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Aug. 10 — Police need to get a search warrant before they grab cell tower records kept by mobile phone companies that can be used to track a user's location, a divided Indiana Court of Appeals ruled Aug. 4 ( Zanders v. State, 2016 BL 252090, Ind. Ct. App., No. 15A01-1509-CR-1519, 8/4/16 ).
The decision is significant because it adds to a growing split among state and federal courts.
The third-party doctrine doesn't apply here because a mobile phone customer doesn't hand over location data to the provider—voluntarily or otherwise—and therefore doesn't assume the risk that the company will turn the information over to the police, the court said in an opinion by Judge Patricia A. Riley.
“This decision adds to the split on this issue and improves the odds that the Supreme Court will grant cert. on the next petition that comes before it,” John Wesley Hall, a Little Rock, Ark., criminal defense attorney, told Bloomberg BNA.
The court may get that opportunity soon because the en banc Fourth Circuit recently ruled that police don't need a warrant to secure cell site location information (CSLI) from a provider and the 90-day deadline for seeking a writ of certiorari is fast approaching, he said.
One justice has already indicated she'd be amenable to reviewing that very question, Hall added.
Justice Sonia Sotomayor suggested in her concurring opinion in United States v. Jones, 2012 BL 14420 (U.S. 2012), that the time has come to re-examine a doctrine which seems “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
The state argued that the police didn't violate Marcus Zanders's constitutional rights when they seized cell site location data linking his mobile phone to a crime scene because citizens have no reasonable expectation of privacy in the business records kept by a third party.
Prosecutors pointed to United States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979), which held that investigators don't need a search warrant to obtain a suspect's bank records or a phone company's records of the numbers dialed by land-line phones.OTHER COURTS
Although all the federal circuit courts that have addressed the issue have ruled that there's no expectation of privacy in CSLI records, courts in Massachusetts , New Jersey and Florida , plus federal district courts in Maryland and New York have reached the opposite conclusion.
But the Indiana court said that the third-party doctrine has limited utility in the digital age given the proliferation of data that is unwittingly revealed to third parties.
“The extent of information that we expose to third parties has increased by orders of magnitude since the Supreme Court decided Miller and Smith,” the court said.
“To now apply a rigorous application of Miller and Smith, as the State advocates, would create a rule that would preclude virtually any Fourth Amendment challenge against government inspection of third-party records,” the court said.
Unlike bank records or dialed phone numbers, cell-site data is neither tangible nor visible to the customer, but is rather “quietly and automatically calculated by the network” without any input from the user, the court said.
A mobile phone user can't be said to have voluntarily conveyed information that the user never possessed but was instead generated by the provider without the user's involvement, the court added.
“Suppose some security technology like OnStar also kept track of your vehicle's location at all times and stored that information on the company's servers,” Hall wondered. “Could the police go to the company with a subpoena demanding all the records on your car?”
Leanna Weissman, Lawrenceburg, Ind. represented Zanders. The Indiana Attorney General's Office represented the state.
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