Brian Toth wrote the following Guest Post on the en banc Davis case:
The Eleventh
Circuit Decides United States v. Davis En Banc
In a decision that didn’t much matter for the individual
defendant but mattered greatly for how law enforcement goes about its business
in today’s technological age, the U.S. Court of Appeals for the Eleventh
Circuit, sitting en banc,
held today that the government didn’t violate Quartavious Davis’s Fourth
Amendment rights by obtaining in accordance with a federal statute historical
cell-tower information from the business records of a service provider without
a search warrant and without a showing of probable cause. An earlier
panel—authored by a judge sitting by designation and joined by Judges Martin
and Dubina—concluded otherwise, but nonetheless affirmed Mr. Davis’s
convictions because law enforcement had acted in good faith (an exception to
the exclusionary rule). The Government sought rehearing en banc of the portion
of the panel opinion holding that a Fourth Amendment violation occurred.
Expectedly (sorry, David), the Government’s position carried the day.
Mr. Davis, a “prolific cell phone user,” made 86 phone
calls a day from his cell phone during the course of a two-month period in
which he and several others committed seven armed robberies in South Florida.
As permitted by, and in compliance with, the Stored Communications Act, the
Government sought and obtained a court order requiring MetroPCS to produce
telephone records from that two-month period, which contained certain
information about Mr. Davis’s telephone calls and about the cell towers that
connected those calls. Before trial, Mr. Davis moved to suppress those records,
asserting that their production was a search that required probable cause and a
warrant. That motion was denied, and the Government used that information at
trial to show that Mr. Davis was physically near the robberies when they
occurred.
Writing the majority opinion for the en banc court, Judge
Hull relied chiefly on the so-called third-party doctrine, which roughly holds
that you have no reasonable expectation of privacy in information that you
voluntarily hand over to third parties (and thus no “search” of the information
occurs within the meaning of the Fourth Amendment). Comparing Mr. Davis’s case
to the facts in a pair of Supreme Court decisions concerning the third-party
doctrine, Judge Hull explained that Mr. Davis didn’t have a reasonable
expectation of privacy in the cell-tower records:
For starters,
like the bank customer in Miller and the phone customer in
Smith, Davis can assert
neither ownership nor possession of the third-party’s
business records he sought to
suppress. Instead, those cell tower records were
created by MetroPCS, stored on its
own premises, and subject to its control. Cell
tower location records do not
contain private communications of the subscriber.
This type of non-content evidence,
lawfully created by a third-party telephone
company for legitimate business
purposes, does not belong to Davis, even if it
concerns him. Like the security
camera surveillance images introduced into
evidence at his trial, MetroPCS’s
cell tower records were not Davis’s to withhold.
Those surveillance camera images
show Davis’s location at the precise location of
the robbery, which is far more than
MetroPCS’s cell tower location records show.
More importantly,
like the bank customer in Miller and the phone customer in Smith, Davis
has no subjective or objective reasonable expectation of privacy in MetroPCS’s
business records showing the cell tower locations that wirelessly connected his
calls at or near the time of six of the seven robberies.
Judge
Hull’s opinion also concluded that even if obtaining the cell-tower records had
constituted a search under the Fourth Amendment, the search was nonetheless
reasonable:
Davis had at most a diminished
expectation of privacy in business records made, kept, and owned by MetroPCS;
the production of those records did not entail a serious invasion of any such
privacy interest, particularly in light of the privacy-protecting provisions of
the SCA; the disclosure of such records pursuant to a court order authorized by
Congress served substantial governmental interests; and, given the strong
presumption of constitutionality applicable here, any residual doubts
concerning the reasonableness of any arguable “search” should be resolved in
favor of the government. Hence, the § 2703(d) order permitting government
access to MetroPCS’s records comports with applicable Fourth Amendment
principles and is not constitutionally unreasonable.
There were other opinions.
Concurring in full, Judge William Pryor wrote “to explain
that a court order compelling a telephone company to disclose cell tower
location information would not violate a cell phone user’s rights under the
Fourth Amendment even in the absence of the protections afforded by the Stored
Communications Act.”
Concurring in the judgment, Judge Jordan, joined by Judge
Wilson, expressed “concerns about the government being able to conduct 24/7
electronic tracking (live or historical) in the years to come without an
appropriate judicial order.” Judge Jordan would’ve ruled on narrower grounds—assuming
that Mr. Davis had a reasonable expectation of privacy but holding “that the
government satisfied the Fourth Amendment’s reasonableness requirement by using
the procedures set forth in 18 U.S.C. § 2703(d) to obtain a court order for Mr.
Davis’ cell site records.”
Judge Rosenbaum, concurring in the majority opinion,
wrote separately because she thought “that the third-party doctrine, as it
relates to modern technology, warrants additional consideration and
discussion.”
And Judge Martin, joined by Judge Jill Pryor—the newest
member of the Court—dissented:
In this case, the
government got 67 days of cell site location data disclosing
Quartavious Davis’s location every
time he made or received a call on his cell
phone. It got all this without
obtaining a warrant. During that time, Mr. Davis
made or received 5,803 phone calls,
so the prosecution had 11,606 data points
about Mr. Davis’s location. We are
asked to decide whether the government’s
actions violated Mr. Davis’s Fourth
Amendment rights. The majority says our
analysis is dictated by the
third-party doctrine, a rule the Supreme Court developed almost forty years ago
in the context of bank records and telephone numbers. But such an expansive application
of the third-party doctrine would allow the government warrantless access not
only to where we are at any given time, but also to whom we send e-mails, our
search-engine histories, our online dating and shopping records, and by logical
extension, our entire online personas.
Decades ago, the
Supreme Court observed that “[i]f times have changed, reducing everyman’s scope
to do as he pleases in an urban and industrial world, . . . the values served
by the Fourth Amendment [are] more, not less, important.” Coolidge v. New
Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 2032 (1971). This is even
truer today. The judiciary must not allow the ubiquity of technology—which
threatens to cause greater and greater intrusions into our private lives—to
erode our constitutional protections. With that in mind, and given the striking
scope of the search in this case, I would hold that the Fourth Amendment
requires the government to get a warrant before accessing 67 days of the
near-constant cell site location data transmitted from Mr. Davis’s phone. I
respectfully dissent.
All told, the five opinions making up this decision span
102 pages. Fortunately, footnote 21 of the majority opinion summarizes the
result.
