Recent 11th Circuit En Banc Case Regarding Cell Phone Tracking

Federal Criminal Defense Attorney Hope C. Lefeber Discusses Recent 11th Circuit En Banc Case Regarding Cell Phone Tracking

Circuit Court of Appeals to rehear arguments regarding constitutionality of warrantless cell phone tracking.

Philadelphia, Pennsylvania February 28, 2015

On February 23, 2015, the U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, heard arguments in U.S. v. Quartavious Davis, 573 Fe3d. Appx. 925 (11th Cir. 2014)—a case initially decided by a three-judge panel in June 2014 addressing the constitutionality of warrantless cell phone tracking.

According to court documents, as part of the Government’s investigation into Davis for robbery and racketeering, they obtained, without a warrant, 11,606 location records from cell phone towers—showing Davis’s precise location 173 times per day for 67 days. At trial, the District Court refused to suppress this evidence and Davis was convicted. Considering the appeal initially, a three-judge panel ruled that because cell data showed Davis’ whereabouts at any given time, an expectation of privacy arose. Therefore, in obtaining data from a cell phone tower without “probable cause,” the Government violated the Davis’s Fourth Amendment rights. However, since the Government relied on a judicial order and on § 2703(d) of the Stored Communications Act, the District Court’s refusal to suppress the evidence was not a reversible error.

This week the full panel of the Eleventh Circuit heard arguments on the appeal. Precisely, the two issues before the Court are: (1) whether the warrantless seizure or compelled disclosure of the cell tower data violates the Fourth Amendment; and (2) whether the seizure of data spanning 67 days was an unreasonable violation of the Fourth Amendment where the Government, in seeking access to the records, asserted that only 7 days of data were material.

Ms. Lefeber explains that regardless of the outcome, there is a strong possibility that this case (or one like it) will get the attention of the Supreme Court. Until recently, courts’ analyses of the Fourth Amendment revolved around a 1967 Supreme Court case concerning bugged public telephone booths. Ms. Lefeber observes that the Supreme Court has modernized its Fourth Amendment jurisprudence to meet some of the demands of modern technology, addressing warrantless GPS surveillance in 2012, and warrantless cell-phone searches in 2014. According to Ms. Lefeber, searching cell towers could be the next step, particularly since the federal circuits are not united in their approach.