Regular readers will recall the mosaic theory of the Fourth Amendment introduced by the DC Circuit in United States v. Maynard, by which law enforcement steps that arent searches in isolation can become searches when aggregated over time. For the most part, judges have been pretty skeptical of the mosaic theory. For example, in the recent oral argument in the Fourth Circuit in United States v. Graham, on whether the Fourth Amendment protects historical cell-site data, the mosaic arguments didnt gain a lot of traction for the defense.
In this post, however, I want to focus on two recent federal district court decisions that cut against this trend and adopted the mosaic theory. The first case is United States v. White (E.D.Mich. Nov. 24, 2014) (Lawson, J.), which held that the Fourth Amendment was violated when the government obtained a warrant to track a drug dealers cell phone continuously over 30 days. The second case is United States v. Vargas (W.D.Wash. Dec. 15, 2014) (Shea, J.), which suppressed video evidence from a camera set up on a public utility pole 100 yards away from the targets rural house that showed what was happening on the targets front lawn continuously for six weeks.
1. United States v. White
In United States v. White, agents were conducting a wide-scale investigation into a known narcotics trafficker, Jimmie White. Agents obtained two search warrants to track Whites cell phone in real time for 30 days each, with the goal of understanding the scope of Whites activities and to show his involvement in narcotics crimes. When charges were brought, White moved to suppress the location information obtained from the cell phone location warrants. The case was heard before Judge David Lawson (who, allow me to add, I have had the pleasure of working with on the Criminal Rules Committee). Judge Lawson recognized that the Sixth Circuit had held in United States v. Skinner that monitoring a suspects cell phone location in real-time was not a Fourth Amendment search. But Judge Lawson held that the facts of Whites case were distinguishable:
[T]he surveillance in this case took place over an extended time period continuously for 30 days on two (or three) separate occasions and followed White into both public and private spaces. Justice Alitos concurring opinion in Jones, which drew support from a fifth justice, see Jones, 132 S. Ct. at 954-57 (Sotomayor, J., concurring), suggested that the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. Id. at 964 (Alito, J., concurring). The 4-week tracking in that case was well over the line of reasonableness, in his view. Ibid. (We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.). And the Skinner majority acknowledged Justice Alitos concerns, allowing that [t]here may be situations where police, using otherwise legal methods, so comprehensively track a persons activities that the very comprehensiveness of the tracking is unreasonable for Fourth Amendment purposes. Skinner, 690 F.3d at 780. Skinner does not control the present case, because the length and breadth of the tracking here extends well beyond what any reasonable person might anticipate.
Judge Lawson then offered three reasons why 30 days of monitoring Whites cell phone location violated his reasonable expectation of privacy. First, it included Whites location when he was at home. Second, Congress has enacted statutory privacy protections for cell-site location. And third, 30 days of monitoring allows the government to obtain a detailed picture of a persons life. As a result, it is safe to say that society would recognize that an interest in keeping these movements private is reasonable.
Judge Lawson recognized that his approach raised a difficult question of line-drawing: How long is long enough for monitoring to constitute a search? He answers:
[C]ourts have confronted similar problems in the past. For instance, how long may law enforcement detain property waiting for a drug detection dog to arrive for a sniff before the intrusion matures into a seizure? To find an answer, courts must balance the nature and quality of the intrusion on the individuals Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. United States v. Place, 462 U.S. 696, 703 (1983).
Under that rationale, it may be appropriate to track an individual for a short time on public streets based on a level of suspicion that is less than probable cause. See Terry v. Ohio, 392 U.S. 1, 22 (1968) . . . Longer surveillances may require more justification, and a case might be made that the governments reasons underlying the need for tracking in the case of domestic terrorism, for example may call for less. The present case involves a garden-variety drug trafficking crime, nothing more. The blanket surveillance of an individual for thirty days at a time cannot equate to a brief detention, however. The nature and quality of an intrusion of that magnitude (in excess of the the 4-week mark) tips the balance in favor of the individual; it constitutes a breach of ones reasonable expectation of privacy that requires the state to demonstrate probable cause as a justification for the intrusion. Jones, 132 S. Ct. at 964 (Alito, J., concurring).
This passage is interesting because it relies on caselaw concerning reasonableness, not what is a search. If I understand Judge Lawson correctly, he would say that even short-term monitoring on public streets is a search, but one that may be allowed based on only the Terry standard, at least depending on the crime under investigation. Here Judge Lawson goes significantly beyond Justice Alitos Jones concurrence, which had adhered to Knotts and indicated that short-term location monitoring is not a search at all.
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Volokh Conspiracy: Two district courts adopt the mosaic theory of the Fourth Amendment