Recent cases from the 5th and 6th Circuits provide insight into the courts’ thinking around use of real-time cell site location information (CSLI).
In the 5th Circuit case, a confidential informant told an investigator that Wallace, a known gang member and fugitive, was living in the Austin area. The investigator obtained an order for real-time location of Wallace’s cell phone. Using that information, the investigator located and arrested Wallace on a fugitive warrant. Incident to the arrest, the investigator searched Wallace and found ammunition in his pocket and a gun nearby.
Wallace argued the order to obtain his cell phone location was invalid because the investigator was not engaged in an ongoing criminal investigation. Joining the national judicial discussion on whether obtaining real-time CSLI is a search under the Fourth Amendment, the 5th Circuit held that it was not a search.
Relying on the third-party doctrine (cell phone users voluntarily disclose their locations to third-party cellular service providers), the court had previously held that obtaining historical CSLI is not a search. In this case, the court held that obtaining prospective CSLI is also not a search under the Fourth Amendment: “There is little distinction between historical and prospective cell site data.”
Thus, the court concurred with the 6th Circuit, the only other federal appellate court thus far to consider whether obtaining real-time cell site information is a search. Quoting the 6th Circuit decision in United States v. Skinner (690 F.3d 772 (6th Cir. 2012)), the court stated, “[w]hen criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them.”
The 6th Circuit doubled down on the real-time CSLI ruling in a separate case. Fleeing charges of armed robbery of a check-cashing outlet, Riley bought a new cell phone. His girlfriend provided the phone number to investigators. The investigators obtained a court order (not a search warrant) for active pinging and real-time CSLI. Using the CSLI provided by the phone service provider, investigators narrowed Riley’s location to a motel within seven hours after serving the order. Investigators went to the motel located by the cell phone pinging. They showed Riley’s picture to the motel clerk. The clerk said that a man who matched the photo had checked in under the name of “Rico Shawn Lavender” (bonus points for creativity), and pointed out the room. Investigators arrested Riley, finding a gun in his possession and adding to his charges.
Again relying on the third-party doctrine, and the fact that the monitoring lasted only seven hours, the court held that the investigators lawfully obtained the CSLI. The court also noted the CSLI only revealed Riley’s movements in public areas; it was the motel clerk who pinpointed the location of Riley/Lavender.
Judge Boggs wrote a separate concurring opinion in which he suggested the third-party doctrine alone might not justify tracking Riley’s CSLI. Judge Boggs noted that Riley was a fugitive, for whom there was an active felony arrest warrant: “The robber may not both seek refuge from execution of the warrant and simultaneously broadcast his location by carrying a GPS-enabled cell phone.”