case law update

Stored Communications Act Provision Found Unconstitutional

In early 2011, Mr. Aaron Graham committed a string of robberies in the Baltimore, MD area.  After robbing a Dollar Tree store, a jewelry store, a 7-Eleven, and a gas station, on February 5, 2011, at approximately 3:29 p.m., Mr. Graham entered a Burger King restaurant in Baltimore.

Mr. Graham brandished the weapon and demanded money. The restaurant manager opened several cash registers, which Mr. Graham emptied before departing.  About forty-five minutes later, Mr. Graham robbed a McDonald’s restaurant approximately two miles away. 

While investigating the Burger King robbery, Officer Joshua Corcoran of the Baltimore Police Department received a radio call indicating that suspects had fled the scene of the nearby McDonald’s robbery and were headed in his direction.  Officer Corcoran spotted the vehicle, pursued it, and pinned it between a moving train, a construction barrier, and traffic. 

Mr. Graham and the vehicle driver, Mr. Eric Jordan, were then arrested.  Burger King and McDonald’s employees arrived and identified Mr. Graham as the robber. A .25 caliber Taurus pistol was recovered from under the passenger seat.  Nearly $1,100 in cash was also recovered.

After the arrest, Detective Chris Woerner found similarities and evidence linking the six robberies.  Officers secured warrants for Mr. Graham’s and Mr. Jordan’s residences and the vehicle.  A sawed-off shotgun, a matching shotgun shell, a .357 caliber Rossi revolver, .357 caliber cartridges, clothing Mr. Graham wore during some of the robberies, a gun holster, several rings and watches, and two cell phones were found. 

The Government then obtained cell phone information from Sprint/Nextel, including cell site location information (“CSLI”) from July 1, 2010, until February 6, 2011, for the two phones found.  The CSLI data revealed the approximate location of the cell phones while the cell phone was in use over the 221 day period.  The CSLI was obtained through court orders issued pursuant to the Stored Communications Act rather than through a warrant.  Under the Stored Communications Act, court orders can only be obtained after the government offers “specific and articulable facts 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). The United States Court of Appeals for the Fourth Circuit would later explain in its analysis of this case:  “This is essentially a reasonable suspicion standard,” rather than the higher probable cause standard necessary to secure a warrant. 

The Government charged Mr. Graham and Mr. Jordan with an array of robbery, firearms, and conspiracy charges.  Mr. Jordan and Mr. Graham moved to suppress CSLI data, but their motion was denied.  At trial, they again objected to testimony about the CSLI data, but were overruled.  At conclusion of the trial, the Government voluntarily dropped one conspiracy charge, and the judge acquitted Mr. Jordan of being a previously convicted felon in possession of a firearm.  However, a jury convicted Mr. Jordan and Mr. Graham on all other counts, including multiple robbery charges. 

Both men appealed their convictions to the United States Court of Appeals for the Fourth Circuit arguing, among other points, that the CSLI data was obtained in violation of the Fourth Amendment.  The Court of Appeals agreed that the CSLI data was obtained in violation of the Fourth Amendment, but upheld the convictions of both men. 

The Court of Appeals explained: “CSLI can be used to approximate the whereabouts of the cell phone at the particular points in time in which transmissions are made.  The cell sites listed can be used to interpolate the path the cell phone, and the person carrying the phone, travelled during a given time period. . . .  Cell sites in urban areas, which have the greatest density of cell sites, tend to have smaller radii of operability than those in rural areas.  The cell sites identified in the CSLI at issue in this case covered areas with a maximum radius of two miles, each divided into three 120-degree sectors.”  Thus, the CSLI information gathered in Baltimore offered comparatively detailed and precise information regarding the location of a cellular phone used in that area.  The Court of Appeals added that:  “CSLI records did reveal an impressive 29,659 location data points for Graham and 28,410 for Jordan, amounting to well over 100 data points for each Appellant per day on average.  This quantum of data is substantial enough to provide a reasonably detailed account of Appellants’ movements during the 221-day time period, including movements to and from the cell-site sectors in which their homes were located.”

The Court of Appeals acknowledged that the that the United States Courts of Appeals for the Fifth Circuit’s opinion from In Re: Application of the United States of America for Historical Cell Site Data and the United States Court of Appeals for the Eleventh Circuit’s en banc decision in United States v. Davis both previously held that use of historical cellular location data was not a constitutional violation because such data amounted to the business records of third parties (the cellular service providers) that are not protected by the Fourth Amendment. 

However, the Fourth Circuit Court of Appeals could “not accept the proposition that cell phone users volunteer to convey their location information simply by choosing to activate and use their cell phones and to carry the devices on their person.  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. . . .  Applying the third-party doctrine 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.”

The Court of Appeals, quoting other courts that considered similar issues, stated that warrantless access to CSLI data could reveal a plethora of private information which is not the legitimate interest of the Government, such as whether an individual is “a heavy drinker, a regular at the gym, an unfaithful husband, . . . familial, political, [and] professional [ties] . . . [as well as] which doctors, religious services, and stores they visit,” because cellular phone location data can reveal “specific movements down to the minute, not only around town but also within a particular building.”

“It is possible that the CSLI for a particular cell phone is not very revealing at all because, for instance, the phone has been turned off or it has made few or no connections to the cellular network.  But the government cannot know in advance of obtaining this information how revealing it will be or whether it will detail the cell phone user’s movements in private spaces.”

Accordingly, the Court of Appeals held that “the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical CSLI for an extended period of time.  Examination of a person’s historical CSLI can enable the government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user.  Cell phone users have an objectively reasonable expectation of privacy in this information.  Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.”

The Court of Appeals thus acknowledged the creation of a “circuit split” with the Eleventh and Fifth Circuits.  However, the Fourth Circuit panel opined that “[i]f the Twenty-First Century Fourth Amendment is to be a shrunken one, we should leave that solemn task to our superiors in the [Supreme Court of the United States] and not presume to complete the task ourselves.”

However, because the CSLI data was obtained in good faith, the Court of Appeals found that the good faith exception applied and Mr. Graham’s and Mr. Jordan’s convictions stood. 

Review the full opinion of this case: United States v. Graham


This case law update was written by Michael S. Causey, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases

Posted in Case Law Update

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