Fourth Circuit Grants Petition For Rehearing En Banc To Determine If Cellphone Location Data Is Subject To Warrant Requirement

At the beginning and end of every telephone call, cellphones interact with their mobile carrier, which allows the cell phone provider to note the phone’s approximate location, and that information is then saved to a server. Prosecutors rely on cell site location information to place defendants at crime scenes by tracing the movements of the cell phone and its user across public and private spaces. Whether law enforcement officials are able to obtain this information from mobile carriers without a warrant, however, is up for debate.

 In August, a divided three-judge panel of the Fourth Circuit ruled in United States v. Graham, Nos. 12-4659, 12-4825, 2015 WL 4637931 (4th Cir. 2015), that the government’s historical procurement of cellphone location data from service providers amounted to an unreasonable search under the Fourth Amendment because “society recognizes an individual’s privacy interest in her movements over an extended period of time.” The Fourth Circuit panel, however, still upheld the district court’s refusal to suppress the cell-site location information on the grounds that the law enforcement officials acted in good-faith reliance on the Stored Communications Act and pursuant to the orders of two federal magistrate judges. The panel’s opinion, notably, conflicted with decisions from the Third, Fifth, and Eleventh Circuits on whether the Fourth Amendment applies to the collection of historical cell site data. Those circuits have said that historical cell-site records are not protected by the Fourth Amendment under the third-party doctrine, which holds that a person does not have a reasonable expectation of privacy in information voluntarily conveyed to a third-party.

On October 28, 2015, the Fourth Circuit granted the government’s petition for rehearing en banc in Graham, eliminating (at least for now) the apparent circuit split. However, given the increasing intersection between technology and the Fourth Amendment, it seems likely that the Supreme Court will eventually need to address the issue.