Opinion
Criminal Action No.: 09-153-02 (RMU)
02-06-2012
UNITED STATES OF AMERICA v. WELDON GORDON, Defendant.
MEMORANDUM ORDER
The defendant has filed a motion to suppress historical cell site location information or "CSLI" related to the defendant's cell phone number. Pursuant to a court order issued by Magistrate Judge Facciola and pursuant to 18 U.S.C. § 2703, the government obtained certain information from the defendant's wireless cell phone provider, Sprint/Nextel, including: numbers dialed, incoming numbers, call durations, a listing of all "control channels," subscriber information, and cell site location. The cell site location information places the phone within the service area of specific cell towers.
Section 2703 provides that a court order for disclosure "of records or other information pertaining to a subscriber of electronic communication service or remote computing service" may be "issued by any court . . . only if the governmental entity [requesting the information] offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703. --------
The defendant's motion was filed largely as a reaction to the Supreme Court recent ruling in United States v. Jones, 10-1259, 2012 WL 171117 (Jan. 23, 2012). In Jones, the Supreme Court held that the installation of a Global Positioning System ("GPS") device on Mr. Jones' car and subsequent use of that device constituted a search. Jones, 2012 WL 181117, at * 3. According to the defendant, Jones "clearly indicates in the opinions of five of the justices . . . that this intrusion is of concern to the court, based upon the 'Katz expectation-of-privacy test.'" See Def.'s Mot. to Suppress at 2.
The government, on the other hand, argues that Jones is not controlling and the defendant has no reasonable expectation of privacy in CSLI, citing the Supreme Court's opinion in Smith v. Maryland, 442 U.S. 735 (1979). See Govt's Opp'n at 3. In Smith, the Supreme Court held that the gathering of telephone numbers from a pen register placed on a landline was not a search because telephone users realize that some information about their calls must be conveyed to the third party service provider in order to place a call. Smith, 442 U.S. at 742. According to Smith, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Id. at 743-44.
The Supreme Court's recent opinion in Jones did not overrule the Supreme Court's ruling in Smith. That said, it is clear that some Justices are greatly concerned about the challenges that technological advances present in analyzing whether a Fourth Amendment violation occurred. Indeed, Justice Sotomayor states that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Jones, 2012 WL 171117, at *10. Notwithstanding the vivid discussion by both Justice Sotomayor and Justice Alito, the Jones Court did not reconsider the fundamental principle articulated in Smith, and this court therefore remains bound by it.
In the instant case, as in Smith, the information at issue was collected by the wireless cell phone service provider as the result of the defendant's volitional choice to place a call. Under Smith then, no search took place because the defendant revealed information to a third party and therefore no longer had a reasonable expectation of privacy in that information. As the court understands the testimony of the government's expert, Special Agent Scott Eicher, the CSLI obtained by the government includes only information gathered when the defendant places a call. See ECF No. 155, Ex. 1, Eicher Aff. at 2-3. Such information is not comparable to the GPS information at stake in Jones, which included tracking Jones for twenty-four hours a day, seven days a week no matter his activities or choices. CSLI does not, as the court understands it, provide a complete record of the cell phone location, instead revealing only the cell phone user's approximate location at the time that he placed a call.
The information at issue here appears to be more akin to the circumstances present in Smith. In both Smith and this case, the information gathered revealed a suspect's location (in the Smith's case that the defendant was at home) and the numbers dialed. Indeed, the similarities between the information at issue in Smith and CSLI were discussed in a recent decision by Chief Judge Lamberth, In the Matter of the Application of the United States for an Order Authorizing Disclosure of Historical Cell Site Information for Tel No. XXX-XXXX, Misc. Action No. 11-449. In that case, he noted that "a reasonable cellular phone customer presumably realizes that his calls are transmitted by nearby cell-site towers, and that cellular phone companies have access to and likely store data regarding the cell-site towers used to place a customer's calls." See Govt's Opp'n, Ex. 2. For these same reasons, this court is persuaded that under Smith, the government's collection of CSLI pertaining to the defendant's cell phone was not a Fourth Amendment "search."
In sum, (1) the government was authorized to collect the information at issue pursuant to 18 U.S.C. § 2703; (2) the Supreme Court has not announced that an individual has a reasonable expectation of privacy in material like CSLI that is shared with third parties; and (3) the court is not persuaded that such a reasonable expectation of privacy exists under current case law.
Accordingly, it is this 6th day of February, 2012, hereby
ORDERED that the defendant's motion to suppress seizure of phone records is DENIED.
SO ORDERED.
/s/_________
Ricardo M. Urbina
United States District Judge