Constitutional law - Maryland District Court finds government's acquisition of historical cell site data immune from Fourth Amendment - United States v. Graham.

• Author: Derman, Jeremy
• Position: CASE COMMENT

Constitutional Law--Maryland District Court Finds Government's Acquisition of Historical Cell Site Data Immune from Fourth Amendment--United States v. Graham, 846 F. Supp. 2d 384 (D. Md. 2012)

A criminal defendant's motion to suppress often implicates the Fourth Amendment's protections against "unreasonable searches and seizures." (1) Nevertheless, the extent to which government surveillance activities associated with wireless communication and location tracking technology fall within the ambit of the Fourth Amendment is unclear. (2) In United States v. Graham, (3) the United States District Court for the District of Maryland considered whether defendants' Fourth Amendment rights were violated when the government acquired historical cell site location information (CSLI) without a search warrant. (4) The court found that the defendants' Fourth Amendment rights were not violated because they did not have a legitimate expectation of privacy--a requisite condition precedent to an unconstitutional search determination--in the CSLI at issue. (5)

On February 5, 2011, robberies occurred at a Baltimore, Maryland-area Burger King restaurant and McDonald's restaurant. (6) Shortly after the McDonald's robbery, police apprehended Aaron Graham and Eric Jordan. (7) Police officers recovered a handgun and United States currency from the suspects and their vehicle before arresting them. (8) After the arrest, police obtained search warrants for two cellular telephones recovered from the vehicle, and then matched the phones with the telephone numbers Graham and Jordan had provided to investigators. (9)

Following further investigation into the robberies, the government applied for a court order pursuant to the Stored Communications Act (SCA) to compel Graham's and Jordan's wireless providers to disclose the CSLI related to the use of their cellular telephones. (10) Magistrate Judge Gauvey granted the application after finding that the government had met the requisite "specific and articulable facts" standard under the SCA. (11) While the restaurant robbery investigations were still ongoing, the government uncovered new evidence of additional robberies in the Baltimore area and submitted a second application for CSLI. (12) Magistrate Judge Grimm, presiding over the government's second application, approved it after also finding that the government had met the SCA's specific and articulable facts standard. (13) Graham then filed a motion to suppress the CSLI, which Jordan joined, arguing that the extensive cellular monitoring associated with the CSLI infringed upon his expectation of privacy in violation of his Fourth Amendment rights. (14) In denying Graham and Jordan's motion to suppress, Judge Bennett held that the government's acquisition of the data did not constitute an unreasonable search under the Fourth Amendment because the movants did not have a legitimate expectation of privacy in the CSLI. (15)

To date, no clearly articulated standard exists as to what constitutes an "unreasonable search" under the Fourth Amendment. (16) The early formulation of the "search" test for deciding when government surveillance violates the Constitution was predicated on a requirement that law enforcement commit common-law trespass. (17) Conversely, current Fourth Amendment jurisprudence has turned away from the trespass distinction, instead focusing on the two-part test Justice Harlan posited in his concurring opinion in the landmark case of Katz v. United States. (18) First, the Katz inquiry asks whether the individual has a (subjective) expectation of privacy and second, whether that expectation is objectively reasonable. (19)

The lack of a workable judicial standard to illuminate the parameters of an objectively reasonable expectation of privacy has resulted in an incongruent relationship between technology and Fourth Amendment searches. (20) In other words, technological developments, specifically those that aid police in criminal surveillance, have led to varied results in the application of the Katz reasonable expectation of privacy inquiry. (21) Further complicating matters is the "third-party" doctrine, which recognizes that the Fourth Amendment does not protect the government's procurement of information that is voluntarily revealed to a third party, who in turn conveys it to government authorities. (22) Under the third-party doctrine, the Supreme Court has declared that "business records" and data stored for business purposes also are not generally subject to constitutional protection. (23) Another controversial interpretation of what constitutes a reasonable expectation of privacy is the "mosaic" approach, which considers the extent of government surveillance in determining whether it amounts to a search under the Fourth Amendment. (24) Recognizing the need to uphold constitutional protections for information shared with another through wireless communication, Congress enacted the Electronic Communications Privacy Act of 1986 (ECPA). (25)

Thus far, the federal district courts have been tasked with trying to square the SCA with the Supreme Court's Fourth Amendment jurisprudence. (26) District courts are split as to whether the Fourth Amendment's protections are implicated when the government seeks CSLI pursuant to the SCA. (27) As a result, the constitutional protections limiting the reach of the SCA are seemingly guaranteed only by the latitude afforded to judges to deny the government's applications for want of a showing of probable cause, even if the SCA's specific and articulable facts standard is met. (28) Although the Supreme Court has yet to take up the issue of whether a court-ordered CSLI disclosure pursuant to the SCA can rise to the level of a Fourth Amendment search, at least one recent Court decision, United States v. Jones, is instructive. (29)

In United States v. Graham, the court considered the defendants' motion to suppress government-obtained CSLI vis-a-vis an as-applied challenge to the SCA as an infringement of their constitutionally protected legitimate expectation of privacy. (30) First, the court distinguished the case at bar from United States v. Maynard, (31) based on both the extent of the surveillance and the nature of the information sought. (32) The court also distinguished the absence of a probable cause showing in Maynard from the instant case, which met the SCA's requisite specific and articulable facts standard that was not applicable in Maynard. (33) Next, the court focused its Fourth Amendment analysis on the application of the Katz framework to the government's acquisition of CSLI pursuant to the SCA. (34) The court rejected Graham and Jordan's contention that they had a reasonable expectation of privacy in their CSLI, and applied the third-party doctrine, finding the case at bar analogous to the leading Supreme Court cases of United States v. Miller (35) and Smith v. Maryland, (36) and the Fourth Circuit's decision in United States v. Bynum (37)

The court subsequently turned its attention to the Supreme Court's recent Fourth Amendment-based decision in United States v. Jones. (38) The Graham court was reluctant to apply the mosaic theory and find a net infringement of Graham and Jordan's legitimate expectation of privacy by aggregating the amount of CSLI the government collected, noting the "varied" reasoning that the Justices of the Supreme Court employed in deciding Jones. (39) The Graham court ultimately rejected the mosaic theory promulgated in Maynard, finding the approach to be problematic, and further relying on the Jones decision and the work of Fourth Amendment scholar Professor Orin S. Kerr. (40) Finally, the court distinguished Graham from the Supreme Court's decisions in United States v. Karo (41) and United States v. Knotts. (42) The court read Karo and Knotts to stand for the proposition that a search occurs when law enforcement utilizes tracking technology that allows surveillance in locations that they "could not monitor in the absence of that technology." (43) The court reasoned that while CSLI could identify the nearest cellular tower to Graham and Jordan's phones, it did not provide their precise locations, unlike the surveillance in Karo and Knotts. (44)

At the threshold, the district court properly distinguished Graham from Maynard by recognizing that the SCA's specific and articulable facts standard provides a degree of procedural protection not present in Maynard. (45) The court also appropriately acknowledged Katz as the instructive rule under Fourth Amendment jurisprudence and the Supreme Court's recent Jones decision. (46) However, while the court properly recognized that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties," it too briskly extends Miller and Smith by concluding that CSLI is voluntarily conveyed. (47) The court's assumption that users voluntarily transfer their CSLI relies too heavily on the third-party doctrine, nullifying a putative defendant's legitimate expectation of privacy, and leaving the government with almost unfettered access to CSLI. (48)

In light of the Jones holding, the court correctly declined the opportunity to apply the mosaic approach and to find an expectation of privacy based on the pervasiveness of the government's surveillance. (49) The mosaic approach is an impotent guidepost for courts to follow in determining if one's legitimate expectation of privacy has been infringed, and is predicated on arbitrary distinctions of time and extent of surveillance. (50) After rejecting the mosaic theory, the Graham court distinguished the case at bar from Karo and Knotts based on the degree of precision of global positioning system (GPS) data compared with CSLI, and strayed off course, effectively subrogating CSLI's electronic surveillance value to that of GPS. (51)

Last, the court aptly recognized its judicial role and refused to legislate from the bench. (52) Instead...