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.

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.