Tag Archives: Fourth Amendment

Cellphone Location Information: Warrant Required?


Update: In May 2016, the Fourth Circuit reconsidered the United States v. Graham decision “en banc.” The entire court, rather than a three-judge panel, gave the circuit’s final word on the case. The judges decided that it was not a violation of the Fourth Amendment for the government to obtain CSLI without a warrant. They relied heavily on the argument that cellphone users don’t have a reasonable expecation of privacy in CSLI because those users “voluntarily convey” the information by using their phones.

On Wednesday a federal appeals court held that the government generally needs a warrant in order to inspect one’s past cellphone location data. The three-judge panel from the U.S. Court of Appeals for the Fourth Circuit found that cellphone users have “an objectively reasonable expectation of privacy” in cell site location information (CSLI). (United States v. Graham, No. 12-4659 (4th Cir. Aug. 5, 2015).)

Where Were We?

In the case that led to the ruling, a federal jury convicted two men of charges related to several armed robberies in the Baltimore area. Officers nabbed the suspects shortly after the last robbery, then seized various items, among them their cellphones.

The government gathered court orders granting access to the phones’ CSLI. Pursuant to those orders, the phone’s service provider (Sprint/Nextel) handed over seven months’ worth of CSLI records. Prosecutors used those records to prove the defendants’ whereabouts at various times surrounding the robberies.

In the course of its opinion, the Fourth Circuit panel explained how CSLI works: A traditional cellphone communicates with cell sites whenever it sends or receives a call or text, while a smartphone might communicate with them more often due to functions like email. The phone typically connects to the nearest cell site because that site offers the strongest signal. Records of the sites to which a phone has connected therefore show the approximate whereabouts of the device—and its user—at precise moments in time. (Listeners to Serial will forgive the recap.)

Searching for a Standard

The government secured the location records through the Stored Communications Act (SCA). The SCA requires that the government get either a warrant or court order for a service provider’s subscriber account records.

Warrants demand probable cause, but SCA court orders can rest on what’s essentially reasonable suspicion, a lower standard. (The SCA allows for orders based on “reasonable grounds to believe” that records are “relevant and material” to an investigation.)

Despite its conclusion that warrants rather than court orders are necessary for CSLI disclosure, the Fourth Circuit panel actually upheld the search. The judges found that the good faith exception to the exclusionary rule applied because the government acted according to what were then established procedures. But at least in the Fourth Circuit, the law is now clear, meaning that officers and prosecutors won’t have this “out” the next time they try to grab CSLI.

Conflict in the Courts

Despite the ruling, the law on cell location data is anything but uniform. Some state courts, including the supreme courts of Massachusetts and New Jersey, have agreed that inspection of cellphone location information requires a warrant. (Com. v. Augustine, 467 Mass. 230 (2014), State v. Earls, 214 N.J. 564 (2013).)

On the other hand, a Fifth Circuit panel ruled in 2013 that the government doesn’t need a warrant to acquire historical CSLI. And the Eleventh Circuit agreed earlier this year. These courts have theorized that people voluntarily convey their location by using their cellphones. (In re U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013), United States v. Davis, 785 F.3d 498 (11th Cir. 2015).)

So, do the police need a warrant to see what your phone says about where you’ve been? That depends in significant part on where you’ve been.

Police Officers Can’t Search Hotel Records on Demand, but What Does That Mean?

On June 22, 2015, in Los Angeles v. Patel, the U.S. Supreme Court decided that cops can’t rummage through hotel records whenever they want. (576 U.S. ___ (2015).) The opinion, framed in terms of the hotel’s privacy interest rather than that of its guests, nixed part of a Los Angeles Municipal Code section.

The code section in question mandated that hotel and motel operators (1) maintain certain records about their guests and (2) allow police officers to inspect those records on demand. The second part is unconstitutional, Justice Sotomayor wrote, because it forces hotels to disclose records at law enforcement’s whim without any opportunity to object.

The Law

Los Angeles Municipal Code section 41.49 requires hotel operators to document a variety of information about their guests, like:

  • names and addresses
  • the number of people in each guest’s party
  • detailed vehicle descriptions for cars parked on premises
  • arrival and scheduled departure dates, and
  • room numbers.

Hotels have to store this kind of data for 90 days.

The Supreme Court was okay with these requirements. The problem, according to Sotomayor and the four Justices who signed onto her opinion, was a provision that forced hotels to open records to police officers without justification. Failure to comply was a misdemeanor carrying up to six months in jail and a $1,000 fine.

Independent Review

Courts have created fundamental exceptions to the Fourth Amendment requirement that police officers get warrants before conducting searches. Nevertheless, in general, a search conducted without a judge’s prior approval qualifies as unreasonable. The Patel Court stressed that this principle applies both to homes and most businesses.

One of the exceptions to what courts call “the warrant requirement” has to do with administrative searches. In broad terms, these are searches that serve some purpose other than typical crime control. Think of, on the one hand, a restaurant inspection to ensure health code compliance and, on the other, a drug house raid to gather evidence for criminal prosecution.

The Patel Court allowed for the fact that searches of hotel records serve a purpose other than criminal investigation—that they ensure that lodging providers keep records the way they’re supposed to. (People who are up to no good, the theory goes, are more likely to frequent hotels that don’t keep guest records.)

But even if hotel record inspections qualify as administrative searches, Sotomayor said, a hotel operator is owed an opportunity to have a “neutral decisionmaker” evaluate a search demand before the search takes place—or the operator is arrested for refusing.

Not Such a Big Deal

Sotomayor explained that inquisitive police officers could simply issue what’s called an administrative subpoena: a simple form demanding record inspection. In most instances, she surmised, the hotel operator would cooperate. But a hotel that objected to the search would be able to challenge the subpoena (move to “quash” it). Then that “neutral decisionmaker”—for instance, an administrative law judge—would decide whether the search should go through.

And fear not tampering, Sotomayor assured: An officer who reasonably suspects that a hotel will alter the sought-after records while a judge evaluates the propriety of the proposed search can guard them until the ruling comes down.

Not only that, but officers remain free to seek warrants authorizing records searches before approaching hotel owners. And they can of course search records without prior approval when there’s some kind of emergency—for example, where they have reason to believe a hotel guest has taken a hostage.

Sotomayor and company’s point was essentially this: Providing hotels with an opportunity for independent review before they have to hand over their records won’t thwart criminal investigation and will prevent overly broad, harassing intrusions. Sotomayor remarked that the now defunct code provision would have allowed a hotel to be “searched 10 times a day, every day, for three months, without any violation being found . . . .”

But Kind of a Big Deal

At first blush, the Patel decision might appear to affect only the hospitality industry. And all it does is provide hotels the option of challenging record-inspection demands; one has to wonder how often they’ll actually exercise it.

But as Professor Rory Little observes, the ruling is broad enough to require “an  ‘opportunity for precompliance review’ for virtually all governmental inspection programs.”

“This means that business owners who are confronted with an administrative subpoena to inspect their premises must have some opportunity to ‘question the reasonableness of the subpoena before suffering any penalties for refusing to comply.’”

So Patel doesn’t necessarily expand the privacy interests of hotel patrons. But it does bolster protections for businesses subject to government inspection.

SCOTUS: A Tracking Device Makes for a Search

security electronic taggingAt the tail end of March, the Supreme Court of the United States provided a little refresher on the relationship between modern technology and search-and-seizure law. In the case in question, the Court decided whether imposing a physical monitoring system on someone in order to collect data is a “search.”

The case, Grady v. North Carolina, involved a man (Grady) who had been convicted of sexual offenses in 1997 and 2006. After completing the sentence for the second offense, the issue was whether, under North Carolina law, Grady should have to undergo satellite-based monitoring (SBM) as a repeat sex offender. (The SBM program meant the attachment of a tracking bracelet to an offender’s ankle.)

Grady didn’t contend that he didn’t qualify as a repeat offender under the relevant law. Instead, he argued that the monitoring program violated the Fourth Amendment protection against unreasonable searches and seizures.

Recent History

The Grady case piggybacks on couple recent Supreme Court decisions. In United States v. Jones, a 2012 case, the high court held that police installing a global positioning system (GPS) device on a suspect’s car and monitoring it constitutes a Fourth Amendment search. (See Can the police attach a GPS device to my car to track my whereabouts?) Then, in 2013’s Florida v. Jardines, the Court held that the police’s use of a trained dog to sniff around a suspect’s front porch was similarly a search.

In the Grady decision, the Court explained that Jones and Jardines lead to only one conclusion: The government’s attaching “a device to a person’s body, without consent, for the purpose of tracking that individual’s movements” is also a search. It didn’t matter to the Court that the North Carolina monitoring program was the product of the civil court system rather than a criminal punishment. That the SBM program gathers information “by physically intruding on a subject’s body” was enough for the Court.


Ultimately, the Court’s opinion isn’t too controversial. It simply reaffirms that a nonconsensual physical intrusion for purposes of gathering information is a search. In matters of the Fourth Amendment, that’s only the first part of the analysis.

The Amendment protects us from “unreasonable searches and seizures” by the government. So, Question 1 is whether there’s been a search. Question 2 is whether, assuming a search, that search is reasonable. A search’s reasonableness hinges on all the circumstances; relevant ones include the purpose of the search and how much it invades reasonable privacy expectations.

In Grady, the Court didn’t get to Question 2.

California Court: Police Can’t Take DNA From Arrestees

Chemistry Background

A California law known informally as the DNA Act requires that law enforcement take a DNA sample from every adult arrested for or charged with any felony. The sample extraction—via cheek swab—is to occur soon after arrest. (Cal. Penal Code §§ 296.1, 296.)

The U.S. Supreme Court reviewed a somewhat similar law in 2013, with a case called Maryland v. King. (133 S. Ct. 1958 (2013).) The high court decided that the cheek-swab collection of a suspect’s DNA after arrest for a “serious” offense was reasonable. It also okayed the analysis of the collected DNA.

“No, Thanks”

Earlier this month, a California appeals court broke from the Supreme Court’s King holding. (People v. Buza, No. A125542 (Cal. Ct. App. 2014).) The second division of the California First District Court of Appeal was faced with a case involving a man arrested for setting fire to a San Francisco police car. Some hours after his arrest, while the man was in county jail, a sheriff’s deputy asked him to provide the requisite DNA sample. Despite a warning that he’d face a misdemeanor charge for noncompliance, the defendant refused.

A jury convicted the man of all counts, including the promised misdemeanor for sample refusal. As part of the sentence, the judge ordered that he provide the DNA sample. (He eventually acquiesced.)

Rather than follow the U.S. Supreme Court’s lead, the California appeals court reversed the misdemeanor DNA-sample conviction. It didn’t base its decision on the Fourth Amendment to the U.S. Constitution, which was behind the King decision. Instead, it relied upon a similar search-and-seizure provision from the California constitution. (The court explained that the “search” in the DNA-sample setting involves two parts: the cheek swab itself and the subsequent use of the DNA.)

What’s the Difference?

The California court noted several distinctions between the DNA Act and the Maryland law involved in the King decision. The court explained that the Maryland statute did several things that its California counterpart didn’t, like:

  • allowing processing of a DNA sample only after a judicial officer has found probable cause to believe that the defendant is guilty
  • applying only to arrests for “serious crimes,” rather than all felonies, and
  • requiring automatic expungement of DNA data where the arrestee isn’t ultimately convicted of the relevant crime.

Despite those differences, though, the California Court didn’t simply find the King decision inapplicable. Instead, it used the state constitution (article I, section 13, to be exact) to find the DNA Act invalid.

The decision underscores the ability of state courts to interpret their own constitutions in ways that afford citizens greater rights. (“[T]he federal Constitution thus represents the floor for basic freedoms; the state constitution, the ceiling.” (Traylor v. State, 596 So. 2d 957 (Fla. 1992).)  It also leaves the future of the Golden State’s DNA Act somewhat uncertain—at least until the state supreme court chimes in.

Supreme Court: Officers Don’t Need to Know (all) the Law


Ignorance of the law is no defense. You may have heard of this legal maxim, which is meant to convey that, in most instances, doing something illegal is—well, illegal—even if you didn’t know it was illegal. In essence, you’re credited with knowing the law, whether or not you do.

But what about the other side of the coin? What if an officer believes some act violates the law when it really doesn’t, and detains you due to that mistaken belief?

Obviously, the government can’t convict you of the crime that’s the basis of the detention—because it isn’t really a crime. The more tricky question is whether the detention (“seizure”) is itself illegal. It’s a particularly important question where the seizure gives way to a search that turns up incriminating evidence.

The United States Supreme Court, through Chief Justice John Roberts, laid down the relevant Fourth Amendment law on Monday, December 15. Voting 8-1, it held that an officer’s reasonable mistake of law can provide the reasonable suspicion that’s necessary for a detention. (Heien v. North Carolina, 574 U. S. ____ (2014).)

Light Out

On an April morning in 2009, a Sherriff’s Sergeant in Dobson, North Carolina, sat, waiting in his patrol car. As he watched the cars on Interstate 77 pass by, he came to focus on one. The driver of the Ford Escort in question struck Sergeant Matt Darisse as “very stiff and nervous.” Sergeant Darisse hopped onto the interstate and followed the Escort. Shortly thereafter, Darisse saw the Escort brake. Only the left brake light worked. He pulled the car over.

A man named Vasquez had been the driver. When Sergeant Darisse approached the car and looked in, a fellow named Heien was lying across the back seat. The Sergeant ran Vazquez’s license and registration; nothing of note came up. He gave Vazquez a warning ticket for the faulty brake light, but had grown increasingly suspicious during the encounter. Darisse experienced Vazquez as nervous, and he thought it strange that Heien never sat up. Darisse apparently asked the two men where they were going; he would later call their replies inconsistent.

Darisse continued to ask questions. He asked for and received Vasquez’s consent to a search of the car. Vazquez identified Heien as the owner, and Heien consented, too.

Darisse and a responding officer then hunted for evidence. They eventually found cocaine in the side compartment of a duffle bag.

State prosecutors charged Heien with attempted cocaine trafficking. Heien moved to suppress the evidence gathered by the officers on the grounds that the stop was illegal. (An illegal stop usually means an ensuing search is unlawful, too.)

A North Carolina appeals court sided with Heien. It determined that driving with only one functioning brake light wasn’t illegal in North Carolina. The vehicle code statute in question referred to “stop lamp” in the singular. So, the court reasoned, a driver needs only one working brake light. Because the officer’s misinterpretation of the law was the only basis for the stop, the detention and the search were illegal.

The North Carolina Supreme Court then weighed in. It disagreed with the appeals court, holding that the officer could have reasonably—even if wrongly—read the vehicle code to require two working brake lights. Because the mistake of law was reasonable, the state high court held, the stop and search were, too.

“You’re Mistaken”

Officers need probable cause to make a warrantless arrest. But they need only reasonable suspicion of criminal behavior to detain someone. The idea is that the officer observes some set of circumstances that is objectively suspicious. In the area of traffic stops, reasonable suspicion often consists of an officer noticing a driver doing something illegal—for instance, speeding. The officer sees the driver travelling too fast; he has reasonable suspicion and may therefore stop the vehicle.

Courts have long held that detentions are valid even where the detaining officer is reasonably mistaken about the facts at hand. Suppose an officer reasonably misjudges the length of a crack in the windshield of a car on the road. She knows that cracks of a certain length are illegal; motorists must fix them before driving. She stops the driver with the fissure. After stopping the driver—or perhaps when the case gets to court—she learns that the crack fell just short of the illegal length. If the officer had issued a ticket for the crack, it would be invalid. But most courts would hold that the stop was lawful as based on a reasonable “mistake of fact.” Any evidence the officer were to have discovered as a result of the stop would likely be admissible in court. (See Traffic Stops Based on Officer Mistakes.)

At least until Monday, courts seemed to differentiate between mistakes of fact (the crack’s length) and mistakes of law (whether drivers need two operational brake lights). Even if an officer’s misunderstanding of the law is reasonable, these courts would say, it cannot serve as a legitimate basis for a detention.

The End—or Not

In the Heien case, the Supreme Court considered the officer’s confusion around North Carolina braking-light law reasonable. In essence, the Court found that references to “rear lamps” in the state vehicle code made understandable Sergeant Darisse’s belief that drivers need two working brake lights. The Court noted that North Carolina courts hadn’t previously construed the “stop lamp” section, meaning that Darisse didn’t have any notice that his reading of the law was wrong.

Critics of the decision contend that the Court has just encouraged officers to remain willfully blind of the law. To them, the Supremes are saying, “Don’t bother reading up on that law there, lest you should realize it doesn’t allow you to detain someone when you think it does.” Chief Justice Roberts tried to swat that argument away, emphasizing that “[t]he Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable.”

The bottom line: Because Sergeant Darisse’s mistake about the law was reasonable, the stop was constitutional. The effect: the cocaine was legally admissible. Police officers throughout the country rejoice (or at least grin).

But the story may not be completely over. The U.S. Supreme Court’s opinion is the law of the land—when it comes to the federal constitution. The Heien decision deals with the Fourth Amendment to the U.S. Constitution. States, though, have their own constitutions, and they’re free to expand individual liberties with them. So, interpreting its own constitution to invalidate mistake-of-law-induced detentions, a state court could plausibly thumb its nose at SCOTUS.