State v. Hurtado. Unpublished.

The Court of Appeals isn’t backing down from the position that warrantless searches of historical cell phone location data are not “searches” as protected by the Fourth Amendment.

In this case, police arrested the Defendant after learning from a source about a large amount of heroin in his car. The source also gave them Hurtado’s cell phone number. Police got a court order for historical cell phone records from AT&T pursuant to 18 U.S.C. § 2703(d), a provision of the Stored Communications Act. The records put Hurtado in the area the prior night. Police searched hotel parking lots, and found a car registered to Hurtado, found Hurtado in the hotel and got Hurtado’s consent to allow a drug dog to sniff the vehicle. The dog alerted – of course – and police found the heroin.

Police had actually requested “cell site information, tower azimuth, GPS precision location, historical GPS, distance from tower, and live trace.” But, the record said the only thing they relied on was the historical GPS data, and Hurtado conceded as much at the supression hearing.

Hurtado moved to suppress the heroin, arguing that the warrantless acquisition of his cell phone records violated the Fourth Amendment. The trial court denied this motion. Hurtado appealed. (He also objected to some jury issues and appealed those, but I won’t discuss them here).

The court of appeals rejected Hurtado’s Fourth Amendment argument because the case is “indistinguishable” from State v. Perry, ___ N.C. App. ___, 776 S.E.2d 528 (2015). The court wrote:

In Perry, this Court addressed whether a warrant was required to obtain historical cell tower site location information from a third party such as a wireless service provider. Id. at ___, 776 S.E.2d at 536. We held that the acquisition of historical cellular information—meaning information first obtained and stored by the cellular carrier and then later transmitted to law enforcement under court order— was not a “search” under the Fourth Amendment. Id. at ___, 776 S.E.2d at 540.

This case is controlled by Perry. The trial court found that police relied solely on “historical GPS location data”[1] to determine the location of Hurtado’s cell phone the previous night. Hurtado concedes that the information relied upon by law enforcement was historical tracking data. In his appellate brief, Hurtado asserts that “on September 19th, the police were first informed that a shipment of drugs had come into Raleigh the night before. Using cell phone records, police were able to show that Mr. Hurtado’s phone traveled through Charlotte to Raleigh on September 18th. . . . GPS data effectively allowed them to go back in time to get incriminating data by using Mr. Hurtado’s personal property against him.” In other words, Hurtado concedes that law enforcement used historical cell phone data to determine where his phone had been in the past, not to track his current whereabouts using real-time data.

Under Perry, law enforcement’s acquisition of this historical, third-party data from Hurtado’s cell phone provider was not a search and therefore did not implicate the Fourth Amendment. Perry, at ___, 776 S.E.2d at 540. We are bound to follow Perry and therefore must reject Hurtado’s argument that the warrantless acquisition of historical data from his cellular phone provider violated his Fourth Amendment rights. Accordingly, we hold that the trial court did not err in denying Hurtado’s motion to suppress.

[1] Perry involved the acquisition of location data acquired through “pings” between the cell phone and nearby cell towers. Hurtado’s brief describes the State’s tracking of his phone as “GPS” tracking. Perry did not address GPS tracking, and we are not prepared to hold that acquiring historical GPS location data from a GPS-enabled phone is, in all cases, the same as acquiring cell tower ping data. But here, Hurtado did not present any evidence concerning the differences between these two forms of tracking, did not explain how GPS tracking works, and, most importantly, did not provide any reason why he would have a greater expectation of privacy in historical GPS location data than in historical cell tower location data. As a result, we cannot distinguish this case from Perry. See Jones v. United States, 362 U.S. 257, 261, 4 L.Ed.2d 697, 702 (1960) (party challenging the constitutionality of a search bears the burden of proving an invasion of privacy) overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L.Ed.2d 633, 641 (1980).

My discussion of State v. Perry can be found here. I’ve said it before and I will say it again: this issue isn’t going anywhere.