11th Circuit & SDFLA judicial happenings, including big opinion on cell site data

The Senate will be moving forward with the Georgia 11th Circuit nominees (Pryor & Carnes), but for now, the district nominee of Michael Boggs is stalled.  From HuffPost:

Sen. Patrick Leahy (D-Vt.), chairman of the committee, announced Wednesday that he is adding six of the seven pending nominees for federal court seats in Georgia to this week's agenda.
Georgia's two Republican senators, Saxby Chambliss and Johnny Isakson, "asked that I move forward with the Georgia nominees who were ready for a Committee vote," Leahy said in a statement. "I thank both of them for their willingness to move forward with these important nominations."
Boggs' nomination will remain pending before the committee.
"More time is needed to follow up on his recent testimony before his nomination will be scheduled for a vote," Leahy said.

 Also up for full consideration of the judiciary committee is Robin Rosenberg for our District.

While all of this is going, the 11th Circuit is still issuing opinions.  Here's an opinion of first impression from the court today on cell site data and the Fourth Amendment:

Before MARTIN, DUBINA, and SENTELLE,* Circuit Judges.
SENTELLE, Circuit Judge:
Appellant Quartavius Davis was convicted by a jury on several counts of Hobbs Act robbery, 18 U.S.C. § 1951(b)(1), (3), conspiracy, 18 U.S.C. § 1951(a), and knowing possession of a firearm in furtherance of a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. The district court entered judgment on the verdict, sentencing Davis to consecutive terms of imprisonment totaling 1,941 months. Davis appeals, assigning several grounds for reversal. His principal argument is that the court admitted location evidence based on stored cell site information obtained by the prosecution without a warrant, in violation of his Fourth Amendment rights. He assigns other grounds of error going to prosecutorial misconduct, evidentiary sufficiency, and sentencing. For the reasons set forth below, we hold that there is no reversible error, although we do find merit in one argument that the sentence was improperly enhanced. We therefore affirm the judgment below in large part, but vacate a sentencing enhancement regarding “brandishing” a firearm.

 Although the reversal on the brandishing is important, the real discussion is regarding the cell site location data, which the Court holds is protected by the Fourth Amendment:

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.

Jones, as we noted, involved the movements of the defendant’s automobile on the public streets and highways. Indeed, the district court allowed the defendant’s motion to suppress information obtained when the automobile was not in public places. The circuit opinion and the separate opinions in the Supreme Court concluded that a reasonable expectation of privacy had been established by the aggregation of the points of data, not by the obtaining of individual points. Such a mosaic theory is not necessary to establish the invasion of privacy in the case of cell site location data.

One’s car, when it is not garaged in a private place, is visible to the public, and it is only the aggregation of many instances of the public seeing it that make it particularly invasive of privacy to secure GPS evidence of its location. As the circuit and some justices reasoned, the car owner can reasonably expect that although his individual movements may be observed, there will not be a “tiny constable” hiding in his vehicle to maintain a log of his movements. 132 S. Ct. at 958 n.3 (Alito, J., concurring). In contrast, even on a person’s first visit to a gynecologist, a psychiatrist, a bookie, or a priest, one may assume that the visit is private if it was not conducted in a public way. One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts. Therefore, while it may be the case that even in light of the Jones opinion, GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy. In that sense, cell site data is more like communications data than it is like GPS information. That is, it is private in nature rather than being public data that warrants privacy protection only when its collection creates a sufficient mosaic to expose that which would otherwise be private.

The United States further argues that cell site location information is less protected than GPS data because it is less precise. We are not sure why this should be significant. We do not doubt that there may be a difference in precision, but that is not to say that the difference in precision has constitutional significance. While it is perhaps possible that information could be sufficiently vague as to escape the zone of reasonable expectation of privacy, that does not appear to be the case here. The prosecutor at trial stressed how the cell phone use of the defendant established that he was near each of six crime scenes. While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene. There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute. Again, we do not see the factual distinction as taking Davis’s location outside his expectation of privacy. That information obtained by an invasion of privacy may not be entirely precise does not change the calculus as to whether obtaining it was in fact an invasion of privacy.

Of course there's no reversal on this issue because it is governed by the good faith exception....