In The SUPREME COURT OF THE UNITED STATES. October Term, Docket No Albert Greene, United States,

Transcription

1 P21. In The SUPREME COURT OF THE UNITED STATES October Term, 2015 Docket No Albert Greene, v. United States, Petitioner, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT BRIEF FOR PETITIONER Counsel for Petitioner

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iv ISSUES PRESENTED... vi STATEMENT OF FACTS... 1 SUMMARY OF THE ARGUMENT... 3 THE STANDARD OF REVIEW... 5 ARGUMENT... 5 I. GREENE S PRIVACY WAS UNCONSTITUTIONALLY INVADED BOTH BY TEJADA S GOVERNMENT DIRECTED SEARCH, AND BY AGENT SMITH S DISREGARD OF THE LIMITED SCOPE OF TEJADA S SEARCH A. Private Parties are Typically Immune from Fourth Amendment Search Analysis B. Tejada was Acting as a Government Agent When He Searched Greene s Computer C. Even if the Court decides that Tejada was acting as a Private Party the Government s Search of Greene s Computer Still Violated the Fourth Amendment, as the Search Exceeds the Private Search Scope Government Agents Exceed the Scope of a Private Search when Their Actions are not Virtually Certain to Protect Unfrustrated Expectations of Privacy The Expectation of Privacy in the Contents of a Closed Container is not Frustrated Simply by a Private Party Opening that Conatiner It is Inappropriate to Apply the Closed Container Approach to an Electronic Storage Device II. GREENE S PRIVACY WAS UNCONSTITUTIONALLY INVADED BY THE FEDERAL GOVERNMENT S WARRANTLESS TRACKING OF GREENE THROUGH HIS CELL PHONE S HISTORIC LOCATION INFORMATION A. Greene has a Reasonable Expectation of Privacy, as He did not Voluntarily Convey his Cell Site Location Information (CSLI) The Twelfth Circuit Voluntary Conveyance Analysis Disregards the Reality of Modern Cell Phone Usage By Adopting the Fifth Circuit, the Twelfth Circuit s Analysis Encourages Police Overreach and Produces Absurd Analytical Results B. Application of the Third-Party Doctrine to Historic CSLI is Incompatible with Society s Recognition of an Objectively Reasonable Expectation of Freedom from Long-Term, Warrantless Surveillance ii

3 1. Congressional Action is Insufficient in the Context of CSLI to Articulate Society s Opinion on Historical Location Surveillance Court Precedent Recognizes a Societal Concern about Warrantless, Long-Term Tracking through Electronic and other Non-Visual Means Applying the Third Party Doctrine to CSLI Disregards Society s Expectations of Privacy by Creating a General Warrant for Historical Cell Phone Surveillance CONCLUSION iii

4 TABLE OF AUTHORITIES Cases Coolidge v. New Hampshire, 403 U.S. 443 (1971).... 5, 25 In re Application of the United States for an Order a Provider of Elec. Commc n Serv. to Disclose Records to Gov t, 620 F.3d 304 (3d Cir. 2010) , 19, 21 In re Application of United State for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F.Supp.2d 526 (D.Md. 2011) In re Application of United States for an Order Authorizing the Release of Historical Cell-Site Info., 809 F.Supp.2d 113 (E.D.N.Y. 2011) In re United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013)... passim Katz v. United States, 389 U.S. 347 (1967).... 3, 6, 20 Kyllo v. United States, 533 U.S. 27 (2001)... 6, 20, 22 Massachussets v. Augustine, 4 N.E.3d 846 (Mass. 2014) , 24 New Jersey v. Earls, 70 A.3d 630 (N.J. 2013) Riley v. California, 573 U.S., 134 S.Ct (2014) , 14, 24 Skinner v. Railway Labor Executives Ass n, 489 U.S. 602 (1989) Smith v. Maryland, 442 U.S. 735 (1979).... 4, 15, 17, 18 Tracey v. Florida, 152 So. 3d 504 (Fla. 2014) United States v. Breza, 308 F.3d 430 (4th Cir.2002) United States v. Davis, 758 F.3d 498 (11th Cir. 2015)... passim United States v. Graham, 796 F.3d 332 (4th Cir. 2015).... passim United States v. Jacobsen, 466 U.S. 109 (1984).... passim United States v. Jones, 565 U.S., 132 S.Ct. 945 (2012)... passim United States v. Karo, 468 U.S. 705 (1984) United States v. Knotts, 460 U.S. 276 (1983) , 23 United States v. Lambert, 771 F.2d 83 (6th Cir. 1985) United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015) , 14 United States v. Malbrough, 922 F.2d 458 (8th Cir. 1990) United States v. McAllister, 18 F.3d 1412 (7th Cir. 1994)... 7 United States v. Miller, 425 U.S. 435, 442 (1976) United States v. Miller, 688 F.2d 652 (9th Cir. 1982)... 7 United States v. Paige, 136 F.3d 1012 (5th Cir. 1998) United States v. Pervaz, 118 F.3d 1 (1st Cir. 1997)... 7 United States v. Rivera, 412 F.3d 562 (4th Cir.2005)... 5 United States v. Runyan, 275 F.3d 449 (5th Cir. 2001) United States v. Skinner, 690 F.3d 772 (6th Cir. 2012) United States v. Smythe, 84 F.3d 1240 (10th Cir. 1996)... 7 Walter v. United States, 447 U.S. 649 (1980).... 9, 12 iv

5 Statutes 18 U.S.C. 2073(d).... 2, 4, 21 Electronic Communications Privacy Act of , 18 U.S.C. 2703(d) Treatises Aleecia M. McDonald and Lorrie Faith Cranor, The Cost of Reading Privacy Policies, 4 I/S: J.L. & Pol y Info. Soc y 543 (2008) Mark Daniel Langer, Rebuilding Bridges: Addressing the Problems of Historic Cell Cite Location Information, 29 Berkeley Tech. L.J. 955 (2014) Searching and Seizing Computers Without a Warrant, 4 CRIM. PRAC. GUIDE, Mar. Apr Constitutional Provisions U.S. Const. amend. IV v

6 ISSUES PRESENTED I. Whether the scope of a private search of an external hard drive frustrated the reasonable expectation of privacy in all of the contents of that hard drive when the private party searches the hard drive with the intent to turn over information to the Government in exchange for a reward, and when the private party only searches three photographs on te two terabyte hard drive. II. Whether a warrantless search of Greene s cell phone location information, recorded over 205 days, violates the Fourth Amendment, when Greene s cell phone broadcast, without Greene s consent or knowledge, his location in public and private spaces, and when Greene s cell phone provider recorded and stored Greene s location information for an indefinite period of time. vi

7 STATEMENT OF FACTS James Tejada (Tejada) and Albert Greene (Greene) were roommates who shared an apartment in downtown Arcadia. R. at 2. On the weekend of August 10, 2015, Greene was out of town. R. at 24. Greene owned a personal computer and hard drive. R. at Greene s hard drive holds up to 2 terabytes of data. R. at 25. The computer and hard drive were located in Greene s room. R. at Without asking Greene, Tejada went into Greene s room and accessed Greene s computer. R. at Tejada claims his intent for accessing the computer was to check his . R. at 24. While on Greene s computer Tejada accessed Greene s hard drive by opening the external hard drive folder. R. at 25. Tejada then opened another folder within the external hard drive labeled photos. R. at 26. Tejada inspected three photographs of what he believed to be nacotics. R. at 26, 36, 37, 38. Tejada then immediately shut off the computer. R. at 26. That day he called the Arcadia Police and informed them of the photographs he had seen on Greene s computer. R. at 26. Agent Aaron Smith (Agent Smith), a Federal Agent with the Drug Enforcement Agency, arrived at Greene s home a few hours later. R. at 26, 30. At the time of Tejada s search the Government was advertising a Crime Stopper campaign in Arcadia. R. at 27. The Crime Stopper campaign offered a $10,000 reward for any information leading to the arrest of anyone dealing in illegal narcotics or firearms. R. at 27. Tejada admits to being aware of both the campaign and reward money. R. at 27. Tejada testifies the Crime Stopper campaign commercials made him want to fight crime. R. at 28. Tejada also admits that prior to his search he was suspicious of Greene s behavior and that being rewarded for uncovering information that might lead to his arrest had crossed his mind. R. at Tejada says Crime Stopper campaign s advertisements made him feel that his actions were a part of his civic duty. R. at 28. 1

8 When Agent Smith arrived at Greene s home he asked Tejada to show him where the computer was located. R. at 31. Tejada took Agent Smith into Greene s room. R. at 26. Agent Smith then prompted Tejada to log onto the computer and show him the photographs he had uncovered during his search. R. at 32. Tejada then began to scroll through the photographs he viewed during his previous search. R. at Tejada showed Agent Smith the three photographs he had viewed earlier that day. R. at 32. Tejada and Agent Smith then observed three photographs which Tejada had not discovered in his previous search. R. at 32. One of the additional photographs contained an image of firearms and the other two showed a person holding firearms. R. at 32, 39, 40, 41. Tejada informed Agent Smith the person in the photographs was Greene. R. at 32. Agent Smith then seized the external hard drive. R. at 33. From January 8, 2015 through August 1, 2015, Verizon Wireless, Inc. provided cell phone service to a device registered to Greene. R. at 45, 48. On August 23, 2015, as the result of Agent Smith s warrantless search of Greene s computer, federal prosecutors applied for a court order demanding Verizon produce 205 days of individually identifiable information related to Greene s account. R. at Prosecutors applied for this information pursuant to a section of the Electronic Communication Privacy Act, codified 18 U.S.C. 2703(d). R. at 4. In relevant parts, 2703(d) requires only that:... [t]he governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that... the records or other information sought, are relevant and material to an ongoing criminal investigation. 18 U.S.C. 2703(d). On the same day, Magistrate Judge Timothy Thomas found prosecutors offered sufficient facts, and the judge issued the order. R. at 4. Verizon produced the requested information in a timely manner. R. at 4. The records included over 5000 points of historic cell site location 2

9 information (CSLI). R. at 4. Each data point represents an individually identifiable record of a signal transmission sent to or received from Greene s cell phone and the closest cell tower at the time. R. at 4. Verizon generates CSLI data regardless of the Greene s individual actions. R. at 4. With this information, investigators reconstructed Greene s movements, identifying a remote area he frequently visited. R. at 5. Based on these records, the Government received a search warrant which led to Greene s eventual arrest and conviction. R. at 5. SUMMARY OF THE ARGUMENT The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. An unreasonable search or seizure invades a subjectively reasonable expectation of privacy that society is willing to accept. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). I. Under the private search doctrine, a search, no matter how unreasonable, conducted by a private party does not implicate the Fourth Amendment. If the information discovered during a private search is revealed to the Government, then government agents may review and use the information as long as the agents do not exceed the scope of the private search. When the private party acts as an agent or instrument of the Government, the private search is no longer immunized from Fourth Amendment protections or analysis. Tejada was acting as an agent of the Government when he searched the contents of Greene s hard drive with the intention of turning over information he discovered to the Arcadia Police Department in exchange for monetary compensation. If the Court decides Tejada was not acting as an agent of the Government, the Fourth Amendment was still implicated when Agent Smith exceeded the scope of the private search. To stay within the scope, the Government agent must have virtual certainty his action will not 3

10 invade an unfrustrated, legitimate expectation of privacy. The Government s stance that Greene s expectation of privacy in all files on his external hard drive is frustrated by the search of three photographs within that hard drive is inappropriate. An external hard drive contains massive amounts of data, and typically an individual maintains a reasonable expectation of privacy in its entirety. This expectation significantly outweighs the Governments interests in searching the entire drive after frustrating a miniscule part of the drive. The Private Search Doctrine exception should not be expanded to allow a warrantless search of an entire electronic storage device. II. Under the third-party search doctrine, a person has no subjectively reasonable expectation of privacy in information, or third-party records of said information, voluntarily conveyed to a third-party. Smith v. Maryland, 442 U.S. 735, (1979). Under 18 U.S.C. 2703(d), many courts have treated CSLI as third-party records. The third-party search doctrine, however, does not apply to CSLI. Under the Court s precedent, voluntary conveyance of information to a third-party typically requires a knowing action, either through actual or constructive knowledge. Greene did not actually know he was conveying location information to Verizon. Further, it is inappropriate to hold Greene to have constructive knowledge as there is nothing in the use of a cell phone that would put a typical user on notice of a cell service provider s (CSP s) unlimited collection of cell phone location data. To hold all users on constructive knowledge of their CSP s warrantless tracking grants police a general warrant over the movements of every individual who owns a cell phone. While the government does not require citizens to carry a cell phone, cell phones are ubiquitous in our society and our economy. To force an individual to give up freedom from perpetual tracking in exchange for basic participation in society is absurd, but this is the only conclusion available if 4

11 CSLI transmission is considered voluntary. Thus only knowing CSLI transmission, consistent with Court precedent, should be considered voluntary. Additionally, society finds long-term warrantless surveillance to be unacceptable. While looking to the legislature can be helpful in determining society s opinions on privacy, the courts better articulate what society accepts when Congress isn t clear. This Court recognizes society s expectation of freedom from long-term, warrantless electronic surveillance. Specifically for CSLI, the lower courts analytical frameworks seem to apply an unspoken quasi-totality of the circumstances analysis. Courts focus on the nature of the privacy interest, the degree of invasion, the duration of the invasion, and the nature of the societal interest in invading the privacy interest to determine if society is willing to accept an expectation of privacy as reasonable. In this case, the 205 day duration of the Government s invasion of privacy is far beyond the limited privacy invasions society tolerates. Thus the invasion should be considered unreasonable, and the thirdparty search doctrine should not apply to CSLI. THE STANDARD OF REVIEW We review a lower court's evidentiary rulings for abuse of discretion, United States v. Rivera, 412 F.3d 562, 566 (4th Cir.2005), but we review de novo any legal conclusions as to whether certain law enforcement conduct infringes Fourth Amendment rights, United States v. Breza, 308 F.3d 430, 433 (4th Cir.2002). ARGUMENT The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. The Fourth Amendment was adopted, in part, to prohibit the government from a general, exploratory rummaging in a person s belongings as permitted by general warrants during colonial America. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). Traditionally, a 5

12 search was defined as a common-law trespass and involved some trespassory intrusion on property or property rights. United States v. Davis, 758 F.3d 498, 506 (11th Cir. 2015) (citing Kyllo v. United States, 533 U.S. 27, (2001)); see also United States v. Jones, 565 U.S., 132 S.Ct. 945, 950 (2012). In Katz, the Supreme Court articulated the reasonable expectation of privacy test as an alternative analysis of a potential search. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). A search occurs if an individual has demonstrated a subjective expectation of privacy that society is prepared to recognize as reasonable. Id. Searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions. Id. at 357. I. GREENE S PRIVACY WAS UNCONSTITUTIONALLY INVADED BOTH BY TEJADA S GOVERNMENT DIRECTED SEARCH, AND BY AGENT SMITH S DISREGARD OF THE LIMITED SCOPE OF TEJADA S SEARCH. A. Private Parties are Typically Immune from Fourth Amendment Search Analysis. The Court has consistently construed the protection against unreasonable searches and seizures as proscribing only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official. United States v. Jacobsen, 466 U.S. 109, 113 (1984). Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information. Jacobsen, 466 U.S. at 117. This principle is known as the Private Search Doctrine. B. Tejada was Acting as a Government Agent When He Searched Greene s Computer. Although the Fourth Amendment does not apply to a search effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an 6

13 instrument or agent of the Government. Skinner v. Railway Labor Executives Ass n, 489 U.S. 602, 614 (1989). Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government's participation in the private party's activities, a question that can only be resolved in light of all the circumstances. Id. In the absence of a more definitive standard, the various federal circuit courts adopted a range of approaches for distinguishing between private and government searches. 1 About half of the circuits apply a totality of the circumstances approach that examines three factors: whether the government knows of or acquiesces in the intrusive conduct; whether the party performing the search intends to assist law enforcement efforts at the time of the search; and whether the government affirmatively encourages, initiates or instigates the private action. 2 Other circuits have adopted more rule-like formulations that focus on only two of these factors. 3 Tejada acted as an agent of the Government subjecting his warrantless search of Greene s computer to the Fourth Amendment. The Government affirmatively encouraged Tejada and the 1 Searching and Seizing Computers Without a Warrant, 4 CRIM. PRAC. GUIDE, Mar. Apr. 2003, at See, e.g., United States v. Pervaz, 118 F.3d 1, 6 (1st Cir. 1997); United States v. Smythe, 84 F.3d 1240, (10th Cir. 1996); United States v. McAllister, 18 F.3d 1412, (7th Cir. 1994); United States v. Malbrough, 922 F.2d 458, 462 (8th Cir. 1990). 3 See, e.g., United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982)(holding that private action counts as government conduct if, at the time of the search, the government knew of or acquiesced in the intrusive conduct, and the party performing the search intended to assist law enforcement efforts); United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998) (same); United States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985) (holding that a private individual is a state actor for Fourth Amendment purposes if the police instigated, encouraged or participated in the search, and the individual engaged in the search with the intent of assisting the police in their investigative efforts). 7

14 rest of the citizens of Arcadia to turn over evidence of the illegal narcotics or firearms trade by offering a reward of up to $10,000 as compensation. The Government also acquiesced in Tejada s intrusive conduct when Agent Smith traveled to Greene s home to review the search and collect evidence. Finally, Tejada s cross examination indicates that his true intention of searching Greene s external hard drive was to assist law enforcement. During his cross examination Tejada admitted he was suspicious of Greene s behavior, the Crime Stopper campaign made him want to fight crime, the reward money offered by the government had crossed his mind before he searched the external computer, and he felt searching Greene s hard drive and informing the Government of his findings was a part of his civic duty. In light of all of the circumstances the degree of the Government s participation in Tejada s search was enough that Tejada was acting as an agent or instrument of the government. Tejada s search is subject to the scrutiny of the Fourth Amendment. Tejada s search was warrantless and lacked any justification to exempt it from the warrant requirement. Greene s reasonable expectation of privacy in the contents of his laptop was infringed upon by an unreasonable search conducted by a person acting as an agent of the government and any evidence stemming from that search should be suppressed. C. Even if the Court decides that Tejada was acting as a Private Party the Government s Search of Greene s Computer Still Violated the Fourth Amendment, as the Search Exceeds the Private Search Scope. 1. Government Agents Exceed the Scope of a Private Search when Their Actions are not Virtually Certain to Protect Unfrustrated Expectations of Privacy. Once a private party, acting on their own initiative, frustrates a person s reasonable expectation of privacy and reveals that information to the Government, the Government may then review that now non-private information to the extent it does not frustrate any additional expectation of privacy. The reasonableness of an official invasion of the citizen's privacy must be 8

15 appraised on the basis of the facts as they existed at the time that invasion occurred. United States v. Jacobsen, 466 U.S.109, 115 (1984). The Court has twice been asked to decide whether a Government review of information obtained pursuant to the Private Search Doctrine constituted a warrantless search when the Government review exceeded the scope of the private search. The first such case was Walter v. United States, 447 U.S. 649 (1980). In Walter, a shipment of 12 large, securely sealed packages containing 871 boxes of 8 millimeter film depicting homosexual activities were mistakenly delivered to L Eggs Products, Inc. instead of Leggs, Inc. Id. at 651. Employees of L Eggs opened each of the packages to find the individual boxes of film which displayed suggestive drawings and explicit descriptions of the contents. Id. at One employee opened one or two boxes and attempted without success to view portions of the film by holding it up to light. Shortly thereafter, they called a FBI agent who picked up the packages without a warrant and viewed the films with projectors. Id. A plurality of the Court in Walter held viewing the films was a search because it exceeded the scope of the private search and frustrated a legitimate expectation of privacy in the films and the defendants without justification. The fact that the cartons were unexpectedly opened by a third party does not alter the legitimate expectation of privacy. Id. at The private search merely frustrated that expectation in part. Id. at 660. It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection. Id. Since the additional search conducted by the FBI the screening of the films was not supported by any justification, it violated that Amendment. Id. A majority of the Court affirmed and elaborated on the Walter decision in United States v. Jacobsen, 466 U.S.109 (1984). In Jacobsen, a package was torn by a forklift operated by a 9

16 private freight carrier, Federal Express. Id. at 111. Employees of Federal Express examined the package and discovered a tube, about 10 inches long, covered by five or six pieces of newspaper. Id. The employees cut open the tube and found four zip-lock plastic bags, containing about six and a half ounces of white powder. Id. The employees then notified the Drug Enforcement Administration and replaced the plastic bags in the tube and put the tube and newspaper back in the box. Id. When the first federal agent arrived he removed the four plastic bags from the tube and saw the white powder. Id. The agent then opened each of the four bags and removed a trace of white substance with a knife blade. Id. at The agent conducted a field test made on the spot which identified the substance as cocaine. Id. at 112. The Court held the federal did not infringe any constitutionally protected privacy interest that had not already been frustrated as the result of private conduct. Id. at 126. In doing do the Court established the virtual certainty standard as the scope of a search under the Private Search Doctrine. Under the private search doctrine, the critical measures of whether a governmental search exceeds the scope are how much information the government stands to gain when it re-examines the evidence and, relatedly, how certain it is in what information it will find. United States v. Lichtenberger, 786 F.3d 478, (6th Cir. 2015). For a review pursuant to the Private Search Doctrine to be permissible, Jacobsen say a Government search has to stay within the scope of the initial private search. Id. at 488. To accomplish this, the Government has to proceed with virtual certainty that the inspection would not reveal anything more than already revealed by the private party. Id. Applying this standard on the basis of the facts as they existed at the time of the Government investigation, the Jacobsen Court found that both the removal of the white powder 10

17 from the tube and the field test performed on the powder were virtually certain to frustrate no reasonable expectation of privacy that had not already been frustrated by Federal Express. When the first agent on the scene initially saw the package, he knew it contained nothing of significance except a tube containing plastic bags and, ultimately, white powder. Jacobsen, 466 U.S. at 118. Even if the white powder was not itself in plain view because it was still enclosed in so many containers and covered with papers, there was a virtual certainty that nothing else of significance was in the package and that a manual inspection of the tube and its contents would not tell him anything more than he already had been told. Id. at A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. Id. at 123. It is probably safe to assume that virtually all of the tests conducted under these circumstances would result in a positive finding; in such cases, no legitimate interest has been compromised. Id. Congress has decided to treat the interest in privately possessing cocaine as illegitimate. Thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably private fact, compromises no legitimate privacy interest. Id. 2. The Expectation of Privacy in the Contents of a Closed Container is not Frustrated Simply by a Private Party Opening that Conatiner. The Government argues the Court should adopt the closed container approach as the scope of search under the Private Search Doctrine in the context of electronic storage devices. R. at 15. The closed container approach is an addendum to the virtual certainty standard. Utilized by several of the circuits, the approach claims a person losses all reasonable expectation of privacy in all of the contents of a closed container once that container has been opened by a private party and revealed to the Government. 11

18 The Government does not exceed the scope of a private search when they examine the same materials more thoroughly than the private party. United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001). In the context of a closed container search, this means police do not exceed the private search when they examine more items within a closed container than the private searchers. Id. Though the Court has long recognized that individuals have an expectation of privacy in closed containers, an individual's expectation of privacy in the contents of a container are compromised if that container was opened and examined by private searchers. Id. at 465. Thus, the police do not perform a search each time they examine a particular item found within the container. Id. The closed container approach seeks to avoid the virtual certainty standard set by Jacobsen by creating a general rule that the contents of a container lose any reasonable expectation of privacy when that container is opened by a private party. This analysis is flawed. The closed container approach is in direct conflict with the ruling in Walter and ignores the analysis performed in Jacobsen. The Walter court held a defendant retained some expectation of privacy in the contents of a container when that container was opened by a private party. Walter, 447 U.S. at The private search merely frustrated that expectation in part. Id. at 659. It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection. Id. In light of the holding in Walter, the creation of the closed container approach by the lower courts is unjustified. The closed container approach also misapplies the Court s holding in Jacobsen. The Jacobsen court decided the respondents could have no privacy interest in the contents of their package. Jacobsen, 466 U.S. at 119. However this was only after the Court analyzed the 12

19 reasonableness of the official investigation and determined there was a virtual certainty that nothing else of significance was in the package and that a manual inspection of the tube and its contents would not tell [agents] anything more than [they] already [knew]. Id. For the circuits to turn this analysis into a generalized rule proclaiming all contents of any container, having been opened by a private party, lose any expectation to privacy is inappropriate. The closed container approach has never been adopted by the Court, it ignores precedent set by Walter and Jacobsen, and should not be implemented by the Court at this time. 3. It is Inappropriate to Apply the Closed Container Approach to an Electronic Storage Device. Even if the Court adopts the closed container approach as an addendum to the virtual certainty standard under the Private Search Doctrine, it is inappropriate to apply that addendum to a search of an electronic storage device. The Court generally determines whether to exempt a given type of search from the warrant requirement by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. Riley v. California, 573 U.S., 134 S.Ct. 2473, 2484 (2014). The Court has recognized the privacy interest a person has in their cell phone is greater than that of a physical container. One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Id. at Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. Id. But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. Id. The current top-selling smart phone has a standard capacity of 16 gigabytes. Id. Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. Id. The sum of an individual's private life can be reconstructed 13

20 through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Id. The closed container approach is not necessary for the promotion of a legitimate governmental interest. The Government may still recreate the private search as long as it contains itself to the scope of the private search by only reviewing information revealed by the private party. To the extent the Government needs to search the rest of an external hard drive it may obtain a warrant. The Sixth Circuit, recognized the rationale of Riley, and refused to extend the closed container approach to the search of a laptop which had been searched by a private party. The search of a laptop is far more intrusive than the search of a container because the two objects are not alike. Lichtenberger, 786 F.3d at 488. For the review of a laptop to be permissible, Jacobsen instructs us that the Government search had to stay within the scope of the private search. Id. To accomplish this, the Government had to proceed with virtual certainty that the inspection of the laptop and its contents would not tell him anything more than it already had been told. Id. Given the amount of data a laptop can hold, there was absolutely no virtual certainty as there was in Jacobsen. Id. The application of the closed container approach of an external hard drive is equally impractical. Greene s hard drive had a storage capacity of two terabytes of data. Two terabytes is equivalent to 2,000 gigabytes. If the sum of an individual s life can be reconstructed through 16 gigabytes of data on a cell phone, a warrantless search of Greene's hard drive is effectively limitless. The closed container approach s intrusion onto an individual s privacy significantly outweighs its necessity in the promotion of legitimate governmental interests. The Court should 14

21 go no further than applying the virtual certainty standard as the scope of a search pursuant to private search in the context of an electronic storage device. II. GREENE S PRIVACY WAS UNCONSTITUTIONALLY INVADED BY THE FEDERAL GOVERNMENT S WARRANTLESS TRACKING OF GREENE THROUGH HIS CELL PHONE S HISTORIC LOCATION INFORMATION. A. Greene has a Reasonable Expectation of Privacy, as He did not Voluntarily Convey his Cell Site Location Information (CSLI). The third-party doctrine only applies to voluntary conveyances. The Court in Miller and in Smith held a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. United States v. Graham, 796 F.3d 332, 360 (4th Cir. 2015) (citing United States v. Miller, 425 U.S. 435, 442 (1976), and Smith v. Maryland, 442 U.S. 735, (1979)). Miller involved police acquisition of financial records generated as a result of Miller s transactions with a bank. Miller, 425 U.S. at The Court held Miller revealed the content of the records to the Bank through the ordinary practice of business, and thus assumed the risk the Bank could revealed the records to government agents. Graham, 796 F.3d at 353 (citing Miller, 425 U.S. at ). The Miller court focused on Miller s knowing activity to determine he voluntarily conveyed what was once private information to a third-party, thus defeating his privacy interest. Miller, 425 U.S. at 442. The Court again cited this voluntary disclosure principle in Smith v. Maryland. There, a phone company attached a mechanical device to a phone line at the switchboard to record dialed numbers. Smith, 442 U.S. at 737. When petitioner called the victim of a robbery (which petitioner committed), the pen register recorded the number that dialed the victim. Id. at The Court rejected a Fourth Amendment privacy claim, holding Smith had no reasonable expectation of privacy in numbers he dialed. Id. at Again the Court focused on the voluntary, knowing action of the individual. In this case, Greene didn t voluntarily convey his 15

22 location information, as his CSP generated the location information without action by Green. R. at 5. The circuits are split on the issue of voluntary conveyance. The Third and Fourth Circuits follow this Court s precedents in Smith and Miller, determining that, since location information isn t dependent on any knowing action of the cell phone user, such information is not voluntarily conveyed. 4 By contrast, the Fifth and Eleventh Circuits make a logical leap, holding cell phone users to constructive knowledge of their phone's conveyance of location information. 5 Based on cell phone users experiences using cell phones, these circuits assume the users implicitly understand CSPs track individually identifiable location information ad infintum. Historical, 724 F.3d at 613; Davis, 724 F.3d at This Court should endorse the Fourth Circuit approach, adopted by the Southern District of Arcadia, as it is more consistent with the Fourth Amendment and this Court s precedent. 1. The Twelfth Circuit Voluntary Conveyance Analysis Disregards the Reality of Modern Cell Phone Usage. The Twelfth Circuit adopted the unsubstantiated analysis of the Fifth Circuit. R. at 18. The Fifth Circuit s analysis of voluntary CSLI conveyance relies on unfounded conclusory statements and an overbroad assumption of the conscious actions of a cell phone user. See In re United States for Historical Cell Site Data, 724 F.3d 600, (5th Cir. 2013).The Fifth Circuit begins by analogizing CSLI to Smith s dialing numbers. Id. at 612. This Court said in Smith [a]ll telephone users realize that they must convey phone numbers to the telephone 4 In re Application of the United States for an Order a Provider of Elec. Commc n Serv. to Disclose Records to Gov t, 620 F.3d 304 (3d Cir. 2010); United States v. Graham, 796 F.3d 332, 360 (4th Cir. 2015). 5 In re United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013); United States v. Davis, 758 F.3d 498 (11th Cir. 2015). 16

23 company.... All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. Smith v. Maryland, 442 U.S. 735, 742 (1979). According to the Fifth Circuit, cell phone users have a similar understanding, saying a cell phone user knows they must send a signal to a nearby cell tower and that location of the cell phone can affect the quality of cell service. Historical, 724 F.3d at 613. The Eleventh Circuit agreed, suggesting that because users are generally aware that their calls are connected through cell towers, their use of their phones amounts to voluntary conveyance of their general location within that cell tower s range[.] United States v. Graham, 796 F.3d 332, 356 (4th Cir. 2015) (citing United States v. Davis, 758 F.3d 498, 511 (11th Cir. 2015)). These Circuits, however, cite nothing to support their user knowledge assumptions. The Fifth and Eleventh Circuits suggestions amount to little more than judicial guess work. Even if cell phone users know location is important to cell phone usage, nothing related to that assumption can puts a cell phone user on notice of a CSP s perpetual collection of individually identifiable location information. The Fifth Circuit's other analysis, implicitly adopted by the Twelfth Circuit, on voluntariness equally fails. The Fifth Circuit argues cell phone service contracts disclose a Carrier's CSLI practices. Historical, 724 F.3d at 613. However, in this case, the Court has no idea what Appellant s contract disclosed. Further, the Fourth Circuit recognizes most cell phone users don t read or understand their cell service contracts. Graham, 796 F.3d at User 6 The Fourth Circuit, in Graham fn. 3, cited to additional secondary sources to support this proposition. 17

24 contracts are often difficult to read and the average user neither has time or knowledge to appreciate the implications of the contract terms and disclosures. 7 The Fifth Circuit, however, holds cell phone users to a higher standard than Smith. Smith focuses the voluntariness analysis on what a reasonable individual would actually know about his conveyance. Smith, 442 U.S. at 743. The Fifth Circuit, by contrast, would believe a typical cell phone user possesses an intimate knowledge of a CSP s technical capabilities and practices. Smith recognizes a typical user need not understand the esoteric functions of a pen register, to know it is in use, due to a typical user's experience with phone records. Id. at 742. Cell phones users have no similar experience. Many users may have experience with instantaneous location services like GPS, but the Fifth Circuit stretches to suggest a typical user knows their CSP maintains a massive record of their movements. This court should reject the Fifth Circuit s constructive knowledge arguments, in favor of the Fourth Circuit s more reasonable analysis of a typical user. 2. By Adopting the Fifth Circuit, the Twelfth Circuit s Analysis Encourages Police Overreach and Produces Absurd Analytical Results. The Fifth Circuit deems any transmission from a cell phone voluntary, as use of [a phone]... is entirely voluntary. In re United States for Historical Cell Site Data, 724 F.3d 600, 613 (5th Cir. 2013) (citing United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012)). The Historical court believes, because the government doesn t require an individual to own or use a cell phone, the usage of a cell phone by an individual is a voluntary consent to whatever transmission the device could potentially emit, regardless of the individual s awareness or expectations. Historical, 724 F.3d at This result is absurd and should be rejected. 7 Aleecia M. McDonald and Lorrie Faith Cranor, The Cost of Reading Privacy Policies, 4 I/S: J.L. & Pol y Info. Soc y 543, 544 (2008). 18

25 The Fourth Circuit s analysis represents the reality of cell phone usage. Cell phone use is not only ubiquitous in our society, it has become essential. United States v. Graham, 796 F.3d 332, (4th Cir. 2015). People cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking active participation in society through the use of their cell phones. Id. at 356. Graham recognizes the involuntary nature of CSLI, saying, [t]he service provider automatically generates CSLI in response to connections made between the cell phone and the provider s network, with and without the user s active participation.... A user is not required to actively submit any location-identifying information when making a call or sending a message. 796 F.3d at 355. Based on this reasoning, the Third and Fourth Circuits require a knowing action by an individual for the conveyance to be voluntary. In re Application of the United States for an Order a Provider of Elec. Commc n Serv. to Disclose Records to Gov t, 620 F.3d 304, 318 (3d Cir. 2010); Graham, 796 F.3d at The Fifth Circuit, however, is afraid limiting voluntary transmission to a knowing action will produce absurd results. Historical, 724 F.3d at 613. In support, the court offers the use of an automatic dialer. Id. at 613. The court believes, under the Third and Fourth Circuit standard, an individual who uses speed dial has not voluntarily conveyed the dialing information because they did not manually dial the numbers. Id. at 614.This analysis misconstrues the focus of the Smith standard. The caller knowingly conveys the phone number by pressing the button to begin the speed dial, demonstrating an intent to convey information to the CSP. Location information, by contrast, is unknowingly transmitted, and the caller demonstrates no intent to convey such individually identifiable information. The Fifth Circuit analysis produces absurd results. Under the Fifth Circuit s approach, any data a third-party generates about an individual, based on the individual s participation in an 19

26 open society, could potentially be reached by authorities without a warrant. Nothing limits this argument or prevents exposure of every American to warrantless monitoring, provided the Government can articulate some reason the third-party data arose from the individual s public participation. The Fifth Circuit offers a Hobson s choice, give up your freedom from constant surveillance or give up your career, your community, and your connection to society by discarding your cell phone. This approach, effectively a general warrant, should be rejected. B. Application of the Third-Party Doctrine to Historic CSLI is Incompatible with Society s Recognition of an Objectively Reasonable Expectation of Freedom from Long- Term, Warrantless Surveillance. For the second prong of the Katz analysis, society must find an expectation of privacy objectively reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). [S]ociety recognizes an individual s privacy interest [as reasonable] in her movements over an extended time period as well as her movements in private spaces. United States v. Graham, 796 F.3d 332, 357 (4th Cir. 2015). While policing techniques must advance with changes in technology, evolutions in technological capabilities do not necessarily indicate a change in society s expectations of privacy. Id. at 359; see generally United States v. Kyllo, 533 U.S. 27 (2001). In United States v. Jones, members of this court recognized the failure the third-party doctrine to adequately handle the voluminous amount of data collected by CSPs. See generally United States v. Jones, 565 U.S., 132 S.Ct. 945 (2012). Our recent developments in mobile and Internet technology grants the Government, through calculated usage of the third-party doctrine, near-limitless surveillance of any citizen. See Graham, 796 F.3d at 360. While difficult to ascertain clearly, numerous jurisdictions demonstrate society s unwillingness to cede our precious freedom in the face of technological advancement. 20

27 1. Congressional Action is Insufficient in the Context of CSLI to Articulate Society s Opinion on Historical Location Surveillance. Congressional action can act as a proxy for societal opinion on the reasonableness of searches. United States v. Jones, 565 U.S., 132 S.Ct. 945, 964 (2012) (Alito, J., concurring). Congress passed the Electronic Communications Privacy Act, which included the mechanism for warrantless CSLI collection. 8 According to the Fifth and Eleventh Circuits, since Congress speaks for society by passing laws and warrantless collection of CSLI is permissible under the law, society must not find expectations of privacy in CSLI reasonable. In re United States for Historical Cell Site Data, 724 F.3d 600, (5th Cir. 2013); United States v. Davis, 785 F.3d 498, 512. However, some courts and commentators have challenged this interpretation, as it presumes the applicability of 2703(d) to CSLI. 9 Unfortunately, Congress spoke unclearly on CSLI, and the Court must step in to articulate society s expectations. 2. Court Precedent Recognizes a Societal Concern about Warrantless, Long-Term Tracking through Electronic and other Non-Visual Means. This Court has repeatedly recognized society s unease when it comes to electronic surveillance. Electronically assisted surveillance is not objectively unreasonable when it is limited in scope and duration. United States v. Knotts, 460 U.S. 276, (1983). In Knotts, the electronic surveillance lasted just three days and never crossed into a private space. Id. at 276. Then in Karo, the Court limited the use of electronic surveillance when it allowed the Government to monitor activity from within a private dwelling. United States v. Karo, 468 U.S. 8 Electronic Communications Privacy Act of , 18 U.S.C. 2703(d). 9 In re United States for Historical Cell Site Data, 724 F.3d 600, (5th Cir. 2013) (Dennis, J., dissenting); In re Application of U.S. for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to Gov't, 620 F.3d 304 (3d Cir. 2010); see e.g. Mark Daniel Langer, Rebuilding Bridges: Addressing the Problems of Historic Cell Cite Location Information, 29 Berkeley Tech. L.J. 955 (2014). 21

28 705, 714 (1984). More recently in Kyllo, this court held where... the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant. Kyllo v. United States, 533 U.S. 27, 40 (2001). Although not referencing CSLI specifically, these cases demonstrate society expects some privacy from electronic surveillance, especially within private spaces. A majority of justices in Jones found society is not willing to surrender an expectation of privacy from long term surveillance. United States v. Jones, 565 U.S., 132 S.Ct. 945, 955 (2012) (Sotomayor, J., concurring) (citing Justice Alito's concurrence at 961). In Jones, government agents installed a GPS tracking device on Jones s car. Id. at 947. The majority held the installation of the tracking device violated the Fourth Amendment as a trespass of Jones s property. Id. at 949. Justice Sotomayor s concurrence (which the Fourth Circuit adopts) raises the specter of unlimited government surveillance through electronic means. Id. at (Sotomayor, J., concurring). Justice Sotomayor identifies modern surveillance requires no physical invasion or trespass. Id. at She agrees with Justice Alito s concurrence, 10 which found at the very least, longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. Id. at 955. Both concurrences further find the extent of detail available from constant, warrantless GPS surveillance potentially offends the Fourth Amendment with even short-term monitoring. Id. at , Justice Alito articulates society s expectations with regard to the duration of warrantless surveillance, saying relatively short-term monitoring of a person s movements on public streets 10 Justice Alito filled a separate opinion concurring with the majority in judgment only. His opinion was joined by Justices Ginsburg, Breyer, and Kagan. With Justice Sotomayor, five justices expressed concerns of unlimited, warrantless surveillance through electronic or nonvisual means. 22