Sometimes a person arrested for a crime will swear he or she was nowhere near the location when the criminal incident took place., but the prosecution will allege otherwise…with evidence to prove it. That evidence: tracking of the defendant’s cell phone. Even if the defendant wasn’t using his or her cellphone at the time, the cellphone sends data to cell towers, or more commonly these days, the GPS system embedded on most cellphones does the work. All the police need is the defendant’s cellphone (assuming he or she was carrying it at the time of the alleged crime) to find the defendant’s location at the time. But what if the cellphone, say, disappeared? The authorities can still get the information from the cellphone service provider.

In California, the state authorities need a warrant (or the cellphone owner’s consent) to search any cell phone data, but that isn’t true in all states and it isn’t the case for federal crimes. So even if an individual is suspected of a crime in California, but it is a federal crime being investigated by federal authorities, those authorities do not need a warrant to search historical data held by the suspect’s cellphone service provider.

The Fourth Amendment to the United States Constitution guarantees that every person in this country is secure from unreasonable searches and seizures. How “unreasonable” is defined is the subject of many a treatise but for purposes here and ignoring the enumerated exceptions for the moment, if there is no warrant, the search and seizure is considered by law to be “unreasonable.” How would the warrantless search of historical cellphone data as recorded by the cellphone service provider fit into the cellphone owner’s Fourth Amendment guarantee?

That is a question that the United States Supreme Court will decide. The Supreme Court has already held that a warrant is required to track a person by using the GPS data on a cellphone and a warrant is required to physically search a cellphone but in some states and under federal law, authorities are allowed to search the historical cellphone records, which are kept by the service provider without a warrant. The law authorities can just direct the cellphone service provider to hand over the data, no judicial review needed.

A warrantless search and seizure of cellphone data turned over by the cellphone service provider was challenged in an armed robbery case that occurred in Michigan and Ohio. The defendant sought to suppress these records on Fourth Amendment grounds since no warrant was issued. His motion to suppress was unsuccessful and ultimately, he was convicted. He challenged the search on appeal but the Sixth Circuit Court held that the acquisition of the historical cellphone records from the cellphone service provider was not a search because the defendant had no reasonable expectation of privacy in records held by the service provider.

Now if this is getting confusing, what you need to know here is that in order to challenge a search and seizure as unreasonable on Fourth Amendment grounds, a person must have what is often termed “standing,” but in this context means that the person must have a reasonable expectation of privacy in the thing searched. For example, a person has a reasonable expectation of privacy in their own home but not in their neighbor’s.

Back to the Sixth Circuit decision: Since the records were the business records of the cellphone service provider and reasoning that the defendant knowingly exposed this data to his service provider, the court held that he showed no expectation of privacy in the location data.

In our fast-changing world of the digital age, these legal questions demand consideration by the highest court of the land. As it stands now, the lower courts are in disagreement and have no definitively relevant precedent to follow. The decision may have far-reaching implications as however the Supreme Court decides, the decision will likely be used as authority in other situations, such as the search of certain historical computer data.

Orange County Criminal Defense attorney William Weinberg limits his practice to criminal and DUI defense. If you or someone you care about has been charged with a crime, call Mr. Weinberg at (949) 474-8008 or email him at bill@williamweinberg.com for a free consultation regarding the matter.