Thursday, June 12, 2014

Warrantless Searches - Unreasonable - 2

In the first post of this series we considered Arizona v Gant, 556 U.S. 332 (2009).

That Supreme Court case affirmed an Arizona state appellate court's opinion that a warrantless search was unconstitutional under the circumstances of that case.

In today's post we consider a case of first impression in the Eleventh Circuit Federal Court of Appeals, which held a portion of a federal statute to be unconstitutional under the Fourth Amendment:
Davis’s Fourth Amendment argument raises issues of first impression in this circuit, and not definitively decided elsewhere in the country. The evidence at issue consists of records obtained from cell phone service providers pursuant to the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2703(c) and (d). Under that Act, the government can obtain from providers of electronic communication service records of subscriber services when the government has obtained either a warrant, § 2703(c)(A), or, as occurred in this case, a court order under subsection (d), see § 2703(c)(B). The order under subsection (d) does not require the government to show probable cause.
Davis objected to the admission of the location information in the district court and now argues to us that the obtaining of that evidence violated his constitutional rights under the Fourth Amendment. That Amendment, of course, provides that “no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation . . . .” U.S. CONST. AMEND. IV. It is a “basic principle of Fourth Amendment law” that searches and seizures without a warrant “are presumptively unreasonable.” See, e.g., Groh v. Ramirez, 540 U.S. 551, 559 (2004). The SCA does provide for governmental entities requiring records from communication service providers by warrant under subsection (c)(A). However, as noted above, the prosecution obtained the evidence against Davis, not by warrant under subsection (c)(A), but by order under subsection (d). As further noted above, that section does not require probable cause, but only a showing “that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d) (emphasis added).
Therefore, it cannot be denied that the Fourth Amendment protection against unreasonable searches and seizures shields the people from the warrantless interception of electronic data or sound waves carrying communications. The next step of analysis, then, is to inquire whether that protection covers not only content, but also the transmission itself when it reveals information about the personal source of the transmission, specifically his location.
Having determined that the privacy theory of Fourth Amendment protection governs this controversy, we conclude that the appellant correctly asserts that the government’s warrantless gathering of his cell site location information violated his reasonable expectation of privacy. The government argues that the gathering of cell site location information is factually distinguishable from the GPS data at issue in Jones. We agree that it is distinguishable; however, we believe the distinctions operate against the government’s case rather than in favor of it.
In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.
(U.S. v Davis, 11th Cir., June 11, 2014, emphasis added). This may go to the en banc court, but I doubt it.

More than likely it will go up to the Supreme Court directly from the three judge panel's unanimous decision.

See also: ACLU vs. Clapper, Alexander, Hagel, Holder, and Mueller - 8

The previous post in this series is here.

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