No Warrant Required for Two Days of Cell Site Data – NC Court of Appeals
State v Perry. In a decision reminiscent of the Fourth Circuit’s recent holding in US v. Graham (that access to extended cell site data requires a warrant), the North Carolina Court of Appeals has come to some… interesting conclusions.
First, the Court of Appeals rejected an argument that cell site information sent to an officer by AT&T as often as “every fifteen minutes” constituted “real-time” information, which would require a warrant. Under the Stored Communications Act, some historical records do not require a warrant (but see US v. Graham for recent developments on that front).
After careful review of the record and trial transcripts, we conclude the cell tower site location information acquired and stored by AT&T and provided to the officers were historical records. . . Detective Mitchell testified the emails he received of records from AT&T consisted of latitudinal and longitudinal coordinates of the cell towers Defendant’s cell phone “pinged” when connected. He further testified “[t]hey’re historical hits; they’re not active [or] right on time” and there is “probably a five- or seven-minute delay.” Other evidence shows AT&T emailed the delayed recorded information to Detective Mitchell every fifteen minutes. Detective Mitchell and the other officers followed Defendant’s historical travel by entering the coordinates of cell tower “pings” provided by AT&T into a Google Maps search engine to determine the physical location of the last tower “pinged.” Defendant’s cell phone was never contacted, “pinged,” or its precise location directly tracked by the officers. The officers did not interact with Defendant’s cell phone, nor was any of the information received either directly from the cell phone or in “real time.” All evidence shows the cell tower site location information provided by AT&T was historical stored third-party records and properly disclosed under the court’s order as expressly provided in the SCA. 18 U.S.C. § 2703(d). This argument is overruled.
Next, the court considered whether access to such historical records requires a warrant under Article I, Section 20 of the North Carolina constitution, which provides the same protection against unreasonable searches and seizures as the Fourth Amendment. The court analogizes cell site data to pen register information, which is a comparison the Fourth Circuit didn’t care for in Graham (importantly, neither party to this case would have had access to the Graham decision before briefing).
The court also addresses United States v. Jones, in which the U.S. Supreme Court held that the physical attachment of a GPS tracking device to a defendant’s vehicle is a trespass and constitutes a search under the Fourth Amendment. __ U.S. __, 181 L. Ed. 2d 911 (2012).
Unlike in Jones, no physical trespass onto Defendant’s person or property occurred. Defendant has not shown any evidence of any GPS or “real-time” tracking. The officers only received the coordinates of historical cell tower “pings” after they had been recorded and stored by AT&T, a third party.
Then the court examined the decisions of the Third, Fifth and Eleventh Circuits (with which the Fourth Circuit has split) before concluding:
Defendant failed to show any reasonable expectation of privacy in these third-party stored records. The acquisition of this information did not constitute a “search” under the Fourth Amendment to the Constitution of the United States or Article I, Section 20 of the Constitution of North Carolina. Defendant’s argument is overruled.
Finally, the court addresses Graham, which defendant provided in a Memorandum of Additional Authority prior to the decision.
After careful review, we find it clearly distinguishable from the facts at bar. The Fourth Circuit held “the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical [cell site location information] for an extended period of time.” Graham, Nos. 12-4659, 12-4825, 2015 WL 4637931, at *8 (4th Cir. Aug. 5, 2015) (emphasis supplied).
In Graham, the government sought cell tower site location information for multiple defendants for a period of 221 days. To the contrary, the officers at bar sought cell tower site location information for only portions of two days, and after Detective Mitchell overheard Defendant tell Holderfield he would be traveling from Charlotte to Raleigh the following day. It cannot reasonably be argued that portions of two days constitutes an “extended period of time,” to implicate the Fourth Amendment or Article I, Section 20 of the Constitution of North Carolina. Id. See Jones __ U.S. at __, 181 L. Ed. 2d at 934 (Alito, J., concurring) (citation omitted) (“[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.”); Skinner, 690 F.3d at 780 (holding DEA agents tracking defendant’s cell phone for three days did not rise to “a level of comprehensive tracking that would violate the Fourth Amendment”).
Thus, the Court of Appeals has concluded that an “extended period” of time is somewhere between two and 221 days. The Court of Appeals also seems to reject the Fourth Circuit’s application of third party doctrine:
The Fourth Circuit’s majority opinion relied on the notion that the defendants did not “voluntarily disclose” their cell tower site location information to their service providers, and found the third-party doctrine to be inapplicable. This supposition directly contradicts the conclusions reached by all other federal appellate courts, who have considered this question. (Citations omitted).
The issue of cell site data isn’t going away, and you can expect it will be fodder for future appeals.