State v. Perry, 776 S.E.2d 528

Background

In December 2012 Raleigh police learned from a cooperating arrestee that his supplier "Sincere" (later linked to Perry) would come to Raleigh; officers obtained a § 2703(d) order directing AT&T to produce call detail and cell-site location records for the target number.
AT&T provided periodic emails with latitude/longitude of towers that the phone had "pinged"; officers mapped those coordinates and located the phone near a Red Roof Inn, conducted surveillance, and shortly thereafter detained Perry and co-occupants; heroin and drug paraphernalia were recovered from associates and the hotel area.
Perry was indicted on multiple heroin trafficking and related charges; he moved to suppress the phone-location evidence and derivative evidence, arguing the tracking was a warrantless "real‑time" search requiring probable cause and a warrant under the Fourth Amendment and N.C. Const. art. I, § 20.
The trial court denied the motion to suppress; a jury convicted Perry on all counts and he appealed, raising (1) the suppression ruling re: cell-site data and (2) the trial court’s in‑camera review and sealing of documents without disclosure to defense counsel.
The Court of Appeals affirmed: it held the records were historical third‑party business records produced under the SCA § 2703(d), did not implicate a reasonable expectation of privacy, and alternatively, even if a warrant were required, the good‑faith exception applied; the sealed documents contained no favorable, material evidence.

Issues

Issue	State's Argument	Perry's Argument	Held
Whether records produced under 18 U.S.C. § 2703(d) were a Fourth Amendment "search" requiring a probable‑cause warrant	§ 2703(d) order properly compels third‑party business records; SCA standard (specific and articulable facts) governs and no warrant is required	The data were effectively "real‑time" location tracking of Perry that required a warrant supported by probable cause	The court held the data were historical third‑party records produced under the SCA and did not constitute a Fourth Amendment search (no warrant required)
Whether the AT&T cell‑site data were "historical" or "real‑time"	The records were historical (stored by the provider and relayed to police after delay)	The transmissions were effectively real‑time (5–15 minute updates) and thus required a warrant	Court found the records historical and declined to apply the warrant rule for real‑time tracking (majority). Chief Judge McGee concurred but stressed the factual closeness to real‑time data
Whether Perry had a reasonable expectation of privacy in third‑party cell‑site records	No — third‑party doctrine (Miller/Smith) means no reasonable expectation in business records held by carrier	Yes — modern cell‑site data implicate significant privacy interests; recent cases (e.g., Graham) suggest limits on third‑party doctrine	Court applied the third‑party doctrine: Perry lacked a reasonable expectation of privacy in AT&T’s stored records, so acquisition was not a Fourth Amendment search
If a warrant was required, whether exclusionary rule bars evidence (good‑faith exception)	Even if warrant required, officers acted pursuant to a court order under the SCA and reasonably relied on it	Exclusion should apply if the order was constitutionally insufficient	Court held the good‑faith exception applies: officers reasonably relied on the § 2703(d) order and magistrate approval, so suppression was not required
Whether sealed documents submitted in camera contained Brady/Giglio material requiring disclosure	Sealed materials were reviewed on appeal; they are not favorable and material to guilt or punishment	Defense requested the sealed materials; argued possible material favorable evidence was withheld	Court examined the sealed documents and held they did not contain evidence both favorable and material; no disclosure required

Key Cases Cited

United States v. Miller, 425 U.S. 435 (bank records from third party not protected by Fourth Amendment)
Smith v. Maryland, 442 U.S. 735 (numbers dialed not protected; third‑party doctrine)
United States v. Jones, 565 U.S. 400 (GPS device attachment = trespass; monitoring can be a search)
United States v. Leon, 468 U.S. 897 (good‑faith exception to exclusionary rule)
In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir.) (SCA §2703(d) orders can obtain historical cell‑site data without probable cause)
In re Application of the U.S. for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to Gov't, 620 F.3d 304 (3d Cir.) (cell‑site data obtainable under §2703(d))
United States v. Davis, 785 F.3d 498 (11th Cir. en banc) (no reasonable expectation of privacy in carrier’s historical cell‑site business records)
United States v. Graham, 796 F.3d 332 (4th Cir.) (governmental inspection of extended‑period historical CSLI may be a search)