Cell Site Location Information Available Without Probable Cause, Says Sixth Circuit

Published: Apr. 21, 2016

Updated: Oct. 05, 2020

Without mentioning, much less examining, the inconsistent outcomes and rationales of numerous other courts to have confronted the issue (see here here and here for our analysis of some of those decisions), the Sixth Circuit held that the government may obtain historical Cell Site Location Information (“CSLI”) without a showing of probable cause. In United States v. Carpenter et al, the government obtained 127 and 88 days, respectively, of CSLI in aid of its prosecution of the defendants for Hobbs Act robberies. The defendants moved to suppress the evidence, arguing that such comprehensive tracking required a showing of probable cause, not the lower 2703(d) standard used by the government – “specific and articulable facts showing that there are reasonable grounds to believe that the {information is} relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).

Framing the inquiry as one “involv[ing] an asserted privacy interest in information related to personal communications,” the Sixth Circuit categorically distinguished between the content of communications, which requires a warrant, and non-content routing information, which it said does not. In coming to this conclusion, the Sixth Circuit relied heavily on the third-party doctrine set forth in the Supreme Court’s pen-register decision, Smith v. Maryland.

The Sixth Circuit declined to apply the Supreme Court’s decision in United States v. Jones, where the Supreme Court held that a warrantless installation of a GPS tracking device constituted an unlawful search under the Fourth Amendment. The Sixth Circuit distinguished Jones, observing that (1) Jones did not involve the third-party doctrine; (2) the nature of the government’s actions in Jones was, in the Sixth Circuit’s view, more intrusive than the government’s actions in the case at hand; and (3) the CSLI involved in this case was not as accurate as GPS, pinpointing the defendants’ location no more than a 60-120 degree radial wedge ½ – 2 miles long. And, in a nod to the Katz “reasonable expectation of privacy” standard, the Sixth Circuit suggested that, in developing the 2703(d) standard, Congress (society’s elected representatives) conducted the balancing of what expectation of privacy is reasonable, and that Congress may be in a better position vis-à-vis courts to make such judgments in the context of quickly evolving technologies.

Judge Stranch, writing separately, concurred in the judgment, but not in the majority’s CSLI reasoning. Judge Stranch questioned the majority’s determination that the collection of this extent of CSLI did not violate the Fourth Amendment, but he declined to take a definitive stance as he believed that, even if there were a violation, the good faith doctrine would apply to save the convictions.

The Sixth Circuit’s splintered decision, following the conflicting opinions from the Third, Fifth, and Eleventh Circuits, only highlights the necessity of the Supreme Court to step in and resolve the split.