Federal Criminal Lawyer, Hope Lefeber, Discusses 11th Circuit Ruling Holding Cell Phone Tracking Unconstitutional

On June 11, 2014, the U.S. Court of Appeals for the 11th Circuit ruled that obtaining data from a cell phone tower without “probable cause” violated the Fourth Amendment. In U.S. v. Quartavious Davis, the Court of Appeals ruled that individuals have a reasonable expectation of privacy concerning the data transmitted between their cell phone and their network’s cell tower. Although Fourth Amendment case law has yet to catch up with the realities of modern communication, federal criminal defense attorney Hope C. Lefeber explains that this case is a step in the right direction. The case itself was very straightforward. Davis was charged with, and convicted of, various counts of robbery and racketeering. Part of the government’s evidence was that Davis was physically close to the robberies at the times in question. How did the government know this? Because they accessed cellular tower records and located Davis based on the frequency his cell phone transmitted to the cell towers. Instead of obtaining a warrant, the government accessed the cell tower data pursuant to a court order under section 2703(d) of the Stored Communications Act. According to this section, instead of having to show “probable cause” (which is needed for search warrants), the government simply had to show there were “reasonable grounds to believe” the records were necessary for a criminal investigation. Davis’ argument—that a “probable cause” was required—was rejected by the District Court. On appeal, the 11th Circuit ruled that because the cell data showed Davis’ whereabouts at any given time, an expectation of privacy arose. Moreover, Davis’ mere use of his cell phone did not constitute a voluntary disclosure of this data. Therefore, because this data gave rise to a reasonable expectation of privacy, it was covered by the Fourth Amendment and a showing of “probable cause” was needed. However, the Fourth Amendment only excludes evidence obtained when the government knew (or should have known) that their actions were unconstitutional. In this case, because the government relied on a judicial order and federal statute, the District Court’s refusal to suppress the evidence was not a reversible error.