Warrantless Cellphone Tracking|Gets Green Light From 11th Circuit

(CN) - Police who want a service provider to divulge cell-tower tracking records on a suspect don't need probable cause or a warrant, the 11th Circuit ruled.

The decision comes in an appeal by Quartavious Davis, who committed a string of seven armed robberies in a two-month period in 2010, robbing several South Florida businesses including a Little Caesar's pizza shop, a Walgreens drug store, an Amerika gas station and a Wendy's.

In addition to presenting eyewitness testimony and surveillance footage at trial, the government introduced Davis' telephone records obtained from MetroPCS for the time period spanning the first and last of the robberies.

The records do not pinpoint Davis' location via GPS, but show the address of the nearest cell tower that connected each call made from his phone, tying Davis to the vicinity of the robberies when the crimes occurred.

The government obtained the records under the Stored Communications Act (SCA), which provides that law enforcement may require a telephone provider to disclose customer records if a court finds that the records are relevant to an ongoing criminal investigation.

Under the SCA, the government is not required to show probable cause as it would need to if it had to obtain a warrant for the records.

Davis does not dispute that the government made a sufficient showing under the SCA, but he asserted that the record production constituted a search under the Fourth Amendment and thus required a warrant. The American Civil Liberties Union and many other civil liberties groups filed amicus briefs in support of a warrant requirement.

A federal judge in Miami sided with prosecutors, however, and the 11th Circuit affirmed 9-2 Tuesday, saying "Davis makes no trespass claim, nor could he."

Davis can claim neither "ownership nor possession of the third-party's business records he sought to suppress," Judge Frank Hull wrote for the en banc majority.

"Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him."

While Davis may personally feel like his cellphone records should remain private, this expectation is unreasonable in society's eyes, the opinion states.

"Cell users know that they must transmit signals to cell towers within range, that the cell tower functions as the equipment that connects the calls, that users when making or receiving calls are necessarily conveying or exposing to their service provider their general location within that cell tower's range, and that cell phone companies make records of cell-tower usage," Hull said.

The court noted that Davis registered the phone under a false alias, "Lil Wayne," indicating he had some awareness his phone records could incriminate him.

"We find no reason to conclude that cell phone users lack facts about the functions of cell towers or about telephone providers' recording cell tower usage," Hull said.

While Davis advanced some thoughtful arguments for changing the underlying law, Supreme Court precedent indicates that the prevailing law does not violate Davis's constitutional rights, the circuit found. It said such arguments are better presented to Congress and state legislatures.

Judge Jill Pryor joined a dissent by Judge Beverly Martin, a fellow Obama appointee, who said that 40-year-old Supreme Court precedent should not apply given the vastly different technology that implicates privacy concerns.

"Such an expansive application of the third-party doctrine would allow the government warrantless access not only to where we are at any given time, but also to whom we send e-mails, our search-engine histories, our online dating and shopping records, and by logical extension, our entire online personas," Martin wrote.

"The judiciary must not allow the ubiquity of technology - which threatens to cause greater and greater intrusions into our private lives - to erode our constitutional protections."

Davis' attorney David Markus called the decision "breathtaking," in a statement to the Associated Press.

"Unfortunately, the majority is stuck in the early '80s when cell-phones were the size of bricks and cost $3,000," Markus said. "The cases from that long-ago era aren't helpful in today's world."

He indicated that the case will be appealed to the U.S. Supreme Court.

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