Cell Phone Location Data Warrantless Searches

Last year I wrote an article that fore told of the July 30, 2013 Fifth Circuit Court of Appeals decision ruling constitutional warrantless applications for historical and real time cell phone location data. (http://www.phila-criminal-lawyer.com/Publications/005061214-Hark.pdf). The Fifth Circuit ruling, In re Application for Historical Cell Phone Data, 11-20884, is predicated upon the 2010 amendments to the Stored Communications Act, 18 U.S.C. § 2701 (the “SCA”).

In those amendments, Congress responded to updated government demand for advanced surveillance techniques of electronic and wire data previously unavailable to law enforcement. The SCA regulates the manner in which law enforcement can obtain data concerning private electronic and wire communications, the contents of these transmissions, and other historical information electronic communication service providers (“ECS”) must now store.

At issue in these cases is the statutory definition of the term Other information. Congress defined this information as historical and real time “cell site location information” (“CSLI”); antenna towers used, the date, time and length of call, call handoffs, registrations, and connection records. This is the GPS triangulation evidences that pin-points historical and real time subscriber location within fifty feet of where a cellular phone call was made or received or smart phone internet usage triggered.

The heart of the 2010 SCA amendments is § 2703(d), which authorizes government application for historical and current content and CLSI without a warrant or subpoena. This provision requires a court order for access to certain content and all CSLI. The magistrate shall issue the order “if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” The § 2703(d) application is filed ex parte and under seal. It is for the magistrate to insure the government has met its limited burden of proof of “specific articulable facts that CSLI is relevant and material to an ongoing criminal investigation.” Typically, judicial deference to the case agent’s opinion as to materiality, without a hearing, occurs.

In the July 2013 In re Application for Historical Cell Phone Data decision, the magistrate originally denied the government’s ex parte application, concluding the government’s request for “compelled warrantless search of cell phone historical data violates the Fourth Amendment.” The District Court affirmed this ruling concluding the statute violated the constitution and the required test was probable cause, not reasonable articulable facts.

When confronted with this same issue in 2010, the Third Circuit became the first appellate court to review a magistrate’s denial of a § 2703(d) application in In re Application, 620 F.3d 304 (2010). Prior thereto, numerous district courts addressed various issues regarding government access to prospective CSLI through § 2703(d) alone or in a hybrid application utilizing pen register and trace and trap statutes. Procedurally, the magistrate, joined by several colleagues, held that the probable cause standard applied and denied the government’s application. The government appealed and the District Court affirmed. The Third Circuit reversed and remanded for a factual finding to determine if the government met its burden of proof under the lower standard. The court considered the data personal and private afforded is constitutional protection. The issue was whether the government met its burden of proof under the SCA.

In its reversal of the District Court, the Third Circuit upheld congressional prerogative of allowing ex parte government access to historical and prospective CSLI, of which a privacy interests exist, based upon the mere representation of reasonable grounds to believe that cell or smart phone location is relevant and material to an ongoing criminal investigation. This standard is lower than probable cause and reasonable suspicion. Further, the court concluded that the magistrate must issue the order upon concluding the government met its burden of proof.

The legal reasoning the Fifth Circuit took is significantly different from the Third Circuit. The Fifth Circuit concluded there is no judicial discretion once the government satisfies the statute’s factual predicate of ‘reasonable grounds of criminal activity’. The constitutionality of this factual predicate, however, the Fifth Circuit ruled, is sound because they conclude the CSLI information sought is a business record and not personal privacy data information. This is the marked departure from other appeals courts that have addressed this issue.

Having held historical CSLS information is a business record, the court relies upon Supreme Court precedent to conclude the business records sought are not afforded constitutional privacy protections. Once the government proves it is entitled to the information sought (“through reasonable grounds” of criminal actively or relevance to a criminal investigation), courts must defer to Congressional authority which the SCA permits warrantless, ex parte searches of ‘business records’ based upon the lower ‘articulable facts’ standard and not reasonable suspicion. Having done so, the Fifth Circuit allowed the application for the data.

The business records conclusion is significant. Rather than evaluate the historical cell phone data as tracking information, the Fifth Circuit lowered the expectation of privacy associated with such data and declined to assert a constitutional benchmark for securing such records. This is a marked break from reality and an excuse to allow for congressional meddling in the privacy rights of the citizens of the United States. To categorize historical cell phone location information as data upon which billing and charges are based and not location data is an excuse to differ to Congress and allow for a lower standard of search criteria.

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Illegal Police Searches of Cell Phones and the Privacy of Your Data

In our digital age, new criminal fact patterns arise every day. Our nation’s federal and state appellate courts confront daily the realities of modern day smart phone technology in the context of warrantless searches and seizures of personal information. The case of US v. Wurie, recently decided by the First Circuit Court of Appeals (which hears cases in Maine, Massachusetts, New Hampshire, and Vermont) is just such a matter.  This court rejected government warrantless searches of cell phones.

Here, the police officers were conducting a drug investigation traffic stop of Mr. Wurie’s car in a high crime area after observing a drug transaction. Wurie’s vehicle was stopped, he was detained, and taken to the police station for processing. While in custody, the police observed in plain view on Wurie’s cell phone incoming calls identified as “my house”. The officers picked up the phone, touched the screen once and observed numerous missed calls from “my house”. The officers touched the screen again and observed a photograph/ screen wallpaper shot of a woman and a baby. The officers pressed one more button, gaining access to Wurie’s call log and retrieved a phone number associated with the incoming phone call “my house”. Thereafter, the officers used that phone number and the online white pages reverse phone directory to learn the address associated with that phone number.

Upon further questioning Wurie, who was now mirandized, identified a separate home address. Thinking subjectively that Wurie was a drug dealer, the police took Wurie’s house keys, proceeded to the “my house” location, and observed the same women and child in the picture they observed on his phone. The officers then secured the residence and, based upon additional factual allegations, secured a warrant to search the house, finding 215 grams of crack cocaine.

Wurie filed a motion to suppress, alleging that the officers’ touching and reading his cell phone information was a warrantless search outside the scope of the Fourth Amendment. The District Court denied the motion, finding that the information gleaned from the cell phone was a legal Chimal search-incident-to-arrest. The trial court concluded that simply looking at the identifying cell phone number, or looking through a call log, photographs, or text messages was justified and such was freely searched incident to a lawful arrest, necessary to preserve proper evidence on the cell phone, or, in the context of a warrantless search, justified by a need to protect the arresting officers or preserve destructible evidence. This was in contrast to other courts which have concluded that warrantless searches of cell phones are illegal in accordance with United States v Chadwick as an item in the possession of a detained individual cannot be searched once it comes to the exclusive control of the police absent exigent circumstances.

The Court went to great lengths to draft a categorical decision. The government argued that Wurie’s cell phone was an item immediately associated with the defendant’s person because he was carrying it on him at the time of his arrest. As such, iphones, ipads, or other smart phones, the government argued, should be allowed to be searched at the time of arrest because the Fourth Amendment only places a reasonableness requirement on such searches.  The court equated this cell phone search to those searches undertaken following arrest that are in inherently unreasonable because they can never be justified by either protecting officers or preserving evidence. As well, the court emphatically disagreed with the Government’s argument that a cell phone is like any other item carried on a person (a wallet) that the Supreme Court has allowed to be thoroughly searched incident to lawful arrest.

The Court rejected this argument for one primary reason: 85% of Americans who own cell phones use the devices to do much more than make phone calls. These smart phones have become depositories for all forms and depth of personal, private information. Significantly, the government did not acknowledge, but the First Circuit concluded, that a warrantless search of luggage is not similar to that of a warrantless search of personal computers and iPhones. This is because of the nature and extent of the information contained on the smart devices as compared to that in a piece of luggage.
As well, the typical basis to search luggage is to insure no weapons or contraband is present. Short of touching the smart device to confirm it is not a gun, you see what is present (no threat to the police). The information contained therein is no threat to the officers safety, obviously private, not contraband, and not destructible if preserved and for which a warrant may be secured.

Because the prime justifications of warrantless searches is to preserve destructible evidence or protect officer safety, once a smart phone is in the exclusive possession of the police, having eliminated these justifications of a warrantless search, there is no legal basis to conduct a warrantless search of an accussed’s private smart phone without a warrant.

The court also rejected various aspects of the government’s argument that a warrantless search of a cell/smart phone and all information contained therein without a warrant should be legal based upon the individual facts of each case. The government argued it should be a case-by-case basis whether or not a cell phone maybe searched incident to a lawful arrest without a warrant.  The First Circuit rejected this argument, believing that all “warrantless cell phone data searches are categorically unlawful under the search incident to arrest exception because the government failed to demonstrate that such search preserved officer safety or prevented the destruction of evidence.” The court concluded that “a series of opinions allowing some cell phone data searches but not others, based upon the nature and reasonableness of the intrusion, would create subjective and highly fact specific set of rules that the Supreme Court has warned against and would be extremely difficult for officers in the field.”

“Today, many Americans store their most personal “papers” and “effects,” U.S. Const. amend. IV, in electronic format on a cell phone, carried on the person. Allowing the police to search that data without a warrant any time they conduct a lawful arrest would, in our view, create “a serious and recurring threat to the privacy of countless individuals.” “At bottom, we must assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”

Summer 2013 DUI Update

So far this summer, Pennsylvania’s Superior Court issued two very significant DUI decisions. The first ruling was handed down the case of Commonwealth v. Musau. The second decision was presented in Commonwealth v. Barker.

In Musau the trial court found Musau guilty of driving under the influence of alcohol in violation of 75 Pa. C.S.A. §3802(a) (general impairment), his a second offense, and graded the conviction as a first-degree misdemeanor pursuant to 75 Pa C.S.A. §3803(b) (4). The trial court sentenced Musau to ninety days to five years in jail.

On appeal Musau argued there was a conflict between § 3802(a) (which carries a maximum of six months supervision) and §3803(b) (4) (that identifies a violation of § 3802(a), 2nd offense, as a first-degree misdemeanor which carries a potential five years supervision). In light of the statutory conflict, Musau argued his supervision could only be ninety days and not five years. Superior Court agreed.

After reviewing the sentencing provisions of the specific DUI statute, 75 Pa. C.S.A. §3802, et seq., and the general sentencing parameters of the criminal code under 18 Pa. C.S.A. §106(b) (6), (e), the court concluded that if an individual is only found guilty of the “general impairment” provision of §3802(a) and not §3802(c) or (d), the maximum potential supervisory sentence is six-months and not five years. The important part of this case is just that: if a court finds a person who may have refused the blood or breath test guilty under § 3802(a) only, as a second offense, and not § 3802(c) or (d), the sentencing maximum is six months, not five years.

The lesson here is to specifically ensure any refusal charges §3802(d) are either dismissed or withdrawn at a preliminary hearing in the counties or a finding of not guilty in Philadelphia Municipal Court. Thereafter, the trial court may only, if the evidence is sufficient, find guilt under §3802(a), a general impairment conviction. Sentencing will then be governed by the DUI statute and ninety days, not the Crimes Code.

The second case is Commonwealth v. William Barker. The case began as a garden-variety motor vehicle infraction, typical traffic stop, and suspicion of DUI.  However, competent counsel convert the case into a discussion of motorists’ right to an alternative blood tests under 75 Pa. C.S.A. §1547(i) and a police officer’s violation of the refusal statute, not the motorist’s.

For those unaware, 75 Pa. C.S.A. §1547 is the Pennsylvania implied consent provision of the Pa motor vehicle code allowing for the police to request the operator of a motor vehicle suspected of DUI to submit to a breathalyzer test or have their blood drawn at an appropriate medical facility.  If they refusal the criminal sentence may be worse and at least a 1 year license suspension separate from the DUI may follow.

The appeals court addressed §1547 in the context of a §3802(d) refusal case. §3802 (d) is the DUI refusal statute law enforcement may charge individuals who have “refused” to submit to any chemical test requested pursuant to §1547. 75 Pa.C.S.A. §3802(d) (2) defines driving under the influence as follows: An individual may not drive, operator, or be in actual physical control of the movement of the vehicle under the influence of drugs or a combination of drugs to a degree to which impairs the ability to drive safely, operate or be an actual physical control of the movement of the vehicle.

Barker testified that he advised the investigating officer he would take any blood test that would establish his innocence, including paying for any test. Barker testified that he suffered a prior medical infection from the hospital to which he was taken, spending seven days there. At trial Barker was found guilty of violating §3802(d) (2) and was sentenced as a refusal.
Barker appealed the guilty finding under the refusal statute arguing that 75 Pa.C.S.A. §1547(i) specifically states: Request by driver for test: Any person involved in an accident or placed under arrest for violation of section… 3802… may request a chemical test of his breath, blood or your peers such request shall be honored when it is reasonably practical to do so.

At trial, the arresting officer did not testify that it was not reasonably practical to take Barker to a different location for the blood draw. Superior Court found this important. “Although section §1547 delineates the tests that may be used and the manners within which the tests must be conducted, §1547(i) does not indicate what constitutes ‘reasonably practical’ for an alternative test and an officer’s ability to reject a motorist’s request for an alternative means of testing at the time of arrest.” Stated another way, the court concluded that an investigating officer “shall honor a motorist’s request when it is ‘reasonably practical’ to do so”.

The court emphasized that the statute “presumes the validity of the motorist’s request and vests the officer with the discretion to decline the request for alternative testing only if the circumstances render the testing incapable of being put into practice with the available means”. The court went on to state that the statutory language does not continence an officer’s “arbitrary refusal” to decline an alternative test request.

The officer may decline the alternative test only if the test requested is not within the means available at the time the testing is sought. While the statute protects the arbitrary whims of motorists who might demand alternate forms of testing, the statute does not allow arbitrary conduct of the police officer in denying motorist’s requests when practical.

Consequently, the court stated that when an arresting officer arbitrarily refuses to allow alternative testing a motorist requests he deprives that motorist evidence admissible in any subsequent prosecution under § 3802, not just those prosecutions under 3802(c) or (d). This is significant in that in any DUI prosecution, an officer must comply with a request for an alternative testing at a different hospital or in a different manner, based upon an appropriate objection, medical condition, or phobia, if such alternate testing is practical under the circumstances.

The court found that when the arresting officer arbitrarily refused Barker’s request for an alternate test which would have produced evidence that may have proven his innocent, the officer substantially impeded Barker’s due process rights. Having found the police, not Barker, violated  § 1547, the appeals court concluded that the arresting officer’s “refusal to honor the statute’s provisions yields a resolution that deprived Barker of admission of evidence that, had it been available, would have been relevant to the charges at issue.” Such violation undermined Barker’s ability to counter the Commonwealth’s allegations and, therefore, warranted granting Barker’s appeal and dismissal of all charges.

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