United States v. Graham (5ht Cir. 2016).
This is important and necessary information pertaining to the use of cellular telephone companies to obtain necessary information during an investigation to determine if you can place an individual in an area close to a crime scene due to their phone using a tower to send and receive phone calls and text messages. It provides a definitive answer as to whether or not there is a Reasonable Expectation to Privacy as relates to this information being held by the Cellular Company.
Constitutionality of
Police Obtaining Cell Site Location Information (CSLI) from cellular providers
without obtaining a Search Warrant. The CSLI provides indicates which cell
tower transmitted the cellular signal that a particular cell phone used to make
or receive calls of text messages.
Ø
The government obtained
the CSLI information regarding the defendant’s phone in accordance wit the
Stored Communications Act (CSA) which states that in order to obtain
non-content records the government must demonstrate either 1. Probable Cause
for a warrant or 2. Specific and articulable facts showing that there are
Reasonable grounds to believe that the records are Relevant and Material to an
on-going criminal investigation for a court order 18 U.S.C. S2703(c) (d)
(2012).
Ø
In this case the
government used the Second Method based on Reasonable Grounds that the records
are relevant to a ongoing criminal investigation. The records were obtained from
Spring/Nextel and used by the government to place the defendant in the area of
certain (Armed Robberies) at the time the robberies occurred. Graham filed a
Motion to Suppress and the District Court’s decision was appealed to a panel
for the 4th Circuit Court of Appeals. The Panel Held: that
the Probable Cause and warrant are required to obtain such information because
the government acted in good faith relying on the CSA the evidence should NOT
be suppressed.
Ø
The government appealed
the ruling and asked the 4th Circuit for a Hearing en Banc (all judges on
the court of appeal to be present) based on the belief that (a warrant should NOT be required because a
person has NO Reasonable Expectation of Privacy) in CSLI and the 4thCircuit
agreed.
Ø
ISSUE: Whether the government invades a person’s
reasonable expectation of privacy when it obtains from a third party the third
party’s records which permit the government to deduce location information.
Ø COURT’S ASSESSMENT: Since the government did not
surreptitiously view or listen to or record or engage in any direct
surveillance of the defendant then the case law that concerns Electronic
Surveillance of individuals is NOT applicable. There must be an examination
precedent concerning the (Third Party Doctrine.)
Ø In Smith v. Maryland (1979) the Court
noted that it has long held that an individual enjoys NO Fourth Amendment Protection
in information he voluntarily turns over to a third party. In United States v.
Miller (1976) The (Third Party Doctrine) applies even when “the information is
revealed” to a third party as it assertedly was here “on the assumption tat it
will be used only for the limited purpose and the confidence placed in the
third party will not be betrayed.
Ø The Court noted that when a person
places a cellular phone call they voluntarily convey this CSLI to cellular
provide and that information is (obtained and retained in the ordinary course
of business) rather than for investigatory purposes.
Ø The Court then referred back to both
Smith and Miller and stated that in Smith Under the Third Part Doctrine an
individual can claim “no legitimate expectation to privacy” in information that
he has voluntarily turned over to a third party. Under Miller The Supreme Court
has reasoned that by revealing his affairs to another “an individual takes the
risk that the information will be conveyed b that person to the Government.
Under Smith The 4th Amendment does NOT protect information
voluntarily disclosed to a third party because even a subjective expectation of
privacy in such information is “not one that society is prepared to recognize
as Reasonable.” The government does NOT engage in a 4th Amendment
“Search “when it acquires such information from a third party. In aa reasonable
addition they advised that other Circuits such as the Fifth and Sixth and
Eleventh have ALL held that “a person does NOT have a Reasonable Expectation of
Privacy” in their CSLI that is captured and stored by a cellular provider.
Ø COURT’S HOLDING: Defendant’s did NOT
have a (Reasonable Expectation of Privacy) in the CSLI and as such NO SEARCH
WARRANT IS NEEDED to obtain information; the Court Order provided for in the
CSA was SUFFICIENT to lawfully obtain such information.
