Tuesday, May 05, 2015


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.


Anonymous said...

Why can't the judges in the majority be civil to the dissenting judges?

Anonymous said...

Nice effort DOM. As Justice Jackson wrote, "It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error." You did your part as a citizen. Time will demonstrate you were right.

Anonymous said...

DOM needs to get fitted for a morning coat because it's going up.

Most interesting thing in opinion was Jill Pryor joining Judge Martin. Who knew?

Anonymous said...

The opinion was about twenty years behind the technology. I am picturing William Pryor with a flip phone and a dial up modem connected directly to his IBM tower running Windows/286.

Anonymous said...

Listen, the 11th will do whatever they can to maintain any advantage to the government. On the bright side, there were thoughtful and thought-provoking opinions from the newer judges.

Anonymous said...

Get that cert!

Anonymous said...

The rationalization that detailing nearly all of someone's movements through the use of cell phone tower data is not an invasion of privacy is pure sophistry. The only reason such nonsense is actually committed to writing by any court is because at issue is whether a bad guy will have the evidence used against him or not. The original decision may not have overturned the conviction but it did make it clear that from now on - no warrant and suppression ensues. Change the context and watch how everyone agrees that there is a legitimate privacy interest at stake. This is nothing more than the 11th (other courts too) selling out to help the government put away bad guys. Lets call it what it is and stop with the legal rationalizations. It is insulting......