By Ken Wallentine
United States v. Rosario, 2017 WL 2117534 (N.D. Ill. 2017)
After a burglary of a store that sold guns and rare coins, investigators obtained subscriber information for a phone number from which an after-hours call to the store was placed. Following this slim clue, investigators found that it was Rosario’s cell phone. Investigators then obtained cell site location information (CSLI)—without a warrant or other court order—for the phone and placed the phone at the scene and time of the burglary.
After Rosario was charged, he asked that the CSLI be suppressed because the investigators did not obtain a warrant for the information. This fact pattern can be seen in dozens of cases across the nation. In most prosecutions, as in Rosario’s case, courts apply the “third-party doctrine,” ruling that the information is willingly disclosed to a third party (the cell phone service provider) and therefore doesn’t trigger the Fourth Amendment search warrant requirement.
Every federal circuit court of appeal to consider this fact pattern has ruled that the CSLI was obtained without a Fourth Amendment search. However, the court acknowledged that many have questioned the continuing vitality of the third-party doctrine as it applies to mobile phones and similar devices. There is a petition for certiorari pending in the United States Supreme Court in a case where the circuit court of appeals held that there is no Fourth Amendment search when investigators obtain subscriber information associated with an individual’s internet protocol address from a third-party technology company (United States v. Caira, 833 F.3d 803 (7th Cir. 2016), petition for cert. filed (Sept. 11, 2016) (No. 16-6761)).
Many advocacy groups are weighing in, hoping that the Supreme Court will take its next step in application of the Fourth Amendment to modern technology.
CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.