Searches of Extended Cell Phone Location Data Require a Warrant

By Casey C. Sullivan, Esq. on August 11, 2015 | Last updated on March 21, 2019

The government cannot search extended cell phone location records without a warrant, the Fourth Circuit ruled last Wednesday. Cell phone service providers routinely collect and record cell site location information, creating detailed reports of where a phone was and when. Should the government wish to look at that information over an extended time frame -- a phone's location over a 221-day period, for example -- it must obtain a valid warrant, the Fourth ruled.

The ruling, which has been praised by privacy advocates and civil liberties groups, creates a split with several other circuit courts. As commentators note, the issue raised is primed to end up before the Supreme Court in short order.

We Just Want Your Every Location Over 221 Days

The case arose after Aaron Graham and Eric Jordan were suspected of committing a series of armed robberies in the Baltimore area. The government obtained court orders under the Stored Communications Act -- but no warrants -- demanding that Sprint and Nextel turn over cell site location information from the duo's phones. That information helped lead to Graham and Jordan's convictions.

The court orders were requests for pin-pointed information. Under the orders, the cell providers turned over almost 60,000 different location data points for Graham and Jordan. Two hundred and twenty-one days worth of records were given to the government, with records covering more than 100 locations a day.

Here Come the Circuit Splits

In making its ruling, the Fourth Circuit rejected an "all or nothing" approach. Not all SCA court orders must be supported by a warrant showing probable cause. At the same time, such orders are not de facto exempt from the Fourth Amendment's protections against unreasonable search and seizure. Instead, the court focused on the "extended" nature of the records, finding that the extent of the search required Fourth Amendment protections because "society recognizes an individual's privacy interest in her movements over an extended period of time."

What constitutes an extended period of time? The Fourth doesn't say, placing it somewhere between two weeks or 221 days, declining to draw any bright line limits.

The case creates a direct circuit split between the Fourth and the Fifth and Third Circuits on whether warrants are needed for SCA cell-site records. It also creates a split with the Fifth and Eleventh Circuit on whether collecting cell-site information constitutes a search, according to Orin Kerr, a professor at George Washington University Law School. Professor Kerr has an extended analysis of the Supreme Court's possible treatment of these circuit splits on the Volokh Conspiracy.

What the Supreme Court says probably won't make much of a difference for Graham or Jordan, however. The Fourth allowed the evidence to be admitted, despite the Fourth Amendment violations, since the government had relied in good faith on properly issued court orders.

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