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A federal appellate court on Wednesday widened a split among circuits on a major privacy question thats pending before the U.S. Supreme Court: Fourth Amendment protection for cellphone location information.

In United States v. Graham, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held that the governments warrantless search of the cellphone location information of two accused robbery defendants violated their Fourth Amendment rights. However, because the government relied in good faith on court orders issued under the federal Stored Communications Act, the information could be admitted as evidence in their trial.

Last month, the American Civil Liberties Union and private counsel filed a petition for review in the high court in Davis v. United States. In that case, a divided en banc Eleventh Circuit held that the criminal defendant had no reasonable expectation of privacy in cellphone location records held by his service provider. And even if a Fourth Amendment search had taken place, the court said, use of an Stored Communications Act order rather than a warrant was reasonable because the privacy intrusion was minor and the government had a compelling interest in investigating crimes.

The petition asks the justices to decide whether the Fourth Amendment warrant requirement applies to these searches and seizures. It also asks whether the good-faith exception to the exclusionary rule applies when the search was based on a court order sought by a prosecutor, particularly when the relevant statute gave the prosecutor the option of pursuing a warrant.

In the Fourth Circuit case decided Wednesday, the government secured court orders, under the Stored Communications Act (SCA) for 221 days worth of cellphone location information from Sprint/Nextel. The government ultimately used the information at trial to establish the defendants locations at various times before and after most of the charged robberies.

Senior Judge Andre Davis, joined by Judge Stephanie Thacker, wrote:

Examination of a persons historical CSLI (cell site location information) can enable the government to trace the movements of the cellphone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Cellphone users have an objectively reasonable expectation of privacy in this information. Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.

The established exception in this case, Davis added, was the good faith exception to the exclusionary rule.

Here, the government is entitled to the good-faith exception because, in seeking appellants CSLI, the government relied on the procedures established in the SCA and on two court orders issued by magistrate judges in accordance with the SCA, Davis wrote.

The Stored Communications Act includes no direction on when the government should seek a warrant versus an order, he said.

More:
Fourth Amendment Protects Cellphone Location Data, Appeals ...

Summary: The Courts are divided when it comes to deciding if the Fourth Amendment applies to cellphone tracking information, which affects whether a warrant versus an order is required.

The U.S Court of Appeals for the Fourth Circuit was divided in their decision in United States v. Graham. The government used cellphone location information to determine where two accused robbers were before and after the alleged robberies had taken place. They did not use a warrant to obtain the information but relied on the good faith of orders obtained through the Stored Communications Act.

In another case, David v. United States, the Eleventh Circuit found that the criminal defendant had no right to privacy from his cellphone location information. They also found that a Stored Communications Act order or a warrant was good enough to obtain the information.

The petition filed by the American Civil Liberties Union and private counsel that filed the review of the case wanted the court to state whether the Fourth Amendment protection that requires a warrant applied in this case.

In the first case, the court found that the Stored Communications Act provides no rules on when the government can seek an order over a warrant so the government is allowed to use the good faith exception when seeking cellphone location information. The court also found that they are not protected by the Fourth Amendment because they are sharing information with a third party every time their cellphone connects with a tower.

Source: http://www.nationallawjournal.com/home/id=1202733998931

Photo: slate.com

Tagged: cellphone location information, fourth amendment, Government, order, privacy, warrant

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Fourth Amendment Does Not Protect Cellphone Location ...

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Text of Amendment:

Writs of Assistance:

The Fourth Amendment was written directly in response to British general warrants (called Writs of Assistance), in which the Crown would grant general search powers to British law enforcement official.

These officials could search virtually any home they liked, at any time they liked, for any reason they liked or for no reason at all. Since many of the founding fathers were smugglers, this was an especially unpopular concept in the colonies.

Limited Power:

In practical terms, there is no means by which the government can exercise prior restraint on law enforcement officials. If an officer in Jackson, Mississippi wants to conduct a warrantless search without probable cause, the judiciary is not present at the time and can't prevent the search. This meant that the Fourth Amendment had little power or relevance until 1914.

The Exclusionary Rule:

In Weeks v. United States (1914), the Supreme Court established what has been known as the exclusionary rule. The exclusionary rule states that evidence obtained through unconstitutional means is inadmissible in court and cannot be used as part of the prosecution's case. Before Weeks, law enforcement officials could violate the Fourth Amendment without being punished for it, secure the evidence, and use it at trial.

The exclusionary rule establishes consequences for violating a suspect's Fourth Amendment rights.

Continued here:
Fourth Amendment - the Text, Origins, and Meaning

The Fourth Amendment to the U.S. Constitution protects personal privacy, and every citizen's right to be free from unreasonable government intrusion into their persons, homes, businesses, and property -- whether through police stops of citizens on the street, arrests, or searches of homes and businesses.

What Does the Fourth Amendment Protect?

In the criminal law realm, Fourth Amendment "search and seizure" protections extend to:

The Fourth Amendment provides safeguards to individuals during searches and detentions, and prevents unlawfully seized items from being used as evidence in criminal cases. The degree of protection available in a particular case depends on the nature of the detention or arrest, the characteristics of the place searched, and the circumstances under which the search takes place.

When Does the Fourth Amendment Apply?

The legal standards derived from the Fourth Amendment provide constitutional protection to individuals in the following situations, among others:

Potential scenarios implicating the Fourth Amendment, and law enforcement's legal obligation to protect Fourth Amendment rights in those scenarios, are too numerous to cover here. However, in most instances a police officer may not search or seize an individual or his or her property unless the officer has:

What if My Fourth Amendment Rights Are Violated?

When law enforcement officers violate an individual's constitutional rights under the Fourth Amendment, and a search or seizure is deemed unlawful, any evidence derived from that search or seizure will almost certainly be kept out of any criminal case against the person whose rights were violated. For example:

Continued here:
"Search and Seizure" and the Fourth Amendment - FindLaw

Whether a particular type of search is considered reasonablein the eyes of the law,is determined by balancing two important interests. On one side of the scale is the intrusion on an individual's Fourth Amendment rights. On the other side of the scale are legitimate government interests, such as public safety.

The extent to which an individual is protected by the Fourth Amendment depends, in part, on the location of the search or seizure.Minnesota v. Carter, 525 U.S. 83 (1998).

Searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573 (1980).

However, there are some exceptions. A warrantless search may be lawful:

If an officer is given consent to search;Davis v. United States, 328 U.S. 582 (1946) If the search is incident to a lawful arrest;United States v. Robinson, 414 U.S. 218 (1973) If there is probable cause to search and exigent circumstances;Payton v. New York, 445 U.S. 573 (1980) If the items are in plain view;Maryland v. Macon, 472 U.S. 463 (1985).

When an officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot, the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the officer's suspicions. Terry v. Ohio, 392 U.S. 1 (1968) Minnesota v. Dickerson, 508 U.S. 366 (1993)

School officials need not obtain a warrant before searching a student who is under their authority; rather, a search of a student need only be reasonable under all the circumstances. New Jersey v. TLO, 469 U.S. 325 (1985)

Where there is probable cause to believe that a vehicle contains evidence of a criminal activity, an officer may lawfully search any area of the vehicle in which the evidence might be found. Arizona v. Gant, 129 S. Ct. 1710 (2009),

An officer may conduct a traffic stop if he has reasonable suspicion that a traffic violation has occurred or that criminal activity is afoot. Berekmer v. McCarty, 468 U.S. 420 (1984), United States v. Arvizu, 534 U.S. 266 (2002).

An officer may conduct a pat-down of the driver and passengers during a lawful traffic stop; the police need not believe that any occupant of the vehicle is involved in a criminal activity. Arizona v. Johnson, 555 U.S. 323 (2009).

Excerpt from:
What Does the Fourth Amendment Mean? - United States Courts