Memorandum Opinion
Defendants Aaron Graham and Eric Jordan (collectively “Defendants”) are charged in a seventeen-count Second Superseding Indictment relating to a series of armed Hobbs Act
Background
The Second Superseding Indictment in this case (ECF No. 16) charges the Defendants with conspiring to rob and robbing a variety of commercial entities, including a Burger King restaurant and a McDonald’s restaurant, both located in Baltimore City, Maryland.
Two cellular telephones were recovered from the Ford pickup truck — a blue Samsung and a silver Sanyo. Prior to searching the contents of the phones, Baltimore City Police Detective Christopher Woerner sought and obtained search warrants for the two phones in the Circuit Court for Baltimore City. See Gov. Opp’n at 7, ECF No. 49; Warrants, ECF Nos. 49-4 & 49-5. The telephone number associated with the Samsung phone matched the number that Defendant Graham provided to investigators, and the number associated with the Sanyo phone matched the number provided by Defendant Jordan.
Federal authorities initially charged the Defendants with only firearm violations. However, an investigation into the Baltimore City robberies and other Baltimore County robberies was ongoing, and on March 25, 2011, the government applied for an order from Magistrate Judge Susan K. Gauvey of this Court, pursuant to the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701, et seq., which ordered Sprint/Nextel, Inc. to disclose to the government “the identification and address of cellular towers (cell site locations) related to the use of [the Defendants’ cellular telephones].” SCA App. 1, ECF No. 49-9. The government sought cell site location data for the periods of August 10-15, 2010; September 18-20, 2010; January 21-23, 2011; and February 4-5, 2011. Id. In its application, the government alleged that the information sought was relevant to an ongoing criminal investigation regarding the Burger King and McDonald’s robberies, as well as several other prior robberies that the Defendants were suspected of committing. By identifying the location of cellular towers accessed by the Defendants’ phones during the relevant time periods, the government sought to more conclusively link the Defendants with the prior robberies.
On March 25, 2011, Magistrate Judge Gauvey granted the government’s application. Specifically, Magistrate Judge Gauvey applied the well-defined standard prescribed by the Stored Communications Act and made a factual finding that the government “offered specific and articulable facts showing that there are reasonable grounds to believe that the records and other information sought are relevant and material to an ongoing criminal investigation.” Id. at 8. The original indictment against the Defendants was subsequently superseded to include the Baltimore City robberies.
While the investigation into the Baltimore City robberies was ongoing, the government was presented with evidence regarding additional related robberies in
Analysis
The Defendants argue that the government’s acquisition of historical cell site location data, without a warrant but pursuant to the Stored Communications Act, was in violation of their Fourth Amendment rights and must be suppressed. The Defendants do not argue that the Stored Communications Act is unconstitutional on its face, but instead make an as-applied challenge and contend that the length of time and extent of the cellular phone monitoring conducted in this case intruded on the Defendants’ expectation of privacy and was therefore unconstitutional. Essentially, the Defendants present the question of whether twenty-four hour “dragnet” surveillance by emerging technological means infringes on the Fourth Amendment’s guarantee against unreasonable searches and seizures. See Defs. Reply at 1, 4, ECF No. 51 (quoting United States v. Knotts,
More specifically, the Defendants argue that Magistrate Judge Gauvey’s March 25, 2011 Order, which authorized the release of fourteen days and 1,628 individual cell site location data points, and Magistrate Judge Grimm’s July 15, 2011 Order, which authorized two hundred and twenty-one days and 20,235 individual cell site location data points, infringed on the Defendants’ expectations of privacy insofar as that data allows the government to paint an intimate picture of the Defendants’ whereabouts over an extensive period of time. While the Defendants do not take issue with any specific data points, they essentially argue that the privacy intrusions available through this type of technology are far reaching and unconstitutional — allowing the government to retroactively track or surveil a suspect through his cellular telephone, a device he likely carries with him at all hours of the day and to constitutionally protected places such as his home or church.
The government makes four arguments in response. First, the government contends that the Defendants lack standing to challenge the seizure of the historical cell site location records from Sprint/Nextel, Inc. In this regard, the government argues that Defendant Jordan’s use of a fictitious name and address in subscribing to the cellular phone service evidences a lack of privacy or possessory interest in the phone
Second, and relatedly, the government expands on its business records argument, and contends that the Defendants have no Fourth Amendment expectation of privacy in business records voluntarily conveyed to a third party. Analogizing from Supreme Court precedent, the government argues that the voluntary disclosure of cell site location data is akin to dialed telephone numbers captured by pen registers and bank records disclosed to banks — which the Court has found do not implicate the Fourth Amendment. Under this so-called “third-party doctrine,” the government maintains that by using their cellular phones, and thereby voluntarily conveying their approximate location to their service provider, the Defendants can claim no legitimate expectation of privacy in that data-in other words, the Fourth Amendment simply does not apply.
Third, the government argues that an application for historical cell site location data does not require probable cause— rather, the Stored Communications Act’s lower “specific and articulable facts” standard provides adequate privacy protections, and the disclosure of such information does not run afoul of the Fourth Amendment. Notwithstanding some recent cases to the contrary, the government maintains that the majority of courts to consider the issue have concluded that the government’s acquisition of cell site location data without a warrant does not violate the Fourth Amendment.
Finally, the government argues that even if this Court concludes that a warrant was required for the acquisition of the location data in this case, and that the Defendants’ Fourth Amendment rights were violated, the remedy for such a violation is not the suppression of the evidence. In this regard, the government contends that law enforcement officers in this case justifiably, and in good faith, relied on the Stored Communications Act and two court orders that relied on that statute.
While the central issue presented, i.e., whether a defendant’s Fourth Amendment rights are violated when the government acquires historical cell site location data without a warrant based on probable cause, is one of first impression in this district and in the Fourth Circuit, it is not altogether novel. In light of the expanding use of cellular network information by law enforcement, several courts have recently grappled with the Fourth Amendment implications of cellular phone technology that allow law enforcement to approximate the location of suspects’ cellular phones — and by implication, the location of the suspects themselves.
Some courts, most notably the Eastern District of New York and the Southern District of Texas, have concluded that, under certain circumstances, applications seeking cell site location data must be granted only after a showing of probable cause, and not the lower statutory standard of “specific and articulable facts” contained in the Stored Communications Act. See, e.g., In re Application of the United States,
A majority of courts, on the other hand, have concluded that the acquisition of historical cell site location data pursuant to the Stored Communications Act’s specific and articulable facts standard does not implicate the Fourth Amendment, regardless of the time period involved. See, e.g., United States v. Dye, No. 10CR221,
For the following reasons, this Court concludes that the Defendants in this case do not have a legitimate expectation of privacy in the historical cell site location records acquired by the government. These records, created by cellular providers in the ordinary course of business, indicate the cellular towers to which a cellular phone connects, and by extension the approximate location of the cellular phone. While the implications of law enforcement’s use of this historical cell site location data raise the specter of prolonged and constant government surveillance, Congress in enacting the Stored Communications Act, has chosen to require only “specific and articulable facts” in support of a government application for such records. Put simply, the Fourth Amendment, as currently interpreted, does not contemplate a situation where govern
Accordingly, and in light of the difficult question presented and the differing conclusions reached by other courts, this Court finds that the Stored Communications Act, as drafted, provides adequate privacy protections for historical cell site location data — and if the arc of technological improvement (or the implementation of that technology by the government) should be altered in a way that does infringe a person’s legitimate expectation of privacy, the solution is properly for the legislature to address. See United States v. Jones, 565 U.S. -,
I. The Fourth Amendment & Historical Cell Site Data
At the outset, it is important to define precisely what privacy interests the Defendants claim were infringed in this case. In their own words, the Defendants argue that “[w]here intermittent periods of constant cell location surveillance reveal the patterns of a personas] movements, that person’s privacy has been severely compromised.” Defs. Reply at 5, ECF No. 51. Implicit in this argument, is the idea that surveillance in and of itself does not necessarily implicate Fourth Amendment privacy concerns, but in the aggregate, some amount of cellular location data gathering will eventually run afoul of the Constitution.
As previously mentioned, several courts have recently concluded that government acquisition of historical cell site location data over a prolonged period of time can violate the Fourth Amendment if not acquired pursuant to a warrant supported by probable cause. See, e.g., In re Application of the United States,
Undergirding the reasoning of each of these cases is United States v. Maynard, a case decided by the United States Court of Appeals for the District of Columbia Circuit in August, 2010.
[W]e hold the whole of a person’s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine.
Id. at 560.
Of course, Maynard concerned the prolonged surveillance of a vehicle by global positioning system technology, and not through historical cell site location data. That distinction is important. Historical cell site location data, is, as its name implies, historical — the information revealed by such data exposes to the government only where a suspect was and not where he is.
Moreover, the government in Maynard physically installed a GPS tracking device on the suspect’s vehicle without a valid warrant, and did not seek a court order pursuant to the Stored Communications Act.
Notwithstanding these differences, the courts finding that a warrant is required for extended periods of historical cell site location data acquisition have seized on Maynard’s reasoning, and in particular on the “mosaic” theory introduced in that case. For example, Magistrate Judge Orenstein, of the Eastern District of New York, has noted that he “relied heavily on the reasoning in United States v. Maynard ” in concluding that there is “no material difference between the essentially real-time surveillance accomplished in Maynard by means of a [GPS] device and retrospective location tracking via historical [cell site location] records.” In re Application of the United States, No. 11-MC-0113,
The Supreme Court granted certiorari in Maynard sub nom. United States v. Jones, and recently issued its opinion in that case. See supra note 6. The Court unanimously concluded that the govern
Concurring in the judgment, Justice Ali-to, joined by Justices Ginsburg, Breyer, and Kagan, wrote that the majority’s approach “will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked.” Id. at 962 (Alito, J., concurring). Justice Alito, after suggesting that Congress is in the best position to determine how much surveillance society should accept as reasonable, echoes the D.C. Circuit’s Maynard decision in concluding that:
Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts,460 U.S. at 281-282 ,103 S.Ct. 1081 . But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not— secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.
Id. at 964 (Alito, J., concurring). Moreover, and of particular importance to the present case, Justice Alito specifically calls into question the Fourth Amendment implications of the government’s use of cell site location data. Acknowledging the inherent imprecision of some cellular location records, Justice Alito notes that “[t]he availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.” Id. at 963 (Alito, J., concurring).
Acknowledging the “vexing problems” identified by Justice Alito, Justice Scalia wrote that although electronic surveillance
... There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an “extraordinary offens[e]” which may permit longer observation. See post, at 13-14. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.
Id. at 954 (Scalia, J.).
Concurring separately, Justice Sotomayor agrees with the majority “at a minimum,” id. at 947 (Sotomayor, J., concurring), but also apparently agrees with Justice Alito’s observations, id. at 948-49. While not formally joining the Alito concurrence (which would seemingly create two separate majority opinions), Justice Sotomayor intimates that her view of a reasonable expectation of privacy is even broader than the Alito formulation. She writes:
... As Justice Alito incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Post, at 10-11. Under that rubric, I agree with Justice Alito that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Post, at 13.
I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.
Id. at 955-56 (Sotomayor, J., concurring).
Accordingly, it appears as though a five justice majority is willing to accept the principle that government surveillance over time can implicate an individual’s reasonable expectation of privacy. However, as will be discussed below, the factual differences between the GPS technology considered in the Jones case and the historical cell site location data in the present case lead this Court to proceed with caution in extrapolating too far from the Supreme Court’s varied opinions in Jones. Until the Supreme Court or the United States Court of Appeals for the Fourth Circuit definitively conclude that an aggregation of surveillance records infringes a Fourth Amendment legitimate expectation of privacy, this Court must apply the facts of this case to the law as currently interpreted. With this background in mind, this Court now proceeds to analyze the particular question presented in this case: Whether the defendants’ Fourth Amendment rights were violated when the government acquired historical cell site location data pursuant to an Order of a Magistrate Judge of this Court issued according to the standards of the
A. The Fourth Amendment
The Fourth Amendment to the United States Constitution provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause____” U.S. Const. amend. IV. In order to invoke the protections of the Fourth Amendment, a person must have a “justifiable,” “reasonable,” or “legitimate” expectation of privacy in the place or item searched. See Smith v. Maryland,
Nevertheless, the standard for evaluating whether a Fourth Amendment search has occurred, first enunciated by Justice Harlan in his concurrence in Katz v. United States,
B. The Stored Communications Act, Cell Site Location Data, and § 2703 Orders
Section 2703(c) of the Stored Communications Act addresses “[rjecords concerning electronic communication service or remote computing service.” 18 U.S.C. § 2703(c). The Act permits the government to obtain a court order to produce the historical cell site location data at issue in this case. Specifically, the statute states that “a governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity ... obtains a court order for such disclosure under subsection (d) of this section.” Id. § 2703(c)(1)(B). A Section 2703 order “may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” Id. § 2703(d) (emphasis added).
It is well established that Section 2703(c)(1)(B) of the Stored Communications Act applies to historical cell site location data. See, e.g., In re Application of the United States,
As previously mentioned, the “specific and articulable facts” standard contained in the Stored Communications Act is a lesser one than probable cause. See In re Application of the United States,
C. The Defendants’ Standing
The government initially contends that Defendants Graham and Jordan lack standing- to challenge the acquisition of historical cell site location records under the Fourth Amendment. More specifically, the government argues that because Defendant Jordan supplied a fictitious name and address to his cellular service provider, he has demonstrated an intent to distance himself from that phone and its associated records, and therefore he can claim no legitimate expectation of privacy. See Gov. Supp. Br. at 2, ECF No. 70. The government also argues that because Sprint/Nextel, Inc. keeps the location data in the ordinary course of business, neither Defendant can assert a Fourth Amendment challenge to subpoenas directed at the business records of a third party. Id. at 2-3.
In Katz v. United States, the Supreme Court held that “the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
Accordingly, this Court will not consider the issue of “standing” a matter separate and distinct from the inquiry into the legitimacy of the Defendants’ expectation of privacy in their historical .cell site location data. While Defendant Jordan’s use of fictitious subscriber information certainly presents one avenue by which this Court could reject his Fourth Amendment claim, see United States v. Suarez-Blanca,
D. Business Records and the Third-Party Doctrine
In Smith v. Maryland,
In United States v. Miller, the government subpoenaed a bank seeking financial records of the defendant.
Like the bank records at issue in Miller, the historical cell site location records in this case are not the “private papers” of the Defendants — instead, they are the “business records” of the cellular providers. Federal law does not mandate that cellular providers create or maintain this type of data,
In Smith v. Maryland, the Court applied the third-party doctrine to dialed telephone numbers. At the request of police, a telephone company installed a pen register on the home of a suspect in a
Like the dialed telephone numbers in Smith, the Defendants in this case voluntarily transmitted signals to cellular towers in order for their calls to be connected. The cellular provider then created internal records of that data for its own business purposes. Interestingly, at the time Smith was decided, telephones were almost exclusively “land lines” that were, by necessity, tethered to a particular location. The data gleaned from toll records or pen registers, therefore, encompassed “location” data with far more precision than the historical cell site location records at issue in the present case, and typically that location would be one in which the user had a Fourth Amendment privacy interest, such as a home or office At best, the records in this case identify the closest cellular tower, whereas the pen register records at issue in Smith indicated the physical address of the defendant’s telephone. The concept of a legitimate expectation of privacy in one’s location or movement simply was not contemplated in those early telephone cases. See also, Reporters Committee for Freedom of the Press v. AT & T,
Both Miller and Smith stand for the proposition that by voluntarily conveying information to a third party, a person is cognizant of, and consents to the sharing of that information by the third party.
While, the issue of historical cell site location records appears to be one of first impression in the Fourth Circuit, the Court recently applied the third-party doctrine to internet subscriber information, and concluded that there is no legitimate expectation of privacy in such information. See United States v. Bynum,
Importantly, the “subscriber information” at issue in Bynum included the “physical address” of the defendant — in other words, the Fourth Circuit found no reasonable expectation of privacy in information that conveyed the precise location of the defendant’s home to the authorities. Id In making this determination, the court noted that “[e]very federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.” Id (quoting United States v. Perrine,
Based on clear Supreme Court and Fourth Circuit precedent, this Court finds the third-party doctrine applicable to historical cell site location information. Like the bank records at issue in Miller, the telephone numbers dialed in Smith, and the subscriber information collected in Bynum, historical cell site location records are records created and kept by third parties that are voluntarily conveyed to those third parties by their customers. As part of the ordinary course of business, cellular phone companies collect information that identifies ' the cellular towers through which a person’s calls are routed. Some courts have concluded that a cellular customer does not “voluntarily” convey this information to his cellular provider on the ground that cellular phone users are ignorant of how a cellular phone operates. See, e.g., In re Application of the United States,
The Eastern District of New York, which ultimately concluded that historical cell site records are subject to a legitimate expectation of privacy, found “unpersuasive” the Third Circuit’s finding that cellular customers are ignorant regarding the records kept by their providers. In re Application of the United States,
This Court respectfully finds that approach to be problematic. While this Court is cognizant of Justice Alito’s statement in Jones that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” Jones, 565 U.S.-,
Further, it is entirely unclear what the implications would be of an interpretation of the Fourth Amendment that protects “cumulative” data collected by law enforcement. Taken to its logical extreme, such a reading would theoretically affect entire police investigations, and not just surveillance via cell site location data. In Jones,
Fourth Amendment scholars have identified some problematic consequences attendant to the mosaic theory of the Fourth Amendment. For example, Orin Kerr,
... [T]he mosaic theory has the bizarre consequence of creating retroactive unconstitutionality. The Maynard opinion indicates that it would have been okay to monitor Jones for a short time. Let’s say that would allow monitoring for a few trips over the course of one day. At the end of that one day, the first day of monitoring would be constitutional. If the prosecution wanted to admit that evidence, it would be fine. But by continuing to monitor the GPS device for more time, that first day of monitoring eventually and retroactively becomes unconstitutional. It becomes part of the mosaic, and the key point of Maynard is that the entire mosaic is considered one entity.
This will place tremendous emphasis on defining the exact scope of the mosaic. If you’re a defense attorney, you now need to argue that the monitoring of your client was part of a broader mosaic to get that part tossed out. In the Maynard case, the scope of the one mosaic was clear: It was the GPS evidence from the month of monitoring. But I don’t know why it would have to be grouped that way. If you can group different pieces of evidence into mosaics, then you need a theory of grouping: You need a new theory to explain what parts of what surveillance are in the mosaic and what parts of what surveillance are outside the mosaic. This is a whole new type of Fourth Amendment challenge, and I don’t see what principles there are that could keep it from becoming an extraordinary mess.
Orin S. Kerr, D.C. Circuit Introduces “Mosaic Theory” of Fourth Amendment, Holds GPS Monitoring a Fourth Amendment Search, The Volokh Conspiracy
This Court recognizes that extended periods of historical cell site location surveillance may appear to the average person rather obtrusive, but at the same time, this Court is guided by then-Justice Rehnquist’s statement in Rakas v. Illinois that “a ‘legitimate’ expectation of privacy by definition means more than a subjective expectation of not being discovered.... Legitimate expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”
In her concurrence in Jones, Justice Sotomayor appeared to agree with Justice Alito in her statement that, at least in the case of real-time GPS surveillance, she “would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” Jones, 565 U.S. -,
Moreover, it is important to remember that the GPS surveillance in Jones was conducted without a valid warrant. In this regard, Justice Sotomayor “would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool [GPS tracking] so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power and prevent ‘a too permeating police surveillance.’ ” Id. at 956 (quoting United States v. Di Re,
E. Electronic Surveillance, GPS Tracking, & Historical Cell-Site Data
Although it need not be discussed at length, a separate line of Supreme Court cases also informs this Court’s decision. In United States v. Knotts,
The following year, in United States v. Karo,
Here, the historical cell site location records at issue identify only the closest cellular tower to the Defendants’ phones, and not the precise location of the Defendants themselves. The Defendants have not argued that the historical cell site records revealed their movements in protected areas such as their homes. Indeed, even with an ever-denser cellular tower grid, such precision is impossible. Moreover, even if cell site records could definitively indicate that an individual is in his home, that information only reveals that a person made or received a phone call while at home — in other words, non-incriminatory information that is clearly obtainable via the constitutional pen register at issue in Smith v. Maryland. In this regard, the Defendants again fall back on the “cumulative” nature of the cell site records at issue in this case. However, as previously discussed, in this Court’s judgment the Fourth Amendment does not contemplate constitutional police action that becomes illegal when aggregated. Accordingly, this Court concludes that the government’s acquisition of historical cell site location records did not infringe the Defendants’ Fourth Amendment rights.
F. Emerging Technology & the Fourth Amendment
The Supreme Court has cautioned that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” City of Ontario, California v. Quon, — U.S. -, -,
[Tjhere are sound reasons to treat developing technologies differently. These differences suggest that statutory rules rather than constitutional rules should provide the primary source of privacy protections regulating law-enforcement use of rapidly developing technologies. When technology is in flux, Fourth Amendment protections should remain relatively modest until the technology stabilizes.... [T]he legislative branch rather than the judiciary should create the primary investigative rules when technology is changing.
Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L.Rev. 801, 805-806 (2004). Accordingly, the privacy issues surrounding the collection of cumulative historical cell site location records are best left to Congress — at least until the Supreme Court definitively considers the matter. In the words of Justice Alito, “[t]he best that we can do in this case is to apply existing Fourth Amendment doctrine.” Jones, 565 U.S. -,
II. Suppression Would Not be the Remedy
The government argues that even if this Court were to find that the historical cell site location records were acquired in violation of the Defendants’ Fourth Amendment rights, suppression of that evidence should not be the remedy insofar as the officers involved relied in good faith on the Stored Communications Act and the Orders issued by Magistrate Judges Gauvey and Grimm. In United States v. Leon,
In this case, law enforcement’s reliance on the Stored Communications Act and Magistrate Judges Gauvey and Grimm’s Orders was objectively reasonable. First, the Defendants’ have not called into question the Stored Communications Act, and the only case that questioned its constitutionality has been vacated. See Warshak v. United States,
Additionally, it was objectively reasonable for law enforcement to rely on the Orders issued by Magistrate Judges Gauvey and Grimm. Both Magistrate Judges applied the correct standard under the Stored Communications Act and found that law enforcement offered specific and articulable facts in support of the applications. See United States v. Suarez-Blanca, No. 07-CR-0023-MHS/AJB,
Even if the government’s acquisition of historical cell site location records in this case had been in violation of the Defendants’ Fourth Amendment rights, it obtained those records in good faith reliance on a constitutional statute and valid Orders issued by Magistrate Judges Gauvey and Grimm of this Court.
Conclusion
For the reasons discussed above, the Defendants’ Motion to Suppress Evidence (ECF No. 38) is DENIED.
A separate Order follows.
ORDER
For the reasons stated in the foregoing Memorandum Opinion, it is this 1st day of March 2012, ORDERED that:
1. Defendants’ Motion to Suppress Evidence (ECF No. 38) is DENIED; and
2. The Clerk of the Court transmit copies of this Order and accompanying Memorandum Opinion to Counsel.
Notes
. Title 18, United States Code, Section 1951.
. As will be discussed infra, the Supreme Court of the United States recently issued an opinion that is relevant but not controlling in this case, United. States v. Jones, 565 U.S. -,
. In addition to the Hobbs Act robbery charges, 18 U.S.C. § 1951, the Defendants are also charged with being felons in possession of a firearm in violation of 18 U.S.C. § 922(g),
. In its papers, and at the hearing conducted on December 8, 2011, the government advised that it had analyzed the data obtained via the first application, but had not yet analyzed any of the data obtained pursuant to the second application. See Gov. Surreply at 3, ECF No. 55.
. The government does not make this argument for Defendant Graham insofar as his cellular phone was subscribed in the name of Mr. Graham's wife, and the address associated with the subscription matches that used by Mr. Graham prior to his arrest.
. Recently, the Supreme Court of the United States issued an opinion holding that the surreptitious installation of a global positioning system ("GPS”) device on a suspect’s vehicle constitutes a "search” under the Fourth Amendment. See United States v. Jones, 565 U.S.-,
. Recently, Magistrate Judge Gauvey of this Court issued an opinion in which she considered the government’s application for a search warrant seeking a suspect’s precise location through real-time cellular site location and GPS technology. See In re Application of the United States,
The kind of location information that is most commonly sought under § 2703 [of the Stored Communications Act] is cell site data — information that is automatically collected by cell sites as a user’s handset "checks in” or "registers” with the network. In the least invasive of this type of search, the government will request historic cell site information that was routinely recorded by a single cell site and retained by the carrier when a handset user placed or received calls prior to the issuance of an order or warrant. In a more invasive search, the government will request that the carrier retain records for all of a handset's automatic registrations, which occur approximately every seven to ten minutes. Such a request is prospective, as it asks for data generated after the court’s order or warrant and involves data being generated and turned over to law enforcement in real time, or close to it. As discussed above, this data is available only when a handset is powered on and is able to access its network. And, importantly, these requests involve data that is automatically generated by use of any cell phone and is “intermediat[ly] stor[ed] ... incidental to the electronic transmission thereof.” 18 U.S.C. §§ 2703, 2711(1), 2510(17). However, it is not only routinely recorded cell site data that is requested here, but rather precise location information that the government wishes to have generated in real time, at its request any time, for as long as 30 days.
Id. at 573, at *38 (emphasis added).
. This distinction is not meant to suggest that the government could have relied on the Stored Communications Act to acquire real-time GPS location data in Maynard. As discussed by Magistrate Judge Gauvey of this Court, precise real-time location data "is nothing like the information courts have found to fall under the purview of § 2703 [of the Stored Communications Act].” In re Application of the United States,
. See also Rakas v. Illinois,
Obviously, however, a “legitimate" expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as “legitimate.” His presence, in the words of Jones [v. U.S.], 362 U.S. [257] at 267, 80 S.Ct [725], at 734[,4 L.Ed.2d 697 (1960)], is “wrongful"; his expectation of privacy is not “one that society is prepared to recognize as 'reasonable.' ” Katz v. United States,389 U.S., at 361 ,88 S.Ct., at 516 (Harlan, J., concurring). And it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases decid*396 ing exclusionary-rule issues in criminal cases. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.
. See, e.g., Hoffa v. United States,
. Cellular providers are required to maintain for eighteen months "the name, address, and telephone number of the caller, telephone number called, date, time and length of the call” pursuant to 47 C.F.R. § 42.6. This requirement, however, does not pertain to historical cell site location data.
However, if cellular providers were required to keep such records, this Court’s analysis would not change. In Miller, the bank was required by the Bank Secrecy Act to keep the records at issue. Because the records contained "only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business,” the Court determined that the mandatory record keeping did not create a Fourth Amendment interest in those records "where none existed before.” Miller,
. Importantly, the third-party doctrine analysis employed in Miller and Smith does not extend to the contents of communications transmitted via third party networks — under the Katz test, the contents of communications are entitled to Fourth Amendment protection. See Katz,
. Sprint/Nextel’s Privacy Policy states, in part:
Information we collect when we provide you with Services includes when your wireless device is turned on, how your device is functioning, device signal strength, where it is located, what device you are using, what you have purchased with your device, how you are using it, and what sites you visit.
http://www.sprint.com/legal/privacy.html (last visited February 29, 2012) (emphasis added).
. Professor Kerr has testified before Congress on related issues. See, e.g., Electronic Communication Privacy Act Reform: Hearing Before the Subcomm. On the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. (2010) (Statement of Orin Kerr, Professor, George Washington Univ. Law School). Moreover, one of Professor Kerr’s articles was cited with approval in Justice Scalia's majority opinion in Jones, 565 U.S. -,
. In light of Justice Sotomayor’s apparent endorsement of Justice Alito's concurrence, Jones can be plausibly understood as having two separate majority opinions. In that case, it appears as though a five-to-four majority of the Court might, in the future, endorse and craft some version of a mosaic Fourth Amendment doctrine.
. The first Warshak panel questioned the constitutionality of the Stored Communications Act where the government attempted to obtain the contents of e-mail communications, and not historical cell site location data.