In a case involving convicted Baltimore bank robbers, the full 4th U.S. Circuit Court of Appeals said it will consider whether police need a search warrant to get the cellphone-tower records of suspected criminals in an effort to track down their whereabouts when the crime was committed.
A divided three-judge panel had ruled in August that a warrant is needed. But the panel upheld the convictions of Aaron Graham and Eric Jordan, saying the police who sought the incriminating location records had subpoenaed the cellphone service providers in good faith under a federal law.
In an order last week, the 15-member 4th Circuit said it will hear arguments in the case during the week of March 22. The case is United States v. Aaron Graham and Eric Jordan, No. 12-4659.
Maryland U.S. Attorney Rod J. Rosenstein, who prosecuted Graham and Jordan, pressed successfully for the full court’s review, saying individuals have “no reasonable expectation of privacy” in the business records kept by the phone companies they use. As a result, the constitution’s Fourth Amendment prohibition on unreasonable searches does not apply and a warrant is not needed, Rostenstein argued in papers filed with the 4th Circuit.
James Wyda, the federal public defender for Maryland, invoked the futuristic novel “1984” in opposing a full-circuit review.
“The government is essentially asking this court to treat cellphones as personal homing beacons, providing it the wherewithal to follow and recreate a person’s every movement,” Wyda argued in papers filed with the 4th Circuit.
“The government seeks to do so without a warrant or probable cause, using the excuse that telecommunications providers also happen to know when and where an individual has gone and is going,” Wyda added. “The difference between what the government did here and what George Orwell envisioned is that Big Brother’s constant surveillance through telescreens was stationary. But the surveillance here moves with citizens using a common household device carried in the pockets or purses of almost every American adult.”
A U.S. District Court jury in Baltimore convicted Graham and Jordan in May 2012 of having committed a series of armed robberies in and around the city in early 2011. They were sentenced to prison terms of 147 and 72 years, respectively.
The evidence against them included records from telecom service provider Sprint/Nextel indicating the location of cellphone towers the men used in placing or
receiving calls or text messages at or about the time of the robberies.
Judge Richard D. Bennett permitted the records to be introduced even though they were obtained from Sprint/Nextel via subpoena under the federal Stored Communications Act and not by a warrant.
Bennett said Graham and Jordan had no reasonable expectation of privacy, as the cell-tower information was a business record of Sprint/Nextel that Graham and Jordan “voluntarily conveyed” to the company by using the cellphones.
The 4th Circuit panel, in its 2-1 decision Aug. 5, said a warrant is required because cellphone users do have an objectively reasonable expectation of privacy in the cell-tower records because this information “can enable the government to trace the movements of the cellphone and its user across public and private spaces and thereby discover the private activities and personal habits of the user.”
Judge Andre M. Davis, in the appellate panel’s majority opinion, said cellphone users do not “voluntarily” convey information because they never “actively submit any location-identifying information when making a call or sending a message.”
Judge Stephanie D. Thacker joined Davis’ opinion and wrote a concurrence in which she expressed “concern about the erosion of privacy in this era of rapid technological development.”
The panel cited the good-faith exception to the warrant requirement in upholding the convictions. That exception no longer applies in Maryland and the other 4th Circuit states following the panel’s decision because the police now know that a warrant is required to access cell-tower records, Davis noted.
The other states in the 4th Circuit are Virginia, West Virginia, North Carolina and South Carolina.
Judge Diana G. Motz dissented, writing that a warrant is not needed when the information sought is in the possession of a third-party business that collects the data in the normal course of its operations from customers who voluntarily convey the information.
Motz said the majority’s equating of voluntariness with active submission is “nowhere to be found” in the Supreme Court’s jurisprudence.