The Lawletter Vol 40 No 8
The Fourth Circuit recently held that the Government's warrantless procurement of historical cell site location information ("CSLI"), for an extended period of time, recorded by the defendant's cell phone service provider, was an unreasonable search in violation of the defendant's Fourth Amendment rights, even though the CSLI records were kept by cell phone companies in the ordinary course of business. United States v. Graham, Nos. 12-4659 & 12-4825, 2015 WL 4637931 (4th Cir. Aug. 5, 2015). The court stated that the examination of a person's historical CSLI can enable the Government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Id. at *8. "Cell phone users have an objectively reasonable expectation of privacy in the information. Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies." Id. The court came to this conclusion after an extensive review of U.S. Supreme Court opinions, other authority, and the evolving technology. In the case before it, the CSLI obtained by the Government covered a 221-day period, and the records revealed over 28,000 location data points for each defendant.
Ultimately, however, the court upheld the denial of the defendant's motion to suppress the CSLI, finding that the search fell within the good-faith exception to the exclusionary rule because the Government relied on procedures in the Stored Communications Act ("SCA") and on two court orders issued by magistrate judges in accordance with the SCA, the SCA was not facially unconstitutional, and there was no binding appellate court precedent suggesting that the SCA was unconstitutional as applied to CSLI from cell phone providers.