Judge OKs Warrantless Cell-Site Data in Landmark Privacy Case

Federal prosecutors may introduce cell-site data obtained without a warrant in the retrial of a District of Columbia drug dealer who was the subject of one of the Supreme Court’s biggest electronic privacy decisions in decades.

The decision by U.S. District Judge Ellen Segal Huvelle of the District of Columbia is a victory for prosecutors who are shifting their focus to warrantless cell-tower locational tracking of suspects in the wake of the Supreme Court ruling that law enforcement should acquire probable-cause warrants from judges to affix GPS devices to vehicles. (.pdf) Just after the high court’s January decision, the FBI pulled the plug on 3,000 GPS tracking devices.

Huvelle’s ruling came as part of pretrial proceedings in the prosecution of Antoine Jones, the previously convicted drug dealer whose conviction and life sentence was reversed by the Supreme Court, which found the government’s placement of a GPS tracker on his vehicle was an illegal search.

Until the Supreme Court ruled in Jones’ case, the lower courts were mixed on whether the police could secretly affix a GPS device on a suspect’s car without a warrant. And despite Huvelle’s ruling, the lower courts are still divided about whether a probable-cause warrant is required to obtain cell-site data.

Lawyers for Jones maintain that the authorities should have obtained a probable-cause warrant for the data, saying the government “seeks to do with cell site data what it cannot do with the suppressed GPS data.” (.pdf)

But Huvelle sidestepped the Fourth Amendment argument and declined to analyze whether the Supreme Court’s ruling in Jones’ case has any bearing on whether cell-site data can be used without a warrant.

Instead, she focused on a doctrine called the “good-faith exemption,” in which evidence is not suppressed if the authorities were following the law at the time. The data in Jones’ case was coughed up in 2005, well before the Supreme Court’s ruling on GPS.

“The court, however, need not resolve this vexing question of Fourth Amendment jurisprudence, since it concludes that the good-faith exception to the exclusionary rule applies,” (.pdf) she wrote.

Monday’s decision was first reported by Mike Scarcella of The Blog of Legal Times.

With that, prosecutors are legally in the clear to use Jones’ phone location records without a warrant. Among other things, the government wants to use the records to chronicle where Jones was when he made and received about four months’ worth of mobile phone calls in 2005. The records show each call the defendant made or received, the date and time of calls, the telephone numbers involved, the cell tower to which the phone users connected at the beginning and/or end of the call, and the duration of the call.

The authorities only had to show that such information was “relevant” to an investigation to get a judge to authorize Cingular to turn them over. No probable cause was needed.

According to the authorities’ application to a judge for the data:

“Knowing the location of the trafficker when such telephone calls are made will assist law enforcement in discovering the location of the premises in which the trafficker maintains his supply narcotics, paraphernalia used in narcotics trafficking such as cutting and packaging materials, and other evident of illegal narcotics trafficking, including records and financial information,” the government wrote in 2005, when requesting Jones’ cell-site data.

That data was not introduced at trial, as the authorities used the GPS data instead.

Even so, the Obama administration claimed that the high court’s GPS decision was “wholly inapplicable” when it comes to cell-site data.

The administration noted that the high court said the physical act of affixing a GPS device to a vehicle amounts to a search and generally requires a warrant. “But when the government merely compels a third-party service provider to produce routine business records in its custody,” the government wrote, “no physical intrusion occurs, and the rule in Jones is therefore wholly inapplicable.” (.pdf)

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