SUPREME COURT OF THE UNITED STATES ORDER GRANTING WRIT OF CERTIORARI ELIZABETH JENNINGS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. No. 10-1011 NOTICE IS HEREBY GIVEN THAT the petition for writ of certiorari by petitioner in the abovenamed action is granted; the questions being limited to: Issue One: Private Search: Under what circumstances the private search exception to the Fourth Amendment permits a law enforcement agent to view photos on a cell phone beyond those viewed by the private party. Issue Two: Cell-Site Simulator Surveillance Devices: Whether and when use of a cell-site simulator to identify the location of a target s mobile phone is a Fourth Amendment search. Cert. Granted 11/22/2017 Decision Below: United States v. Jennings, 913 F.3d 1131 (14th Cir. 2017)
UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT UNITED STATES OF AMERICA, Appellant, v. ELIZABETH JENNINGS, Appellee. Appeal from the United States District Court For the District of Arcadia Argued: December 18, 2016 Decided: April 11, 2017 Before O Brien, Amlani, and Rudeen, Circuit Judges. AMLANI, J.: I. FACTS AND PROCEDURAL HISTORY By her own account, Elizabeth Jennings ( Jennings ), the appellee-defendant in this matter, lives an entirely ordinary life. She is the co-manager of a small travel agency and lives in suburban Arcadia with her two children and her husband, Philip. The FBI alleges, however, that Elizabeth and Philip are both undercover agents working for the FSB, the Russian equivalent of the CIA. The FBI alleges that Elizabeth and Philip illegally entered the United States sometime during the 1980 s, assumed false identities, and have lived as American citizens since that time. The FBI further alleges that Elizabeth and Philip Jennings have clandestinely worked to recruit agents within the United States to provide themselves with intelligence on U.S. defense systems in exchange for money. Jennings, however, contends that the accusations against her are merely the desperate attempts of a confessed criminal to scapegoat another. Dr. Sam Owens ( Owens ) is a nuclear physicist employed by the private corporation Network Simulations Company ( Netsimco ). Netsimco is on contract with the U.S. Department of Energy and has been working on developing a space laser which would destroy incoming 1131
nuclear weapons. Owens, however, suffers from a severe gambling addiction. Unbeknownst to his colleagues and friends, Owens found himself several hundreds of thousands of dollars in debt around December 2015. Owens is cooperating with the FBI in its investigation, and the following facts are drawn from Owens s testimony at the suppression hearing in this case. According to Owens, Jennings sat down next to him in a bar and struck up a conversation with him. Owens was inebriated and ultimately revealed that he worked on the space laser at Netsimco and he was deeply in debt. Jennings allegedly suggested that she could help Owens with his financial problems in return for a service that Owens take pictures of the space laser schematics with a cell phone provided by Jennings. After some hesitation, Owens agreed. Jennings then handed Owens a cell phone specifically, a pay-as-you-go smartphone and allegedly told Owens to memorize three steps: (1) take pictures of the space laser and its schematics with the phone; (2) tape the phone to the bottom of a certain park bench in Arcadia Central Park; and (3) call a specified phone number, allow it to ring four times, and then hang up. The final step would act as signal to Jennings to come and collect the phone from the bench. Jennings then instructed Owens to remove the battery from the phone until he was ready to use it since, Jennings explained, these burners are untraceable, but still, they can track everyone now. Owens agreed to follow the instructions, and Jennings left the bar. Uncertain that he would remember the phone number due to his intoxication, Owens wrote the phone number Jennings told him on a napkin and took a picture of the napkin with the phone Jennings had given to him. Owens then destroyed the napkin, and left the bar. Owens s phone had no other content stored on it at that point. The next day, Owens entered his supervisor s office when he knew that his supervisor would be busy meeting with the Secretary of Energy. As he suspected, the space laser schematics were on his supervisor s desk. Owens then photographed the space laser schematics with the phone Jennings gave him. Later that evening, Owens surreptitiously photographed the prototype of the space laser itself and left the Netsimco premises. That night, Owens walked to the agreed upon park bench in Arcadia Central Park. He called the number Jennings had indicated, allowed it to ring four times, and then hung up. Owens then fastened the phone containing the photographs to the bottom of the bench, and he hurriedly left the park. Unseen by Owens, Larry Nightingale ( Nightingale ), a local community member who frequents the park, had watched Owens tape the phone to the bench. Intrigued by what he saw, Nightingale removed the phone after Owens had left and activated it. When prompted for a password, Nightingale guessed 1-2-3-4, and was surprised that the phone unlocked and its contents became accessible. Nightingale opened the Photos application in an attempt to identify the phone s owner. On this screen, Nightingale opened several photos and saw one containing a 1132
document with the heading: TOP SECRET UNAUTHORIZED DISTRIBUTION FORBIDDEN UNDER PENALTY OF LAW. He did not scroll through the entire album. Alarmed by the suspicious circumstances, Nightingale immediately contacted the police and described the image that he saw. Officer Kramer ( Kramer ), an Arcadia police officer, arrived on the scene, and Nightingale showed Kramer the image of the schematic he had observed. Kramer took the phone and then zoomed out (by tapping the image) to a screen full of smaller thumbnail images. The album had around 100 photos. Kramer scrolled through the album, and after catching glimpses of a cat and two small children, Kramer focused his attention on the photographs that depicted schematics. He saw approximately 24 other photographs unseen by Nightingale that all depicted schematics and bore the same Top Secret heading. He saw another photograph of a large instrument that resembled a satellite. Kramer could see the entirety of the images, albeit in a smaller format, except for the final photograph. The final photograph in the album was of a phone number handwritten on a napkin. Unable to read the number as a thumbnail, Officer Kramer tapped on the image to enlarge the image, and recorded the phone number written on the napkin. Arcadia Police then transferred the investigation to the FBI. Using security footage of the park, the FBI quickly identified Owens as the person who left the phone under the bench. The FBI interrogated Owens, and indicated they were principally concerned with capturing the agent who solicited information from him. Owens explained that he had no idea who the woman was and that he had no idea how to contact her other than via the phone number on the napkin. The FBI began their investigation with the phone number that Officer Kramer had reported to them. The FBI agents contacted the cell provider for the number, and the company voluntarily informed the FBI that the phone had most recently connected with a cell phone tower somewhere within a 10-mile radius around the Arcadia National Forest. Armed with this information, FBI agents set out to the Arcadia National Forest area with a stingray device. The FBI agents did not seek a warrant connected to the use of this device in this case. Stingrays, as they are commonly known, refer to cell-site simulators, a type of surveillance equipment that has been used by dozens of police departments with little public knowledge until recently. Stingray devices work by behaving as fake cellphone towers. About the size of a suitcase, the devices are mobile and can be operated from an airplane, carried by hand, or, as in this case, from a vehicle. Stingrays collect information by exploiting cellphone vulnerabilities. Cell phones send out signals seeking the closest cell-site usually located on a tower approximately every seven seconds, whether the user is making a call or not. Because a stingray mimics a legitimate cell phone tower antenna, it forces all nearby phones within its range to provide it with identifying information. Depending on the individual model, a stingray device can identify in real time all nearby phones and pinpoint their location with a high degree of accuracy. 1133
Such was the case here. FBI agents drove around the Arcadia National Forest area until their stingray device informed them that they were only 25 feet away from the cell phone they were looking for. The FBI agents were, at that time, parked on a rural street about 25 feet away from a cabin, without any other structures in the area. The FBI then heard the sound of a door closing, and went around to the back of the cabin where they discovered Jennings running away from the FBI. FBI agents caught up to her and arrested her. The cabin was a vacation home used by Jennings and her family for several years. On her person at the time of the arrest, FBI agents discovered the cell phone with the number Owens had written on the napkin and called. This phone was also a pay-as-you-go smartphone with no other contents than a record of a call from the phone Owens had used. The government charged Elizabeth Jennings with conspiracy to obtain information relating to national defense that she was not entitled to receive in violation of 18 U.S.C. 793. The government and defense have stipulated that (1) Jennings had standing to challenge the search of her phone; and (2) the phone was not abandoned. Prior to trial, the defense moved to suppress the photos viewed by Officer Kramer that were not viewed by Nightingale on the phone Owens used, and the phone found on Jennings at the time of her arrest. The District Court granted defendant s motion. The government now appeals that ruling. See 18 U.S.C. 3731 (permitting interlocutory appeals in these circumstances). For the reasons below, we REVERSE the order of the District Court. II. STANDARD OF REVIEW In reviewing a motion to suppress, we construe the facts in the light most favorable to the party that prevailed in the district court in this case, Jennings. See United States v. Sparks, 806 F.3d 1323, 1334 (11th Cir. 2015), cert. denied, Johnson v. United States, 137 S.Ct. 34 (2016). We review the district court s evidentiary rulings for abuse of discretion, but we review de novo the district court s legal conclusion that Fourth Amendment violations occurred when the government discovered Appellee s location through use of a cell-site simulator. United States v. Graham, 796 F.3d 332, 343 (4th Cir. 2015). III. DISCUSSION A. The Photographs Were Improperly Suppressed Under the Private Search Doctrine The text of the Fourth Amendment protects two types of expectations, one involving searches, the other seizures. A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon. This protection proscribes only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a 1134
private individual not acting as an agent of the government or with the participation or knowledge of any governmental official. Burdeau v. McDowell, 256 U.S. 465 (1921). When a private party provides police with evidence obtained in the course of a private search, the police need not stop [the private party] or avert their eyes. Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971). Rather, the question becomes whether the police subsequently exceed the scope of the private search. See United States v. Jacobsen, 466 U.S. 109 (1984). Any additional invasions of privacy by the government agent must be tested by the degree which they exceeded the scope of the private search. Id. at 115. Jennings and the government dispute whether the inspection of images not viewed by Nightingale on the Owens smartphone was within the scope of the initial private search conducted by Nightingale, and, if not, whether viewing additional images in the same album constituted a separate search. However, the key question in any Fourth Amendment case is the extent to which the government invaded Appellee s reasonable expectation of privacy, here, whether the subsequent government search disclosed information in which Appellee retained an expectation of privacy. The photo album on the phone Owens used was a closed container, and in the context of a closed container search, the police do not exceed the private search when they examine more items within a closed container than did the private searchers. United States. v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001). Because Jennings expectation of privacy in the contents of the container had already been compromised by Nightingale, Office Kramer did not engage in a new search when he looked at photos in the photo album that Nightingale had not viewed. We follow the Fifth Circuit in Runyan in rejecting the Eighth Circuit s reasoning in Rouse, while adopting the Eleventh Circuit s logic in Simpson based on the objectives underlying the warrant requirement. United States v. Rouse, 148 F.3d 1040 (8th Cir. 1998) (holding that the police exceeded the scope of a private search when they found and examined more items within an airline passenger s bag than the airline employees had found in their prior private search); United States v. Simpson, 904 F.2d 607, 610 (11th Cir. 1990) (holding that police do not exceed the scope of a prior private search when they examine the same materials that were examined by the private searchers, but they examine these materials more thoroughly than did the private parties). The Court in Runyan explained: Under the reasoning of Rouse, police would exceed the scope of a private investigation and commit a warrantless search in violation of the Fourth Amendment each time they happened to find an item within a container that the private searchers did not happen to find. Police would thus be disinclined to examine even containers that had already been opened and examined by private parties for fear of coming across important evidence that the private searchers did not happen to see and that would then be subject to suppression. The Rouse approach would over-deter the police, preventing them from engaging in lawful 1135
investigation of containers where any reasonable expectation of privacy has already been eroded. This approach might also lead police to waste valuable time and resources obtaining warrants based on intentionally false or mistaken testimony of private searchers, for fear that, in confirming the private testimony before obtaining a warrant, they would inadvertently violate the Fourth Amendment if they happened upon additional contraband that the private searchers did not see. Runyan, 275 F.3d at 465. Officer Kramer did not exceed the scope of the private search when he examined the photos within the album that Nightingale had not viewed. The dissent highlights the reasoning in Riley v. California, 134 S.Ct. 2473 (2014), and the unique attributes of cell phones, but this phone was used in furtherance of a crime. The police should not be handicapped just because Jennings may have had other private information, or private photos, on her cell phone. We hold that images obtained from Jennings s cell phone were improperly suppressed. B. Use of a Cell-Site Simulator Is Not a Search Because There Is No Expectation of Privacy in Information Conveyed Through the Voluntary Use of a Cell Phone When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them. United States v. Skinner, 690 F.3d 772, 774 (6th Cir. 2012). This is not a case where police installed a tracking device on someone s car or tapped her phones lines. See United States v. Jones, 565 U.S. 400 (2012). Rather, the government merely used the data freely emanating from Jennings s pay-as-you-go cell phone to determine its real-time location. The defendant in this case allegedly used a pay-as-you-go (and thus presumably more difficult to trace) cell phone as part of a covert espionage mission against the United States. Unfortunately for the defendant, the phone turned out to be trackable in a way she may not have suspected. The Constitution, however, does not protect her erroneous expectations regarding the undetectability of her modern tools. Unreasonable searches can occur when the government violates an individual s reasonable expectation of privacy. Katz v. United States, 398 U.S. 347, 351 (1967). A reasonable expectation of privacy requires (1) the individual must have exhibited an actual, subjective expectation of privacy, and (2) the expectation must be one that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 740 41 (1979); Katz, 398 U.S. at 361 (Harlan, J., concurring). In applying this analysis, it is important to determine the nature of the specific activity at issue. Smith, 442 U.S. at 741 (narrowing the Court s unreasonable search analysis to the governmental action of installing and using a pen register on the petitioner s phone). In this case, the nature of the activity specified is the government s ascertainment of Ms. Jennings s location through the use of the stingray device. 1136
a. Subjective Expectation of Privacy Under Katz, a constitutional violation cannot occur unless the individual had a subjective expectation of privacy. Katz, 398 U.S at 361. In determining whether the individual had a subjective expectation of privacy, the Court will inquire whether the individual [sought] to preserve [the information] as private. Id. at 351; Smith, 442 U.S. at 740. Since Jennings did nothing to preserve the privacy of her location information, and in fact knew that the information was not private, as she told Owens that police can track individuals via their cell phones, she did not exhibit a subjective expectation of privacy. As such, her Fourth Amendment claim must fail because the government did not intrude on her reasonable expectation of privacy. First, the record is silent as to any affirmative steps Jennings took to preserve the privacy of her location information. Jennings claim of a subjective expectation of privacy in her location information rests on her alleged belief of their privacy. However, her bare, self-serving allegation of subjective belief is not enough. Instead, under Smith, when phone users realize they are conveying information to another, they cannot have a legally recognized subjective expectation of privacy. See Smith, 442 U.S. at 742 (holding that phone users have no subjective expectation of privacy in the phone numbers they dial, since the phone users realize they are conveying information to the phone company to use in connecting their calls). Similarly, cell phone users know they are conveying their location information to phone companies to connect their calls. For example, users are aware of situations in which they have no bars, are out of service range, or might incur roaming charges. See In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 613 (5th Cir. 2013). Thus, users know they convey information about their movements to their cell service provider. Moreover, cell phone users know that the phone company creates records of this information for billing purposes. The knowledge that the phone company obtains and records this information flies in the face of a subjective expectation of privacy. See Smith, 442 U.S. at 742 (reasoning that phone users have no subjective expectation of privacy in the phone numbers they dial, since users are aware, through their monthly billing statements, that telephone companies make permanent records of phone numbers dialed). Given this reality, it is too much to believe that Jennings harbored a subjective expectation of privacy in the information her phone broadcast to the world. See id. at 743 ( Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret. ). b. Objective Expectation of Privacy Even if Appellee did harbor a subjective expectation of privacy in her location information, her Fourth Amendment claim must still fail, because that belief is not one that is objectively 1137
reasonable. The second prong of the Katz analysis requires that the individual s expectation of privacy must be one that society is prepared to recognize as reasonable. Katz, 398 U.S. at 361. The sum of Supreme Court precedent confirms that an expectation of privacy in cell phone location information is not objectively reasonable. In Smith, the Court found that individuals have no objectively reasonable legitimate expectation of privacy in the phone numbers they dial. Smith, 442 U.S. at 742. In Knotts, the Supreme Court found that individuals have no privacy expectation in their movements on public roads. United States v. Knotts, 460 U.S. 276, 281 82 (1983). Taken together, this precedent dictates that an individual cannot have an objectively reasonable expectation of privacy in their cell service provider s records of location information. Smith shows that individuals have no privacy expectation in the routing information they provide to their phone company, which would presumably include location information. Knotts shows that individuals have no privacy expectation in their public movements. Therefore, an individual cannot reasonably claim that they have a privacy expectation that society should recognize as reasonable in the location information broadcast to their phone company. If the individual does not have an objectively reasonable expectation of privacy in either circumstance alone, the individual cannot have a privacy expectation when both are combined. Our sister court in the Sixth Circuit properly applied this line of precedent in finding that the government s warrantless search of an individual s location information does not violate the Fourth Amendment. United States v. Skinner, 690 F.3d 772 (6th Cir. 2012). There, the Court found that the defendant did not have a reasonable expectation of privacy in the location data broadcast from his cellular phone when he had voluntarily used the phone while traveling on public thoroughfares, and thus police could track that signal over a three-day period without violating the Fourth Amendment. In the instant case, the FBI tracked Jennings s phone for an even shorter period of time, and thus no Fourth Amendment challenge may lie. c. Voluntary Disclosure Even if this court were to find that Jennings did have a reasonable expectation of privacy in her location information, her Fourth Amendment claim must still fail, as she forfeited this protection by conveying her location information to a third party. The Supreme Court has consistently held that a person has no legitimate expectation of privacy in information [she] voluntarily turns over to third parties. Smith, 442 U.S. at 743 44; see also United States v. White, 401 U.S. 745, 749 (1971) (no Fourth Amendment protection where an individual voluntarily confides his wrongdoing to another (quoting Hoffa v. United States, 385 U.S. 293, 302 (1966)). This is true even where the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. United States v. Miller, 425 U.S. 435, 443 (1976). 1138
The Supreme Court has visited this third party doctrine in several cases, finding that no Fourth Amendment violation occurred where the information subject to the government s search was previously conveyed to a third party. See Miller, 425 U.S. at 442 (finding that the petitioner had no expectation of privacy in checks, financial statements, and deposit slips, because these materials contained only information that was voluntarily conveyed to the bank and exposed to its employees); Smith, 442 U.S. at 744 (finding that the petitioner had no privacy expectation in the phone numbers he dialed, since he had voluntarily conveyed and exposed this numerical information to the phone company); Knotts, 460 U.S. at 281 82 (finding that the petitioner had no privacy expectation in his movements on public roads, since he voluntarily exposed his movements to anyone in the public who was looking). The Supreme Court has reasoned that in these cases, the individuals have assumed the risk, by disclosing this information to a third party, that the information will be revealed to the government. See Miller, 425 U.S. at 443 (holding that the [petitioner] takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the government ). Jennings cannot escape this reality because it is inconvenient to accept the consequences of her actions. When a person conducts business, she often leaves a record. [She] cannot expect that these activities are [her] private affair. In re Application of the United States for Historical Cell Site Data, 724 F.3d at 610 (reasoning that an individual surrenders his Fourth Amendment protections in information he knowingly conveys to third parties when engaging in business). The law is clear that even if the individual expects confidentiality from her business transactions with third parties, she cannot object under the Fourth Amendment when the third party discloses this information to the government. Id. For the aforementioned reasons, Jennings Fourth Amendment challenges must fail, and accordingly we REVERSE the District Court s order granting her motion to suppress. 1139
O BRIEN, J., dissenting: In 1966, Justice Douglas, observed: We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government. The aggressive breaches of privacy by the Government increase by geometric proportions. Wiretapping and bugging run rampant, without effective judicial or legislative control.... Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen a society in which government may intrude into the secret regions of man s life at will. Osborn v. United States, 385 U.S. 323, 340 43 (1966) (Douglas, J., dissenting). Fifty years later we face the same concern: to what extent have advances in technology created an age of no privacy. The majority s misreading of the law threatens the basic privacy rights ensured by the Fourth Amendment and, in doing so, promises America an Orwellian future where the government can turn its citizens into breathing 24-hour GPS devices all without a warrant. Under the majority s holdings, so long as you carry a cell phone, the government can track your every move on nothing more than a blind hunch. I respectfully dissent. A. The Photographs Not Viewed by Nightingale Were Properly Suppressed Because They Were Beyond the Scope of the Private Search Jennings maintained her reasonable expectation of privacy in the images not previously viewed during Nightingale s private search. The majority fails to consider the unique privacy interests at stake in digital devices by analogizing the photo album on Jennings s phone to a closed container. The container analogy is ill-suited to take into account how information is stored and accessed on cell phones and computers. Searches of physical spaces and the items they contain differ in significant ways from the searches of complex electronic devices under the Fourth Amendment. United States v. Lichtenberger, 786 F.3d 478, 487 (6th Cir. 2015). The Supreme Court highlighted some of these differences in Riley, holding that the searchincident-to-arrest exception, which permits law enforcement to search items found on a suspect s person or in a suspect s vehicle at the time of arrest without a warrant, did not extend to the data on a cell phone. Riley v. California, 134 S.Ct. 2473, 2485 (2014). The ultimate touchstone of the Fourth Amendment is reasonableness. Id. at 2482 (internal citations omitted). It was unreasonable for the officer to scroll beyond the photos that Nightingale had viewed. The Court in Riley highlighted that one of the most distinguishing features of cell phones is their immense storage capacity, which has several interrelated consequences for privacy. Id. at 2489. Furthermore, though Nightingale opened the photo album and viewed some of the images in the album, Officer Kramer s subsequent scrolling and observation of additional images went beyond the zone of exposed data. Kerr, Orin S., Searches and Seizures in a Digital World, 119 1140
HARV. L. REV. 531, 556 (2005). This Court should update its jurisprudence to account for our increased reliance and storage of personal, private information on digital devices and not lag behind technological change. B. Use of a Cell-Site Simulator Without a Warrant Is an Improper Search Under the Fourth Amendment, and the Fruits of that Search Should Have Been Suppressed The Fourth Amendment protects citizens against unreasonable governmental searches and gives citizens the right to be secure in their persons, houses, papers, and effects. U.S. Const. amend. IV (emphasis added). Supreme Court precedent is clear that [s]earches and seizures inside a home without a warrant are presumptively unreasonable. United States v. Karo, 468 U.S. 705, 714 15 (1984); Kyllo v. United States, 533 U.S. 27, 31 (2001). The Court recognizes that [a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Kyllo, 533 U.S. at 31 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). The Supreme Court has already held, in Karo, that the government s warrantless GPS monitoring of an individual in a private residence, not open to public surveillance, was an unreasonable search violating the Fourth Amendment. Karo, 468 U.S. at 714. In this case, Appellee s location information conveyed her movements within her home before she ran outside. In ignoring this crucial fact, the majority has misapplied the law. The majority relies on Knotts to show that an individual does not have a privacy interest in their public movements, but ignores Karo s clear limitation on the holding in Knotts. Again, the Supreme Court upheld the protection of the home against unreasonable searches in Kyllo. In that case, the Court held that the government violated the Fourth Amendment by using a heat sensing device to conduct a warrantless search on a home that the government otherwise could not have conducted without a warrant. Kyllo, 533 U.S. at 40; Karo, 468 U.S. at 715 ( In this case, had a DEA agent thought it useful to enter the [home]... and had he done so surreptitiously and without a warrant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. ). a. Reasonable Expectation of Privacy Though the majority correctly noted that the key to Fourth Amendment analysis is to determine the nature of the specific activity at issue, it incorrectly applied the law. At issue is not whether Jennings has a reasonable expectation of privacy in her cell phone s radio transmissions to cell towers, but whether she has a reasonable expectation of privacy in the sum of her movements, 1141
including those in her private residence, as tracked by her cell phone s connection to nearby towers. See United States v. Jones, 565 U.S. 400, 413 (2012) (Sotomayor, J., concurring). Establishing the law regarding a person s reasonable expectation of privacy, Katz found that individuals have a reasonable expectation of privacy in their private telephone calls. Katz v. United States, 398 U.S. 347, 353 (1967). Further, the Supreme Court found in Karo and Kyllo that individuals have a reasonable expectation of privacy in their homes. Karo, 468 U.S. at 714 ( At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable. ); Kyllo, 533 U.S. at 40. It logically follows that people have a reasonable expectation of privacy in information produced by their cellular phones when they are in their homes. The traditional protection of the home against unreasonable searches stems from the Fourth Amendment itself. U.S. Const. amend. IV (granting the right of the people to be secure in their persons, houses, papers, and effects ) (emphasis added). However, the privacy interest modern people also have in their personal cell phones cannot be understated. The vast majority of Americans own, use, and carry a cell phone on a daily basis. Riley v. California, 134 S.Ct. 2473, 2490 (2014) ( According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. ). This reality demands that this Court carefully consider the effects of its holding. This Court should not take lightly the privacy interest cell phone users have, as this decision will have far-reaching effects into the homes of nearly every American today. The Supreme Court has considered, and issued a warning regarding, the issue presented in this case. Riley, 134 S.Ct. at 2490 (recognizing that historic location information created by cell phones can reconstruct someone s specific movements down to the minute, not only around town but also within a particular building ); Jones, 565 U.S. at 413 (Sotomayor, J., concurring) (warning that, under the Katz analysis, particular attention should be given to location monitoring that generates a precise, comprehensive record of a person s public movements ). As Justice Sotomayor prophesied in her concurrence in Jones, the time has come when the Court must decide the issue not presented in that case: whether the government should be allowed to use cell phone location information to track the minute-by-minute movements of an individual. Jones, 565 U.S. at 413 (Sotomayor, J., concurring). In line with her recommendation, I would protect the protect the privacy rights of individuals and find a Fourth Amendment violation in this case. b. Third Party Doctrine The third party doctrine only applies where an individual has voluntarily conveyed information to third parties. Smith v. Maryland, 442 U.S. 735, 743 44 (1979). However, it is not 1142
a full-on exception to the legitimate-expectation of privacy inquiry. United States v. Graham, 796 F.3d 332, 360 (4th Cir. 2015). The majority misapplies the law by treating it in this way. Rather, the third party doctrine merely aids the court... in deciding whether certain privacy expectations are reasonable by societal standards. Id. Indeed, the Supreme Court in Katz held that an individual can expose information to the public and retain her reasonable expectation of privacy in the information. See Katz, 398 U.S. at 353 (holding that people have a reasonable expectation of privacy in their private telephone conversations, despite using a public telephone booth and a telephone company s routing connection of the call). The Supreme Court s precedents in Smith and Miller, in applying the third party doctrine, do not stand for the principle that information provided to a third parties is categorically excluded from Fourth Amendment protection. Graham, 796 F.3d at 354. Rather, they hold that a person cannot have a reasonable expectation of privacy in information that he/she voluntarily discloses to a third party. See Smith, 442 U.S. at 743 44; United States v. Miller, 425 U.S. 435 (1976). This voluntariness, not the mere fact of disclosure to a third party, is the key to the analysis under the third party doctrine. Graham, 796 F.3d at 354 55 (finding that, though users convey their location information to third parties, they do not always do so voluntarily through active participation). Since the majority s opinion did not even reach the issue of voluntariness, its analysis in this matter cannot hold. Voluntary conveyance necessarily includes some amount of active participation by the individual conveying the information. This active participation is not always present in the creation of location information. Id. ( The service provider automatically generates [location information] in response to connections made between the cell phone and the provider s network, with and without the user s active participation. ). A cell phone user is not required to actively submit any information when creating location information; it is automatically generated every seven seconds when a phone is turned on. The fact that location information is created regularly, not just when the user initiates that communication and even when the user does not answer that communication, underscores the fact that location information is not conveyed via active participation by the user. Id. at 355. This lack of active participation distinguishes location information from the existing Supreme Court precedent applying the third party doctrine to voluntary conveyances, such as the bank transactions in Miller. Miller, 425 U.S. at 442. Indeed, the rationale behind the holding in these cases, that an individual assumes risks by making the choice to disclose the information, is inapplicable to a case such as this. Smith, 442 U.S. at 749 (Marshall, J., dissenting) ( Implicit in the concept of assumption of risk is some notion of choice. ). The claim that users voluntarily choose to carry and use a cell phone, holds little weight, for [i]t is idle to speak of assuming risks in contexts where, as a practical matter, individuals have no realistic alternative. Id. at 750. To most Americans today, a cell phone is a necessity for full societal integration and even self-expression. Katz, 398 U.S. at 352 ( To read the 1143
Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication. ); Smith, 442 U.S. at 751 (Marshall, J., dissenting); Riley, 134 S.Ct. at 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.... Modern cell phones are not just another technological convenience. ); Graham, 796 F.3d at 355 56 ( Cell phone use is not only ubiquitous in our society today but, at least for an increasing portion of our society, it has become essential to full cultural and economic participation. ). The majority s contention that people chose to carry a cell phone today is little more than fiction and must be rejected. Graham, 796 F.3d at 356. Under the majority s analysis, an individual wishing to preserve the privacy of his or her movements must become a veritable social outcast. This cannot be the right outcome. The majority s holding would essentially allow the government to conduct warrantless 24- hour surveillance on the vast majority of the American public. See Id. at 357 ( Applying the [majority s Fourth Amendment analysis] in this context would simply permit the government to convert an individual s cell phone into a tracking device by examining the massive bank of location information retained by her service provider, and to do so without probable cause. ). If the government wishes to conduct this type of surveillance legitimately under the Fourth Amendment, it must obtain a warrant. Riley, 134 S.Ct. at 2495. Jennings had a legitimate privacy interest in her location information. As such, when the government obtained this information without a warrant, it conducted an unreasonable search in violation of the Fourth Amendment. 1144
Suggested List of Authorities: Supreme Court Opinions: Burdeau v. McDowell, 256 U.S. 465 (1921) Coolidge v. New Hampshire, 403 U.S. 443 (1971) Katz v. United States, 398 U.S. 347 (1967) Kyllo v. United States, 533 U.S. 27 (2001) Riley v. California, 134 S.Ct. 2473 (2014) Smith v. Maryland, 442 U.S. 735 (1979) United States v. Jacobsen, 466 U.S. 109 (1984) United States v. Jones, 132 S. Ct. 945 (2012) United States v. Karo, 468 U.S. 705 (1984) United States v. Knotts, 460 U.S. 276 (1983) United States v. Miller, 425 U.S. 435 (1976) United States v. White, 401 U.S. 745 (1971) Circuit Court Opinions: In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012) United States v. Davis, 785 F.3d 498 (11th Cir. 2015) United States v. Graham, 796 F.3d 332 (4th Cir. 2015) United States v. Johnson, 806 F.3d 1323 (11th Cir. 2015) United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015) United States v. Rouse, 148 F.3d 1040 (8th Cir. 1998) United States. v. Runyan, 275 F.3d 449 (5th Cir. 2001) United States v. Simpson, 904 F.2d 607 (11th Cir. 1990) United States v. Skinner, 690 F.3d 772 (6th Cir. 2012) State Court Opinions: Jones v. United States, 168 A.3d 703 (D.C. 2017) State v. Andrews, 134 A.3d 324 (2016) Other Sources U.S. CONST. amend. IV Kerr, Orin S., Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 556 (2005)