In re Smartphone Geolocation Data Application
977 F. Supp. 2d 129
E.D.N.Y2013Background
- Arrest warrant issued for Dr. Mayard based on large oxycodone prescribing and DEA investigation; officers sought geolocation data to aid arrest after he refused to surrender or disclose location; magistrate granted pen register and 2703 authorization for prospective cell-site data; geolocation data located Mayard in Queens leading to arrest and flight-prep evidence; defendant detained without bail for flight risk and danger to the community; court now explains rationale for geolocation authorization and ECPA/Fourth Amendment treatment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether probable cause supports a warrant for prospective geolocation data to aid apprehension | Mayard’s flight risk justifies geo-data use | Geolocation warrants require evidence of flight or crime beyond arrest warrant | Probable cause supports a warrant for prospective geolocation data |
| Whether there is a reasonable expectation of privacy in prospective geolocation data | Public awareness and third-party data reduce privacy expectations | Defendant could protect privacy by turning off phone or not sharing data | There is no reasonable expectation of privacy in prospective cell-site data under these circumstances |
| Whether the government may obtain prospective cell-site data under the ECPA as an order under 2703(d) rather than a warrant | Tracking device exclusion prevents use of 2703 when data is akin to a tracking device | Cell-site data does not convert the phone into a tracking device; 2703(d) appropriate | Goverment may seek a 2703(d) order; tracking-device exclusion does not bar access; warrant also proper under probable cause |
| Whether the Fourth Amendment prohibits acquisition of prospective geolocation data absent a warrant | Geolocation data is protected; warrant required | No Fourth Amendment interest in data gathered without trespass; Katz/Smith analyses apply | No Fourth Amendment bar to obtaining prospective geolocation data; warrant not required where no privacy expectation and arrest context supports it |
Key Cases Cited
- Warden v. Hayden, 387 U.S. 294 (1967) (probable cause may authorize searches to aid in apprehension of criminals)
- Messerschmidt v. Millender, 132 S. Ct. 1235 (2012) (probable cause to believe evidence will aid apprehension/conviction)
- Dalia v. United States, 441 U.S. 238 (1979) (probable cause to believe evidence will aid apprehension or conviction)
- Andresen v. Maryland, 427 U.S. 463 (1976) (probable cause to believe evidence will aid apprehension/conviction)
- Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (probable cause standard for searches incident to arrest)
- Steagald v. United States, 451 U.S. 204 (1981) (arrest warrants may require third-party search warrants to locate the fugitive in third-party residence)
- Katz v. United States, 389 U.S. 347 (1967) (establishes Katz test for privacy in communications; two-part expectation of privacy)