The Government Must Now Obtain A Warrant To Compel Disclosure of Cell Phone Location Records

         

On June 22, 2018, the Supreme Court held, in Carpenter v. United States, that a warrant is required before a wireless telephone service provider may be compelled by a governmental entity to turn over its customer’s “historical” Cell Site Location Information (CSLI). [i]

In 2011, the police arrested four men for a series of armed robberies in Detroit, Michigan. One of them confessed that he had participated in the robbery of nine stores in Michigan and Ohio. He provided cell phone  numbers for some of the other participants, including Timothy Carpenter. Under the Stored Communications Act (SCA), the government obtained orders directing the wireless service providers to turn over records for those cell phone numbers.[ii] The records included cell site location information for the target telephones at call origination and at call termination for incoming and outgoing calls.[iii]  The government intended to use the CSLI to prove that Carpenter was in the vicinity of each of the robberies at the time it was committed. MetroPCS produced records for defendant Carpenter covering a period of 127 days,[iv]  and Sprint produced records for two days, for “roaming” charges that were incurred while Carpenter was driving in Ohio.[v]

Defense counsel moved to suppress, citing U S. v. Jones,[vi] and arguing that before the government may collect such data, the Fourth Amendment requires that it obtain a search warrant, pursuant to a showing of probable cause.  In Jones, the Supreme Court had held that the 4th Amendment was violated when the police recorded the defendant’s movements for twenty-eight days with a GPS tracking device that they had secretly attached to his car.  The District Court in Carpenter rejected defense counsel’s argument, and denied suppression. It held that the government’s collection of cell-site records, created and maintained by defendant’s wireless carrier, was not a “search” within the meaning of the Fourth Amendment.[vii] The “historical” CSLI was admitted into evidence at Carpenter’s trial, and he was convicted of several robberies and related charges.[viii]

The Sixth Circuit Court of Appeals agreed that the collection of CSLI was not a “search,” and it affirmed.[ix]   However, the Supreme Court reversed, holding that the government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment “search,” and that the collection of cell-site data did require a warrant. [x] Citing Katz v. United States,[xi] it explained that the Fourth Amendment protects not only property interests but certain expectations of privacy as well. [xii] In Katz, the Court had held that it was a violation of the 4th Amendment to attach an electronic listening and recording device to the outside of a public telephone booth without a warrant. [xiii] The reasoning was that when an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause. [xiv]

The Supreme Court explained that the digital data at issue in Carpenter – personal location information maintained by a third party – does not fit neatly under existing precedents but lies at the intersection of two lines of cases. One line holds that a person has a reasonable expectation of privacy in his physical location and movements , i.e., Jones [xv] (GPS tracking device on car); and the other  holds that there is no reasonable expectation of privacy in information voluntarily turned over to third parties, e.g., Smith v. Maryland[xvi] (records of dialed telephone numbers held by telephone company) and United States v. Miller[xvii](financial records held by bank).[xviii]

The Court considered the fact that tracking a person’s past movements through CSLI is similar to the GPS monitoring in Jones, in that it is “detailed, encyclopedic, and effortlessly compiled,” but it also implicates the third-party principle of Smith and Miller in that the individual is continuously revealing his location to the wireless carrier. Ultimately, the Court decided not to extend Smith and Miller to cover cell-site records, because of their unique, revealing nature. [xix]

A majority of the Court had previously recognized in Jones that individuals have a reasonable expectation of privacy in the whole of their physical movements, because they can reveal many private details of an individual ‘s life, not unlike the contents of the smart phone in Riley v. California.[xx]  In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring in Jones, because they give the Government near perfect surveillance, and allow it to travel back in time to retrace a person’s whereabouts . The only limit on how far back the government could search is the retention policies of wireless carriers, which for most of them is presently five-years .[xxi]

The Court acknowledged the Government’s contention that CSLI data is less precise than GPS information, but observed that the prosecutor thought the data accurate enough to highlight it during closing arguments in Carpenter’s trial.[xxii] Moreover, the accuracy of CSLI is rapidly approaching GPS-level precision, and whatever rule the Court adopts “must take account of more sophisticated systems that are already in use or in development” (citing Kyllo [xxiii]). [xxiv]  In Kyllo, it was held that use of a thermal imager to detect persons inside a residence was a “search” that required a warrant.[xxv]

The Government had contended that the third-party doctrine governed the case because cell-site records are “business records,” created and maintained by wireless carriers, not unlike the records in Smith and Miller.  But the Court pointed out that Smith and Miller had also considered “the nature of the particular documents sought” and limitations on any “legitimate ‘expectation of privacy’ concerning their contents.” (Miller [xxvi] ).[xxvii]    In the Court’s view, there was “a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers.” [xxviii]

It further stated that the second rationale for the third-party doctrine – voluntary exposure – also does not apply, because cell phone location information is not truly “shared” as the term is normally understood. Cell phones and the services they provide are “such a pervasive and insistent part of daily life” (Riley)[xxix] that carrying one is “indispensable to participation in modem society.” Moreover, a cell phone automatically logs a cell-site record, without the user having done anything beyond turning it on.[xxx]   “Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data.”[xxxi]

The Court concluded that the government’s acquisition of the cell-site records was a “search” within the meaning of the Fourth Amendment , and that the Government was obligated to obtain a warrant supported by probable cause.[xxxii]  “[R]easonable grounds” for believing that records are “relevant and material to an ongoing investigation” (18 U.S.C. §2703[d]), “falls well short of the probable cause required for a warrant.”[xxxiii] Thus, an order obtained under §2703[d] of the SCA is not a permissible mechanism for accessing historical cell-site records.[xxxiv]

Inexplicably, the Supreme Court never mentions in Carpenter that there is another section of the SCA which expressly provides for the collection of communications records through the use of a warrant. (§2703[c][l ][A]). The warrant provision was noted in the concurring opinion in the Circuit Court, which stated that the issue is “not whether the cell-site location information (CSLI) for Carpenter *** could have been obtained under the Stored Communications Act (SCA),” but “whether it should have been sought through provisions of the SCA directing the government to obtain a warrant with a probable cause showing, 18 U.S.C. § 2703(c)(l)(A), or a court order based on the specified ‘reasonable grounds[,]’ id. §§ 2703(c)(l)(B), (d).” [xxxv]

The Supreme Court characterized its holding in Carpenter as “a narrow one,” stating that it does not disturb the application of Smith and Miller, or call into question conventional surveillance techniques and tools, such as security cameras.[xxxvi] It does not address other business records that might incidentally reveal location information; and it does not consider other collection techniques involving foreign affairs or national security.[xxxvii] The opinion also does not address “real-time” cell-site information.[xxxviii]

The opinion leaves open the question of whether a warrant will be required for “short term” CSLI.[xxxix]  As noted above, two days of CSLI were provided by SPRINT, out of the seven days which were requested.[xl]  The Sixth Circuit had previously held, in Skinner,[xli]  that it was not unreasonable for authorities to track the defendant’s cell phone for three days, using its GPS technology, pursuant to a court order which authorized the telephone company to provide such data. It distinguished such “short term” monitoring from the “long term” GPS monitoring in Jones.[xlii]    In Carpenter, the Supreme Court stated that it was “sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search.” [xliii] (emphasis supplied). It rejected the suggestion in Justice Kennedy’s dissenting opinion, that it was deciding the “limited period for which the government may obtain an individual’s CSLI free from Fourth scrutiny,”[xliv]

Although the Court states that the Government will generally need a warrant to access CSLI, it acknowledges that case-specific exceptions, such as exigent circumstances, may support a warrantless search.[xlv]   Another recognized exception to the warrant requirement is that the government acted in “good faith” in reliance upon a statute, which may apply even if the statute is subsequently declared unconstitutional.[xlvi]  In the Sixth Circuit, the concurring opinion stated that the authorities had acted in the “good faith” in implementing the Stored Communications Act; and therefore, suppression had been properly denied, even though there had been a Fourth Amendment violation.[xlvii]  If the prosecution asserted the “good faith” exception in the lower Court, suppression could be denied on that alternative ground on remand. 

The  author  is  a former  chairperson  of  the  Nassau County Bar Association’s  Appellate  Practice   Committee.  His Garden City law practice is concentrated on civil and criminal appeals, and complex litigation. (cholster@optonline.net).

[i].Carpenter v. United States, 585 U.S. ___ (2018) (slip op., at 19, 21)

[ii].18 U.S.C. § 2703(d);  819 F.3d 880, 884 (6th Cir. 2012).

[iii]. 819 F.3d, at 886.

[iv]. Id.

[v]. Carpenter, slip op., at 3, 11 n 3.

[vi]. 565 U.S. 400, 404 (2012).

[vii]. 819 F.3d at 884.

[viii]. id., at 885.

[ix]. id., at 885, 890, 893.

[x]. Carpenter, slip op., at 11,18-19.

[xi]. 389 U.S. 347.

[xii]. Carpenter, slip op., at 5, 12.

[xiii]. 389 U.S., at 348, 351.

[xiv]. Carpenter, slip op., at 5 (citing Smith v. Maryland, 442 U.S. 735).

[xv]. 565 U.S., at 404.

[xvi]. Smith v. Maryland, 442 U.S. 735 (1979).

[xvii]. 425 U.S. 435 (1976).

[xviii]. Carpenter, slip op., at 7-10.

[xix]. Id., at 10-18.

[xx]. 573 U.S., __ , __ (2014).

[xxi]. Carpenter, slip op., at 13.

[xxii]. id., at 14.

[xxiii]. 533 U.S. 27 (2001).

[xxiv]. Carpenter, slip op., at 14.

[xxv]. Carpenter, slip op., at 12-15 (citing Kyllo, 533 U.S., at 36).

[xxvi]. 425 U.S., at 442.

[xxvii]. Carpenter, slip op., at 16-17.

[xxviii]. id., at 15.

[xxix]. 573 U.S., at __slip op., at 9)

[xxx]. Carpenter, slip op., at 17.

[xxxi]. Id.

[xxxii]. Id.

[xxxiii]. id., at 18.

[xxxiv]. id., at 18-19, 21-22

[xxxv]. 819 F.3d, at 897.

[xxxvi]. Carpenter, slip. op., at 18.

[xxxvii]. id., at 18.

 [xxxviii]. id., at 17.

[xxxix]. id., at 11, n 3.

[xl]. Id.

[xli]. United States v. Skinner, 690 F.3d 772, 774-776 (6th Cir. 2012).

[xlii]. 819 F.3d, at 894-895.

[xliii]. Carpenter, slip op., at 11 n 3.

[xliv]. KENNEDY, J., dissenting (slip op., at 2).

[xlv]. Carpenter, slip op., at 18-22.

[xlvi]. U S. v. Leon, 468 U.S. 897, 905-926 (1984).

[xlvii]. 819 F.3d, at 894-896 (citing US. v. Leon).

A Dismissal Pursuant to 22 NYCRR 202.27 For Failure to Attend a Compliance Conference Is Not a Dismissal on the Merits

“A dismissal pursuant to 22 NYCRR 202.27(b), based upon failure to attend a scheduled conference, is not “on the merits.” (Espinoza v Concordia Internal., 32 AD3d 326 [1st Dept 2006]). After the dismissal of the first action in Espinoza, the plaintiff commenced a new action within the applicable statute of limitations, and it was not barred by the doctrine of res judicata:

“Plaintiff’s first action was dismissed under 22 NYCRR 202.27 (b), which permits the court to dismiss an action upon a plaintiff’s failure to appear at a scheduled conference (see Campos v New York City Health & Hosps. Corp., 307 AD2d 785 [2003]). As defendants correctly note, in order to vacate her default plaintiff would be required to demonstrate both a reasonable excuse for her failure to appear at the conference and a meritorious cause of action (see e.g. Kein v Zeno, 23 AD3d 351 [2005]). However, plaintiff did not seek to vacate her default in the prior action; rather she commenced a new action within the applicable statute of limitations (see Bank of N.Y. v LS Monticello JV, 209 AD2d 464 [1994]). This case represents an instance in which a plaintiff can avoid making the requisite dual showing to vacate a default under section 202.27. * * * A prior order that does not indicate an intention to dismiss the action on the merits is not a basis for the application of the doctrine of res judicata (see Miller Mfg. Co. v Zeiler, 45 NY2d 956 [1978]; Wilson v New York City Hous. Auth., 15 AD3d 572 [2005]; Mudry v Giannattasio, 8 AD3d 455 [2004]). Here, the first action was dismissed as a result of plaintiffs counsel’s failure to attend a compliance conference, not on the merits.”

(id., at 327-328).

The Espinoza court noted that the “dismissal of plaintiffs first action was not without any adverse consequences, as plaintiff was required to purchase a new index number to commence this action. Although this is a relatively insignificant consequence compared to the prospect of being out of court entirely, it is the only one the law presently permits.” (id., at 328).

The First Department has held that where a dismissal is not on the merits, the order or judgment should indicate that the dismissal is “without prejudice.” (emphasis supplied). (Brooks v Harold Haidt, 59 AD3d 233 [1st Dept 2009]; Kalisch v Maple Trade Fin. Corp., 35 AD3d 291 [1st Dept 2006]). In Kalisch, the plaintiff failed to appear at a scheduled conference, and Supreme Court issued an order dismissing the complaint “with prejudice” (emphasis supplied). Since the dismissal was not on the merits, the order was modified on appeal, to state that the dismissal was “without prejudice”:

“Order, Supreme Court, New York County (Jane S. Solomon, J.), entered February 15, 2006, which, to the extent appealed from, denied plaintiff’s motion to vacate her default and dismissed the complaint with prejudice, unanimously modified, on the law and the facts, to the extent of directing that the dismissal of the complaint be without prejudice, and otherwise affirmed, without costs.
*               *               *
In order to vacate her default, plaintiff would be required to demonstrate both a reasonable excuse for her failure to appear at the conference and a meritorious cause of action (Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326 [2006]). Assuming, arguendo, that plaintiff demonstrated a reasonable excuse for her failure to appear at a scheduled conference, she wholly failed to establish a meritorious cause of action. No affidavit of merit was annexed to the motion papers. Nevertheless, the adjudication was not for neglect to prosecute and was not on the merits (Greenberg v De Hart, 4 NY2d 511, 516-517 [1958]). Therefore, the dismissal does not have res judicata effect (Espinoza, 32 AD3d at 328). (emphasis supplied).”

The Second Department reached the same result in Farrell Forwarding v Alison Transport, 118 AD2d 891 [2d Dept 2014]:

“After the plaintiff failed to appear at a court-ordered conference, the defendant moved for leave to enter a default judgment and to dismiss the complaint pursuant to 22 NYCRR 202.27(b). In opposition to the motion, the plaintiff failed to establish either a reasonable excuse for the default or a potentially meritorious cause of action. Accordingly, the motion for leave to enter a default judgment and to dismiss the complaint was properly granted (see Aydiner v Grosfillex, Inc., 111 AD3d 589). However, the judgment should have dismissed the complaint without prejudice, since dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 73 AD3d 1123; Kalisch v Maple Trade Fin. Corp., 35 AD3d 291).” (emphasis supplied)

Pursuant to CPLR 205[a], a party whose timely commenced action has been dismissed subsequent to the expiration of the applicable limitations period, may recommence the action, provided that the original dismissal was not predicated upon, inter alia, a voluntary discontinuance, neglect to prosecute or a final judgment on the merits. Campbell v. City of New York, 4 NY3d 200, 209-210 [2005]; Carrick v. Central General Hospital, 51 NY2d 242, 247 [1980]; George v. Mt. Sinai Hospital, 47 NY2d 170, 180-181 [1979]; Montgomery v. Minarcin, 245 AD2d 920, 921 [3d Dept 1997]; see also, Elite Associates, Inc. v. Board of Educ., Longwood Cent. School Dist., 284 AD2d 298, 299 [2d Dept 2001].

Where there is an appeal from the dismissal, the six months provided by CPLR 205(a) begins to run from the date of the affirmance. (Franch. Acquis. Group v Jefferson Val. Mall, 73 AD3d 1123 [2d Dept 2010]). In Franchise Acquisitions, the dismissal pursuant to 22 NYCRR 202.27 (b) was affirmed; and a new action was commenced approximately two months later, which was not barred by res judicata or by the statute of limitations:

“The prior action involving the same parties, which was commenced in the Supreme Court, Westchester County, on January 11, 2006, was dismissed pursuant to 22 NYCRR 202.27 (b) in an order dated October 31, 2007, based on the plaintiffs failure to appear at a scheduled pretrial conference. This Court affirmed the dismissal in a decision and order dated May 13, 2008, finding that the plaintiff failed to set forth a reasonable excuse for its failure to appear at the conference (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 51 AD3d 717 [2008]).

“Contrary to the defendant’s contention, the dismissal of the prior action was upon the plaintiff’s default, and thus did not constitute a determination on the merits (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]; Merchants Ins. Group v Hudson Val. Fire Protection Co., Inc., 72 AD3d 762 [2010]; Persaud v Pharsi, 70 AD3d 660 [2010]).  * * * Accordingly, the doctrine of res judicata, which bars future actions if a valid final judgment on the merits was rendered in a prior action between the same parties and on the same cause of action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347-348 [1999]; O‘Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; Matter of Segreto v Grannis, 70 AD3d 704 [2010]), does not apply to bar the instant action (see Djoganopoulos v Polkes, 67 AD3d 726 [2009]; Brooks v Haidt, 59 AD3d 233 [2009]). “

(id., at 1123-1124).

 

 
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