In the Supreme Court of the United States

Transcription

1 THIRTY-NINTH ANNUAL CRAVEN MOOT COURT COMPETITION No In the Supreme Court of the United States OCTOBER TERM, 2015 UNITED STATES OF AMERICA, Petitioner, v. GORDON BURGESS, Respondent. RECORD ON APPEAL

2 THE UNITED STATES OF AMERICA, Plaintiff Appellee, v. GORDON BURGESS, Defendant Appellant. No United States Court of Appeals for the Thirteenth Circuit Argued: June 24, 2015 Decided: October 18, 2015 WARREN, Judge. Appellant Gordon Burgess was convicted by a jury of two counts of Hobbs Act robbery, pursuant to 18 U.S.C. 1951(a), and one count of felon in possession of a firearm, pursuant to 18 U.S.C. 922(g). Defendant challenges the district court s denial of his motions to suppress evidence on the grounds that the government violated his Fourth Amendment rights by obtaining his historical cell phone site location information ( CSLI ) without a warrant, pursuant to 18 U.S.C. 2703(d), and again by requesting his real-time GPS location information by active pinging of his cell phone without a warrant, pursuant to 18 U.S.C. 2702(c)(4). Consequently, we are tasked with determining whether the government s warrantless procurement of defendant s CSLI, in accordance with the Stored Communications Act ( SCA or Act ), constituted an unreasonable search in violation of the Fourth Amendment. We must also determine whether there were sufficient exigent circumstances to permit the warrantless real-time tracking of defendant s cell phone, pursuant to the same Act. We hold that obtaining and using defendant s historical CSLI does constitute a search under the Fourth Amendment, and that the exigent circumstances asserted by the government to justify the real-time pinging of defendant s cell phone were not reasonable and do not satisfy the requirements of an exception to the warrant requirement. Accordingly, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion. I. Factual and Procedural History Evidence adduced at trial permitted the jury to find the following facts. On January 18, 2013, defendant robbed Franklin Henderson outside of a convenience store in rural Roan County, Craven. Mr. Henderson had just left work and stopped to cash his paycheck, fill up his car with gas, and chat with several store employees. At around 9:14 p.m., as Mr. Henderson was heading towards his car, defendant approached him from behind and violently attacked. Defendant struck Mr. Henderson several times with an unknown object and knocked him to the ground. Defendant then searched Mr. Henderson s pockets and took approximately $500 dollars before leaving the scene. Several weeks later, on February 8, 2013, defendant committed a similar robbery in Bakers County, Craven. On that evening, defendant came upon Donte Hambly while Mr. Hambly was exiting a bar. Defendant followed Mr. Hambly for a short time before attacking him and striking him several times with a wooden baseball bat. Defendant was searching for possessions on Mr. Hambly when an unidentified individual walked around the corner. Defendant immediately grabbed Mr. Hambly s wallet and took off down the street. Defendant took a total of $487 in 2

3 cash, along with the full contents of Mr. Hambly s wallet. 1 Immediately following the Roan County robbery, police launched an investigation. After several weeks, police were unable to identify any potential suspects. Following the second robbery, the Bakers County police investigation came to a similarly unsuccessful end. At the time, neither department had made a connection between the two crimes. It wasn t until Roan County police received a phone tip from Cassey Masser on March 4, 2013, that defendant was identified as the prime suspect for the first robbery. Cassey Masser identified herself as defendant s girlfriend. The following are the relevant portions of the transcript from the March 4, 2013, call: Dispatch: 9-1-1, please state your emergency. Ms. Masser: I m not sure this is an emergency exactly... It s my boyfriend; I think he s robbing people again. Dispatch: Okay. Is he in the room with you? Ms. Masser: No, he s at work. But last night he was drinking with a few of his buddies and I overheard him say that he ripped off a guy on payday. I confronted him about it this morning and he said it was a card game, but I remember him acting real strange a few times the past couple of months. And now that I think back on it, it reminds me of when he used to get into trouble. Dispatch: Okay. May I have his name? 1 No evidence was submitted to suggest that defendant used any of Mr. Hambly s credit or debit cards. Ms. Masser: Course, it s Gordon Burgess. Mine is Cassey Masser. He s my boyfriend, but I don t know what I ll do if he s been robbing people again. He got into trouble a few years back, but has been working real hard lately. Dispatch: Okay. Do you remember when he was acting strange? Or any particular actions he was displaying? Ms. Masser: Not exactly, it must have been since the middle of January maybe. He would leave and come home at weird times, always had a different excuse, changed his stories, I don t know. He was just acting weird. Dispatch: Okay. Can you give me any details that make you believe he robbed someone? Ms. Masser: Well, about two weeks ago I found some guy s wallet on the counter. I asked where it came from and he said he found it on the ground. I told him I could try to find the owner if it had a license in it. He got real defensive and angry. He said it didn t and walked outside and threw it away. I didn t really think nothing of it at the time. But after last night, I wanted to check around. This morning I looked through his desk and found a paystub in it, but it doesn t have a name or nothing on it. I know it s not his normal one either. And he sure isn t working anywhere else. Following this lead, Roan County police filed an order, pursuant to Section 2703(d) of the SCA, to obtain defendant s historical cell phone site location information from January 10, 2013, to March 1, Police were granted this order on March 5, By March 6, 2013, 3

4 Roan County police had obtained defendant s historical CSLI from Verizon and rendered a map, which verified Masser s tip and placed defendant in the vicinity of the first robbery. Roan County officers observed several strange patterns in defendant s CSLI and sent out a notice to the surrounding counties for any information on similar robberies that may have occurred in the prior two months. Bakers County police responded to the notice the next morning, March 8, 2013, with a description of the February 8 robbery. Later in the day on March 8, 2013, before either department was able to take further action in the investigation, Roan County police received a second call from Masser. This call was far more frantic than the March 4 call: Dispatch: 9-1-1, please state your emergency. Ms. Masser: Hurry! He just left! I know he s going to do something stupid! I confronted him about it as he was walking out and he just said he was going to blow off some steam with Jacob. But then I saw he wrote down today s date on a piece of paper that says pay day underlined. He don t get paid until next week! I tried calling him and he didn t answer! Please help! Dispatch: Okay. May I get the name of the individual you are talking about? Ms. Masser: His name is Gordon Burgess. I m Cassey Masser. Please I don t want him going to jail for killing no one. Dispatch: Okay. What are you worried Mr. Burgess is going to do. Ms. Masser: I just know he s going to go rob someone. I don t know who or where, but I can feel it. Dispatch: Okay. Do you think he might attempt to rob Jacob? Ms. Masser: No, Jacob is one of his good buddies. Gordon may be dumb but he s loyal. Dispatch: Okay. Do you know Jacob s address? Ms. Masser: Yeah, it s a few miles north on Highway 55 in Roan County, just before the intersection with Highway 86. Dispatch: Okay. And when did he leave? Ms. Masser: About ten minutes ago, like I said, he said he was going to Jacob s, but I didn t believe him after what he said last weekend, so I dug through his desk. That s when I found the note and tried to call him. Dispatch: Okay. Do you have any reason to believe he may be armed? Ms. Masser: I don t know. I don t why he s going back to his old habits, I can t keep trying to change him. He keeps a gun at the house. I don t know, he takes it out sometimes, but I don t know where it would be. Roan County police immediately contacted Verizon, and, pursuant to Section 2702(c)(4), obtained defendant s real-time GPS information through active pinging of defendant s cell phone. Police tracked defendant s phone for approximately a half hour. The initial pings placed defendant on a public road in Roan County. However, by the time police had located defendant s car, the pings showed defendant on private property. Roan County police waited for defendant to exit the residence of Jacob Hennery. As defendant was getting in his 4

5 vehicle, police detained him. While police were questioning defendant, they saw the handle of a pistol sticking out from under the passenger seat of his car and arrested defendant for being a felon in possession of a firearm and two charges of Hobbs Act robbery. At trial defendant objected to the government s use of the historical cell phone site location information, which was used to demonstrate his whereabouts at the times of the two robberies. Defendant argued that the information was obtained without a warrant, and thus violated his Fourth Amendment rights. The district court, however, concluded that there was no search within the meaning of the Fourth Amendment, and therefore the government was then under no obligation to obtain a warrant before collecting the information. The district court therefore denied defendant s motion to suppress. Defendant also sought to exclude the evidence from the search of his car that was obtained as a result of the GPS pinging done to locate him. The district court agreed that defendant had a reasonable expectation of privacy as to his real-time GPS location on private property. However, it denied defendant s motion to suppress on the grounds that there were sufficient exigent circumstances to permit the search without a warrant. II. Standard of Review We review a trial court s evidentiary findings of fact for clear error, United States v. Jackson, 617 F.3d 247, 249 (13th Cir. 2004), but we review any conclusions of law concerning a constitutional challenge to the admission of evidence de novo, United States v. Thomas, 465 F.3d 198, 201 (13th Cir. 2010). 2 Moreover, the existence of 2 Cases cited in the 13th Circuit are fictional cases used to establish necessary requirements within the exigent circumstances is a mixed question of law and fact. United States v. Maxwell, 194 F.2d 845, 847 (13th Cir. 1998). Our review begins with a determination of whether the district court's factual findings are clearly erroneous, viewing the evidence in the light most favorable to the district court's findings, but ultimately, the question regarding the reasonableness of a search is one of law which we review de novo. Id. III. Discussion On appeal, defendant asserts that the government, by obtaining his CSLI pursuant a court order issued under Section 2703(d) of the SCA, violated his Fourth Amendment rights. Defendant argues that this violation arises from the fact that the SCA, as applied, allows for an unconstitutional search and seizure because acquisition of such records under the Act does not require a showing of probable cause on the part of the government. Additionally, defendant contends that the circumstances surrounding the government s use of real-time GPS pinging does not rise to the levels necessary to permit an exception to the warrant requirement under the exigency doctrine, and thus similarly violated his Fourth Amendment rights. Accordingly, in the case before us we deal only with the narrow issues of (1) whether government access under the SCA to a third party service provider s records involving the historical CSLI constitutes a search under the Fourth Amendment and (2) whether, under the present circumstances, the government s warrantless request to Verizon to obtain real-time GPS location information of defendant s cell phone through active pinging is proper under the binding circuit and are designed to focus competitor s arguments on the main issues so as to avoid tangential arguments. 5

6 exigency exception to the warrant requirement. A. Statutory Background The SCA authorizes the government to obtain from third party providers of electronic communication services certain records pertaining to subscribers without consent or first obtaining a warrant. 18 U.S.C. 2703(c). Section 2703(d) requires the government to present 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, and upon such a showing a judge shall issue a court order requested under subsections (b) or (c). Id. 2703(d). [T]his standard is less than the probable cause standard for a search warrant, United States v. Davis, 785 F.3d 498, 505 (11th Cir. 2015), and is essentially a reasonable suspicion standard. United States v. Graham, 796 F.3d 332, 344 (4th Cir. 2015) (citing In re Application of United States for an Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d 283, 287 (4th Cir. 2013)). Moreover, the Act does not specify when the government should seek a warrant versus a 2703(d) order. Id. The privacy-protection provisions of the SCA work together to safeguard certain private information that arises from our ever increased dependency on technology against government intrusion, but, as this case highlights, fall short of the constitutionally required protections. First, the SCA prevents voluntary disclosure by communication providers to governmental or nongovernmental entities of records such as historical cell phone site location information. 18 U.S.C. 2702(a)(3), (c)(4), (c)(6). Additionally, where such records are requested by a governmental agency, the Act introduces a neutral and detached magistrate between the citizen and the officer. United States v. Karo, 468 U.S. 705, 717 (1984) (internal citations omitted). By requiring a judicial officer to find a factual basis for why the requested records are material to an ongoing investigation and imposing penalties for violations of the Act, the Act offers citizens higher protection of sensitive information possessed by these third party providers than would otherwise be in place. 18 U.S.C. 2707(a), (c), (d), 2712(a), (c). However, the SCA s protections are not without exceptions. Section 2702(c)(4) allows a service provider to release customer records, including historical and real-time CSLI, to a government entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency. 18 U.S.C. 2702(c)(4). This exception certainly opens the door for abuses of power and potential Fourth Amendment violations. The nature of the information contained within these records raises concerns that these safeguards are not sufficient to protect citizens against Fourth Amendment violations. Defendant claims that the government s acquisition of his historical CSLI, for an extended period of time, through a 2703(d) order, was just such an intrusion. The order at issue directed Verizon to disclose defendant s CSLI covering a period of 51 days. To prevail on this claim, defendant must demonstrate that (1) the application of the SCA to his historical CSLI constituted a search within the meaning of the Fourth Amendment and (2) that such a search was unreasonable. Defendant s second claim is that the circumstances of this case do not fall within the exigency exception to the warrant requirement, and that the government s acquisition of his real-time GPS location 6

7 pursuant Section 2702(c)(4) from Verizon constitutes an unreasonable search under the Fourth Amendment. We agree with defendant that the government s acquisition and use of his historical CSLI for a 51-day period of time constitutes a search within the meaning of the Fourth Amendment, and that this warrantless search is per se unreasonable. We also agree that the circumstances of this case did not permit the government s warrantless acquisition and use of the defendant s real-time GPS tracking information. B. A Fourth Amendment Search of Historical Cell Phone Site Location Information The Fourth Amendment protects citizens against unreasonable searches and seizures. U.S. CONST. amend. IV; see Katz v. United States, 389 U.S. 347, 353 (1967). A search occurs where the government invades a matter in which society considers the individual to have a reasonable expectation of privacy. See Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing Katz, 389 U.S. at 361 (Harlan, J., concurring)). Moreover the Fourth Amendment posits, [A]s a general matter, warrantless searches are per se unreasonable... [with] a few specifically established and well-defined exceptions. City of Ontario, Cal. V. Quon, 560 U.S. 746, 760 (2010) (citing Katz, 389 U.S. at 357). Traditional searches under the Fourth Amendment were tied to common-law trespass and involved some trespassory intrusion on property. United States v. Davis, 785 F.3d 498, 506 (11th Cir. 2015) (citing Kyllo, 533 U.S. at 27). However, this limited application to physical intrusions was expanded in Katz to include intrusions that satisfy its reasonable-expectation-ofprivacy test. Id. at 507. This test inquires about both a subjective expectation and an objective expectation, thus recognizing a Fourth Amendment search when an individual maintains an expectation of privacy that society is willing to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, (1979). As a result of Katz and its progeny, the Fourth Amendment has evolved and adapted to the increased potential loss of privacy created by the use of new technologies. However, this growth has been slow and often inconsistent. For instance, whether cell phone users have a reasonable expectation of privacy with respect to their historical CSLI for an extended period of time is unsettled and has split our sister courts. Compare Graham, 796 F.3d 332, with Davis, 785 F.3d 498, and United States v. Guerrero, 768 F.3d 351 (2014). Our decision today follows a more adaptive interpretation of the Fourth Amendment. We agree with the Graham Court s reasoning that, when the government obtains and inspects a cell phone user s historical CSLI covering an extended period of time, such action constitutes a search under the Fourth Amendment and therefore, requires a search warrant, unless an established exception to the warrant requirement applies. Davis, 785 U.S. at Nature of Cell Phone Site Location Information Before we apply the reasonableexpectation-of-privacy test set forth in Katz, it is important we examine the nature of the data the government inspected in the present case. Historical CSLI is collected by thirdparty service providers when a mobile device connects to the network, e.g., makes a call, receives a text, or when background applications update on smart phones. A device can connect to a network hundreds of times a day, often without the knowledge or 7

8 active consent of the user. The information records which tower the device is connecting to, the strength of the signal, and the general direction the device is in relation to the tower. From this GPS-like information, the government, or a third party, can develop a comprehensive view and specific details of an individual s daily life, examination of which can permit the government to track a person s movements between public and private spaces. Graham, 796 F.3d at 348. A strong concern in governmental access to such information is the ability of the government to deduce whether [an individual] is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups and not just one such fact about a person, but all such facts. United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010) (discussing the use of longer-term GPS tracking of an individual s vehicle). As the court in Graham notes regarding the application of privacy notions of longer-term GPS tracking information, The[se] privacy interests... apply with equal or greater force to historical CSLI for an extended time period. Graham, 796 F.3d at 348 (citing Commonwealth v. Augustine, 4 N.E.3d 846, 861 (Mass. 2014) ( CSLI implicates the same nature of privacy concerns as a GPS tracking device. )). Cell phones have become highly pervasive to the point that they are essential to full cultural and economic participation. Id. at ; see also Quon, 560 U.S. at 760 ( Cell phone and text message communications are so pervasive that some persons may consider them to be essential means. ); see also Riley v. California, 134 S. Ct. 2473, 2484 ( [M]odern cell phones... are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. ). The prevalence of cell phones and the potential intrusion of privacy resulting from the manner in which we carry them, threatens our privacy to a greater degree than other GPS tracking devices found in similar cases. In essence, the use of historical CSLI allows for mass surveillance of individuals both in and out of the public sphere. While the nature of historical CSLI is akin to the GPS location information discussed in United States v. Jones, historical CSLI is actually more intrusive in that CSLI tracks the person rather than the vehicle. Compare Graham, 796 F.3d 332, with United States v. Jones, 132 S. Ct. 945 (2012). Historical CSLI is not as pinpoint accurate as GPS, but the tracking is of a hand-held personal device, generally carried on an individual through both public and private spaces, as opposed to a vehicle, which is generally restricted to public thoroughfares. See Graham, 796 F.3d at 348. As a result of this, historical CSLI may actually provide a more intimate picture than the GPS tracking information ruled as a search in other cases. See, e.g., Jones, 132 S. Ct. 945 (holding that longer-term GPS tracking of the defendant s vehicle by police constituted a search under the Fourth Amendment); and Maynard, 615 F.3d 544 (holding that the warrantless GPS tracking of the defendant s vehicle for a month was a search within the Fourth Amendment). The court in Graham uses these distinctions to conclude that historical CSLI is one such technology that when used by the government invades a reasonable expectation of privacy. Id. at 349. The dissent argues that there is no need to look at the nature of the information in question to answer the issues raised in this case. Instead, the dissent would have us treat this case much like the information in Smith v. Maryland, where an individual voluntarily provides the service provider data through 8

9 the use of his or her device. 442 U.S And, as a result of this voluntary disclosure, the information is not in the customer s possession. Therefore, we would only need to apply the third-party doctrine as to the service provider s records. However, this argument rests on the assumption that individuals voluntarily convey their CSLI to their service providers. Such an assumption side steps the heart of the Fourth Amendment issue, and blurs the lines between what the government purports to do inspect a third-party s business records and what the government is actually doing tracking citizens across public and private spaces. In the present case, the government obtained and examined defendant s historical CSLI for a 51-day period of time surrounding the robberies. Much like in Jones and Graham, this quantum of data is substantial enough to provide a reasonably detailed account of [defendant s] movements. Id. Accordingly, the government is going well beyond simply examining the business records of a thirdparty service provider, but is in fact tracking an individual over an extended period of time, which we find is sufficient to raise reasonable privacy concerns. 2. Third-Party Doctrine Even in light of reasonable privacy concerns, the Supreme Court has found that individuals may voluntarily forfeit their expectations of privacy, and thus lose Fourth Amendment protections, when they provide information to a third party. See Smith, 442 U.S. at ; see also United States v. Miller, 425 U.S. 435, 442 (1980). In both Smith and Miller, the Court held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Smith, 442 U.S. at Furthermore, revelation of the information [] on the assumption that it will be used only for a limited purpose and [based on] the confidence placed in the third party will not be betrayed is not sufficient to overcome this forfeiture of a reasonable expectation of privacy. Miller, 425 U.S. at 443. In Miller, the Court addressed the issue of whether a bank client had a reasonable expectation of privacy to the records held by the bank concerning his account. Miller, 425 U.S First, the Court found that the government s intrusion could not be an invasion of his private papers because such records were not within his possession. Id. at Next, the Court turned to whether the government violated his privacy interests as related to the records in the bank s possession. Id. at 442. In so doing, the Court looked at the contents of the records and determined that there could be perceived no legitimate expectation of privacy in their contents. Id. at 442 (internal quotation marks excluded) (referencing the transactional nature of checks and the exposure of such records to [the bank s] employees in the ordinary course of business. ). The defendant assumed the risk that the information [would] be conveyed by [the bank] to the Government when he reveal[ed] his affairs to another. Id. at 443. This notion of giving up one s privacy interests when he or she shares information with a third party was expanded in Smith. There, the defendant argued that the government s use of a pen register to record the numbers he dialed from his home phone constituted a warrantless search under the Fourth Amendment. Smith, 442 U.S. at 737. As in Miller, the Court found that the defendant did not have a legitimate expectation of privacy because the defendant voluntarily conveyed the information, which resulted in the assumption of risk. Id. at

10 Graham highlights that these cases do not categorically exclude third-party records from Fourth Amendment protections. Graham, 796 U.S. at 354. Rather, these cases go only so far as to assert that a person can claim no legitimate expectation of privacy in information she voluntarily conveys to a third party. Id. (emphasis added). Thus it is the voluntary conveyance that illustrates the assumption of risk and loss of Fourth Amendment protections, not the mere fact that the information is in the possession of the third party. Id. We cannot accept that individuals voluntarily disclose information that they play no active role in creating. CSLI is automatically generated as a result of a mobile device connecting to a service provider s network, which may occur with or without an individual s active participation. Id. at 354 (citing Augustine, 4 N.E.3d at ). Such information is quietly and automatically calculated by the network, without unusual or overt intervention that might be detected by the target user. Id. at 355 (citing In re Application of U.S. for Historical Cell Site Data, 747 F. Supp.2d 827, 833 (S.D. Tex. 2010), vacated, 724 F.3d 600 (5th Cir. 2013)). CSLI is different in its nature and manner of creation from the information sought in other cases in which courts have applied the third-party doctrine. Compare Graham, 796 U.S. at 350 (noting the 29,659 automatically generated data points); and Davis, 785 F.3d at 533 (citing to the 11,606 automatically generated data points); with Smith, 442 U.S. 735 (examining phone numbers dialed by the defendant); and Miller, 425 U.S. 435 (involving the defendant s personally generated commercial transactions). Agreeing with Graham, we reject [t]he fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by choosing to carry a cell phone. Graham, 796 F.3d at 356 (quoting In re U.S. for an Order Authorizing the Release of Historical Cell-Site Information, 809 F. Supp.2d 113, 127 (E.D.N.Y. Aug. 22, 2011), quoted in Tracy v. State, 152 So.3d 504, 523 (Fla. 2014)). We must conclude that defendant, in merely carrying a cell phone, did not voluntarily convey his location information, and therefore he cannot be found to have forfeited his reasonable expectation of privacy. For the above reasons, we decline to apply the third-party doctrine to conclude that defendant forfeited his reasonable expectation of privacy as to his long-term CSLI. Instead we hold that the government s warrantless acquisition and inspection of 51 days of defendant s historical CSLI violated of his Fourth Amendment rights. C. Exigency Exception for Real-Time GPS Cell Phone Tracking The Supreme Court has yet to rule on whether probable cause and a warrant are required under the Fourth Amendment for the government to obtain real-time cell phone site location information ( CSLI ) to track a suspect. Tracy, 152 So.3d 504. However, the majority of courts have held that with regards to real-time, as opposed to historical data, the protections of the Fourth Amendment do apply. State v. Perry, 776 S.E.2d 528, 534 (N.C. Ct. App. 2015) (citing United States v. Espudo, 954 F. Supp.2d 1029, (S.D. Cal. 2013)). The distinguishing characteristic separating historical records from real-time information is that the former shows where the cell phone has been located at some point in the past, whereas the latter shows where the phone is presently located through the use of GPS or precision location data. Id. (citing In re Application of U.S. for 10

11 Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013)). In light of our ruling above, we have no trouble following other courts in holding that the Fourth Amendment applies to real-time GPS data, particularly when such data tracks individuals into the private realm. Generally, the government is required to procure a warrant before searching an individual s person or property unless the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment. Mincey v. Arizona, 437 U.S. 385, 394 (1978) (internal quotations omitted). Such exigencies could include the need to prevent the imminent destruction of evidence, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. Riley, 134 S. Ct. at 2494 (citing Kentucky v. King, 563 U.S. 452 (2011)). Recently, the issue of whether these types of exigent circumstances permit the government to obtain real-time cell phone site location information has gained attention, and courts have not hesitated to hold that they do allow such searches. See United States v. Takai, 943 F. Supp.2d 1315, 1323 (D. Utah 2013) (finding exigent circumstances existed where the officers had probable cause to believe that the defendant was likely armed and dangerous, had violently robbed two convenience stores, and that it was reasonable for the officer to conclude that another [robbery] might be imminently forthcoming. ); see also United States v. Gilliam, No. 11 cr 1083, 2012 WL , *2 (S.D.N.Y. Sept. 12, 2012) (holding the exigent circumstances, i.e., the potential sexual exploitation of a minor[,] was sufficient to justify the warrantless GPS pinging of the defendant s cell phone); Commonwealth v. Streety, No , 2014 WL , *13-14 (Super. Ct. Mass. Apr. 23, 2014) (holding that the emergency doctrine applied to real-time CSLI when police sought to locate a sex trafficker who they believed was accompanied by a minor female). Presently, the government asserts that the second tip they received created sufficiently exigent circumstances, i.e., that the defendant posed an immediate threat to the general public, to justify the warrantless GPS pinging by Verizon to locate him. We, however, disagree. To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances. Missouri v. McNeely, 133 S. Ct. 1552, 1559 (2013). This Circuit has consistently applied a two-part test similar to that found in other Circuits, which asks, whether (1) an officer has an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable. State v. Jackson, 573 F.3d 83, 86 (13th Cir. 2007) (citing United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006)). Traditional applications of this test have revolved around the warrantless entry into persons dwellings. See, e.g., Brigham City v. Stuart, 547 U.S. 398, 406 (2006) (holding officers had an objectively reasonable basis for believing that an occupant of a house was seriously injured or imminently threatened with such injury). In Brigham City, officers responded to a complaint regarding noise caused by a party at a residence. Id. at While responding, officers observed several juveniles drinking in the backyard, which they subsequently entered. Id. at 401. Officers then saw through a screen door and windows an altercation taking place in the kitchen. Id. The officers entered the house after several attempts to announce 11

12 their presence went unnoticed. Id. Police then arrested the defendants and charged them with contributing to the delinquency of a minor, disorderly conduct, and intoxication. Id. Ultimately the Court found that the officers actions were reasonable in response to the circumstances. Id. at 406. In the context of real-time CSLI data, an officer s request for the information without a warrant has been justified in several exigent circumstances, most analogously in Takai. 943 F. Supp.2d at There the court concluded that the police had probable cause to believe that the defendant had recently committed two beer run robberies, in which the defendant violently shot a clerk point blank in the face. Id. Police had reasonable information indicating that the type of robbery, a beer run robbery[,] was one of the signature crimes known to be committed by the defendant s associated gang. Id. Moreover, police had information that the defendant was likely armed and dangerous. Id. One crucial aspect of this information was the source. The officer making the request for the defendant s real-time CSLI obtained his information from several detectives with experience working with the defendant and his affiliates. Id. The court applied the twopart test illustrated in Najar: whether (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable. Id. (citing Najar, 451 F.3d at 717). The court held that such facts show that this test is easily met, and permitted the officer to obtain the defendant s real-time GPS location from the defendant s service provider. Id. In the case before us, the government concedes that the call on March 4, 2013, was not sufficient to produce probable cause to arrest defendant. However, after later receiving defendant s historical CSLI, police were able to verify that he was in fact in the vicinity of the robberies. The government asserts that such information was sufficient to produce probable cause to arrest defendant on the prior robberies, and defendant does not dispute this. However, the Roan County police did not immediately act upon this information. Instead it was not until a second call from Masser that police sought to arrest defendant, which the government argues did not leave adequate time to procure a warrant. We disagree that the Roan County police had an objectively reasonable basis to believe there were exigent circumstances; moreover, we do not agree that the manner and scope of the second search was reasonable in light of the circumstances. The first question we must address is whether the officers had an objectively reasonable basis to believe there was an immediate need to protect themselves or others. In Takai, a gang detective familiar with the defendant and his affiliated gang had reviewed the video of the prior robberies and identified the defendant as the prime suspect. 942 F. Supp.3d at Moreover, the arresting officers received information regarding the defendant s armed and dangerous status from separate gang unit detectives. Id. The facts presently before the court, however, when compared to Takai, are not similarly supported by police corroboration. While the information from Masser s original phone call was verified, there was little evidence or independent police corroboration that defendant was armed or that defendant was actively engaged in criminal activity. Despite lacking verification, the district court used this information to conclude that there was an objectively reasonable basis that harm was imminent, considering the nature of the investigation, the violence of the previous robberies, and the earlier call from Masser. We disagree. 12

13 The Tenth Circuit has noted the important role 911 calls... play in communicating emergencies. United States v. Martinez, 643 F.3d 1292, 1297 (10th Cir. 2011). This Circuit, as with others, recognizes that 911 calls are the predominant means of communicating emergency situations. United States v. Harlan, 687 F.3d 872, 874 (13th Cir. 2012) (citing Martinez, 643 F.3d at 1297). However, we do not hold that 911 calls will always justify warrantless action on the part of law enforcement. Id. The present case exemplifies the importance of this rule. Despite what the government asserts, the substance of Masser s second 911 call did not justify Roan County police s warrantless search. Masser was unable to confirm whether defendant was armed, nor was she able to produce much more than a feeling that defendant was engaged in criminal activity. We cannot hold that a feeling is sufficient to support an objectively reasonable basis for imminent harm. Accordingly, we do not agree that police had such an objectively reasonable basis as is required under our precedents. Next, we address whether the manner and scope of the search were reasonable, and conclude they were not. Again, the government seeks to analogize this case to Takai, and again, we disagree. Unlike the investigation in Takai, where police were actively scouting for the defendant, the police had yet to begin any traditional search for defendant. Considering the tip Masser provided as to defendant s whereabouts, the reasonable response would have been to follow the lead and scout the area, not violate the Fourth Amendment by effectively seizing defendant s cell phone for tracking purposes. Moreover, the GPS pinging placed defendant in a private home, not in the public sphere, further encroaching on defendant s rights. These distinguishing factors from both Takai and United States v. Skinner a case the dissent relies on to support its conclusion that there was no violation of the Fourth Amendment are critical to a proper Fourth Amendment analysis. United States v. Skinner, 690 F.3d 772, 781 (6th Cir. 2012) ( Because authorities tracked a known number that was voluntarily used while traveling on public thoroughfares, [the defendant] did not have a reasonable expectation of privacy in the GPS data and location of his cell phone. ). In light of the overly intrusive nature of the search, we are not convinced the government s search was proper under the circumstances. To hold otherwise would permit the government to effectively pinpoint any potential criminal, regardless of whether he or she is in a public or private space, or whether there is any indication that he or she may have a weapon or is actively committing a crime. Our decision today continues a time-honored American tradition obtaining a warrant is the rule, not the exception. Graham, 796 F.3d at 378 (Thacker, J., concurring). Accordingly, we do not find the existence of exigent circumstances sufficient to justify the police s use of defendant s real-time GPS CSLI without a warrant. IV. Conclusion We hold that the government s acquisition of defendant s historical cell phone site location information without consent or a warrant constituted a search under the Fourth Amendment and violated his constitutional rights. Moreover, we hold that the government s warrantless search of defendant s real-time GPS CSLI was unreasonable in light of the circumstances. Accordingly we reverse the lower court s ruling and remand for further proceedings consistent with this opinion. REVERSED and REMANDED 13

14 A. Statutory Background HAND, Judge, dissenting. I, along with many courts, remain unconvinced by the arguments adopted by the majority. To hold as the majority does is to rule contrary to the well-established Supreme Court Fourth Amendment precedents and to prevent police from keeping pace with the technological advances used by criminals. The third-party doctrine is perfectly suited for addressing the issue we face today regarding historical cell phone site location information. A proper application of this doctrine will demonstrate that the government was correct in adhering to the Stored Communications Act when it obtained defendant s historical CSLI without a warrant, and such governmental action does not, in turn, violate the Fourth Amendment. As for the real-time GPS data, [t]here is no inherent constitutional difference between trailing a defendant and tracking him via such technology. United States v. Skinner, 690 F.3d 772, 778 (6th Cir. 2012) (referencing real-time GPS pinging of a cell phone). The majority, again, over complicates the issue and seeks to reach beyond what our precedents would allow. Police should not be dissuaded from using technology to help capture an armed and dangerous suspect that they have good cause to believe is engaged in criminal activity. Doing so would be contrary to the public good and would provide criminals the upper hand. The majority s opinion tips the scales against those seeking to protect us. The facts clearly support the government s contention that the Roan County police s actions satisfied the requirements under the exigency doctrine and thus did not violate the Fourth Amendment. For the reasons articulated below, I must respectfully dissent. I address first the statutory backdrop that the majority argues is insufficient to protect the information at issue in the present case. This contention is contrary to reality. The statute provides protections that actually go beyond what is typically required for a third-party s business records. Ordinarily, the government needs only to issue a subpoena to obtain a thirdparty s business records. See, e.g., United States v. Willis, 759 F.2d 1486, 1498 (11th Cir. 1985) (motel registration records); United States v. Phibbs, 999 F.2d 1053, 1077 (6th Cir. 1993) (credit card statements). Often these records reveal intimate details of an individual s personal habits and daily life spending habits, travel habits, etc. The majority argues that the nature of cell phone site location information demands a higher level of security against government intrusion, but seems to neglect the fact that Congress granted such heightened protections for this information through its passage of the Stored Communications Act. The Act specifically interposes a judge or magistrate between the government s request and the third-party s disclosure. 18 U.S.C. 2703(d). The SCA goes above and beyond the constitutional requirements regarding compulsory subpoena process. United States v. Davis, 785 F.3d 498, 506 (11th Cir. 2015). This evidences the already protected nature of the information and further instructs the courts to follow traditional interpretations of Fourth Amendment precedents. B. Fourth Amendment Analysis Defendant, and the majority, would have us address the substantive issue of whether an individual has a reasonable 14

15 expectation of privacy in his or her movements over an extended period of time from government inspection. But that is not the question before us. Today we need only address the narrow issue of whether an individual has a reasonable expectation of privacy to a third party s records which contain information the individual has voluntarily conveyed to the third party. To this end, the Supreme Court has provided ample guidance. The majority correctly identifies that the Fourth Amendment protects individuals against unreasonable search and seizures, U.S. CONST. amend. IV, and that a search pursuant to the Fourth Amendment occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. Kyllo v. United States, 533 U.S. 27, 333 (2001). However, that is the extent to which the majority gets it right. The Supreme Court s precedents on the issue of government access to a thirdparty s business records begin with United States v. Katz, 389 U.S. 347 (1967), followed by applications of the Katz test in United States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979). In looking at the aggregate of these cases, we are provided with the following framework to determine whether Fourth Amendment protections extend to certain information: a violation occurs when government officers violate a person's reasonable expectation of privacy[.] United States v. Jones, 132 S. Ct. 945, 950 (2012) (citing Katz, 389 U.S. at 360). This test has been applied in cases almost identical to the one sub judice, and more often courts come down finding no violation of a defendant s Fourth Amendment rights. Most recently, the Eleventh Circuit addressed this issue in Davis. 785 F.3d 498. The Davis court began by analogizing historical CSLI with the records in Miller and Smith, the notable similarity being that in all three cases the defendants could not claim either ownership or possession of the records. Id. at 511. CSLI is generated by the service provider for their exclusive use and does not contain any information regarding the content of the user s communication. See id. (suggesting that this information is much like surveillance camera images[.] ). The court further noted that cell phone users know that they must transmit signals to cell towers within range, that the cell tower functions as the equipment that connects the calls, that users when making or receiving calls are necessarily conveying or exposing to their service provider their general location within that cell tower's range, and that cell phone companies make records of cell-tower usage. Id. (citing In re United States for Historical Cell Site Data, 724 F.3d 600, (5th Cir. 2013)). In light of this knowledge, the Eleventh Circuit reasoned, a cell phone user cannot possibly have a subjective expectation of privacy. Id. And, even if he did have such a subjective expectation, society could not objectively perceive it as justifiable or reasonable. Id. The Davis court went on to counter the defendant s concerns over Smith s and Miller s potential shortcomings caused by advances in technology by highlighting that these cases arose out of such advances. Davis, 785 F.3d at 512 (referencing Smith, which arose in large degree due to the technological advance from call connections.... ). Ultimately, the Eleventh Circuit concluded, the continued advancement in cell connecting technology does not require a different constitutional result.... Id. (citing Smith, 442 U.S. at ). I agree with the Davis court in this reasoning. Society may have advanced to the point where cell phones have become, as the majority indicates, nearly essential for participation. However, with this 15

16 implementation of technology, so too has there been the understanding of its potential use in criminal investigations. Despite the majority s contention, every act from purchasing to using a cell phone necessitates voluntary behavior. Defendant had no reasonable expectation of privacy regarding Verizon s historical cell phone site location information for his account. His, and the majority s, concerns are not without merit, but they are presented in the wrong forum. These arguments should be directed to Congress and the state legislatures rather than to the federal courts. Id. For the above reasons I cannot join the majority decision. This case presents a clear continuation of the third-party doctrine, and we should recognize and follow the direction of the Supreme Court and our sister courts decisions. C. Exigency Exception The Fourth Amendment provides that [t]he right of the people to be secure in their persons... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. U.S. CONST. amend. IV. The general presumption is in favor of obtaining a warrant, but this presumption may be overcome when the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment[.] Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (citing Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). Exigencies are further permitted under the Stored Communications Act, which specifically allows a service provider to disclose customer records to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency. United States v. Takai, 943 F. Supp.2d 1315, 1322 (D. Utah 2013) (citing 18 U.S.C. 2702(c)(4)). Exigent circumstances arise when: (1) the law enforcement officers have objectively reasonable grounds to believe that there is an immediate need to protect their lives or others, and (2) the manner and scope of the search is reasonable. McInerney v. King, 791 F.3d 1224, (10th Cir. 2015) (internal citations omitted). Whether a reasonable belief existed is based on the realities of the situation presented by the record from the viewpoint of prudent, cautious, and trained officers[,] and falls under a standard that is more lenient than probable cause. Id. at 1232 (internal citations omitted). Additionally, [a]n action is reasonable under the Fourth Amendment, regardless of the individual officer's state of mind, as long as the circumstances, viewed objectively, justify [the] action. Brigham City, 547 U.S. at 404. Exigent circumstances have been found in situations ranging from the potential exploitation of a minor, to breaking up a physical altercation in a kitchen, to apprehending a suspected violent criminal. See, e.g., United States v. Gilliam, No. 11- cr-1083, 2012 WL , *2 (S.D.N.Y. Sept. 12, 2012); Brigham City, 547 U.S. 398; and Takai, 943 F. Supp.2d The purpose of the exigency exception is to permit officers to act when obtaining a warrant is not reasonable. In the present case, there were sufficient exigent circumstances to satisfy both of the requisite prongs of the exigency doctrine. Much like Takai, defendant here was the prime suspect for two violent robberies. The police had recently received a tip that defendant was actively engaged in committing another, similar robbery and information suggesting that defendant was 16