District Judges Divide on Long-Term Cell Phone Tracking Under the Fourth Amendment

I haven’t blogged recently on judicial decisions considering the mosaic theory of the Fourth Amendment. As regular readers will recall, the “mosaic theory” is a term for the idea that long-term monitoring of a suspect can be a Fourth Amendment search even if short-term monitoring is not. Under this approach, which was suggested by the concurring opinions in United States v. Jones, surveillance and analysis of a suspect is outside the Fourth Amendment until it reaches some point when it has gone on for too long, has created a full picture of a person’s life (the mosaic), and therefore becomes a search that must be justified under the Fourth Amendment. I think the mosaic approach is a misstep for reasons I elaborated on in this article. And the handful of lower courts to have considered the theory since Jones mostly have not adopted it, either because they found it unpersuasive, because they distinguished Jones on the facts, or because they avoided the question under the good-faith exception to the exclusionary rule. See, e.g., United States v. Graham, 846 F.Supp.2d 384 (D.Md. 2012).

In the last week, two district courts have divided on the question: United States v. Rigmaiden (D. Ariz. May 8, 2013), and United States v. Powell, — F.Supp.2d –, 2013 WL 1876761 (E.D. Mich May 3, 2013) In this post, I want to discuss the two rulings, and then offer some critical commentary on Powell at the end.

First, today in United States v. Rigmaiden (D. Ariz. May 8, 2013), Judge Campbell held that the third-party doctrine applies to both cell-site information collected over 38 days and websurfing destination IP address information that collected 1.8 million destination IP addresses. Judge Campbell held that the mosaic theory did not apply when the government obtained historical cell-site records of the target’s location over a 38 day period, which it used to find the defendant:

Defendant argues that the government was able to use the cell-site information to effectively track his aircard from June 10 to July 18, 2008, a period of 38 days, and that this “prolonged surveillance” implicated his reasonable expectation of privacy. Doc. 824 at 215-17. Defendant relies on United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), and United States v. Jones, 132 S.Ct. 945 (2012), but those decisions are inapposite. They do not address orders under the SCA, and the Supreme Court in Jones did not adopt the privacy theory advanced by Defendant.

In this case, a government agent, working in his office with the historical cell-site information and using mathematical and triangulation techniques, was able to calculate a general location for Defendant’s aircard during a 38-day period. The calculation narrowed the location of the aircard to one-quarter of a square mile.The Court cannot conclude that such use of cell-site information [over a 38 day period], obtained from a third party under the SCA, is tantamount to attaching a GPS device to a person’s vehicle. Calculations made from the historical cellsite information did not provide minute-by-minute intelligence on Defendant’s precise movements as did the GPS device in Maynard. The calculations merely identified a general area where the aircard was located – and stationary – for 38 days.

Also, in the case of the IP addresses monitored, the volume of surveillance didn’t matter:

Nor did the government violate Defendant’s Fourth Amendment rights by the volume of IP addresses it obtained. Defendant notes that the government obtained 1.8 million IP addresses from Verizon, and argues that the government should have tailored its request more narrowly and obtained only those IP address it had already connected to the tax-refund scheme. Because obtaining IP addresses is akin to obtaining telephone numbers, an act that does not implicate the Fourth Amendment at all, Forrester, 512 F.3d at 510–11, the Court cannot conclude that the government was required to narrowly tailor its request. Moreover,Forrester specifically held that there is “no difference of constitutional magnitude” between obtaining IP addresses and learning the total volume of communications with such addresses, holding that the government’s monitoring of “the total volume of data transmitted to and from [the defendant’s] account” did not violate the Fourth Amendment. Id. at 511. If the government can obtain destination IP addresses and the total volume of such communications without implicating the Fourth Amendment, the Court cannot conclude that the government somehow violated the Fourth Amendment when it obtained 1.8 million IP addresses accessed by Defendant’s computer.

On the other hand, last week Judge Murphy of the United States District Court for the Eastern District of Michigan handed down a decision adopting what amounts to a mosaic approach for cell-phone tracking in United States v. Powell, — F.Supp.2d –, 2013 WL 1876761 (E.D. Mich May 3, 2013). In Powell, eight defendants in a wide-ranging narcotics conspiracy jointly moved to suppress cell-site and GPS information obtained from six cell phones to monitor the location of the conspirators. The FBI had obtained a series of search warrants to obtain the records pursuant to Federal Rules of Criminal Procedure 41. Each of the warrants allowed the government to monitor an individual phone for at least 30 days, and the collection of all the warrants together allowed the agents to monitor the collection of cell phones for about seven months. The monitoring occurred over seven months in 2010, and one warrant in particular revealed very helpful information about the locations of at least one of the conspirators. Fourteen conspirators were charged in the case, and eight defendants moved together to suppress the location monitoring on the ground that the warrants were defective and thus that the fruits of the location monitoring had to be suppressed.

In Judge Murphy’s opinion, he ultimately rules that the good-faith exception to the exclusionary rule applies, so the motion to suppress is denied. But before he gets there, he adopts a few novel holdings about the Fourth Amendment.

First, Judge Murphy rules that a warrant was required to conduct as much monitoring as the government conducted. It’s true that in United States v. Skinner, the Sixth Circuit (binding on Judge Murphy) had said that cell-phone tracking of a suspect was outside the Fourth Amendment. But Skinner involved tracking for only a few days, while all of the monitoring collectively in this case involved tracking of the various suspects for seven months. This was a long enough period that it was highly likely that some of the tracking occurred when suspects were inside their homes: “Given the duration and intensity of the tracking, it cannot be reasonably argued that only public-thoroughfare data was collected. The government certainly collected cell-site data emanating from within the defendants’ homes or from another place in which the defendants had a legitimate expectation of privacy.” That matters because United States v. Karo had held that it was a search to monitor the location of a beeper device from inside a home. Under Karo, “[i]f at any point a tracked cell phone signaled that it was inside a private residence (or other location protected by the Fourth Amendment), the only other way for the government to have obtained that information would be by entry into the protected area, which the government could not do without a warrant.” This was bolstered by Kyllo v. United States, Judge Murphy reasoned, because the government couldn’t know if it was monitoring a suspect’s location inside the home:

In Kyllo, the Court rejected the argument that the government could restrict its thermal searches to non-“intimate” details based on the practical observation that “[n]o police officer would be able to know in advance whether his through-the-wall surveillance picks up ‘intimate’ details-and thus would be unable to know in advance whether it is Constitutional .” Id. at 38 (italics added). The same problem is posed by requests for prospective real-time cellsite location data. The March 11, 2010 warrant authorized the DEA to collect real-time cellsite location data for up to thirty days. Under virtually any circumstance, there was no way the DEA could know in advance whether or not the location data collected during that period would come from within a protected area.

Having distinguished Skinner, Judge Murphy then turned to the concurring opinions in Jones:

The Court’s Fourth Amendment concerns also overlap with those expressed by the D.C. Circuit in Maynard, and in the Jones concurrences. See Maynard, 615 F.3d at 562; Jones, 132 S.Ct. at 963–64 (Alito J., concurring in the judgment); Jones, 132 S.Ct. at 954–57 (Sotomayor, J., concurring). Generally speaking, those opinions express the view that warrantless long-term tracking by electronic means violates an individual’s reasonable expectation of privacy, not just because of the potential for tracking into protected areas, because the information obtained through such means is, in the aggregate, so comprehensive.FN7 See, e.g., Jones, 132 S.Ct. at 964 (“[S]ociety’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”) (Alito, J., concurring). The Jones majority found the Fourth Amendment implicated on narrower, property-based grounds, and declined to decide whether surveillance of Jones over thirty days by “electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy.” Id. at 954 (“[T]he present case does not require us to answer that question.”). That basis of decision is not available in this case because no device was installed, and yet the privacy concerns implicated by the tracking seem just as profound.

For these reasons, the Court finds that when the government requests authorization to engage in long-term, real-time tracking of an individual’s movements via his or her cell phone, the situation reaches past the law set forth in Skinner, and Fourth Amendment concerns are implicated.

Judge Murphy reconciles his decision with Skinner as follows:

The cell-phone tracking standard is meant to be read in harmony with the Sixth Circuit’s holding in Skinner. Specifically, if the government seeks to track an individual for a short period of time only, with no foreseeable intrusion into protected areas, the probable-cause showing discussed here would not apply and Skinner would plainly govern. If, for example, the tracking was to be done for a limited purpose on public thoroughfares—like in Skinner, with foreknowledge a suspect was taking a two day cross-country trip—the specific Fourth Amendment concerns addressed here would not be raised. But if the tracking the government seeks to undertake is similar to the “intensive 28–day” monitoring the Sixth Circuit itself distinguished, then the more detailed showing required to meet the cell-phone tracking standard should be made

As I have written about the problems I see with the mosaic theory, I was very interested to know what kind of distinction Judge Murphy was drawing between short term and long term monitoring. Which version of the mosaic theory is Judge Murphy adopting? The DC Circuit’s, Alito’s, Sotomayor’s, or something else? How does it apply? How do you group over six phones and monitoring pursuant to a string of different warrants? Who has standing to challenge a mosaic search? Where are the lines? Judge Murphy responds in Footnote 7:

[The mosaic] view has its critics. See, e.g., Orin Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L.Rev. 311 (2012). The present Order does not adopt any of the “mosaic theory” approaches specifically, nor does it purport to address the questions raised in Kerr’s article regarding the implications of the approach. The Court simply notes that the constitutionality of long-term cell-phone tracking was left open in Jones, submits that the privacy issues presented by such tracking merit a doctrinal response, and finds that the facts presented here fall on the wrong side of the constitutional divide.

Judge Murphy next concludes that such monitoring not only requires a warrant, but that it requires a special kind of warrant:

The Court concludes that a specific showing is required to establish probable cause when the government seeks a warrant for long-term real-time tracking of an individual via a cell phone. Such a showing should include facts supporting, at least, the following:

First, that the actual location of the person the government intends to track via the cell phone is relevant to the investigation of the ongoing crime, or evidence sought. That is, if the government intends to track an individual over a long period of time, and cannot show that the individual will be, for example, in public, non-protected locations for the duration of the tracking, then the warrant application should set forth facts that warrant intrusion into protected locations that the individual may frequent. In other words, the government should set forth a probable-cause basis for following the individual into protected areas via the individual’s personal cell phone.

It is true that, in a sense, a person’s location is in some way always relevant to his potential participation in a crime. And, a person does not have a general privacy interest in his location. But before the government may use an individual’s cell phone to track him into areas in which an individual does have a reasonable expectation of privacy, the government should show more than that the person is suspected of a crime; the government should show that the person’s location in the protected area is in some way relevant to the ongoing investigation of criminal activity. See generally United States v. Frazier, 423 F.3d 526, 532 (6th Cir.2005) (“The critical element in a reasonable search is not that the owner of property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought”).

Second, the government should show that the specific cell phone, as well as the person to be tracked, is relevant to the investigation. That is, the government must show there is a nexus between the cell phone, the suspect, and the information sought. See generally United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.2004) (warrant application must show “a nexus between the place to be searched and the evidence to be sought”); see also, e .g., United States v. Sierra–Rodriguez, 10–20338, 2012 WL 1199599, at *6 (E.D.Mich. Apr. 10, 2012) (finding probable cause shown where the affidavit provided substantial basis to conclude that specific cell phone tracked belonged to suspect embarking on criminally-related travel). This means that the government should show that a criminal suspect under investigation is the likely user of the cell phone at issue and that he or she uses the cell phone in connection with criminal activity. Investigation of a criminal organization using multiple phones, including dedicated phones for criminal activity, over the course of the operation would require the government to make a showing as to each phone it intends to track. The logic of this requirement is simply that, drawing on the Fourth Amendment’s particularity requirement, tracking a phone used in furtherance of criminal activity is likely to lead to evidence of criminal activity, whereas tracking phones, the use of which is unconnected to criminal activity, will likely demonstrate where a person conducts highly personal business.

In sum, because “the belief that the items sought will be found at the location to be searched must be supported by less than prima facie proof but more than mere suspicion,” to establish probable cause for long-term, real-time, cell-site tracking, the government should have to demonstrate a nexus between a suspect and the phone, the phone and the criminal activity, as well as the criminal activity and suspect’s location in protected areas, rather than merely probable cause that the person is engaged in criminal activity. See generally United States v. Williams, 544 F.3d 683, 686 (6th Cir.2008).

Judge Murphy then rules that warrants obtained did not meet this newly-announced standard, but that the good faith exception applies so the motion to suppress is denied.

Three quick thoughts on Judge Murphy’s opinion.

1) Skinner aside, I tend to agree that if the government obtained GPS information from a phone, then the framework of Karo should apply: Monitoring of location in a home via GPS ordinarily should be a Fourth Amendment search. But defendants have the burdento show which pieces of location information caught them inside their homes, so those pieces of evidence can be excluded. See generally Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978) (defendant has burden of establishing a reasonable expectation of privacy in place searched). The defendants did not satisfy their burden here, so it seems odd to to me to say that the risk of that happening with respect to discrete pieces of information makes the entirety of the monitoring a Fourth Amendment search.

2) Although I appreciate the citation to my article, I was unsatisfied by Judge Murphy’s approach to the mosaic theory. As I understand his footnote, his answer to the questions raised as to what the theory means is that he is not answering any of those questions: He is just announcing a result and saying that it is somehow based on the reasoning of Maynard/Jones. See Fn7 (“The Court simply notes that the constitutionality of long-term cell-phone tracking was left open in Jones, submits that the privacy issues presented by such tracking merit a doctrinal response, and finds that the facts presented here fall on the wrong side of the constitutional divide.”) On one hand, it’s hard to criticize the reasoning of an opinion that won’t really disclose its reasoning. But with that said, I think the court’s failure to explain its analysis speaks volumes about the great difficulty of administering the mosaic theory.

3) The Supreme Court has consistently rejected having special kinds of probable cause in discrete settings, most recently in its unanimous decision this February in Florida v. Harris. See also United States v. Grubbs. Given that refusal to adopt special kinds of probable cause requirements, it seems a bit jarring for Judge Murphy to announce that warrants for location tracking have special requirements. Perhaps such special requirements are a good idea as a matter of policy. But it seems difficult to justify special rules of probable cause as a matter of Supreme Court doctrine in light of Harris and Grubbs.