Lite DePalma Greenberg Law Blog

Probable cause gets bad reception in the Eleventh Circuit

On May 5, 2015, the en banc Eleventh Circuit held that investigators do not need to secure a warrant before obtaining records of cellphone tower tracking data. This decision overturned a three-judge panel’s earlier ruling which found that obtaining Davis’ past cellphone location without a warrant violated his Fourth Amendment right to privacy. 

The data at issue was used by investigators to prove that Defendant, Quartavius Davis, and several accomplices were in the vicinity of several crimes. From the beginning of August 2010 through the beginning of October 2010, Davis committed seven separate armed robberies in South Florida. Along with his accomplices, Davis robbed a Wendy’s restaurant, a Walgreen’s pharmacy, a beauty salon, a Little Caesar’s pizzeria, a gas station, an auto parts store, and a jewelry store.   The government accumulated evidence against Davis and his cohorts that included eyewitness testimony, a DNA sample recovered from the getaway car, and video surveillance footage. 

In an attempt to bolster its case the government decided to obtain cell-site records from MetroPCS, who was Davis’ cellphone provider.   The government did not attempt to secure a warrant and instead obtained the records through the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq. Section 2703 of the SCA provides that a federal or state governmental entity may require a telephone service provider to disclose “a record . . . pertaining to a subscriber to or a customer of such service (not including the contents of communications)” if “a court of competent jurisdiction” finds “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” 18 U.S.C. §2703(c)(1)(A), (B), (d).

The Eleventh Circuit majority found that the cellphone records were created by MetroPCS, and therefore, belonged to the company as opposed to Davis under the “third party doctrine” theory. Specifically, the court found that “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.” 

The dissenters, Judges Martin and Pryor, took exception with the majority’s use of the third-party doctrine, which they felt did not dictate the outcome of this case. Instead, Judges Martin and Pryor turned to fundamental Fourth Amendment principles, and pondered whether an individual’s expectation of privacy is one that society was prepared to recognize as reasonable. The Judges believed the answer was a resounding yes, buttressing their opinions with polling data which found that 82% of adults “feel as though the details of their physical location gathered over a period of time” is “very sensitive” or “somewhat sensitive.” Mary Madden, Public Perceptions of Privacy and Security in the Post-Snowden Era 34, Pew Research Center (Nov. 12, Case: 12-12928 Date Filed: 05/05/2015 Page: 88 of 102 89 2014), http://www.pewinternet.org/files/2014/11/PI_PublicPerceptionsofPrivacy_ 1112 14.pdf.    

Davis was only 18 and 19 years old when the above robberies were committed. He was subsequently sentenced to nearly 162 years in a Virginia federal penitentiary without the possibility of parole. Davis is now attempting to appeal his case to the Supreme Court.

The ACLU is representing Davis and last week has petitioned the Supreme Court to reverse the Eleventh Circuit’s decision. The ACLU is challenging the use of cell site location information for a particular cell phone without a warrant. Additionally, the ACLU states within Davis’ petition that “[i]t is virtually impossible to participate fully in modern life without leaving a trail of digital breadcrumbs that create a pervasive record of the most sensitive aspects of our lives. Ensuring that technological advances do not ‘erode the privacy guaranteed by the Fourth Amendment’ requires nuanced applications of analog-age precedents.”  

The Eleventh Circuit’s decision could have broad ramifications given today’s technological landscape. We live in a world where our digital footprints are larger and more permanent than ever. We regularly entrust private information to third-party vendors, including but not limited to our locations, ideas, pictures, and credit card information. In turn, much of this information is stored by these third-parties and now–in Florida, Georgia, and Alabama—this private information could be obtained without a warrant and absent a showing of probable cause.