect of the ruling will be that prosecutors in the Fourth Circuit will now simply seek to add a warrantless search condition to every probationary sentence.


Like many users of child pornography, Michael Meister kept his photos and videos on his computer.  When his computer stopped working, he took it into a computer repair store, True North, to transfer the data from the inoperable hard drive to a new computer.  During the transfer process, the technician noticed the child pornography and contacted the police, who immediately seized the computer.  The police also looked  transferred the offending data–now inside True North’s system–onto two separate DVDs, and conducted two separate searches of that data.  Based on the information found on the hard drive, the police obtained a search warrant and then conducted another search of the laptop.

broken laptop

After Meister was arrested, he moved to suppress all the information found on his computer.  Unsurprisingly, the  District Court denied the motion, and the Eleventh Circuit agreed.  The court held that this was a simple application of the third party doctrine:  “The Fourth Amendment only applies to governmental action; ‘it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’  Once a private individual, acting of his own accord, conducts a search—even one that frustrates a defendant’s reasonable expectation of privacy—the Fourth Amendment does not forbid the government from replicating the search.”  Furthermore, even if the pre-warrant searches by the police were beyond the scope of the third party doctrine, the police would have found all of the contraband images eventually after they obtained their warrant, and so the searches fell under the inevitable discovery doctrine.

On one level, the Meister case is very straightforward.  But it also raises an interesting issue regarding the third party doctrine.  Today, more and more courts are criticizing the application of the third party doctrine to digital information, arguing that the doctrine should not apply to such data because in modern times so much data is entrusted–sometimes unknowingly, sometimes unavoidably–to third parties.  When computer data is stored in the cloud, or when e-mails in transit pass through remote servers on the way to their recipient, the owner of the data may not have consciously entrusted the data to a third party.  Thus, the argument goes, entrusting digital data to third parties is not at all like the “assumption of risk” that occurs when you give financial records to a bank or confide to a police informant.  This argument was first made well before the computer age, by the dissenting Justices in the much-maligned Smith v. Maryland who decried the application of the third-party doctrine to data about outgoing telephone numbers that were held by a telephone company:

Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment doctrine, the defendant presumably had exercised some discretion in deciding who should enjoy his confidential communications. By contrast here, unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance.  It is idle to speak of “assuming” risks in contexts where, as a practical matter, individuals have no realistic alternative.

No doubt Meister’s actions fall under the category of being a “conscious choice”–he physically took his computer to a repair store and asked them to transfer the data.  But it is not hard to tweak the facts a bit and make the case more like the scenario described by the Smith v. Maryland dissenters.  What if Meister’s data had been corrupted, and so he sent his data electronically to a company to fix it?  Probably still a conscious choice.  What if he stored it in the cloud, and one of the data storage units in the cloud had become damaged, and a technician (without Meister’s knowledge) had to transfer the data from one storage unit to another?  Probably not a conscious choice.  Of course, under current Fourth Amendment law, the mere storing of the data in the cloud would trigger the third party doctrine.  But as the courts are revising the third party doctrine to exclude data that is automatically stored or transferred by third party actors, they will need to refine exactly when (if ever) repair and maintenance of that data might re-invoke the doctrine.

In one of the first circuit court cases to consider the search of a cell phone incident to arrest in the post-Riley world, the Ninth Circuit firmly rejected all of the government’s attempts to make an end-run around the Riley case.  In United States v. Camou, a police officer arrested Chad Camou and  his girlfriend Ashley Lundy for smuggling an illegal immigrant.  During her interrogation, Lundy told the officers that they had received instructions on where to pick up the immigrant from a person named “Mother Theresa.”   In the meantime, Camou’s cell phone (which had been seized by the police) rang several times, and Lundy identified the number as belonging to Mother Theresa.   The officer looked  through the call log of the telephone, and found a number of other calls from Mother Theresa.  The officer then examined the photos on the phone and found–you guessed it–child pornography.  Camou was duly charged with possession of child pornography.  (The original immigration smuggling charges were dropped).

The government had three plausible arguments to get around the Riley decision.  First, the government argued that the because the defendants were arrested in their vehicle, the automobile exception should apply instead of the search incident to arrest exception.  Under Gant, the police are allowed to search any container that is found in a car as long as there is reason to believe that the container contains evidence or contraband–and given the facts of the case, the police probably had reason to believe there was information about the crime of arrest on the phone.  The Ninth Circuit rejected this argument, extending the Riley rationale to the automobile exception:

Given the Court’s extensive analysis of cell phones as “containers” and cell phone searches in the vehicle context, we find no reason not to extend the reasoning in Riley from the search incident to arrest exception to the vehicle exception. Just as “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” so too do cell phones differ from any other object officers might find in a vehicle. Id. at 2489. Today’s cell phones are unlike any of the container examples the Supreme Court has provided in the vehicle context. Whereas luggage, boxes, bags, clothing, lunch buckets, orange crates, wrapped packages, glove compartments, and locked trunks are capable of physically “holding another object,” see Belton, 453 U.S. at 460 n.4, “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Riley, 134 S. Ct. at 2488-89 . In fact, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” Id. at 2491 (emphasis in original).

The government then argued that the exigency exception should apply–a possibility that was explicitly kept open in the Riley decision.  But the Ninth Circuit rejected this as well.  The court quoted the Supreme Court’s language in Riley:
“When “the police are truly confronted with a ‘now or never’ situation—for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt—they may be able to rely on exigent circumstances to search the phone immediately.”    But the Ninth Circuit held that the government did not meet its burden of proving any “special circumstances” in this case: “Here, the search of Camou’s cell phone occurred one hour and twenty minutes after his arrest. This was not an “imminent” “now or never situation” such that the exigency exception would apply. Moreover, the record does not indicate that Agent Walla believed the call logs on Camou’s cell phone were volatile and that a search of Camou’s phone was necessary to prevent the loss of recent call data.” 

Finally, the government argued that the good faith exception should apply, since the police officer conducted the search before Riley had been decided, and thus under Herring v. United States, the police officer acted in good faith.   The Ninth Circuit pointed out that even before Riley had been decided, the law stated that a search incident to a lawful arrest had to occur “contemporaneously” with the arrest, and that this search occurred eighty minutes after the arrest.  The government had responded to this argument by claiming that Herring held that a mistake by the police officer would not invalidate the search unless the officer acted “reckless or deliberate” officer conduct.  But just as the Ninth Circuit interpreted Riley broadly, it interpreted Herring narrowly:

The Supreme Court has never applied the good faith exception to excuse an officer who was negligent himself, and whose negligence directly led to the violation of the defendant’s constitutional rights.3 Here, the government fails to assert that Agent Walla relied on anyone or anything in conducting his search of Camou’s cell phone, let alone that any reliance was reasonable. The government instead only asserts that by searching the phone, Agent Walla was not acting “recklessly[,] or deliberately” misbehaving.  In this case, the good faith exception cannot apply.

Finally, the Ninth Circuit pointed out that even if one of these exceptions had applied, the government would still have lost the case because the police search of the phone was not supported by probable cause.  Although the police had probable case to believe that the phone call logs contained evidence of the immigration crime (and thus the police could presumably have obtained a warrant to look at the call logs), the search they conducted was overbroad because the police went beyond the phone log and searched through Camou’s photos and videos as well.  Like the reasoning in the rest of the opinion, this part of the holding demonstrates that the Ninth Circuit is embracing the spirit of the Riley decision by treating smart phone searches as qualitatively different from any other type of search.