United States v. Quartavious Davis

Opinion

Case: 12-12928 Date Filed: 05/05/2015 Page: 1 of 102

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 12-12928 ________________________

D.C. Docket No. 1:10-cr-20896-JAL-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

QUARTAVIOUS DAVIS,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(May 5, 2015)

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

HULL, Circuit Judge: Case: 12-12928 Date Filed: 05/05/2015 Page: 2 of 102

I. BACKGROUND

Appellant Quartavius Davis 1 was convicted by a jury on several counts of

Hobbs Act robbery, 18 U.S.C. § 1951(b)(1), (3), conspiracy, id. § 1951(a), and

knowing possession of a firearm in furtherance of a crime of violence, id. §§

924(c)(1)(A)(ii), 2. The district court entered judgment on the verdict, sentencing

Davis to consecutive terms of imprisonment totaling 1,941 months. In this appeal,

we are called on to decide whether the court order authorized by the Stored

Communications Act, id. § 2703(d), compelling the production of a third-party

telephone company’s business records containing historical cell tower location

information, violated Davis’s Fourth Amendment rights and was thus

unconstitutional. We hold it did not and was not.

Therefore, the district court did not err in denying Davis’s motion to

suppress and we affirm Davis’s convictions. We reinstate the panel opinion,

United States v. Davis, 754 F.3d 1205 (11th Cir.), reh’g en banc granted, opinion

vacated, 573 F. App’x 925 (11th Cir. 2014), with respect to all issues except those

addressed in Parts I and II, 754 F.3d at 1210-18, which are now decided by the en

banc court. 2

1 The Presentence Investigation Report notes that “Quartavius” is the correct spelling of appellant’s first name, despite the spelling in the caption. 2 Davis’s advisory guidelines range was 57 to 71 months’ imprisonment for his Hobbs Act robberies. However, each of his seven § 924(c) convictions required consecutive sentences. 18 U.S.C. § 924(c)(1)(D)(ii). The district court sentenced Davis to concurrent terms of 57 months’

2 Case: 12-12928 Date Filed: 05/05/2015 Page: 3 of 102

A. Seven Armed Robberies in a Two-Month Period

Quartavius Davis committed seven separate armed robberies in a two-month

period. From the beginning of August 2010 to the beginning of October 2010,

Davis and accomplices, bearing an array of firearms, terrorized a wide range of

South Florida businesses, including a pizzeria, a gas station, a drugstore, an auto

parts store, a beauty salon, a fast food restaurant, and a jewelry store.

On February 18, 2011, a federal grand jury returned a seventeen-count

indictment against Davis and five codefendants. Davis was named in sixteen of

the seventeen counts. The indictment charged violations of the Anti-Racketeering

Act, 18 U.S.C. § 1951 (Hobbs Act), and conspiracy to violate the Hobbs Act. The

indictment specifically charged Davis with conspiracy to engage in Hobbs Act

robbery, in violation of 18 U.S.C. § 1951(a) (Counts 1, 15); seven Hobbs Act

armed robberies, in violation of 18 U.S.C. §§ 1951(a), 2 (Counts 2, 4, 6, 8, 10, 13,

16); and knowingly using, carrying, and possessing a firearm in furtherance of a

crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (Counts 3, 5, 7,

9, 11, 14, 17).

All of Davis’s codefendants pled guilty to various counts. Davis alone went

to trial. The jury convicted Davis on all charged counts.

imprisonment on counts 1, 2, 4, 6, 8, 10, 13, 15, and 16, plus a consecutive term of 84 months on count 3, plus consecutive terms of 300 months’ imprisonment on counts 5, 7, 9, 11, 14, and 17. The panel opinion affirmed Davis’s convictions but vacated the application of the guidelines sentencing increase for “brandishing” of a firearm. Davis, 754 F.3d at 1220-21, 1223. To be clear, that disposition stands.

3 Case: 12-12928 Date Filed: 05/05/2015 Page: 4 of 102

At trial, the prosecution offered evidence of two conspiracies to commit

Hobbs Act robbery and evidence that Davis took part in each conspiracy and each

robbery. The prosecution further presented evidence that the conspirators

committed such robberies. One member of each conspiracy testified for the

government. Codefendant Willie Smith (“Smith”) testified as to the first

conspiracy, encompassing six robberies at commercial establishments, including a

Little Caesar’s restaurant, an Amerika Gas Station, a Walgreens drug store, an

Advance Auto Parts store, a Universal Beauty Salon, and a Wendy’s restaurant.

Codefendant Michael Martin (“Martin”) testified as to the second conspiracy,

encompassing the robbery of a Mayors Jewelry store. Smith and Martin testified

that Davis was involved in each robbery, where they wore masks, carried guns, and

stole items such as cash, cigarettes, and watches.

Separately, an eyewitness, Edwin Negron, testified regarding Davis’s

conduct at the Universal Beauty Salon and the adjacent martial arts studio. He

testified that Davis pointed a gun at his head, pushed both a 77-year-old woman

and Negron’s wife to the ground, and took several items from Negron and others.

Another eyewitness, Antonio Brooks, testified that Brooks confronted Davis and

his accomplices outside the Wendy’s after that robbery. Brooks testified that Davis

fired a gun at Brooks, and that Brooks returned fire towards the getaway car.

4 Case: 12-12928 Date Filed: 05/05/2015 Page: 5 of 102

Beyond the accomplice and eyewitness testimony, the government produced

additional evidence. Surveillance videos showed a man matching Davis’s

description participating in the robberies at Walgreens, Advance Auto Parts,

Wendy’s, and Mayors Jewelry. Smith and Martin identified Davis on the videos.

DNA shown to be Davis’s was recovered from the getaway car used to flee the

scene of the Universal Beauty Salon robbery and the Mayors Jewelry store

robbery.

In addition, the prosecution introduced telephone records obtained from

MetroPCS for the 67-day period from August 1, 2010, through October 6, 2010,

the time period spanning the first and last of the seven armed robberies. 3 The toll

records show the telephone numbers for each of Davis’s calls and the number of

the cell tower that connected each call. A MetroPCS witness identified his

company’s cell tower glossary, which lists the physical addresses, including

longitude and latitude, of MetroPCS’s cell towers. A police witness then located

on a map the precise addresses (1) of the robberies and (2) of the cell towers

connecting Davis’s calls around the time of six of the seven robberies. While there

was some distance between them, the cell tower sites were in the general vicinity

of the robbery sites.

3 The first robbery took place on August 7, 2010, and the final robbery took place on October 1, 2010.

5 Case: 12-12928 Date Filed: 05/05/2015 Page: 6 of 102

The location of the cell user, though, is not precise. The testimony tells us

(1) the cell tower used will typically be the cell tower closest to the user, (2) the

cell tower has a circular coverage radius of varying sizes, and (3) although the

tower sector number indicates a general direction (North, South, etc.) of the user

from the tower, the user can be anywhere in that sector. Despite this lack of

precision as to where Davis’s cell phone was located, the cell tower evidence did

give the government a basis for arguing calls to and from Davis’s cell phone were

connected through cell tower locations that were near the robbery locations, and

thus Davis necessarily was near the robberies too.

This appeal concerns the introduction of MetroPCS’s toll records and

glossary as evidence against Davis at trial. We thus review in more detail how the

government acquired MetroPCS’s records, the types of data in the records, and the

witnesses’ testimony about the records.

B. Court Order Regarding MetroPCS Business Records

After Davis’s arrest, the government acquired MetroPCS’s business records

by court order. In February 2011, the government applied to a federal magistrate

judge for a court order directing various phone companies to disclose stored

telephone communications records for four subject telephone numbers that

included a number ending in 5642 (the “5642 number”). The application requested

production of stored “telephone subscriber records” and “phone toll records,”

6 Case: 12-12928 Date Filed: 05/05/2015 Page: 7 of 102

including the “corresponding geographic location data (cell site),” for the 5642

number. The government requested only records “for the period from August 1,

2010 through October 6, 2010.” The government sought clearly-delineated records

that were both historical and tailored to the crimes under investigation.

The government did so following the explicit design of the governing

statute, the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq.

Section 2703 of the SCA provides that a federal or state governmental entity may

require a telephone service provider to disclose “a record . . . pertaining to a

subscriber to or a customer of such service (not including the contents of

communications)” if “a court of competent jurisdiction” finds “specific and

articulable facts showing that there are reasonable grounds to believe” that the

records sought “are relevant and material to an ongoing criminal investigation.” Id.

§ 2703(c)(1)(A), (B), (d). The court order under subsection (d) does not require

the government to show probable cause.

No one disputes that the government’s § 2703 application to the magistrate

judge contained “specific and articulable facts” showing “reasonable grounds” to

believe MetroPCS’s business records—pertaining to Davis’s 5642 cell phone

number—were “relevant and material” to the government’s investigation. The

government’s § 2703 application provided a detailed summary of the evidence

implicating Davis in the seven robberies, including post-Miranda statements from

7 Case: 12-12928 Date Filed: 05/05/2015 Page: 8 of 102

two accomplices and the DNA evidence found in two getaway cars. Undisputedly,

a sufficient showing was made to satisfy the SCA’s statutory requirements.

The magistrate judge’s order granted the § 2703 application. The court

order required MetroPCS, the third-party cellular telephone service provider, to

produce “all telephone toll records and geographic location data (cell site)” for the

5642 number during the period August 1, 2010 through October 6, 2010.

MetroPCS complied. For this two-month time period, MetroPCS produced

its stored telephone records for number 5642 showing these five types of data:

(1) telephone numbers of calls made by and to Davis’s cell phone; (2) whether the

call was outgoing or incoming; (3) the date, time, and duration of the call; (4) the

number assigned to the cell tower that wirelessly connected the calls from and to

Davis; and (5) the sector number associated with that tower. For ease of

reference, the fourth and fifth items are collectively called “historical cell tower

location information.”

Importantly though, MetroPCS’s business records did not show (1) the

contents of any call; (2) the contents of any cell phone; (3) any data at all for text

messages sent or received; or (4) any cell tower location information for when the

cell phone was turned on but not being used to make or receive a call. The

government did not seek, nor did it obtain, any GPS or real-time (also known as

“prospective”) location information.

8 Case: 12-12928 Date Filed: 05/05/2015 Page: 9 of 102

Before trial, Davis moved to suppress MetroPCS’s business records for

number 5642. Although the government obtained them through a statutorily-

prescribed judicial order, Davis argued the evidence should be suppressed because

the § 2703(d) production of MetroPCS’s records constituted a search under the

Fourth Amendment and thus required probable cause and a search warrant. The

district court denied the motion.4

C. Evidence at Trial

During the jury trial, the government introduced the MetroPCS records for

the 5642 number, which was registered to “Lil Wayne.” 5 The government also

introduced evidence tying Davis to the 5642 phone number. One of Davis’s

codefendants testified that Davis used the 5642 number from August 2010 to

October 2010. And a codefendant’s cell phone, which was entered into evidence,

listed the 5642 number under Davis’s nickname, “Quat,” in the phone’s contact

list. 6

4 Davis did not present any evidence in support of his Fourth Amendment claim, either at the suppression hearing or at trial. 5 MetroPCS had not required the subscriber Davis to give his true name. Instead, MetroPCS sells phones with monthly plans—averaging $40 a month—paid up front. When that plan expires, the subscriber pays another monthly payment up front or the plan is cancelled. 6 The government also obtained MetroPCS records for three other cell phone numbers used by Davis’s co-conspirators, which were registered under the alias names of “Nicole Baker,” “Shawn Jay,” and “Dope Boi Dime.” The issue before us involves only Davis’s cell phone number, the 5642 number registered to “Lil Wayne.” In this en banc appeal, Davis did not raise arguments about the other cell phone numbers.

9 Case: 12-12928 Date Filed: 05/05/2015 Page: 10 of 102

Michael Bosillo, a custodian of records from MetroPCS, identified and

testified about the business records regarding number 5642. He testified that

MetroPCS’s toll records, described above, are created and maintained in the

regular course of its business.

As to cell tower location, Bosillo explained that, when a cellular phone user

makes a call, the user’s cell phone sends a signal to a nearby cell tower, which is

typically but not always the closest tower to the phone. Two people driving

together in the same car might be using different cell towers at the same time.

Each cell phone tower has a circular coverage radius, and the “coverage pie” for

each tower is further divided into either three or six parts, called sectors.

Bosillo testified that a cell tower would generally have a coverage radius of

about one to one-and-a-half miles and that an individual cell phone user could “be

anywhere” in the specified sector of a given cell tower’s range. Bosillo also

testified that the density of cell towers in an urban area like Miami would make the

coverage of any given tower smaller, but he never said how much smaller.7

Bosillo also testified that the toll records for Davis’s cell number 5642 show

only (1) the number of the cell tower used to route Davis’s call, and (2) the sector

7 Davis and various amici argue that some cellular telephone companies have now increased their network coverage by augmenting their cell tower network with low-power small cells, or “femtocells,” which can cover areas as small as ten meters. There is no evidence, or even any allegation, that the MetroPCS network reflected in the records in this case included anything other than traditional cell towers and the facts of this case do not require, or warrant, speculation as to the newer technology.

10 Case: 12-12928 Date Filed: 05/05/2015 Page: 11 of 102

number associated with that tower. Thus, to determine the location of any cell

tower used, Bosillo identified and explained the cell tower glossary created and

kept by MetroPCS. The MetroPCS glossary listed (1) each of its cell tower

numbers, (2) the physical address, including latitude and longitude, of that cell

tower, and (3) how many sectors are within each cell tower’s range.

This MetroPCS glossary, along with its toll records, allowed the government

to determine the precise physical location of the cell towers that connected calls

made by and to Davis’s cell phone around the time of the robberies, but not the

precise location of that cell phone or of Davis.

Davis objected to the introduction of the toll records for the account

corresponding to the 5642 number, the subscriber records, and MetroPCS’s cell-

tower glossary. The district court overruled those objections.

The government also introduced into evidence maps that showed the

locations of six of the armed robberies in relation to certain cell towers. Detective

Mitch Jacobs examined the records, analyzing the records only for the days the

armed robberies occurred. Detective Jacobs had, at that time, been employed by

the Miami-Dade Police Department for 27 years and for the last ten years had

worked with cases involving cell tower location information. He had utilized cell

tower location information for his investigations of homicides, parental

kidnappings, robberies, fugitives, and various other types of crime.

11 Case: 12-12928 Date Filed: 05/05/2015 Page: 12 of 102

Detective Jacobs created the maps introduced at trial based on MetroPCS’s

records. These maps showed that, at or near the time of the armed robberies, cell

phones linked to Davis and his codefendants made and received numerous calls

routed through cell towers located in the general vicinity of the robbery locations.

Detective Jacobs testified, and the maps showed, that this was true for six of the

seven armed robberies. On the maps, Jacobs placed: (1) the location of the

robberies and (2) the location of the cell towers that routed calls from Davis and

his codefendants’ phones.8

The distance between the robbery and cell tower locations was never

quantified. The distance between the cell user and the cell tower was never

quantified, but the evidence—records and testimony—as a whole suggests Davis’s

calls occurred within an area that covers at least several city blocks. The

government argued the cell tower evidence showed Davis was near the robberies

when they occurred.

D. The Appeal

Following his convictions by the jury, Davis appealed. A panel of this Court

affirmed his convictions, but held that the government violated Davis’s rights

under the Fourth Amendment by obtaining stored telephone communications

records from MetroPCS, a third-party telephone service provider, pursuant to the

8 The maps did not show any cell tower’s coverage radius or display any cell tower’s sectors.

12 Case: 12-12928 Date Filed: 05/05/2015 Page: 13 of 102

order of the magistrate judge issued under the SCA, 18 U.S.C. § 2703(c)(1)(B),

(d). United States v. Davis, 754 F.3d 1205, 1217 (11th Cir. 2014). Nevertheless,

the panel affirmed Davis’s convictions based on the good-faith exception to the

exclusionary rule. Id. at 1217-18. This Court vacated the panel’s decision and

granted the government’s petition for rehearing en banc. United States v. Davis,

573 F. App’x 925 (11th Cir. 2014).

II. STANDARD OF REVIEW

This Court reviews de novo constitutional challenges to a federal statute.

United States v. Campbell, 743 F.3d 802, 805 (11th Cir.), cert. denied, 135 S. Ct.

704 (2014). We review the district court’s legal conclusions de novo and its

findings of fact for clear error. United States v. Jordan, 635 F.3d 1181, 1185 (11th

Cir. 2011). In the context of an appeal from the denial of a suppression motion, all

facts are construed in the light most favorable to the party prevailing below—here,

the government. United States v. Gibson, 708 F.3d 1256, 1274 (11th Cir. 2013).

III. DISCUSSION

On appeal, Davis argues the government violated his Fourth Amendment

rights by obtaining historical cell tower location information from MetroPCS’s

business records without a search warrant and a showing of probable cause. Davis

contends that the SCA, as applied here, is unconstitutional because the Act allows

the government to obtain a court order compelling MetroPCS to disclose its

13 Case: 12-12928 Date Filed: 05/05/2015 Page: 14 of 102

historical cell tower location records without a showing of probable cause. Davis

claims the Fourth Amendment precludes the government from obtaining a third-

party company’s business records showing historical cell tower location

information, even for a single day, without a search warrant issued to that third

party.

In the controversy before us, there is no GPS device, no physical trespass,

and no real-time or prospective cell tower location information. This case

narrowly involves only (1) government access to the existing and legitimate

business records already created and maintained by a third-party telephone

company and (2) historical information about which cell tower locations connected

Davis’s cell calls during the 67-day time frame spanning the seven armed

robberies. We start by reviewing the SCA, which authorized the production of

MetroPCS’s business records.

A. The Statute

Under the SCA, Congress authorized the U.S. Attorney to obtain court

orders requiring “a provider of electronic communication service . . . to disclose a

record or other information pertaining to a subscriber to . . . such service (not

including the contents of communications).” 18 U.S.C. § 2703(c). Section 2703

directs that a judge “shall issue” the order if the government “offers specific and

articulable facts showing that there are reasonable grounds to believe that the . . .

14 Case: 12-12928 Date Filed: 05/05/2015 Page: 15 of 102

records or other information sought[ ] are relevant and material to an ongoing

criminal investigation.” Id. § 2703(d) (emphasis added). While this statutory

standard is less than the probable cause standard for a search warrant, the

government is still required to obtain a court order and present to a judge specific

and articulable facts showing reasonable grounds to believe the records are

relevant and material to an ongoing criminal investigation. See id.

The SCA does not lower the bar from a warrant to a § 2703(d) order.

Rather, requiring a court order under § 2703(d) raises the bar from an ordinary

subpoena to one with additional privacy protections built in. The government

routinely issues subpoenas to third parties to produce a wide variety of business

records, such as credit card statements, bank statements, hotel bills, purchase

orders, and billing invoices.9 In enacting the SCA, Congress has required more

before the government can obtain telephone records from a third-party business.

The SCA goes above and beyond the constitutional requirements regarding

compulsory subpoena process.

A number of the SCA’s privacy-protection provisions warrant mention.

First, the SCA affords citizens protection by “interpos[ing] a ‘neutral and detached

magistrate’ between the citizen and the officer engaged in the often competitive

9 See, e.g., United States v. Willis, 759 F.2d 1486, 1498 (11th Cir. 1985) (motel registration records); United States v. Phibbs, 999 F.2d 1053, 1077 (6th Cir. 1993) (credit card statements). Those statements not only show location at the time of purchase, but also reveal intimate details of daily life, such as shopping habits, medical visits, and travel plans.

15 Case: 12-12928 Date Filed: 05/05/2015 Page: 16 of 102

enterprise of ferreting out crime.” See United States v. Karo, 468 U.S. 705, 717,

104 S. Ct. 3296, 3304 (1984) (internal quotation marks omitted). Congress made

review by a judicial officer a pre-condition for the issuance of a § 2703(d) order.

Moreover, the telephone records are made available only if a judicial officer finds

(or the government shows) a factual basis for why the records are material to an

ongoing criminal investigation.

In addition, the SCA generally prohibits telephone companies from

voluntarily disclosing such records to “a governmental entity.” Id. § 2702(a)(3),

(c)(4), (c)(6). As that prohibition underscores, a telephone company (like

MetroPCS) would, absent privacy-protecting laws (like the SCA), be free to

disclose its historical cell tower location records to governmental and non-

governmental entities alike—without any judicial supervision and without having

to satisfy the statutory standard in § 2703(d).

Further, the SCA bars “[i]mproper disclosure” of records obtained under

§ 2703(d). See id. § 2707(g). The SCA also provides remedies and penalties for

violations of the Act’s privacy-protecting provisions, including money damages

and the mandatory commencement of disciplinary proceedings against offending

federal officers. See id. §§ 2707(a), (c), (d), 2712(a), (c).

Despite the SCA’s protections, Davis claims the court’s § 2703(d) order

compelling the production of MetroPCS records violated his Fourth Amendment

16 Case: 12-12928 Date Filed: 05/05/2015 Page: 17 of 102

rights. To prevail on his Fourth Amendment claim, Davis must show both (1) that

the application of the SCA to the facts of his case involved a “search” within the

meaning of the Fourth Amendment, and (2) that such search was unreasonable.

This Davis cannot do.

B. What Constitutes a “Search”

The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. A party may establish a Fourth Amendment

search by showing that the government engaged in conduct that “would have

constituted a ‘search’ within the original meaning of the Fourth Amendment,”

United States v. Jones, 565 U.S. __, __, 132 S. Ct. 945, 950 n.3 (2012). “Search”

originally was tied to common-law trespass and involved some trespassory

intrusion on property. See, e.g., Kyllo v. United States, 533 U.S. 27, 31-32, 121 S.

Ct. 2038, 2042 (2001).

Davis makes no trespass claim, nor could he.

In 1967, the Supreme Court added a separate test—the reasonable-

expectation-of-privacy test—to analyze whether a search occurred for purposes of

the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735, 739-40, 99 S. Ct.

2577, 2579-80 (1979) (citing Katz v. United States, 389 U.S. 347, 88 S. Ct. 507

17 Case: 12-12928 Date Filed: 05/05/2015 Page: 18 of 102

(1967)). The reach of the Fourth Amendment now does not turn on the presence or

absence of a physical intrusion. Katz, 389 U.S. at 353, 88 S. Ct. at 512.

Thus, to determine whether the government’s obtaining access to

MetroPCS’s records constitutes a search within the meaning of the Fourth

Amendment, our lodestar is Katz’s reasonable-expectation-of-privacy test. Smith,

442 U.S. at 739, 99 S. Ct. at 2579-80 (citing Katz, 389 U.S. 347, 88 S. Ct. 507).

“Katz posits a two-part inquiry: first, has the individual manifested a

subjective expectation of privacy in the object of the challenged search?”

California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 1811 (1986). “Second,

is society willing to recognize that expectation as reasonable?” Id. Thus, “a party

alleging an unconstitutional search under the Fourth Amendment must establish

both a subjective and an objective expectation of privacy to succeed.” United

States v. Robinson, 62 F.3d 1325, 1328 (11th Cir. 1995).

Notably, it was the interception and recording of conversations reasonably

intended to be private that drove the new test and result in Katz. See 389 U.S. at

351-53, 88 S. Ct. at 511-12. The government recorded Katz’s conversations by

attaching an electronic listening and recording device to the outside of a public

phone booth in which Katz made calls. Id. at 348, 88 S. Ct. at 509. The

government had no warrant or court order of any sort. See id. at 354-56, 88 S. Ct.

at 512-514. The Supreme Court held that the government’s conduct in

18 Case: 12-12928 Date Filed: 05/05/2015 Page: 19 of 102

“electronically listening to and recording the petitioner’s words violated the

privacy upon which he justifiably relied while using the telephone booth,” and thus

constituted a “search and seizure” under the Fourth Amendment. Id. at 353, 88 S.

Ct. at 512. The critical fact was that one who enters a telephone booth, “shuts the

door behind him, and pays the toll that permits him to place a call” is entitled to

assume that his conversation is not being intercepted and recorded. Id. at 352, 88

S. Ct. at 511-12; id. at 361, 88 S. Ct. at 516-17 (Harlan, J., concurring).

C. Third Party’s Business Records

In subsequently applying Katz’s test, the Supreme Court held—in both

United States v. Miller and Smith v. Maryland—that individuals have no

reasonable expectation of privacy in certain business records owned and

maintained by a third-party business.

In United States v. Miller, during an investigation into tax fraud, federal

agents presented subpoenas to the presidents of two banks, seeking to obtain from

those banks all of Miller’s bank account records. 425 U.S. 435, 437-38, 96 S. Ct.

1619, 1621 (1976). The issue was whether the defendant Miller had a “legitimate

expectation of privacy” in the documents’ contents. See id. at 440-43, 96 S. Ct. at

1622-24. The Supreme Court held that Miller had no protectable Fourth

Amendment interest in the account records because the documents were: (1)

business records of transactions to which the banks were parties and (2) Miller

19 Case: 12-12928 Date Filed: 05/05/2015 Page: 20 of 102

voluntarily conveyed the information to the banks. Id. Miller had “neither

ownership nor possession” over the papers and the records. Id. at 437, 440, 96 S.

Ct. at 1621, 1623. Rather, the papers were “the business records of the banks.” Id.

at 440-41, 96 S. Ct. at 1623. All of the bank records contained information

“voluntarily conveyed to the banks and exposed to their employees in the ordinary

course of business.” Id. at 442, 96 S. Ct. at 1624. The Supreme Court noted “that

the Fourth Amendment does not prohibit the obtaining of information revealed to a

third party and conveyed by him to Government authorities, even if the

information is revealed on the assumption that it will be used only for a limited

purpose and the confidence placed in the third party will not be betrayed.” Id. at

443, 96 S. Ct. at 1624; see also In re Grand Jury Proceeding, 842 F.2d 1229, 1234

(11th Cir. 1988) (“[A]n individual has no claim under the fourth amendment to

resist the production of business records held by a third party.”).

Then, in Smith v. Maryland, the Supreme Court held that telephone users

have no reasonable expectations of privacy in dialed telephone numbers recorded

through pen registers and contained in the third-party telephone company’s

records. 442 U.S. at 742-46, 99 S. Ct. at 2581-83. The Supreme Court determined

that Smith had no subjective or objective expectation of privacy in the numbers he

dialed on the telephone and thus the installation of the pen register, by the

20 Case: 12-12928 Date Filed: 05/05/2015 Page: 21 of 102

telephone company at the government’s request, did not constitute a search under

the Fourth Amendment. Id.

As to the subjective expectation of privacy, the Supreme Court in Smith

doubted that “people in general entertain any actual expectation of privacy in the

numbers they dial” because “[a]ll telephone users realize that they must ‘convey’

phone numbers to the telephone company, since it is through telephone company

switching equipment that their calls are completed.” Id. at 742, 99 S. Ct. at 2581.

The Supreme Court stated that “[t]elephone users, in sum, typically know that they

must convey numerical information to the phone company; that the phone

company has facilities for recording this information; and that the phone company

does in fact record this information for a variety of legitimate business purposes.”

Id. at 743, 99 S. Ct. at 2581. “Although subjective expectations cannot be

scientifically gauged, it is too much to believe that telephone subscribers, under

these circumstances, harbor any general expectation that the numbers they dial will

remain secret.” Id. The Supreme Court stressed that “a pen register differs

significantly from the listening device employed in Katz, for pen registers do not

acquire the contents of communications.” Id. at 741, 99 S. Ct. at 2581.

More telling in Smith though for this case is the location information

revealed through the telephone records. Smith argued that, “whatever the

expectations of telephone users in general, he demonstrated an expectation of

21 Case: 12-12928 Date Filed: 05/05/2015 Page: 22 of 102

privacy by his own conduct here, since he us[ed] the telephone in his house to the

exclusion of all others.” Id. at 743, 99 S. Ct. at 2582 (internal quotation marks

omitted). The Supreme Court expressly rejected Smith’s argument that he

demonstrated an expectation of privacy in his own conduct here by using the

telephone only in his house. The Supreme Court found that “[a]lthough [Smith’s]

conduct may have been calculated to keep the contents of his conversation private,

his conduct was not and could not have been calculated to preserve the privacy of

the number he dialed.” Id. The Supreme Court reasoned: “[r]egardless of his

location, [Smith] had to convey that number to the telephone company in precisely

the same way if he wished to complete his call. The fact that he dialed the number

on his home phone rather than on some other phone could make no conceivable

difference, nor could any subscriber rationally think that it would.” Id.

As to the objective expectation of privacy, the Supreme Court determined

that, “even if [Smith] did harbor some subjective expectation that the phone

numbers he dialed would remain private, this expectation is not ‘one that society is

prepared to recognize as reasonable.’” Id. (quoting Katz, 389 U.S. at 361, 88 S. Ct.

at 516) (internal quotation marks omitted). The Supreme Court “consistently has

held that a person has no legitimate expectation of privacy in information he

voluntarily turns over to third parties.” Id. at 743-44, 99 S. Ct. at 2582. The

Supreme Court found that, “[w]hen he used his phone, [Smith] voluntarily

22 Case: 12-12928 Date Filed: 05/05/2015 Page: 23 of 102

conveyed numerical information to the telephone company.” Id. at 744, 99 S. Ct.

at 2582. The Supreme Court explained: “[t]he switching equipment that processed

those numbers is merely the modern counterpart of the operator who, in an earlier

day, personally completed calls for the subscriber.” Id.

In Smith, the Supreme Court decided that “a different constitutional result is

[not] required because the telephone company has decided to automate.” Id. at

744-45, 99 S. Ct. at 2582. “The fortuity of whether or not the phone company in

fact elects to make a quasi-permanent record of a particular number dialed does not

in our view, make any constitutional difference.” Id. at 745, 99 S. Ct. at 2583.

The Supreme Court concluded: “[Smith] in all probability entertained no actual

expectation of privacy in the phone numbers he dialed, and . . . even if he did, his

expectation was not ‘legitimate.’” Id.

D. Fifth Circuit Decision

Before turning to Davis’s case, we review the Fifth Circuit’s recent decision

holding that a court order under § 2703(d) compelling production of business

records—showing this same cell tower location information—does not violate the

Fourth Amendment and no search warrant is required. In re Application of the

United States for Historical Cell Site Data (“In re Application (Fifth Circuit)”), 724

23 Case: 12-12928 Date Filed: 05/05/2015 Page: 24 of 102

F.3d 600, 611-15 (5th Cir. 2013).10 At the outset, the Fifth Circuit stressed who

had collected the cell tower information. See id. at 609-10. The telephone

company, not the government, collected the cell tower location information in the

first instance and for a variety of legitimate business purposes. Id. at 611-12. The

Fifth Circuit emphasized:

The Government does not require service providers to record this information or store it. The providers control what they record and how long these records are retained . . . . In the case of such historical cell site information, the Government merely comes in after the fact and asks a provider to turn over records the provider has already created.

Id. at 612.

The Fifth Circuit reasoned these are the telephone company’s “own records

of transactions to which it is a party.” Id. The telephone company created the

record to memorialize its business transactions with the customer. Id. at 611-12.

The Fifth Circuit was careful to define business records as records of transactions

10 The dissent mistakenly argues that we are faced with “persuasive . . . authority on both sides of the debate . . . .” Dissenting Op. at 79 n.2. To purportedly illustrate this, the dissent cites a Third Circuit decision, but that decision did not hold, as the dissent would, that a search warrant is required to obtain historical cell tower location data. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t (“In re Application (Third Circuit)”), 620 F.3d 304 (3d Cir. 2010). Rather, after the lower courts denied the government’s § 2703(d) application for historical cell tower data, the government appealed and the Third Circuit actually vacated that denial. Id. at 319. The Third Circuit concluded that the SCA itself gave the magistrate judge the discretionary option to require a warrant showing probable cause and that the discretionary warrant option should “be used sparingly because Congress also included the option of a § 2703(d) order.” Id. The dissent also cites a Florida Supreme Court decision, but that case involved real-time data and did not involve a § 2703(d) order. Tracey v. State, 152 So. 3d 504, 507-08 (Fla. 2014).

24 Case: 12-12928 Date Filed: 05/05/2015 Page: 25 of 102

to which the record-keeper business is a party. See id. It also pointed out that

these business records contained no content of communications, such as the

content of phone calls, letters, or emails. Id.

After discussing the nature of the business records, the Fifth Circuit, relying

on Smith, explained why the cell user had no subjective expectation of privacy in

such business records showing cell tower locations. The court reasoned: (1) the

cell user has knowledge that his cell phone must send a signal to a nearby cell

tower in order to wirelessly connect his call; (2) the signal only happens when a

user makes or receives a call; (3) the cell user has knowledge that when he places

or receives calls, he is transmitting signals through his cell phone to the nearest cell

tower and thus to his service provider; (4) the cell user thus is aware that he is

conveying cell tower location information to the service provider and voluntarily

does so when he uses his cell phone for calls. Id. at 613-14.

The Fifth Circuit concluded that “[c]ell phone users, therefore, understand

that their service providers record their location information when they use their

phones at least to the same extent that the landline users in Smith understood that

the phone company recorded the numbers they dialed.” Id. at 613.11 Just as the

11 In the Fifth Circuit case, the court stated that the “contractual terms of service and providers’ privacy policies expressly state[d] that a provider uses a subscriber’s location information to route his cell phone calls” and, moreover, “that the providers not only use the information, but collect it.” In re Application (Fifth Circuit), 724 F.3d at 613. The government stresses that MetroPCS’s privacy policy, accessible from the company website, plainly states that cell tower location data may be recorded, stored, and even shared with law enforcement.

25 Case: 12-12928 Date Filed: 05/05/2015 Page: 26 of 102

petitioner in Smith knew that when he dialed telephones, he was conveying and

exposing those numbers to electronic equipment, cell phone users have knowledge

they are conveying signals and exposing their locations to the nearest cell tower.

Id. at 612-14.

The Fifth Circuit agreed “that technological changes can alter societal

expectations of privacy,” but reasoned, “[a]t the same time, ‘[l]aw enforcement

tactics must be allowed to advance with technological changes, in order to prevent

criminals from circumventing the justice system.’” Id. at 614 (quoting United

States v. Skinner, 690 F.3d 772, 778 (6th Cir. 2012)). The Fifth Circuit concluded

that “[a] legislative body is well situated to gauge changing public attitudes, to

draw detailed lines, and to balance privacy and public safety in a comprehensive

way.” Id. (quoting Jones, 565 U.S. at __, 132 S. Ct. at 964 (Alito, J., concurring)).

In the end, the Fifth Circuit determined: (1) “Congress has crafted such a

legislative solution in the SCA,” and (2) the SCA “conforms to existing Supreme

Court Fourth Amendment precedent.” Id. The Fifth Circuit “decline[d] to create a

new rule to hold that Congress’s balancing of privacy and safety is

unconstitutional.” Id. at 615.

E. Davis’s Case

Although Davis would have signed a contract when beginning service with MetroPCS, that contract does not appear on this record to have been entered into evidence here. Thus we cannot consider it, or MetroPCS’s privacy policy, in this particular case.

26 Case: 12-12928 Date Filed: 05/05/2015 Page: 27 of 102

Based on the SCA and governing Supreme Court precedent, we too

conclude the government’s obtaining a § 2703(d) court order for the production of

MetroPCS’s business records did not violate the Fourth Amendment.

For starters, like the bank customer in Miller and the phone customer in

Smith, Davis can assert neither ownership nor possession of the third-party’s

business records he sought to suppress. Instead, those cell tower records were

created by MetroPCS, stored on its own premises, and subject to its control. Cell

tower location records do not contain private communications of the subscriber.

This type of non-content evidence, lawfully created by a third-party telephone

company for legitimate business purposes, does not belong to Davis, even if it

concerns him. Like the security camera surveillance images introduced into

evidence at his trial, MetroPCS’s cell tower records were not Davis’s to withhold.

Those surveillance camera images show Davis’s location at the precise location of

the robbery, which is far more than MetroPCS’s cell tower location records show.

More importantly, like the bank customer in Miller and the phone customer

in Smith, Davis has no subjective or objective reasonable expectation of privacy in

MetroPCS’s business records showing the cell tower locations that wirelessly

connected his calls at or near the time of six of the seven robberies.

As to the subjective expectation of privacy, we agree with the Fifth Circuit

that cell users know that they must transmit signals to cell towers within range, that

27 Case: 12-12928 Date Filed: 05/05/2015 Page: 28 of 102

the cell tower functions as the equipment that connects the calls, that users when

making or receiving calls are necessarily conveying or exposing to their service

provider their general location within that cell tower’s range, and that cell phone

companies make records of cell-tower usage. See In re Application (Fifth Circuit),

724 F.3d at 613-14. Users are aware that cell phones do not work when they are

outside the range of the provider company’s cell tower network. Id. at 613.

Indeed, the fact that Davis registered his cell phone under a fictitious alias tends to

demonstrate his understanding that such cell tower location information is

collected by MetroPCS and may be used to incriminate him.

Even if Davis had a subjective expectation of privacy, his expectation of

privacy, viewed objectively, is not justifiable or reasonable under the particular

circumstances of this case. The unreasonableness in society’s eyes dooms Davis’s

position under Katz. In Smith, the Supreme Court presumed that phone users

knew of uncontroverted and publicly available facts about technologies and

practices that the phone company used to connect calls, document charges, and

assist in legitimate law-enforcement investigations. See 442 U.S. at 742-43, 99 S.

Ct. at 2581. Cell towers and related records are used for all three of those

purposes. We find no reason to conclude that cell phone users lack facts about the

functions of cell towers or about telephone providers’ recording cell tower usage.

28 Case: 12-12928 Date Filed: 05/05/2015 Page: 29 of 102

Smith’s methodology should not be set aside just because cell tower records

may also be used to decipher the approximate location of the user at the time of the

call. Indeed, the toll records for the stationary telephones at issue in Smith

included location data far more precise than the historical cell site location records

here, because the phone lines at issue in Smith corresponded to stationary landlines

at known physical addresses. At the time of Smith, telephone records necessarily

showed exactly where the user was—his home—at the time of the call, as the

user’s telephone number was tied to a precise address. And the number dialed was

also tied to a precise address, revealing if the user called a friend, a business, a

hotel, a doctor, or a gambling parlor.

In certain respects, Davis has an even less viable claim than the defendant in

Miller. For example, the Supreme Court in Miller held that a customer did not

have a reasonable expectation of privacy in records made and kept by his bank

even where the bank was required by law to maintain those records. See Miller,

425 U.S. at 436, 440-41, 96 S. Ct. at 1621, 1623. Here, federal law did not require

that MetroPCS either create or retain these business records.

Admittedly, the landscape of technology has changed in the years since

these binding decisions in Miller and Smith were issued. But their holdings did not

turn on assumptions about the absence of technological change. To the contrary,

the dispute in Smith, for example, arose in large degree due to the technological

29 Case: 12-12928 Date Filed: 05/05/2015 Page: 30 of 102

advance from call connections by telephone operators to electronic switching,

which enabled the electronic data collection of telephone numbers dialed from

within a home. See 442 U.S. at 744-45, 99 S. Ct. at 2582-83. The advent of

mobile phones introduced calls wirelessly connected through identified cell towers.

This cell tower method of call connecting does not require “a different

constitutional result” just “because the telephone company has decided to

automate” wirelessly and to collect the location of the company’s own cell tower

that connected the calls. See id. at 744-45, 99 S. Ct. at 2582. Further, MetroPCS’s

cell tower location information was not continuous; it was generated only when

Davis was making or receiving calls on his phone. The longstanding third-party

doctrine plainly controls the disposition of this case.12

The use of cell phones is ubiquitous now and some citizens may want to stop

telephone companies from compiling cell tower location data or from producing it

to the government. Davis and amici advance thoughtful arguments for changing

the underlying and prevailing law; but these proposals should be directed to

Congress and the state legislatures rather than to the federal courts. As aptly stated

12 To avoid the third-party doctrine, the dissent claims that “[t]he extent of voluntariness of disclosure by a user is simply lower for cell site location data.” Dissenting Op. at 80. Not so. Cell phone users voluntarily convey cell tower location information to telephone companies in the course of making and receiving calls on their cell phones. Just as in Smith, users could not complete their calls without necessarily exposing this information to the equipment of third-party service providers. The government, therefore, did not search Davis when it acquired historical cell tower location information from MetroPCS. In order to reach its result, the dissent effectively would cast aside longstanding and binding Supreme Court precedents in favor of its own view of the Fourth Amendment.

30 Case: 12-12928 Date Filed: 05/05/2015 Page: 31 of 102

by the Fifth Circuit, “the recourse for these desires is in the market or the political

process; in demanding that service providers do away with such records (or

anonymize them) or in lobbying elected representatives to enact statutory

protections.” In re Application (Fifth Circuit), 724 F.3d at 615; See also In re

Application (Third Circuit), 620 F.3d at 319 (“The considerations for and against

[§ 2703(d) orders not requiring a warrant] would be for Congress to balance. A

court is not the appropriate forum for such balancing, and we decline to take a step

as to which Congress is silent.”).

Following controlling Supreme Court precedent most relevant to this case,

we hold that the government’s obtaining a § 2703(d) court order for production of

MetroPCS’s business records at issue did not constitute a search and did not violate

the Fourth Amendment rights of Davis. 13

F. United States v. Jones

Instead of focusing on the SCA and Smith, Davis relies on United States v.

Jones, 565 U.S. __, 132 S. Ct. 945 (2012), where the government surreptitiously

13 Rather than legal analysis, the dissent consists mainly of myriad hypothetical fact patterns and a tabloid-type parade of horribles. As the dissenting author well knows, our “decision can hold nothing beyond the facts of [this] case.” Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (citing Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir. 2003) (“Whatever their opinions say, judicial decisions cannot make law beyond the facts of the cases in which those decisions are announced.”); United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (“The holdings of a prior decision can reach only as far as the facts and circumstances presented to the Court in the case which produced that decision.” (quotation marks omitted))).

31 Case: 12-12928 Date Filed: 05/05/2015 Page: 32 of 102

attached a GPS device to a private vehicle and used its own device to track the

vehicle’s movements over a four-week period. Id. at __, 132 S. Ct. at 948. In

Jones, the Supreme Court held that the government’s physical intrusion on the

defendant’s private property14 was a “search” and violated the Fourth Amendment.

Id. at __, 132 S. Ct. at 949. Significantly, the government-initiated physical

trespass in Jones led to constant and real-time GPS tracking of the precise location

of the defendant’s vehicle. Id. at __, 132 S. Ct. at 948. 15 “The Government

physically occupied private property for the purpose of obtaining information.” Id.

at __, 132 S. Ct. at 949. The Supreme Court had “no doubt that such a physical

intrusion would have been considered a ‘search’ within the meaning of the Fourth

Amendment when it was adopted.” Id.

The majority opinion in Jones acknowledged that “later cases, of course,

have deviated from [an] exclusively property-based approach” and have adopted

an alternative “reasonable expectation of privacy” standard. Id. at __, 132 S. Ct. at

950 (citing Katz, 389 U.S. at 351, 360, 88 S. Ct. at 511, 516 (majority opinion and

opinion of Harlan, J., concurring)). But the result in Jones required nothing other

14 The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. “It is beyond dispute that a vehicle is an ‘effect’ as that term is used in the Amendment.” Jones, 565 U.S. at __, 132 S. Ct. at 949. 15 The Supreme Court explained: “By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4– week period.” Jones, 565 U.S. at __, 132 S. Ct. at 948.

32 Case: 12-12928 Date Filed: 05/05/2015 Page: 33 of 102

than the property-based approach. Though the government argued Jones had no

“reasonable expectation of privacy,” the Supreme Court majority determined it

“need not address the Government’s contentions, because Jones’s Fourth

Amendment rights d[id] not rise or fall with the Katz formulation.” Id.

Explaining the distinction, the majority opinion stressed that “the Katz

reasonable-expectation-of-privacy test has been added to, not substituted for, the

common-law trespassory test.” Id. at __, 132 S. Ct. at 952. But the majority

holding in Jones turned on the physical intrusion of the government placing a GPS

device on a private vehicle. Id. at __, 132 S. Ct. at 949.

That is not this case. The government’s obtaining MetroPCS records,

showing historical cell tower locations, did not involve a physical intrusion on

private property or a search at all. The records belonged to a private company, not

Davis. The records were obtained through a court order authorized by a federal

statute, not by means of governmental trespass. MetroPCS, not the government,

built and controlled the electronic mechanism (the cell towers) and collected its

cell tower data for legitimate business purposes. Jones is wholly inapplicable to

this case.

Davis and the dissent attempt to deploy the concurrences in Jones to argue

that historical cell tower location data is the equivalent of GPS and constitutes the

sort of precise, long-term monitoring requiring the government to show probable

33 Case: 12-12928 Date Filed: 05/05/2015 Page: 34 of 102

cause. This attempt misreads the concurrences. We review the concurrences in

detail because they leave the third-party doctrine untouched and do not help

Davis’s case. If anything, the concurrences underscore why this Court remains

bound by Smith and Miller.

Justice Sotomayor concurred in the majority opinion, but was concerned

because the government’s GPS monitoring had “generate[d] a precise,

comprehensive record of a person’s public movements” and gave the government

“unrestrained power to assemble data.” Id. at __, 132 S. Ct. at 955-56. She found

the “[r]esolution of [that] difficult question[]” was “unnecessary . . . because the

Government’s physical intrusion on Jones’ Jeep supplie[d] a narrower basis for

decision.” Id. at __, 132 S. Ct. at 957 (emphasis added). In joining the majority’s

opinion, she provided the fifth vote for the physical trespass holding. Id.

Justice Sotomayor did state: “it may be necessary to reconsider the premise

that an individual has no reasonable expectation of privacy in information

voluntarily disclosed to third parties.” Id. (citing Smith, 442 U.S. at 742, 99 S. Ct.

at 2581; Miller, 425 U.S. at 443, 96 S. Ct. at 1624). But she quickly added and

countered her own suggestion, stating: “[p]erhaps, as Justice ALITO notes, some

people may find the ‘tradeoff’ of privacy for convenience ‘worthwhile,’ or come to

accept this ‘diminution of privacy’ as ‘inevitable,’ post, at 962, and perhaps not.”

34 Case: 12-12928 Date Filed: 05/05/2015 Page: 35 of 102

Id. Justice Sotomayor, writing alone, raised a question, but did not even purport to

answer it.

Justice Alito’s concurrence further underscores why this Court is bound by

Supreme Court precedent in Smith and Miller. Justice Alito concurred in the

judgment and explained why the government-initiated, and government-controlled,

real-time constant GPS monitoring violated the Fourth Amendment. Id. at __, 132

S. Ct. at 957-64. Only the government did the tracking and its tracking was not

authorized or regulated by a federal statute. See id. at __, 132 S. Ct. at 956

(Sotomayor, J., concurring); id. at __, 132 S. Ct. at 964 (Alito, J., concurring in the

judgment). Justice Alito’s focus is on unrestrained government power.

The context of his concurrence is critical. Nothing Justice Alito says

contravenes the third-party doctrine. His concurring opinion does not question, or

even cite, Smith, Miller, or the third-party doctrine in any way. The opinion never

uses the words “third party” or “third-party doctrine.” It would be a profound

change in jurisprudence to say Justice Alito was questioning, much less casting

aside, the third-party doctrine without even mentioning the doctrine.

Further, Justice Alito’s concurrence speaks only at a high level of

abstraction about the government’s placement and control of an electronic GPS

mechanism on a private vehicle that did the precise, real-time, and long-term

monitoring. See id. at __, 132 S. Ct. at 962-64. In stark contrast, the mechanism

35 Case: 12-12928 Date Filed: 05/05/2015 Page: 36 of 102

in Davis’s case is MetroPCS’s own electronic mechanism—the cell tower.

MetroPCS created and assembled the electronic data. The government obtained

access only through judicial supervision and a court order. Nothing in Justice

Alito’s concurrence in any way undermines the third-party doctrine. If anything,

Justice Alito’s concurrence, joined by three others, suggests that a legislative

solution is needed. Id. at __, 132 S. Ct. at 964 (“In circumstances involving

dramatic technological change, the best solution to privacy concerns may be

legislative. A legislative body is well situated to gauge changing public attitudes,

to draw detailed lines, and to balance privacy and public safety in a comprehensive

way.” (citation omitted)). At present, the SCA is that solution.

Not only are Davis and the dissent ignoring controlling law, but even the

internal logic of their arguments fails.16

First, historical cell tower location data is materially distinguishable from the

precise, real-time GPS tracking in Jones, even setting aside the controlling third-

party doctrine discussed above. Historical cell tower location data does not

identify the cell phone user’s location with pinpoint precision—it identifies the cell

tower that routed the user’s call. The range of a given cell tower will vary given

16 The dissent remarks that we “ignore[ ] the opinion of five Justices of the Supreme Court at [our] own risk.” Dissenting Op. at 91, n.7. Quite the contrary, the majority opinion has faithfully recounted the two concurring opinions in Jones in the factual context of the case actually decided by the Supreme Court. Furthermore, because Jones involved a government trespass and not the third-party doctrine, eight of the nine Justices did not write or join one word about the “third-party doctrine,” much less criticize it. It is the dissent that ignores, and fails to follow, binding Supreme Court precedent.

36 Case: 12-12928 Date Filed: 05/05/2015 Page: 37 of 102

the strength of its signal and the number of other towers in the area used by the

same provider. While the location of a user may be further defined by the sector of

a given cell tower which relays the cell user’s signal, the user may be anywhere in

that sector. This evidence still does not pinpoint the user’s location. Historical cell

site location data does not paint the “intimate portrait of personal, social, religious,

medical, and other activities and interactions” that Davis claims.

Second, reasonable expectations of privacy under the Fourth Amendment do

not turn on the quantity of non-content information MetroPCS collected in its

historical cell tower location records. The § 2703(d) order covered 67 days of

MetroPCS records. In his brief before this en banc Court, Davis argued that the

length of the records covered by the order made the production an unconstitutional

“search.” But at oral argument Davis’s counsel firmly contended that even one

day of historical cell tower location information would require a search warrant

supported by probable cause. Counsel’s response at oral argument is faithful to

Davis’s broader claim, but misapprehends the governing law. Because Davis has

no reasonable expectation of privacy in the type of non-content data collected in

MetroPCS’s historical cell tower records, neither one day nor 67 days of such

records, produced by court order, violate the Fourth Amendment. 17

17 The SCA necessarily limits the time span of telephone records for which the government may secure a court order, as the government must show that such records are “relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).

37 Case: 12-12928 Date Filed: 05/05/2015 Page: 38 of 102

As an extension of the argument above, Davis and various amici argue that

cell tower data potentially implicating the home is due particular Fourth

Amendment protection. In addition to noting the Supreme Court’s clear rejection

of this argument as it concerned toll records in Smith, we find it useful to recount

the manner in which the evidence about Davis’s home tower arose in this case.

On cross-examination by Davis’s trial counsel, Detective Jacobs was asked

whether a person’s calls made from his or her home may be connected through a

single cell tower—the “home tower.” Detective Jacobs responded that they may

be. Defense counsel followed up, asking whether, “[o]n the other hand . . . you

might see more than one tower” even though the person remains in his or her

house? Again, Detective Jacobs responded yes. At that time, defense counsel was

arguing the imprecision of the data collected. Like two riders in the same car, a

user’s calls from his home may be connected by different towers if more than one

tower is located in range of the home. The government only discussed Davis’s

home tower after it was introduced by the defense, and only did so to illustrate that

none of the robberies were committed in the vicinity of the home tower.

MetroPCS produced 67 days of historical cell site location information for

Davis’s cellular phone. Davis, a prolific cell phone user, made approximately 86

calls a day. 18 Without question, the number of calls made by Davis over the course

18 This number comes from an analysis of Davis’s cell phone usage by the American Civil

38 Case: 12-12928 Date Filed: 05/05/2015 Page: 39 of 102

of 67 days could, when closely analyzed, reveal certain patterns with regard to his

physical location in the general vicinity of his home, work, and indeed the robbery

locations. But no record evidence here indicates that the cell tower data contained

within these business records produces precise locations or anything close to the

“intimate portrait” of Davis’s life that he now argues. 19 The judicial system does

not engage in monitoring or a search when it compels the production of preexisting

documents from a witness.

G. Reasonableness

Even if this Court were to hold that obtaining MetroPCS’s historical cell

tower locations for a user’s calls was a search and the Fourth Amendment applies,

that would begin, rather than end, our analysis. Maryland v. King, 569 U.S. __,

__, 133 S. Ct. 1958, 1969 (2013). The Fourth Amendment prohibits unreasonable

searches, not warrantless searches. As the text of the Fourth Amendment indicates,

the ultimate measure of the constitutionality of a governmental search is

Liberties Union in its capacity as amicus curiae in this case. While all 67 days of toll records were placed in evidence against Davis, the government witnesses analyzed Davis’s cell phone usage only for the seven days on which the armed robberies occurred. 19 Davis now also argues that the Supreme Court’s recent decision in Riley v. California, 573 U.S. __, 134 S. Ct. 2473 (2014), where law enforcement officers seized the cell phones of arrestees and then searched the contents of the phones without obtaining warrants, supports his claim of an unconstitutional search. Riley held that this warrantless search of the contents of a cell phone obtained incident to an arrest violated the Fourth Amendment. Id. at __, 134 S. Ct. at 2485. But the Supreme Court in Riley made a special point of stressing that the facts before it “do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.” Id. at __, 134 S. Ct. at 2489 n.1. It is not helpful to lump together doctrinally unrelated cases that happen to involve similar modern technology.

39 Case: 12-12928 Date Filed: 05/05/2015 Page: 40 of 102

“reasonableness.” Fernandez v. California, 571 U.S. __, __, 134 S. Ct. 1126, 1132

(2014). “[A] warrant is not required to establish the reasonableness of all

government searches; and when a warrant is not required (and the Warrant Clause

therefore not applicable), probable cause is not invariably required either.”

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S. Ct. 2386, 2390-91

(1995).

Simply put, the reasonableness of a search or seizure is evaluated “under

traditional standards of reasonableness by assessing, on the one hand, the degree to

which it intrudes upon an individual’s privacy and, on the other, the degree to

which it is needed for the promotion of legitimate governmental interests.”

Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 1300 (1999). In

addition, “there is a strong presumption of constitutionality due to an Act of

Congress, especially when it turns on what is ‘reasonable’” within the meaning of

the Fourth Amendment. United States v. Watson, 423 U.S. 411, 416, 96 S. Ct.

820, 824 (1976) (internal quotation marks omitted).

This traditional Fourth Amendment analysis supports the reasonableness of

the § 2703(d) order in this particular case. As outlined above, Davis had no

reasonable expectation of privacy in business records made, kept, and owned by

MetroPCS. At most, Davis would be able to assert only a diminished expectation

of privacy in MetroPCS’s records. See King, 569 U.S. at __, 133 S. Ct. at 1969

40 Case: 12-12928 Date Filed: 05/05/2015 Page: 41 of 102

(identifying “diminished expectations of privacy” as one of the factors that “may

render a warrantless search or seizure reasonable” (quotation marks omitted)).

Further, any intrusion on Davis’s alleged privacy expectation, arising out of

MetroPCS’s production of its own records pursuant to a § 2703(d) order, was

minimal for several reasons. First, there was no overhearing or recording of any

conversations. Second, there is no GPS real-time tracking of precise movements

of a person or vehicle. Even in an urban area, MetroPCS’s records do not show,

and the examiner cannot pinpoint, the location of the cell user. Ironically, Davis

was using old technology and not the new technology of a smartphone equipped

with a GPS real-time, precise tracking device itself.

Third, a § 2703(d) court order functions as a judicial subpoena, but one

which incorporates additional privacy protections that keep any intrusion minimal.

The SCA guards against the improper acquisition or use of any personal

information theoretically discoverable from such records. See King, 569 U.S. at

__, 133 S. Ct. at 1979-80. Under § 2703(d), investigative authorities may not

request such customer-related records merely to satisfy prurient or otherwise

insubstantial governmental interests. Instead, a neutral and detached magistrate

must find, based on “specific and articulable facts,” that there are “reasonable

grounds to believe” that the requested records are “relevant and material to an

ongoing criminal investigation.” Such protections are sufficient to satisfy “the

41 Case: 12-12928 Date Filed: 05/05/2015 Page: 42 of 102

primary purpose of the Fourth Amendment,” which is “to prevent arbitrary

invasions of privacy.” Brock v. Emerson Elec. Co., Elec. & Space Div., 834 F.2d

994, 996 (11th Cir. 1987); see, e.g., Terry v. Ohio, 392 U.S. 1, 21 n.18, 88 S. Ct.

1868, 1880 n.18 (1968) (explaining that the “demand for specificity in the

information upon which police action is predicated is the central teaching of this

Court’s Fourth Amendment jurisprudence”).

The stored telephone records produced in this case, and in many other

criminal cases, serve compelling governmental interests. Historical cell tower

location records are routinely used to investigate the full gamut of state and federal

crimes, including child abductions, bombings, kidnappings, murders, robberies,

sex offenses, and terrorism-related offenses. See, e.g., United States v. Troya, 733

F.3d 1125, 1136 (11th Cir. 2013) (“quadruple homicide” involving the “gangland-

style murder of two children”); United States v. Mondestin, 535 F. App’x 819, 821

(11th Cir. 2013) (unpublished) (per curiam) (armed robbery); United States v.

Sanders, 708 F.3d 976, 982-83 (7th Cir. 2013) (kidnapping). Such evidence is

particularly valuable during the early stages of an investigation, when the police

lack probable cause and are confronted with multiple suspects. In such cases,

§ 2703(d) orders—like other forms of compulsory process not subject to the search

warrant procedure—help to build probable cause against the guilty, deflect

42 Case: 12-12928 Date Filed: 05/05/2015 Page: 43 of 102

suspicion from the innocent, aid in the search for truth, and judiciously allocate

scarce investigative resources.

The societal interest in promptly apprehending criminals and preventing

them from committing future offenses is “compelling.” See United States v.

Salerno, 481 U.S. 739, 750-51, 107 S. Ct. 2095, 2103 (1987). But so too is the

societal interest in vindicating the rights of innocent suspects. See King, 569 U.S.

at __, 133 S. Ct. at 1974. Both interests are heavily implicated when the

government seeks to compel the production of evidence “relevant and material to

an ongoing criminal investigation.” 18 U.S.C. § 2703(d). Cell tower location

records have the capacity to tell the police investigators that an individual suspect

was in the general vicinity of the crime scene or far away in another city or state.

In sum, a traditional balancing of interests amply supports the

reasonableness of the § 2703(d) order at issue here. Davis had at most a

diminished expectation of privacy in business records made, kept, and owned by

MetroPCS; the production of those records did not entail a serious invasion of any

such privacy interest, particularly in light of the privacy-protecting provisions of

the SCA; the disclosure of such records pursuant to a court order authorized by

Congress served substantial governmental interests; and, given the strong

presumption of constitutionality applicable here, any residual doubts concerning

the reasonableness of any arguable “search” should be resolved in favor of the

43 Case: 12-12928 Date Filed: 05/05/2015 Page: 44 of 102

government. Hence, the § 2703(d) order permitting government access to

MetroPCS’s records comports with applicable Fourth Amendment principles and is

not constitutionally unreasonable. 20

IV. CONCLUSION

For the reasons set forth above, we affirm the judgment of conviction and

vacate only that portion of the sentence attributable to the enhancement for

brandishing.21

20 In the alternative, we hold that the prosecutors and officers here acted in good faith and therefore, under the well-established Leon exception, the district court’s denial of the motion to suppress did not constitute reversible error. See United States v. Leon, 468 U.S. 897, 919-21, 104 S. Ct. 3405, 3418-19 (1984). 21 Because there are multiple opinions, it may be helpful to summarize the final count. Nine members of the en banc court agree there was no Fourth Amendment violation in this case. Seven members of the court join the majority opinion. Two members of the court, Judges Wilson and Jordan, join the majority opinion as to its reasonableness holding.

44 Case: 12-12928 Date Filed: 05/05/2015 Page: 45 of 102

WILLIAM PRYOR, Circuit Judge, concurring:

I join the majority opinion in full, but I write separately to explain that a

court order compelling a telephone company to disclose cell tower location

information would not violate a cell phone user’s rights under the Fourth

Amendment even in the absence of the protections afforded by the Stored

Communications Act, 18 U.S.C. §§ 2701–2712, and as judges of an inferior court,

we must leave to the Supreme Court the task of developing exceptions to the rules

it has required us to apply.

It is well-established that “the application of the Fourth Amendment depends

on whether the person invoking its protection can claim a ‘justifiable,’ a

‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by

government action.” Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580

(1979) (citations omitted). And the Supreme Court has made clear that “a person

has no legitimate expectation of privacy in information he voluntarily turns over to

third parties.” Id. at 743–44, 99 S. Ct. at 2582. There is no doubt that Davis

voluntarily disclosed his location to a third party by using a cell phone to place or

receive calls. For that reason, this appeal is easy.

Smith controls this appeal. In Smith, the Supreme Court held that, because

telephone users voluntarily convey the phone numbers they dial to their telephone

companies, the installation of a pen register at police request to record those

45 Case: 12-12928 Date Filed: 05/05/2015 Page: 46 of 102

numbers did not constitute a “search” under the Fourth Amendment. Id. at 742–46,

99 S. Ct. at 2581–83. But just as telephone users voluntarily convey the phone

numbers they dial to a telephone company’s switching equipment, cell phone users

too voluntarily convey their approximate location to a carrier’s cell towers.

To the extent that Smith is distinguishable from this appeal, Smith presents a

closer question, because in this appeal the government did not request that

MetroPCS maintain records of its customers’ cell phone calls. MetroPCS decided

what business records to maintain, and the government sought the records of

Davis’s calls after the fact. And those records contained location information that

Davis voluntarily conveyed to MetroPCS by placing calls that were routed through

nearby cell towers, which are a familiar part of our landscape.

That Davis had no legitimate expectation of privacy in the information he

conveyed to MetroPCS follows from a straightforward application of the third-

party doctrine, completely aside from the additional protections of the Stored

Communications Act. The Act provides that a court order for disclosure “shall

issue only if the governmental entity offers specific and articulable facts showing

that there are reasonable grounds to believe that the . . . records or other

information sought[] are relevant and material to an ongoing criminal

investigation.” 18 U.S.C. § 2703(d). Davis does not dispute that the government

complied with the Act. But the greater protections afforded telephone customers

46 Case: 12-12928 Date Filed: 05/05/2015 Page: 47 of 102

under the Act do not disturb the constitutional principle that “a person has no

legitimate expectation of privacy in information he voluntarily turns over to third

parties.” Smith, 442 U.S. at 743–44, 99 S. Ct. at 2582. So Davis would have no

legitimate expectation of privacy in the information he conveyed to MetroPCS

even if Congress repealed the Act tomorrow. A court order compelling a carrier to

disclose cell tower location information does not violate a cell phone user’s rights

under the Fourth Amendment any more than a court order compelling a bank to

disclose customer account information, see United States v. Miller, 425 U.S. 435,

96 S. Ct. 1619 (1976).

The dissent’s argument that Smith is distinguishable from this appeal

because the disclosure of location information to cell carriers is less “voluntary”

and less “knowing,” Dissenting Op. at 78-80, than the disclosure of dialed

telephone numbers makes no sense. The dissent argues that the disclosure of

location information is less “voluntary” than the disclosure of dialed telephone

numbers because “cell phone users do not affirmatively enter their location in

order to make a call,” Id. at 78, but in neither case is a phone user coerced to reveal

anything. If a telephone caller does not want to reveal dialed numbers to the

telephone company, he has another option: don’t place a call. If a cell phone user

does not want to reveal his location to a cellular carrier, he also has another option:

turn off the cell phone. That Davis had to disclose his location in order to place or

47 Case: 12-12928 Date Filed: 05/05/2015 Page: 48 of 102

receive a call does not distinguish this appeal from Smith, because, as the dissent

admits, telephone callers “have to” convey dialed numbers to the telephone

company in order to place calls, Dissenting Op. at 78. That a caller “affirmatively

enter[s]” phone numbers but a cell phone user does not “affirmatively enter” his

location when he places or receives a call may implicate the user’s knowledge that

he is conveying information to a third party, but it does not make the latter

disclosure less voluntary than the former. Davis’s disclosure of his location was

also no less “knowing” than the disclosure at issue in Smith. In Smith, the Supreme

Court explained that “[a]ll telephone users realize that they must ‘convey’ phone

numbers to the telephone company, since it is through telephone company

switching equipment that their calls are completed.” 442 U.S. at 742, 99 S. Ct. at

2581. Similarly, cell phone users realize that their calls are routed through nearby

cell towers. It is no state secret that cell phones work less effectively in remote

areas without cell towers nearby. As the Court made clear in Smith, that “most

people may be oblivious to” the “esoteric functions” of a technology is consistent

with most people having “some awareness” of its purpose. Id. at 742, 99 S. Ct. at

2581. In the light of common experience, it is “too much to believe,” id. at 743, 99

S. Ct. at 2581, that cell phone users lack “some awareness,” id. at 742, 99 S. Ct. at

2581, that they communicate information about their location to cell towers.

48 Case: 12-12928 Date Filed: 05/05/2015 Page: 49 of 102

If the rapid development of technology has any implications for our

interpretation of the Fourth Amendment, it militates in favor of judicial caution,

because Congress, not the judiciary, has the institutional competence to evaluate

complex and evolving technologies. “Judges cannot readily understand how . . .

technologies may develop, cannot easily appreciate context, and often cannot even

recognize whether the facts of the case before them raise privacy implications that

happen to be typical or atypical.” Orin S. Kerr, The Fourth Amendment and New

Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev.

801, 858–59 (2004). Our decisions resolve adversarial proceedings between

parties. Legislatures, by contrast, must consider “a wide range” of factors and

balance the opinions and demands of competing interest groups. Id. at 875. “The

task of generating balanced and nuanced rules requires a comprehensive

understanding of technological facts. Legislatures are well-equipped to develop

such understandings; courts generally are not.” Id. Simply put, we must apply the

law and leave the task of developing new rules for rapidly changing technologies

to the branch most capable of weighing the costs and benefits of doing so.

As judges of an inferior court, we have no business in anticipating future

decisions of the Supreme Court. If the third-party doctrine results in an

unacceptable “slippery slope,” Dissenting Op. at 85, the Supreme Court can tell us

as much. See, e.g., Hohn v. United States, 524 U.S. 236, 252–53, 118 S. Ct. 1969,

49 Case: 12-12928 Date Filed: 05/05/2015 Page: 50 of 102

1978 (1998) (“Our decisions remain binding precedent until we see fit to

reconsider them, regardless of whether subsequent cases have raised doubts about

their continuing vitality.”); Rodriguez de Quijas v. Shearson/Am. Express, Inc.,

490 U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989) (“If a precedent of this Court

has direct application in a case, yet appears to rest on reasons rejected in some

other line of decisions, the Court of Appeals should follow the case which directly

controls, leaving to this Court the prerogative of overruling its own decisions.”);

Evans v. Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1263 (11th Cir. 2012) (“We

must not, to borrow Judge Hand’s felicitous words, ‘embrace the exhilarating

opportunity of anticipating’ the overruling of a Supreme Court decision.”) (internal

citation omitted). That is, if “the Supreme Court has given reasons to doubt the

rule’s breadth,” Dissenting Op. at 80, it alone must decide the exceptions to its

rule.

50 Case: 12-12928 Date Filed: 05/05/2015 Page: 51 of 102

JORDAN, Circuit Judge, concurring, in which WILSON, Circuit Judge, joins:

This case is certainly about the present, but it is also potentially about the

future. Although the Court limits its decision to the world (and technology) as we

knew it in 2010, see Maj. Op. at 10 n.7 & 31 n.13, its holding that Mr. Davis

lacked an expectation of privacy in service provider records used to establish his

cell site location may have implications going forward, particularly given the

Court’s reliance on the third-party doctrine. See, e.g., Smith v. Maryland, 442 U.S.

735, 743-44 (1979); United States v. Miller, 425 U.S. 435, 442-43 (1976). As

technology advances, location information from cellphones (and, of course,

smartphones) will undoubtedly become more precise and easier to obtain, see

generally Planet of the Phones, THE ECONOMIST (Feb. 28, 2015), and if there is no

expectation of privacy here, I have some concerns about the government being able

to conduct 24/7 electronic tracking (live or historical) in the years to come without

an appropriate judicial order. And I do not think I am alone in this respect. See

United States v. Jones, 132 S. Ct. 945, 964 (2012) (Alito, J., concurring, joined by

Ginsburg, Breyer, and Kagan, JJ.) (“[T]he use of longer term GPS monitoring in

investigations of most offenses impinges on expectations of privacy.”); id. at 955

(Sotomayor, J., concurring) (“I agree with Justice Alito that, at the very least,

51 Case: 12-12928 Date Filed: 05/05/2015 Page: 52 of 102

‘longer term GPS monitoring in investigations of most offenses impinges on

expectations of privacy.’”). 1

As a result, I would decide the Fourth Amendment question on

reasonableness grounds and leave the broader expectation of privacy issues for

another day, much like the Supreme Court did in City of Ontario v. Quon, 560 U.S.

746, 759-60 (2010) (assuming that police officer had an expectation of privacy in

text messages he sent from his city-provided pager, even though those messages

were routed through and kept by a third-party service provider, and resolving the

case on reasonableness grounds). I would assume that Mr. Davis had a reasonable

expectation of privacy—albeit a diminished one—and hold that the government

satisfied the Fourth Amendment’s reasonableness requirement by using the

procedures set forth in 18 U.S.C. § 2703(d) to obtain a court order for Mr. Davis’

cell site records.

I

The Fourth Amendment’s “basic purpose . . . is to safeguard the privacy and

security of individuals against arbitrary invasions by governmental officials.”

1 Three decades ago, a defendant in a case before the Supreme Court argued that allowing the police to place a digital beeper in a container filled with chloroform, in order to monitor the container’s location, would lead to “twenty-four hour surveillance of any citizen in this country . . . without judicial knowledge or supervision.” United States v. Knotts, 460 U.S. 276, 283-84 (1983). The Supreme Court’s response to that assertion was that “if such dragnet type law enforcement practices as [the defendant] envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Id.

52 Case: 12-12928 Date Filed: 05/05/2015 Page: 53 of 102

Camara v. Mun. Court of City & Cnty. of S.F., 387 U.S. 523, 528 (1967). “As the

text of the Fourth Amendment indicates, the ultimate measure of the

constitutionality of a governmental search is ‘reasonableness.’” Maryland v. King,

133 S.Ct. 1958, 1969 (2013) (citation and internal punctuation omitted).

“The reasonableness of a search,” the Supreme Court recently explained,

“depends on the totality of the circumstances, including the nature and purpose of

the search and the extent to which the search intrudes upon reasonable privacy

expectations.” Grady v. North Carolina, 135 S. Ct. 1368, 1371 (2015). These

circumstances include, among others, “the means adopted” by the government to

effectuate the search. See Carroll v. United States, 267 U.S. 132, 168 (1925).

II

At times, circumstances may render a warrantless search or seizure

reasonable. One such scenario is when there are “diminished expectations of

privacy.” King, 133 S. Ct. at 1969 (citation and internal punctuation omitted).

Although I am prepared to assume that Mr. Davis enjoyed some expectation of

privacy, cf. STEPHEN J. SCHULHOFER, MORE ESSENTIAL THAN EVER: THE FOURTH

AMENDMENT IN THE TWENTY-FIRST CENTURY 8 (2012) (defining privacy, in

today’s digital world, in terms of control rather than secrecy, because practical

necessities now require individuals to share information about themselves “with

trusted individuals and institutions for limited purposes”), I think it is fair to say

53 Case: 12-12928 Date Filed: 05/05/2015 Page: 54 of 102

that such an expectation was somewhat diminished, and not full-throated, due to

the third-party doctrine. After all, Smith indicates that a person gives up control of

certain information when he makes and receives calls from a phone. Although

Smith does not fit this case like a glove—cellphones and smartphones (and the vast

amounts of information they contain and can generate) are qualitatively different

from land-line phones—it is nevertheless relevant that the cell site information the

government obtained existed due to calls Mr. Davis made and received on his

cellphone.2

On the other side of the ledger, Mr. Davis’ cell site information was not

obtained or seized “outside the judicial process, without prior approval by a judge

or magistrate.” Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971). Cf.

Johnson v. United States, 333 U.S. 10, 13-14 (1948) (noting that the Fourth

Amendment’s “protection consists in requiring that . . . inferences be drawn by a

neutral and detached magistrate instead of being judged by the officer engaged in

the often competitive enterprise of ferreting out crime”). The government secured

the cell site records under a provision of the Stored Communications Act. And that

provision requires a magistrate judge—a neutral judicial officer—to review an

2 I recognize that some of the cell site information resulted from calls Mr. Davis received but never answered. For obvious reasons, however, Mr. Davis did not make (and has not made) a nuanced Fourth Amendment argument differentiating between data generated from calls he made and answered and data generated from calls he merely received without answering. Such an argument would not have been of much help to Mr. Davis, who sought to suppress all of the cell site data the government obtained. 54 Case: 12-12928 Date Filed: 05/05/2015 Page: 55 of 102

application and determine whether the government has offered “specific and

articulable facts showing that there are reasonable grounds to believe that the [cell

cite location information] sought [is] relevant and material to an ongoing criminal

investigation.” 18 U.S.C. § 2703(d). Significantly, “there is a strong presumption

of constitutionality due to an Act of Congress, especially when it turns on what is

‘reasonable[,]’” United States v. Watson, 423 U.S. 411, 416 (1976) (citation and

some internal punctuation omitted), and this strong presumption attaches to §

2703(d).

As explained briefly below, the government articulated the necessary

“specific and articulable facts.” I therefore agree with the Court that the magistrate

judge’s order, which authorized the government to obtain the cell site information,

satisfied the reasonableness requirement of the Fourth Amendment. See Camara,

387 U.S. at 528.3

The government’s application for Mr. Davis’ cell site information stated the

following: Willie Smith confessed that he and Mr. Davis were involved in the

3 For whatever it is worth, the Supreme Court has on occasion held that the phrase “reasonable grounds,” as used in certain federal narcotics laws, is essentially the same as “probable cause” for purposes of the Fourth Amendment. See Draper v. United States, 358 U.S. 307, 310 n.3 (1959); Wong-Sun v. United States, 371 U.S. 471, 478 n.6 (1963). And it has said that “[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citation and internal punctuation omitted). So maybe the evidentiary showing required by § 2703(d) is not too far removed from the probable cause normally demanded for warrants under the Fourth Amendment. But cf. Griffin v. Wisconsin, 483 U.S. 868, 872-77 (1987) (differentiating between “reasonable grounds” standard and “probable cause” standard). 55 Case: 12-12928 Date Filed: 05/05/2015 Page: 56 of 102

robberies of a Little Caesar’s restaurant, the Universal Beauty Salon, and a

Wendy’s restaurant in Miami, Florida; Jamarquis Terrell Reid admitted that he had

participated with Mr. Davis in the robberies of an Amerika gas station, a

Walgreens store, and an Advance Auto Parts store in Miami, Florida; Michael

Martin told the authorities that he and Mr. Davis had robbed a Mayor’s jewelry

store in Weston, Florida; Mr. Davis’ DNA was recovered from a stolen BMW that

was used as the getaway car in the Mayor’s jewelry store robbery; the robberies in

question took place between August 7, 2010, and October 1, 2010; and Mr. Smith

and Mr. Reid each said that, at the time of certain of the robberies (those of the

Little Caesar’s restaurant, the Amerika gas station, the Advance Auto Parts store,

and the Universal Beauty Salon), Mr. Davis’ cellphone number was the 5642

number. Not surprisingly, Mr. Davis conceded at oral argument that the

government could have secured a warrant (had it elected to do so) for the cell site

information because it had the necessary probable cause.

The temporal scope of the request, moreover, was reasonable. The

government sought cell site information spanning from August 1, 2010, to October

6, 2010—a 67-day period which began six days before the first known robbery and

ended six days after the last known robbery. The government explained in its

application that those records would “assist law enforcement in determining the

locations of [Mr. Davis] on days when robberies in which [he was] suspected to

56 Case: 12-12928 Date Filed: 05/05/2015 Page: 57 of 102

have participated occurred,” and “whether [he] communicated with [the] other

[individuals] on the days of the robberies and, if so, how many times.”

Finally, it is important to reiterate that the cell site information was

generated from calls Mr. Davis made and received on his cellphone, and was not

the result of his merely having his cellphone turned on. There was, in other words,

no passive tracking based on Mr. Davis’ mere possession of a cellphone, and I do

not read the Court’s opinion as addressing such a situation. See Maj. Op. at 8, 30.

III

For me, this is one of those cases where it makes sense to say less and decide

less. See CASS R. SUNSTEIN, ONE CASE AT A TIME 4-10 (1999); ALEXANDER M.

BICKEL, THE LEAST DANGEROUS BRANCH 111-13 (1st ed. 1962). “Prudence

counsels caution before the facts in the instant case are used to establish . . .

premises that define the existence, and extent, of privacy expectations.” Quon, 560

U.S. at 759.

With these thoughts, I join Parts I, II, III.G, and IV of the Court’s opinion

and concur in the judgment.

57 Case: 12-12928 Date Filed: 05/05/2015 Page: 58 of 102

ROSENBAUM, Circuit Judge, concurring.

I concur in the Majority’s opinion. I write separately, though, because, like

the Dissent, I think that the third-party doctrine, 1 as it relates to modern

technology, warrants additional consideration and discussion. I view the third-

party doctrine as applying in this case because Smith v. Maryland, 442 U.S. 735,

99 S. Ct. 2577 (1979), implicitly found no historical expectation of privacy

implicated by the information that we give to a service provider for the purpose of

making a telephone call other than the expectation of privacy that we generally do

not have in information that we voluntarily convey to a third party. Since, like

Smith, this case involves information that we knowingly expose to a service

provider for the purpose of making a telephone call and no more specific

historically recognized privacy interest is implicated by cell-site location

information, this case is necessarily controlled by Smith.

But when, historically, we have a more specific expectation of privacy in a

particular type of information, the more specific privacy interest must govern the

Fourth Amendment analysis, even though we have exposed the information at

issue to a third party by using technology to give, receive, obtain, or otherwise use

the protected information. In other words, our historical expectations of privacy do 1 The third-party doctrine applies when a person voluntarily entrusts information to a third party, and it generally renders the Fourth Amendment’s warrant requirement inapplicable as it pertains to the procurement of the exposed information from the third party. See United States v. Miller, 425 U.S. 435, 442-43, 96 S. Ct. 1619, 1624 (1976).

58 Case: 12-12928 Date Filed: 05/05/2015 Page: 59 of 102

not change or somehow weaken simply because we now happen to use modern

technology to engage in activities in which we have historically maintained

protected privacy interests. Neither can the protections of the Fourth Amendment.

See Kyllo v. United States, 533 U.S. 27, 34, 121 S. Ct. 2038, 2043 (2001) (“To

withdraw protection of this minimum expectation [of privacy] would be to permit .

. . technology to erode the privacy guaranteed by the Fourth Amendment.”). So

reliance on the third-party doctrine must be limited to those cases involving alleged

privacy interests that do not implicate a more specific historically recognized

reasonable privacy interest.

I.

Before exploring why this is so, I pause to express my view that the Dissent

is right to raise its concerns. In our time, unless a person is willing to live “off the

grid,” it is nearly impossible to avoid disclosing the most personal of information

to third-party service providers on a constant basis, just to navigate daily life. And

the thought that the government should be able to access such information without

the basic protection that a warrant offers is nothing less than chilling. Today’s

world, with its total integration of third-party-provided technological services into

everyday life, presents a steroidal version of the problems that Justices Marshall

and Brennan envisioned when they dissented in United States v. Miller, 425 U.S.

435, 447, 454, 96 S. Ct. 1619, 1626, 1629 (1976) (Brennan, J., and Marshall, J.,

59 Case: 12-12928 Date Filed: 05/05/2015 Page: 60 of 102

dissenting, respectively), and its progeny, including Smith v. Maryland, 442 U.S.

735, 748, 99 S. Ct. 2577, 2584 (1979) (Marshall, J., dissenting). As Justice

Marshall aptly explained the problem, under the third-party doctrine, “unless a

person is prepared to forgo use of what for many has become a personal or

professional necessity, he cannot help but accept the risk of surveillance.” Smith,

442 U.S. at 750, 99 S. Ct. 2577, 2585 (Marshall, J., dissenting). Perhaps it was this

type of realization that caused Justice Sotomayor to write, “[I]t may be necessary

to reconsider the premise that an individual has no reasonable expectation of

privacy in information voluntarily disclosed to third parties.” United States v.

Jones, ___ U.S. ___, 132 S. Ct. 945, 957 (Sotomayor, J., concurring). Since we

are not the Supreme Court and the third-party doctrine continues to exist and to be

good law at this time, though, we must apply the third-party doctrine where

appropriate.

But, as the Dissent points out, the mere fact that the third-party doctrine

could have been applied to an alleged privacy interest does not mean that it always

has been. To ensure that this is a case where the third-party doctrine should be

applied, I think it important to consider what sets apart those cases where the

Supreme Court has chosen not to apply the third-party doctrine, despite the fact

that a party has exposed its effects or information to a third party.

60 Case: 12-12928 Date Filed: 05/05/2015 Page: 61 of 102

II.

The Supreme Court has explained that, in analyzing a Fourth Amendment

claim, we begin by determining “whether the action was regarded as an unlawful

search or seizure under the common law when the Amendment was framed.”

Wyoming v. Houghton, 526 U.S. 295, 299, 119 S. Ct. 1297, 1300 (1999). We do

this because, “[a]t bottom, we must ‘assur[e] preservation of that degree of privacy

against government that existed when the Fourth Amendment was adopted.’” 2

2 Some might suggest that we must first determine whether a search within the meaning of the Fourth Amendment has occurred, and only if one has should we then assess whether that search has violated a constitutionally protected expectation of privacy, in the context of engaging in a reasonableness analysis. But generally, when the alleged search is of information and it is not accompanied by a concurrent physical trespass, we must evaluate whether a reasonable expectation of privacy existed in the information in the first place in order to determine whether a “search” has occurred. See Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967); Smith, 442 U.S. 735, 99 S. Ct. 2577. That inquiry requires us to resolve the conflict between the historical expectation of privacy allegedly violated by the search and the third-party doctrine’s rule that no expectation of privacy exists when a person voluntarily exposes information to a third party. And under the reasonableness analysis, we balance the degree to which a search or seizure “intrudes upon an individual’s privacy” against “the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 1300 (1999). So we would again need to figure out the relationship between the competing historical expectation of privacy and the third-party doctrine to determine the ultimate expectation of privacy to weigh against the government’s interest. As a result, this two-step analysis becomes redundant in the context of an alleged search of information without a concurrent physical trespass. Moreover, if, in conducting the reasonableness analysis, we ignore the historical privacy interest and always defer to the third-party doctrine, that does not account for the way in which the Supreme Court has resolved the conflict between the historical privacy interest and the third- party doctrine in cases like Katz, 389 U.S. 347, 88 S. Ct. 507, because ignoring the historical privacy interest in favor of the third-party doctrine would always result in a determination that no warrant is required under a reasonableness evaluation. This is necessarily so because when the third-party doctrine applies, by definition, there is no reasonable privacy interest to weigh on the individual’s side of the scale against the government’s interest in crime fighting. But “the normal need for law enforcement” generally cannot exempt a search from the warrant requirement where the searched party enjoys a reasonable expectation of privacy, Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S. Ct. 2386, 2391 (1995), such as when the privacy 61 Case: 12-12928 Date Filed: 05/05/2015 Page: 62 of 102

United States v. Jones, ___ U.S. ___, 132 S. Ct. 945, 950 (2012) (citation omitted).

So it seems to me that existing Supreme Court precedent may fairly be construed

to suggest that where society has historically recognized a legitimate expectation of

privacy, we must continue to do so for purposes of Fourth Amendment analysis,

even if, in our modern world, we must now expose to a third party information that

we would have previously kept private, in order to continue to participate fully in

society. If we do not, we will face the Hobson’s choice of leaving our historically

interest at stake has historically been recognized—unless, of course, it is impracticable to obtain a warrant under the circumstances. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1967). And if we resolved the conflict between the historically existing privacy interest and the third- party doctrine by assuming a diminished expectation of privacy in the historical interest being weighed against the government’s general interest in crime fighting, that still would not seem to account for cases like Katz, 389 U.S. 347, 88 S. Ct. 507, even if the Court found that satisfying a lesser requirement than probable cause, such as that set forth by § 2703(d), was necessary to obtain the information. Indeed, I am aware of no case where the Court has expressly found an expectation of privacy diminished because of the third-party doctrine and yet has concluded that a warrant was required. But cf. Riley v. California, ___ U.S. ___, 134 S. Ct. 2473, 2488 (2014) (holding that a warrant is generally required to search an arrestee’s cell phone, even though arrestees have a diminished expectation of privacy because of their status as arrestees). Whether we ignored the more specific historical privacy interest in favor of the third-party doctrine or found that the historical privacy interest was diminished, though, privacy interests long recognized as reasonable by society, which therefore historically necessitated a showing of probable cause and a warrant under the Fourth Amendment in order to breach, would be violated without a warrant and on a showing of less than probable cause, simply because we happen to use technology to do more efficiently what we used to do without technology. I do not believe that Supreme Court precedent supports the conclusion that the long-established privacy interests protected by the Fourth Amendment should be subject to the whims of technology. See Kyllo, 533 U.S. at 34, 121 S. Ct. at 2043 (2001) (“To withdraw protection of this minimum expectation [of privacy] would be to permit . . . technology to erode the privacy guaranteed by the Fourth Amendment.”). And even if the Court were prepared to conclude that a privacy interest diminished by the third-party doctrine nonetheless required a warrant to breach, it would still need to articulate why one particular expectation of privacy diminished by the third-party doctrine was sufficient to outweigh the government’s general interest in crime fighting, while a different expectation of privacy diminished by the third-party doctrine was not, unless the more specific historical expectation of privacy negates the effects of the third-party doctrine in evaluating the privacy interest for purposes of conducting the reasonableness analysis. 62 Case: 12-12928 Date Filed: 05/05/2015 Page: 63 of 102

recognized Fourth Amendment rights at the door of the modern world or finding

ourselves locked out from it. That the Constitution will not abide.

A.

As the Dissent points out, the Supreme Court has held that “[a] hotel room

can clearly be the object of Fourth Amendment protection as much as a home or an

office.” Hoffa v. United States, 385 U.S. 293, 301, 87 S. Ct. 408, 413 (1966); see

also Minnesota v. Carter, 525 U.S. 83, 95-96, 119 S. Ct. 469, 476 (1998) (Scalia,

J., concurring) (citing Oystead v. Shed, 13 Mass. 520 (1816), for the proposition

that a trespass occurs when the sheriff breaks into a dwelling to capture a boarder

living there); Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 1688

(1990) (holding that overnight guests in the homes of a third person can have a

reasonable expectation of privacy in those premises). This is so, even though

housekeepers and maintenance people commonly have access to hotel rooms

during a guest’s stay and can view and even move around a guest’s belongings in

order to conduct their duties. But the fact that a hotel guest has exposed his or her

belongings to hotel workers does not, in and of itself, entitle the government to

enter a rented hotel room and conduct a warrantless search.

Similarly, historically, human operators were known to eavesdrop on the

contents of telephone calls in the early days of telephone usage. See Jeff Nilsson,

63 Case: 12-12928 Date Filed: 05/05/2015 Page: 64 of 102

What the Operators Overheard in 1907, The Saturday Evening Post, June 30,

2012, http://www.saturdayeveningpost.com/2012/06/30/history/post-perspective/

operators-heard-1907.html (last visited Apr. 16, 2015). And, as Justice Stewart

observed, even after human operators were taken out of the equation, telephone

conversations may have been “recorded or overheard by the use of other

[telephone] company equipment.” Smith v. Maryland, 442 U.S. 735, 746, 99 S. Ct.

2577, 2583 (1979) (Stewart, J., dissenting). But the fact that, historically, we

exposed our private conversations to third parties did not stop the Supreme Court

from holding in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967), that we

have a reasonable expectation of privacy in telephone communications and that the

government generally must obtain a warrant before intercepting them.

Why should that be so when the third-party doctrine also speaks to what a

reasonable expectation of privacy is (none where it applies), and the doctrine

seemingly applies to these situations? I believe that Supreme Court precedent

fairly may be read to suggest that the third-party doctrine must be subordinate to

expectations of privacy that society has historically recognized as reasonable.

Indeed, our privacy expectations in modern-day hotels and the content of our

telephone conversations hearken back to historically recognized reasonable

expectations of privacy.

64 Case: 12-12928 Date Filed: 05/05/2015 Page: 65 of 102

As Justice Scalia has explained, “The people’s protection against

unreasonable search and seizure in their ‘houses’ was drawn from the English

common-law maxim, ‘A man’s home is his castle.’” Carter, 525 U.S. at 95, 119 S.

Ct. at 475 (Scalia, J., concurring) (emphasis omitted). And a person enjoys a

recognized expectation of privacy in that home, provided he or she actually is

living there. Id. at 95-96, 119 S. Ct. at 476. So, when a person rents and dwells in

a hotel room, 3 that hotel room becomes that person’s “home” and “castle,” for

purposes of the Fourth Amendment, regardless of who else may enter the premises.

As for the telephone, it, of course, was not invented until the late 1800’s and

was not widely used until well after the Framers’ time. 4 Until then, people who

were not closely located to each other typically communicated by letter. See, e.g.,

https://jeffersonpapers.princeton.edu/ (last visited Apr. 16, 2015) (noting that

Thomas Jefferson wrote and received letters). As the Supreme Court has noted,

“Letters and other sealed packages are in the general class of effects in which the

public at large has a legitimate expectation of privacy . . . .” United States v.

3 I recognize that inns existed in the Framers’ day. 4 Alexander Graham Bell obtained a patent for the telephone on March 7, 1876. See http://www.pbs.org/transistor/album1/addlbios/bellag.html (last visited Apr. 16, 2015). He successfully transmitted speech over the line five days later. Id. But the United States House of Representatives has since recognized Antonio Meucci as the inventor of the telephone. H.R. Res. 269, 107th Cong. (June 11, 2002). Meucci reportedly developed the first version of a working telephone in 1860. See id. 65 Case: 12-12928 Date Filed: 05/05/2015 Page: 66 of 102

Jacobsen, 466 U.S. 109, 114, 104 S. Ct. 1652, 1657-58 (1984); see also Ex parte

Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1877).

While the Supreme Court did not mention society’s reasonable expectation

of privacy in the content of communications sent by letter through third parties

when it found a reasonable expectation of privacy in the content of

communications transmitted by telephone through third parties in Katz, it is clear

that the historical expectation of privacy in communications by letter is the same

expectation of privacy that we continue to have in communications that we

conduct by telephone. And the fact that we have always had to rely on third parties

to engage in telephone calls—even when the third parties were known to

eavesdrop from time to time—does not somehow change our reasonable

expectation of privacy in personal telephone calls. Put simply, the fact that we

have changed the way that we conduct personal communications does not mean

that we have altered our expectation of privacy in our personal communications.

B.

To help explain how the conflict between historically recognized privacy

interests and the third-party doctrine plays out in light of modern technology—and

why the cell-site location information at issue in this case is subject to the third-

party doctrine—consider a few examples of historical privacy interests implicated

by modern technology.

66 Case: 12-12928 Date Filed: 05/05/2015 Page: 67 of 102

If our expectation of privacy in our personal communications has not

changed from what it was when we only wrote letters to what it is now that we use

telephones to conduct our personal interactions, it has not changed just because we

now happen to use email to personally communicate. 5 See United States v.

Warshak, 631 F.3d 266, 288 (6th Cir. 2010). Just as the need to entrust third

parties with our personal conversations when we communicate by written letter or

by telephone does not affect the analysis, the need to rely on third parties to

provide Internet service when we communicate by email cannot do so, either.

The same is true for our other historically recognized reasonable

expectations of privacy. So, for instance, while the Internet and its search engines

obviously did not exist in the 18th century, libraries did. See, e.g.,

5 The Supreme Court has held that addressing and other routing information on paper letters, like pen-register and trap-and-trace information (including the date and time of listed calls) regarding telephone calls, is accessible to the government without a warrant. See Ex parte Jackson, 96 U.S. 727, 736, 24 L. Ed. 877; Smith, 442 U.S. 735, 99 S. Ct. 2577. Email routing information, such as the sender, the receiver, the date, the time, and other routing information (such as Internet Protocol addresses) implicates the same expectations of privacy as older versions of routing information found on paper letters and in pen-register and trap-and-trace information. See United States v. Forester, 512 U.S. 500, 511 (9th Cir. 2007). The lack of a reasonable expectation of privacy in routing information as it pertains to paper letters and telephone conversations does not change just because the medium for engaging in personal conversations does. Subject lines in emails, however, are not in any way related to the routing or transaction information of an email; no one writes the subject matter of the letters they send on the outside of the envelope, and people do not give the telephone service provider a general overview of the telephone conversations they are about to have. So subject-matter lines on emails cannot be governed by the lack of an expectation of privacy attending paper-letter or telephone-call routing information. Instead, subject-matter lines usually disclose a summary or general statement about the content of the email communication itself, and the privacy interest implicated by subject-matter lines is therefore the same as the privacy interest in personal communications conducted by paper letters and telephone calls. As a result, as with the content of paper letters and telephone conversations, a reasonable expectation of privacy exists in the subject-matter lines of emails. 67 Case: 12-12928 Date Filed: 05/05/2015 Page: 68 of 102

http://franklinma.virtualtownhall.net/Pages/FranklinMA_Library/libraryhistory

(last visited Apr. 13, 2015) (discussing the establishment of the Franklin Public

Library in 1790). And, though libraries no doubt have always kept track of the

books checked out, they have not monitored what a person reviews within the

borrowed books, and library users have traditionally been free to anonymously

peruse materials at the library without checking them out and creating a record.

This anonymity is critical to First Amendment rights. See, e.g., United States v.

Rumely, 345 U.S. 41, 57-58, 73 S. Ct. 543, 551-42 (1953) (Douglas, J., concurring)

(“When the light of publicity may reach any student, any teacher, inquiry will be

discouraged. . . . If [a reader] can be required to disclose what she read yesterday

and what she will read tomorrow, fear will take the place of freedom in the

libraries . . . of the land).

This privacy interest is no less important simply because many of us now

use the Internet to do what we used to do at the library. We do not have lower

expectations of privacy in what we research—particularly with respect to our

expectations that the government will not be looking over our shoulders to review

our work—merely because we research and read it online at home or in a coffee

shop instead of in hard copies of books and periodicals in the stacks of the library,

even though the only way that we can conduct online research is through a third-

party service provider. In short, the expectation of privacy in reading and

68 Case: 12-12928 Date Filed: 05/05/2015 Page: 69 of 102

researching what we want, free from government surveillance without a warrant,

has not changed just because the mechanism we use for engaging in this conduct

has evolved.

As for documents that we store in the Cloud, our privacy interest there is the

same as that recognized in documents and other items maintained in a rented office

or residence, or a hotel room during a paid visit. As discussed previously, the

Supreme Court has plainly recognized as reasonable under the Fourth Amendment

the privacy interest in effects held in such places, even though a straight-forward

application of the third-party doctrine would suggest the opposite conclusion,

particularly in the case of a hotel room, where housekeeping and maintenance

workers can be expected to enter the premises. The privacy expectation has not

abraded simply because the effect to be searched is virtual and the “place” of

storage is now the intangible Cloud. Cf. Riley v. California, ___ U.S. ___, 134 S.

Ct. 2473, 2494-95 (2014) (recognizing that searches of cell phones implicate the

same type of privacy interest invaded by the “reviled ‘general warrants’ and ‘writs

of assistance’ of the colonial era, which allowed British officers to rummage

through homes in an unrestrained search for evidence of criminal activity,” and

holding that a warrant is generally required to search a cell phone in an arrestee’s

possession at the time of arrest, despite the historical rule allowing for a search of

69 Case: 12-12928 Date Filed: 05/05/2015 Page: 70 of 102

effects on an arrestee at the time of arrest). “For the Fourth Amendment protects

people, not places.” Katz, 389 U.S. at 351, 88 S. Ct. at 511.

C.

And Justice Alito’s concurrence in Jones, 132 S. Ct. at 964 (Alito, J.,

concurring in the judgment), suggests a viable and apt historical privacy interest

that pertains to global-positioning system information: the expectation of privacy

as it regards incessant surveillance. Justice Alito has described this expectation of

privacy as follows:

[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. . . . But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’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.

Id.

Three other Justices joined in Justice Alito’s Jones concurrence, and

another, Justice Sotomayor, expressed her agreement with the idea that, “at the

very least, ‘longer term GPS monitoring in investigations of most offenses

impinges on expectations of privacy.’” Id. at 955 (Sotomayor, J., concurring)

(quoting id. at 964 (Alito, J., concurring)). While this view may not constitute

binding Supreme Court precedent, it certainly suggests that society has long 70 Case: 12-12928 Date Filed: 05/05/2015 Page: 71 of 102

viewed as reasonable the expectation of privacy in not being subjected to constant,

longer-term surveillance. And if that’s the case, the only question that remains

about whether the government must obtain a warrant to engage in longer-term GPS

monitoring is where we draw the line establishing what constitutes “longer-term”

GPS monitoring. But that is not a question that we must answer today.

Nevertheless, in my opinion, the longer-term GPS issue necessarily means

that the Dissent is correct in its concerns that the expectation of privacy that is

infringed by longer-term GPS monitoring may, at some point, become the same

expectation of privacy implicated by more and more precise cell-site location

technology. When that happens, the historical reasonable expectation of privacy in

not being subjected to longer-term surveillance may well supersede the third-party

doctrine’s applicability to information entrusted to third parties as it pertains to

cell-site location information.6 But that is not this case.

According to the MetroPCS records custodian who testified in this case, the

radii of the cell towers at issue were approximately a mile to a mile and a half.

Since a sector is generally a one-third to a one-sixth pie slice of the roughly

6 One other perhaps significant difference between GPS technology and precise cell-site location information also exists: GPS monitoring is constant, whereas cell-site location information is produced only when a cell-phone user makes or receives a call. If a person is usually on the cell phone, that may be a distinction without a difference. But if a person is not, that may be a meaningful dissimilarity. We conduct Fourth Amendment jurisprudence “with an eye to the generality of cases.” See Houghton, 526 U.S. at 304, 119 S. Ct. at 1303 (balancing interests under the Fourth Amendment’s reasonableness approach). So that factual issue may require resolution at a future time. 71 Case: 12-12928 Date Filed: 05/05/2015 Page: 72 of 102

circular tower range, that means that, at best, the government was able to

determine where Davis was within approximately 14,589,696 square feet. 7 In an

urban environment, this is not precise enough to rival the invasion of privacy that

pinpoint-longer-term surveillance represents.

Since no specific historical privacy interest is implicated by cell-site location

information, and further, because the privacy interest in the cell-site location

information at issue here is materially indistinguishable from the privacy interest in

the pen-register information at stake in Smith,8 we must apply the third-party

doctrine, as the Supreme Court did in Smith. I read Smith, in turn, as implicitly

finding no historical privacy interest implicated by information provided to the

telephone company to allow a call to be made, other than the general third-party

7 A one-mile radius (5,280 feet), squared (27,878,400), times Π, equals 87,538,176 square feet, divided by six (one sector), equals 14,589,696 square feet. 8 I respect the Dissent’s thought process in attempting to distinguish the concept of whether cell-phone users know that they are disclosing to their service providers the fact that they are usually located in the range of the nearest cell towers that their cell phones are using when they make and receive calls, from the Supreme Court’s conclusion in Smith that standard telephone users know that they are disclosing the telephone numbers that they are calling when they dial. But it seems to me that the average cell-phone user knows that cell phones work only when they are within service range of a cell tower. Advertising campaigns are built on this concept. See, e.g., https://www.youtube.com/watch?v=OPwPo-IAQ-E (last visited Apr. 13, 2015) (“Can you hear me now?”); https://www.youtube.com/watch?v=VZPjJI0K7Bk (last visited Apr. 13, 2015) (“There’s a map for that”). In Smith, similar to the Dissent here, Justice Marshall argued that the third-party doctrine did not apply, in part, because people do not “‘typically know’ that a phone company monitors call[] [information] for internal reasons.” 442 U.S. at 748-49, 99 S. Ct. at 2584-85. Right or wrong, he lost that battle. And, while cell-site location information is certainly not pen-register information and I can understand where the Dissent is coming from, I do not feel comfortable taking the position that the average cell-phone user does not know that he or she is disclosing location information to the cell-service provider. 72 Case: 12-12928 Date Filed: 05/05/2015 Page: 73 of 102

doctrine. 9 Because no specific historical privacy interest is implicated by pen-

register-type information, the more general historical privacy expectation

associated with the third-party doctrine governed in Smith. The same is true with

respect to the cell-site location information at issue in this case.

III.

Nevertheless, where, as here, no historical privacy interest exists in the

information sought, Congress always has the option of legislating higher standards

for the government to obtain information. Justice Alito has opined, “In

circumstances involving dramatic technological change, the best solution to

privacy concerns may be legislative. Jones, 132 U.S. at 964 (Alito, J., concurring

in the judgment). This is certainly one potential limitation on the third-party

doctrine. And we have seen Congress enact legislation in response to the

application of the third-party doctrine to our modern world. See, e.g., the Right to

Financial Privacy Act, 12 U.S.C. § 2701, et seq. 10 Indeed, the Electronic

Communications Privacy Act of 1986, 18 U.S.C. § 2510, et seq., of which the

Stored Communications Act, 18 U.S.C. §§ 2701-2712, is a part—the statute under

9 This makes sense, as the privacy interest in discreet routing information is the same as the privacy interest in address information on letters, which, in turn, has always been subject to the third-party doctrine. See supra at n.5. 10 See H.R. Rep. No. 95-1383 at 9306 (1978) (“The Title is a congressional response to the Supreme Court decision in the United States v. Miller . . . . The Court did not acknowledge the sensitive nature of [financial records], and instead decided that since the records are the ‘property’ of the financial institution, the customer has no constitutionally recognizable privacy interest in them.”). 73 Case: 12-12928 Date Filed: 05/05/2015 Page: 74 of 102

which the government obtained the order authorizing it to receive Davis’s

historical cell-site location information in this case—was enacted (and later

amended), in part, to protect what Congress recognized as “privacy interests in

personal and proprietary information” that travels and is maintained in electronic

form by third-party service providers. See H.R. Rep. No. 99-541 at § I (1986).

But legislation should fill only the gaps that occur when no historically

recognized privacy interest is implicated by the technology under review. The

legislature, after all, does not have the power to entirely redefine the protections of

the Fourth Amendment each time that it enacts a new law. While providing more

protection than the Fourth Amendment requires represents a choice that Congress

may, within its power, make, providing less is not a constitutional option. If it

were, the Fourth Amendment would be meaningless because it would simply be

whatever Congress said it was at any given time.

That cannot be right under our Constitution. So Congress’s ability to

legislate reasonable expectations of privacy (other than when Congress elects to

increase expectations above the Fourth Amendment baseline) must be limited to, at

most, only those circumstances where no historical privacy interest implicated by

the technology under review exists.

74 Case: 12-12928 Date Filed: 05/05/2015 Page: 75 of 102

IV.

For all of these reasons, I believe that Smith (and therefore, the third-party

doctrine) inescapably governs the outcome of this case. But when we must

necessarily expose information to third-party technological service providers in

order to make use of everyday technology, and the technological service merely

allows us to engage in an activity that historically enjoyed a constitutionally

protected privacy interest, Supreme Court precedent can be viewed as supporting

the notion that the historically protected privacy interest must trump the third-party

doctrine for purposes of Fourth Amendment analysis. If the historically protected

privacy interest does not, then with every new technology, we surrender more and

more of our historically protected Fourth Amendment interests to unreasonable

searches and seizures.

75 Case: 12-12928 Date Filed: 05/05/2015 Page: 76 of 102

MARTIN, Circuit Judge, dissenting,1 in which JILL PRYOR, Circuit Judge, joins:

In this case, the government got 67 days of cell site location data disclosing

Quartavious Davis’s location every time he made or received a call on his cell

phone. It got all this without obtaining a warrant. During that time, Mr. Davis

made or received 5,803 phone calls, so the prosecution had 11,606 data points

about Mr. Davis’s location. We are asked to decide whether the government’s

actions violated Mr. Davis’s Fourth Amendment rights. The majority says our

analysis is dictated by the third-party doctrine, a rule the Supreme Court developed

almost forty years ago in the context of bank records and telephone numbers. But

such an expansive application of the third-party doctrine would allow the

government warrantless access not only to where we are at any given time, but also

to whom we send e-mails, our search-engine histories, our online dating and

shopping records, and by logical extension, our entire online personas.

1 The en banc court voted to vacate the panel opinion which held that the warrantless search of Mr. Davis’s cell site location data was unconstitutional, but upheld Mr. Davis’s conviction based on the good-faith exception. The good-faith exception says that where officers’ conduct is based on their good-faith understanding of an existing statute, the exclusionary rule will not apply. See, e.g., United States v. Williams, 622 F.2d 830, 843 (5th Cir. 1980); see also Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981). The majority here refers to the good-faith exception as an alternative basis for affirming Mr. Davis’s conviction. Maj. Op. 44 n.20. I agree with them about that. My disagreement is with the majority’s Fourth Amendment analysis, which permits government access to Mr. Davis’s cell site location data without a warrant. I understand the Fourth Amendment to require the government to get a warrant for that information, while the majority does not. I refer to this opinion as a dissent, not a concurrence in the judgment, for that reason.

76 Case: 12-12928 Date Filed: 05/05/2015 Page: 77 of 102

Decades ago, the Supreme Court observed that “[i]f times have changed,

reducing everyman’s scope to do as he pleases in an urban and industrial world,

. . . the values served by the Fourth Amendment [are] more, not less, important.”

Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 2032 (1971). This

is even truer today. The judiciary must not allow the ubiquity of technology—

which threatens to cause greater and greater intrusions into our private lives—to

erode our constitutional protections. With that in mind, and given the striking

scope of the search in this case, I would hold that the Fourth Amendment requires

the government to get a warrant before accessing 67 days of the near-constant cell

site location data transmitted from Mr. Davis’s phone. I respectfully dissent.

I turn first to the third-party doctrine, which the majority believes decides

this case for us. They say: “Davis can assert neither ownership nor possession of

the third-party’s business records he sought to suppress.” Maj. Op. 27; see also

William Pryor Concurrence 45 (“Smith controls this appeal.”). My reading of

Supreme Court precedent suggests that things are not so simple.

The Supreme Court announced the third-party doctrine nearly forty years

ago in United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619 (1976). The Court

said that “the Fourth Amendment does not prohibit the obtaining of information

revealed to a third party and conveyed by him to Government authorities, even if

77 Case: 12-12928 Date Filed: 05/05/2015 Page: 78 of 102

the information is revealed on the assumption that it will be used only for a limited

purpose and the confidence placed in the third party will not be betrayed.” Id. at

443, 96 S. Ct. at 1624. Three years later, in Smith v. Maryland, 442 U.S. 735, 99

S. Ct. 2577 (1979), the Court applied that doctrine to hold that a defendant did not

have a reasonable expectation of privacy in the numbers he dialed on his home

telephone, recorded by means of a pen register at a telephone company’s central

office. Id. at 742, 99 S. Ct. at 2581. The Court reasoned that “[w]hen he used his

phone, petitioner voluntarily conveyed numerical information to the telephone

company and ‘exposed’ that information to its equipment in the ordinary course of

business.” Id. at 744, 99 S. Ct. at 2582. The Court reminisced that “[t]he

switching equipment that processed those numbers is merely the modern

counterpart of the operator who, in an earlier day, personally completed calls for

the subscriber.” Id. The government believes that Smith controls the outcome of

this case, and the majority apparently agrees. I do not.

First, the phone numbers a person dials are readily distinguishable from cell

site location data. Smith involved “voluntarily conveyed numerical

information”—voluntary because phone dialers have to affirmatively enter the

telephone number they are dialing in order to place a call. By contrast, cell phone

users do not affirmatively enter their location in order to make a call. Beyond that,

the ACLU informs us that “[p]hones communicate with the wireless network when

78 Case: 12-12928 Date Filed: 05/05/2015 Page: 79 of 102

a subscriber makes or receives calls.” ACLU Amicus Br. 5 (emphasis added). As

our sister Circuit observed, “when a cell phone user receives a call, he hasn’t

voluntarily exposed anything at all.” In re Application of U.S. for an Order

Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t,

620 F.3d 304, 317–18 (3d Cir. 2010) (Third Circuit Case) (emphasis added)

(quotation marks omitted).2

The Smith Court also emphasized that the numbers a person dials appear on

the person’s telephone bill and referenced the pre-automation process that required

the caller to recite phone numbers out loud to a phone operator in order to make a

call. Thus, the Court concluded that “[t]elephone users . . . typically know that

they must convey numerical information to the phone company.” Smith, 442 U.S.

at 743, 99 S. Ct. at 2581 (emphasis added). There is not the same sort of

“knowing” disclosure of cell site location data to phone companies because there is

2 The majority extensively recounts the Fifth Circuit’s decision in In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013), which said that a “cell user ha[s] no subjective expectation of privacy in such business records showing cell tower locations.” Maj. Op. 25. That Fifth Circuit case, of course, does not bind us. And in any event, other courts have held that people do have a reasonable expectation of privacy in cell site location data, whether historical or real-time in nature. The Third Circuit Case, for example, rejected the government’s argument that “no [cell site location data] can implicate constitutional protections because the subscriber has shared its information with a third party. . . .” 620 F.3d at 317. Similarly, the Florida Supreme Court has held that cell phone users have a reasonable expectation of privacy in real-time cell site location data. Tracey v. State, 152 So. 3d 504, 526 (Fla. 2014). And a recent decision from the Northern District of California addressed the very same question we address here and held that a person has a reasonable expectation of privacy in 60 days of historical cell site location data. United States v. Cooper, No. 13-cr-00693-SI-1, 2015 WL 881578, at *6–8 (N.D. Cal. Mar. 2, 2015). In short, we are faced with persuasive, albeit not binding, authority on both sides of the debate, but none controls the outcome of this case. 79 Case: 12-12928 Date Filed: 05/05/2015 Page: 80 of 102

no history of cell phone users having to affirmatively disclose their location to an

operator in order to make a call. The extent of voluntariness of disclosure by a

user is simply lower for cell site location data than for the telephone numbers a

person dials. For that reason, I don’t think Smith controls this case.

Second, although the Miller/Smith rule appears on its own to allow

government access to all information that any third-party obtains, in rulings both

before and since those cases, the Supreme Court has given reasons to doubt the

rule’s breadth. For instance, in Ferguson v. City of Charleston, 532 U.S. 67, 121 S.

Ct. 1281 (2001), the Court stated that “[t]he reasonable expectation of privacy

enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the

results of those tests will not be shared with nonmedical personnel without her

consent.” Id. at 78, 121 S. Ct. at 1288. Though the majority did not mention the

third-party doctrine, Justice Scalia noted the incongruity between that doctrine and

the Ferguson holding in his dissent. As he stated:

Until today, we have never held—or even suggested—that material which a person voluntarily entrusts to someone else cannot be given by that person to the police, and used for whatever evidence it may contain. Without so much as discussing the point, the Court today opens a hole in our Fourth Amendment jurisprudence, the size and shape of which is entirely indeterminate.

Id. at 95–96, 121 S. Ct. at 1297–98 (Scalia, J., dissenting). Further, and again

without mentioning the third-party doctrine, the Court has routinely recognized

that people retain a reasonable expectation of privacy in things that they have

80 Case: 12-12928 Date Filed: 05/05/2015 Page: 81 of 102

arguably exposed to third parties. See, e.g., United States v. Jacobsen, 466 U.S.

109, 114, 104 S. Ct. 1652, 1657 (1984) (holding that “[l]etters and other sealed

packages are in the general class of effects in which the public at large has a

legitimate expectation of privacy” even though they touch the hands of third-party

mail carriers); Stoner v. California, 376 U.S. 483, 487–88, 490, 84 S. Ct. 889, 892,

893 (1964) (finding unpersuasive the argument that “the search of [a] hotel room,

although conducted without the petitioner’s consent, was lawful because it was

conducted with the consent of the hotel clerk,” because a hotel guest’s

constitutional protections should not be “left to depend on the unfettered discretion

of an employee of the hotel”); see also Smith, 442 U.S. at 746–47, 99 S. Ct. at

2583 (Stewart, J., dissenting) (noting that in Katz v. United States, 389 U.S. 347,

88 S. Ct. 507 (1967), the Court held that a person has a reasonable expectation of

privacy in the contents of phone conversations made in telephone booths even

though calls “may be recorded or overheard by the use of other company

equipment”). I am well aware that each of these cases can be distinguished from

Mr. Davis’s case. I mean only to say that a comprehensive review of Supreme

Court precedent reveals that the third-party doctrine may not be as all-

encompassing as the majority seems to believe.

Third and most importantly, the majority’s blunt application of the third-

party doctrine threatens to allow the government access to a staggering amount of

81 Case: 12-12928 Date Filed: 05/05/2015 Page: 82 of 102

information that surely must be protected under the Fourth Amendment. Consider

the information that Google gets from users of its e-mail and online search

functions. 3 According to its website, Google collects information about you

(name, e-mail address, telephone number, and credit card data); the things you do

online (what videos you watch, what websites you access, and how you view and

interact with advertisements); the devices you use (which particular phone or

computer you are searching on); and your actual location. See Privacy Policy,

http://www.google.com/intl/en/policies/privacy/ (last accessed March 30, 2015).

Beyond that, in its “Terms of Service,” Google specifies that “[w]hen you upload,

submit, store, send or receive content to or through our Services, you give Google

(and those we work with) a worldwide license to use, host, store, reproduce,

modify, create derivative works, . . . communicate, publish, publicly perform,

publicly display and distribute such content.” See Google Terms of Service,

http://www.google.com/intl/en/policies/terms/ (last accessed March 30, 2015).

Like in Miller and Smith, Google even offers a legitimate business purpose for

such data storage and mining: “Our automated systems analyze your content

(including emails) to provide you personally relevant product features, such as

customized search results, tailored advertising, and spam and malware detection.”

Id. Under a plain reading of the majority’s rule, by allowing a third-party company

3 I refer to Google only as an example. The same analysis applies to most other online search engine or e-mail service providers. 82 Case: 12-12928 Date Filed: 05/05/2015 Page: 83 of 102

access to our e-mail accounts, the websites we visit, and our search-engine

history—all for legitimate business purposes—we give up any privacy interest in

that information.

And why stop there? Nearly every website collects information about what

we do when we visit. So now, under the majority’s rule, the Fourth Amendment

allows the government to know from YouTube.com what we watch, or

Facebook.com what we post or whom we “friend,” or Amazon.com what we buy,

or Wikipedia.com what we research, or Match.com whom we date—all without a

warrant. In fact, the government could ask “cloud”-based file-sharing services like

Dropbox or Apple’s iCloud for all the files we relinquish to their servers. I am

convinced that most internet users would be shocked by this. But as far as I can

tell, every argument the government makes in its brief regarding cell site location

data applies equally well to e-mail accounts, search-engine histories, shopping-site

purchases, cloud-storage files, and the like. See, e.g., Appellee’s Br. 21–22

(“Davis can assert neither ownership nor possession of the third-party records he

sought to suppress.”); id. at 22 (“Evidence lawfully in the possession of a third

party is not his, even if it has to do with him.”); id. at 23 (“Davis is not in a good

position to complain that the government improperly obtained ‘his location data,’

since he himself exposed and revealed to MetroPCS the very information he now

seeks to keep private.”); id. at 24 (“It is not persuasive to argue that phone users do

83 Case: 12-12928 Date Filed: 05/05/2015 Page: 84 of 102

not knowingly or intentionally disclose any location-related information to their

service providers.”); id. at 25 (“For purposes of the Fourth Amendment, it makes

no difference whether Davis knew that MetroPCS was collecting location-related

information.”); id. at 27–28 (“[S]ervice contracts and privacy policies typically

warn cell-phone customers that phone companies collect location-related

information and may disclose such data to law-enforcement authorities.”).

The enormous impact of this outcome is probably why at least one Circuit

has held that a person’s Fourth Amendment rights are violated when the

government compels an internet service provider to turn over the contents of e-

mails without a warrant. See United States v. Warshak 631 F.3d 266, 286–88 (6th

Cir. 2010). Surely the majority would agree and would also shield e-mails from

government snooping absent a warrant. But if e-mails are protected despite the

fact that we have surrendered control of them to a third party, then the rule from

Smith and Miller has its limits.

The majority suggests that e-mails can be distinguished because cell site

location data is “non-content evidence.” Maj. Op. 27 (emphasis omitted). The

majority offers no coherent definition of the terms “content” and “non-content,”

and I am hard-pressed to come up with one. For instance, would a person’s

Google search history be content or non-content information? Though a person’s

search terms may seem like “content,” a search term exists in the web address

84 Case: 12-12928 Date Filed: 05/05/2015 Page: 85 of 102

generated by a search engine. 4 And web addresses, like phone numbers, seem like

quintessentially non-content information that merely direct a communication. But

regardless, although this content–non-content distinction could—maybe—shield

the body of e-mail messages, the government may presumably still access the time

and date that we send e-mails, the names of the people who receive them, and the

names of the people who email us, without a warrant. Likewise, although our

actual activities on a dating or shopping website might be protected, the fact that

we visited those websites or any other would still be freely discoverable. The

government agreed at oral argument that under its theory, it could at the very least

obtain records like the sender and receiver of e-mails, the time of day e-mails are

sent, the number of e-mails a person sends, the websites that a person visits, and

maybe even the connections a person communicates with on a dating website and

whom she meets in person—all without a warrant.

This slippery slope that would result from a wooden application of the third-

party doctrine is a perfect example of why the Supreme Court has insisted that

technological change sometimes requires us to consider the scope of decades-old

Fourth Amendment rules. See Kyllo v. United States, 533 U.S. 27, 35, 121 S. Ct.

2038, 2044 (2001) (rejecting a “mechanical interpretation of the Fourth

Amendment” in the face of “advancing technology”); cf. Katz, 389 U.S. at 353, 88

4 For example, a search of “Eleventh Circuit” on google.com produces the web address: “https://www.google.com/?gws_rd=ssl#q=eleventh+circuit.” 85 Case: 12-12928 Date Filed: 05/05/2015 Page: 86 of 102

S. Ct. at 512 (“To read the Constitution more narrowly is to ignore the vital role

that the public telephone has come to play in private communication.”). For

instance, in Riley v. California, 573 U.S. ___, 134 S. Ct. 2473 (2014), the Court

was asked to decide whether the decades-old search-incident-to-arrest exception to

the warrant requirement applied to cell phones on an arrestee’s person. Id. at 2480.

California argued that the Court’s 41-year-old decision in United States v.

Robinson, 414 U.S. 218, 94 S. Ct. 467 (1973), controlled the outcome in Riley

because the Court held that a search of objects on an arrestee’s person was

categorically reasonable. See Riley, 134 S. Ct. at 2491. The Riley Court agreed

that “a mechanical application of Robinson might well support the warrantless

searches at issue.” Id. at 2484. But it nonetheless unanimously rejected that

argument, saying that cell “phones are based on technology nearly inconceivable

just a few decades ago, when . . . Robinson w[as] decided.” Id. Thus, to say that a

search of cell phone data is “materially indistinguishable” from a search of

physical items

is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.

Id. at 2488–89.

Likewise here, the extent of information that we expose to third parties has

86 Case: 12-12928 Date Filed: 05/05/2015 Page: 87 of 102

increased by orders of magnitude since the Supreme Court decided Miller and

Smith. Those forty years have seen not just the proliferation of cell phones that

can be tracked, but also the advent of the internet. Given these extraordinary

technological advances, I believe the Supreme Court requires us to critically

evaluate how far to extend the third-party doctrine. As Justice Sotomayor

observed:

[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is 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. . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

United States v. Jones, 565 U.S. ___, ___, 132 S. Ct. 945, 957 (2012) (Sotomayor,

J., concurring) (citations omitted). Neither would I assume as much. Though the

doctrine may allow the government access to some information that we disclose to

third parties, I would draw the line short of the search at issue here. Sixty-seven

days of near-constant location tracking of a cell phone—a technological feat

impossible to imagine when Miller and Smith were decided—is an application of

the doctrine that goes too far.

Because I believe that the third-party doctrine does not dictate the outcome

of this case, I turn to fundamental Fourth Amendment principles. The Fourth

87 Case: 12-12928 Date Filed: 05/05/2015 Page: 88 of 102

Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. “As the text makes clear, the ultimate touchstone of the

Fourth Amendment is reasonableness.” Riley, 134 S. Ct. at 2482 (quotation marks

omitted). Our analysis is two-fold: “First, we ask whether the individual, by his

conduct, has exhibited an actual expectation of privacy; that is, whether he has

shown that he sought to preserve something as private.” Bond v. United States,

529 U.S. 334, 338, 120 S. Ct. 1462, 1465 (2000) (quotation omitted) (alteration

adopted). “Second, we inquire whether the individual’s expectation of privacy is

one that society is prepared to recognize as reasonable.” Id. (quotation omitted). If

we conclude that a particular search violates a defendant’s reasonable expectation

of privacy, the government must get a search warrant.

For me, the answer to the subjective inquiry is easy. It seems obvious that

Mr. Davis never intended to disclose his location to the government every time he

made or received calls. Recent polling data tells us that 82% of adults “feel as

though the details of their physical location gathered over a period of time” is

“very sensitive” or “somewhat sensitive.” Mary Madden, Public Perceptions of

Privacy and Security in the Post-Snowden Era 34, Pew Research Center (Nov. 12,

88 Case: 12-12928 Date Filed: 05/05/2015 Page: 89 of 102

2014), http://www.pewinternet.org/files/2014/11/PI_PublicPerceptionsofPrivacy_

1112 14.pdf. This supports the common-sense notion that people do not expect the

government to track them simply as a consequence of owning and using what

amounts to a basic necessity of twenty-first century life—the cell phone. 5 Beyond

that, the prosecutor in this case specifically admitted at closing argument that

“what this defendant could not have known was that . . . his cell phone was

tracking his every moment.” Trial Tr. 4–5, Feb. 8, 2012, ECF No. 287 (emphasis

added); see also id. at 14 (arguing that Mr. Davis and his co-conspirators “had no

idea that by bringing their cell phones with them to these robberies they were

allowing MetroPCS and now [the jury] to follow their movements”). In short, I

believe that Mr. Davis—like any other person interacting in today’s digital

world—quite reasonably had a subjective expectation that his movements about

town would be kept private.6

5 The government argues that regardless of what people think, “MetroPCS’s current privacy policy . . . advises its wireless customers that the company ‘may disclose, without your consent, the approximate location of a wireless device to a governmental entity or law enforcement authority when we are served with lawful process.’” Appellee Br. 28 (citation omitted). But as another court recently noted, “[t]he fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by ‘choosing’ to carry a cell phone must be rejected.” In re Application of the U.S. for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d 113, 127 (E.D.N.Y. 2011). Regardless, and as the majority acknowledges, the “contract does not appear on this record to have been entered into evidence here,” so “we cannot consider it.” Maj. Op. 25 n.11. 6 The majority does not explain why it believes that “the fact that Davis registered his cell phone under a fictitious alias tends to demonstrate his understanding that such cell tower location information is collected by MetroPCS and may be used to incriminate him.” Maj. Op. 28. Mr. Davis’s use of an alias more naturally evidences his desire not to tie his identity to his phone’s 89 Case: 12-12928 Date Filed: 05/05/2015 Page: 90 of 102

The more important and more difficult question we must consider is whether

Mr. Davis’s expectation of privacy is one society is objectively prepared to

recognize as reasonable. I believe the answer is yes. The Supreme Court recently

reminded us that “there is an element of pervasiveness that characterizes cell

phones.” Riley, 134 S. Ct. at 2490. Today, “it is the person who is not carrying a

cell phone . . . who is the exception.” Id. The Court noted that “nearly three-

quarters of smart phone users report being within five feet of their phones most of

the time, with 12% admitting that they even use their phones in the shower.” Id.

(quoting Harris Interactive, 2013 Mobile Consumer Habits Study (June 2013)). In

other words, “modern cell phones . . . are now such a pervasive and insistent part

of daily life that the proverbial visitor from Mars might conclude they were an

important feature of human anatomy.” Id. at 2484; see also City of Ontario, Cal. v.

Quon, 560 U.S. 746, 760, 130 S. Ct. 2619, 2630 (2010) (“Cell phone and text

message communications are so pervasive that some persons may consider them to

be essential means or necessary instruments for self-expression, even self-

identification.”).

Since we constantly carry our cell phones, and since they can be used to

track our movements, the recent opinions of five Justices in United States v. Jones

that long-term location-monitoring generally violates expectations of privacy are

account with MetroPCS. For me, Mr. Davis’s use of an alias says nothing about his subjective expectation of privacy in his location. 90 Case: 12-12928 Date Filed: 05/05/2015 Page: 91 of 102

instructive. In Jones, the Supreme Court considered whether warrantless

monitoring of the location of a person’s car for twenty-eight days by means of a

GPS tracker violated the defendant’s rights under the Fourth Amendment. 132 S.

Ct. at 948–49. All nine Justices said yes. Five Justices held that such tracking

violated the Fourth Amendment under a trespass theory that considered the

government’s physical intrusion of the car. Id. at 949. Important for Mr. Davis’s

case, however, a different set of five Justices were in agreement that “longer term

GPS monitoring in investigations of most offenses impinges on expectations of

privacy.” Id. at 955 (Sotomayor, J., concurring) (quoting id. at 964 (Alito, J.,

joined by Ginsburg, Breyer, and Kagan, JJ., concurring in the judgment)). Said

one Justice, “GPS monitoring generates a precise, comprehensive record of a

person’s public movements that reflects a wealth of detail about her familial,

political, professional, religious, and sexual associations.” Id. at 955 (Sotomayor,

J., concurring). Said four other Justices, “society’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.” Id. at 964 (Alito, J., concurring in the judgment).7

The search at issue here similarly impinged on expectations of privacy. The

7 The majority chides Mr. Davis for “deploy[ing] the concurrences in Jones,” Maj. Op. 33, but a lower federal court ignores the opinion of five Justices of the Supreme Court at its own risk. 91 Case: 12-12928 Date Filed: 05/05/2015 Page: 92 of 102

location data the government collected, though not quite as precise as the GPS data

in Jones, still revealed Mr. Davis’s comings and goings around Miami with an

unnerving level of specificity. Each time he made or received a call, MetroPCS

catalogued the cell tower to which his cell phone connected, typically the

“[n]earest and strongest” tower. Trial Tr. 221, Feb. 6, 2012, ECF No. 283. In a

“cosmopolitan area [like] Miami,” there are “many, many towers” whose coverage

radii are “much smaller” than a “mile-and-a-half.” Id. at 222–23. Each coverage

circle is further subdivided into “three or six portions.” Id. at 222. The data the

government obtained in this case specified the sector within a tower’s coverage

radius in which Mr. Davis made or received a call.

The amount of data the government got is also alarming. The government

demanded from MetroPCS sixty-seven days of cell site location data—more than

double the time at issue in Jones. In total, this data included 5,803 separate call

records. Since MetroPCS cataloged the cell tower sector where each phone call

started and ended, the government had 11,606 cell site location data points. This

averages around one location data point every five and one half minutes for those

sixty-seven days, assuming Mr. Davis slept eight hours a night.

The amount and type of data at issue revealed so much information about

Mr. Davis’s day-to-day life that most of us would consider quintessentially private.

For instance, on August 13, 2010, Mr. Davis made or received 108 calls in 22

92 Case: 12-12928 Date Filed: 05/05/2015 Page: 93 of 102

unique cell site sectors, showing his movements throughout Miami during that day.

And the record reflects that many phone calls began within one cell site sector and

ended in another, exposing his movements even during the course of a single

phone call.

Also, by focusing on the first and last calls in a day, law enforcement could

determine from the location data where Mr. Davis lived, where he slept, and

whether those two locations were the same. As a government witness testified at

trial, “if you look at the majority of . . . calls over a period of time when somebody

wakes up and when somebody goes to sleep, normally it is fairly simple to

decipher where their home tower would be.” Trial Tr. 42, Feb. 7, 2012, ECF No.

285. For example, from August 2, 2010, to August 31, 2010, Mr. Davis’s first and

last call of the day were either or both placed from a single sector—purportedly his

home sector. But on the night of September 2, 2010, Mr. Davis made calls at

11:41pm, 6:52am, and 10:56am—all from a location that was not his home sector.

Just as Justice Sotomayor warned, Mr. Davis’s “movements [were] recorded and

aggregated in a manner that enable[d] the Government to ascertain, more or less at

will, . . . [his] sexual habits, and so on.” Jones, 132 S. Ct. at 956 (Sotomayor, J.,

concurring); see also United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir.

2010) (“A person who knows all of another’s travels can deduce whether he is a

weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband,

93 Case: 12-12928 Date Filed: 05/05/2015 Page: 94 of 102

an outpatient receiving medical treatment, an associate of particular individuals or

political groups—and not just one such fact about a person, but all such facts.”).

Importantly, the specificity of the information that the government obtained

was highlighted by the way the government used it at trial. The government relied

upon the information it got from MetroPCS to specifically pin Mr. Davis’s location

at a particular site in Miami. See, e.g., Trial Tr. 58, Feb. 7, 2012, ECF No. 285

(noting that “Mr. Davis’s phone [was] literally right up against the America Gas

Station immediately preceding and after [the] robbery occurred”); id. at 61 (noting

“the presence of his cell phone literally . . . right next door to the Walgreen’s just

before and just after that store was robbed”). On this record, Mr. Davis had a

reasonable expectation of privacy in the cell site location data the government

obtained, and his expectation was one that society should consider reasonable. I

would therefore hold that absent a warrant, a Fourth Amendment violation

occurred.

The majority, of course, believes that Mr. Davis had no reasonable

expectation of privacy in the cell site location data obtained in his case. It

emphasizes the large size of the sectors that each location data point revealed as

evidence that the privacy intrusion was not so great. See Maj. Op. 5–6, 10–12. It

also says we need not consider more invasive technologies that have developed

94 Case: 12-12928 Date Filed: 05/05/2015 Page: 95 of 102

since the search that took place here. Id. at 11 n.7 (“There is no evidence, or even

any allegation, that the MetroPCS network reflected in the records included

anything other than traditional cell towers and the facts of this case do not require,

or warrant, speculation as to the newer technology.”). Yet the Supreme Court has

cautioned us that “[w]hile the technology used in the present case [may be]

relatively crude, the rule we adopt must take account of more sophisticated systems

that are already in use or in development.” Kyllo, 533 U.S. at 36, 121 S. Ct. at

2044. Just as the majority appropriates decades-old precedent from Miller and

Smith and applies it to new technologies, the rule we make today necessarily will

apply to everyone else’s case going forward.

That future impact is troubling. As technology advances, the specificity of

cell site location information has increased. Cell phone companies are constantly

upgrading their networks with more and more towers. As the ACLU explains:

Cell site density is increasing rapidly, largely as a result of the growth of internet usage by smartphones. . . . As new cell sites are erected, the coverage areas around existing nearby cell sites will be reduced, so that the signals sent by those sites do not interfere with each other. In addition to erecting new conventional cell sites, providers are also increasing their network coverage using low-power small cells, called “microcells,” “picocells,” and “femtocells” (collectively, “femtocells”), which provide service to areas as small as ten meters. . . . Because the coverage area of femtocells is so small, callers connecting to a carrier’s network via femtocells can be located to a high degree of precision, sometimes effectively identifying individual floors and rooms within buildings.

ACLU Amicus Br. 7–8 (quotations, citations omitted); see also id. at 7 (noting that

95 Case: 12-12928 Date Filed: 05/05/2015 Page: 96 of 102

“the number of cell sites in the United States has approximately doubled in the last

decade”); id. at 8 (noting that “[f]emtocells with ranges extending outside of the

building in which they are located can also provide cell connections to passersby,

providing highly precise information about location and movement on public

streets and sidewalks”). The location features on smartphones are even more

precise. See Riley, 134 S. Ct. at 2490 (“Historic location information is a standard

feature on many smart phones and can reconstruct someone’s specific movements

down to the minute, not only around town but also within a particular building.”).

Beyond that, today, the vast majority of communications from cell phones

are in the form of text messages and data transfers, not phone calls. The frequency

of text messaging is much greater than the frequency of phone calling—

particularly among young cell phone users. See Amanda Lenhart, Teens,

Smartphones & Texting (available at http://www.pewinternet.org/2012/03/19/

teens-smartphones-texting/) (finding that the median number of texts sent per day

by teens ages 12 to 17 rose from 50 in 2009 to 60 in 2011). Also, “smartphones,

which are now used by more than six in ten Americans, communicate even more

frequently with the carrier’s network, because they typically check for new email

messages or other data every few minutes.” ACLU Amicus Br. 5 (citations

omitted). Each of these new types of communications can generate cell site

location data. See, e.g., United States v. Cooper, No. 13-cr-00693-SI-1, 2015 WL

96 Case: 12-12928 Date Filed: 05/05/2015 Page: 97 of 102

881578, at *8 n.6 (N.D. Cal. Mar. 2, 2015) (noting the government’s admission

that “cell site data is recorded for both calls and text messages”).

Finally, not only are cell sites fast growing in number, but the typical user

has no idea how precise cell site location data is at any given location. As a person

walks around town, particularly a dense, urban environment, her cell phone

continuously and without notice to her connects with towers, antennas, microcells,

and femtocells that reveal her location information with differing levels of

precision—to the nearest mile, or the nearest block, or the nearest foot. And since

a text or phone call could come in at any second—without any affirmative act by a

cell phone user—a user has no control over the extent of location information she

reveals.

The government tells us these technological advances do not change our

analysis. At oral argument, it admitted that its theory requires us to hold that it

could obtain location data without a warrant even when technology someday

allows it to know a person’s location to within six inches, and when tracking is

continuous and does not require making or receiving a phone call. I reject a theory

that allows the government such expansive access to information about where we

are located, no matter how detailed a picture of our movements the government

may receive.

But we need not fear the threat of increasing precision of location

97 Case: 12-12928 Date Filed: 05/05/2015 Page: 98 of 102

information, says the majority. At the same time it suggests that today’s ruling

might not apply to future technology, however, the majority’s opinion offers

absolutely no guidance to the judges who authorize searches of cell site location

data and the officers who conduct them. As the ACLU pointed out, “[a]gents will

not have prior knowledge of whether the surveillance target was in a rural area

with sparse cell sites, an urban area with dense cell sites or six-sector antennas, or a

home, doctor’s office, or church with femtocells.” ACLU Amicus Br. 9. Thus, a

judge will authorize a search of a person’s cell site location data for a certain

period of time without knowing how precise the location information will be.

While I admire the majority’s attempt to cabin its holding to the technology of five

years ago, its assurances in this regard seem naïve in practice. As a result of

today’s decision, I have little doubt that all government requests for cell site

location data will be approved, no matter how specific or invasive the technology.

The majority offers dire warnings of the consequences of restricting the

government’s access to cell site location data, suggesting that without it, all

manner of horrific crimes—from child abductions to terrorism—would go

uninvestigated. See Maj. Op. 42. But if my view of the Fourth Amendment were

to prevail, all the officers in this case had to do was get a warrant for this search.

That is no great burden. “Under the Fourth Amendment, an officer may not

98 Case: 12-12928 Date Filed: 05/05/2015 Page: 99 of 102

properly issue a warrant . . . unless he can find probable cause therefor from facts

or circumstances presented to him under oath or affirmation.” Nathanson v.

United States, 290 U.S. 41, 47, 54 S. Ct. 11, 13 (1933). The probable-cause

standard is not onerous. See Illinois v. Gates, 462 U.S. 213, 291, 103 S. Ct. 2317,

2360 (1983) (Brennan, J., dissenting) (criticizing a probable-cause standard that

“imposes no structure on magistrates’ probable cause inquiries . . . and invites the

possibility that intrusions may be justified on less than reliable information from an

honest or credible person”); Ricardo J. Bascuas, Property and Probable Cause: The

Fourth Amendment’s Principled Protection of Privacy, 60 Rutgers L. Rev. 575,

592–93 (2008) (“The Supreme Court has set the standard for the quality of

information that can support a warrant so low that judges can hardly be expected to

uncover a baseless request.”); cf. Riley, 134 S. Ct. at 2493 (noting that “[r]ecent

technological advances . . . have . . . made the process of obtaining a warrant itself

more efficient”). Nor is cell site data the type of information which would spoil or

perish during the short time it takes to get a warrant. Finally, requiring a warrant

would not do away with the other well-established exceptions to the warrant

requirement, like exigent circumstances. Cf. Riley, 134 S. Ct. at 2494 (noting that

“the availability of the exigent circumstances exception . . . address[es] some of the

more extreme hypotheticals that have been suggested”). Imposing the requirement

for a warrant under these circumstances would hardly shackle law enforcement

99 Case: 12-12928 Date Filed: 05/05/2015 Page: 100 of 102

from conducting effective investigations.

But regardless of how easy it might be to get warrants, the Supreme Court

has reminded us time and again of how important they are.

The warrant requirement has been a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow ‘weighed’ against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the ‘well- intentioned but mistakenly over-zealous, executive officers’ who are a part of any system of law enforcement.

Coolidge, 403 U.S. at 481, 91 S. Ct. at 2046 (citation omitted). The majority

emphasizes that the Stored Communications Act (SCA) requires the government to

“offer[] 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(d). But it does not contest—nor could it—that

this standard falls below the probable-cause standard that courts usually demand.

See Maj. Op. 15.8

Once again, the Supreme Court’s analysis in Riley is instructive. 9 There, the

8 Certainly the Stored Communications Act is better than nothing. See Maj. Op. 15 (noting that the SCA “raises the bar from an ordinary subpoena to one with additional privacy protections built in”). But the mere fact that the Act provides some judicial oversight before the government can get cell site location data does not answer the question whether the government is constitutionally required to have a warrant. 9 “[T]here is dicta and then there is dicta, and then there is Supreme Court dicta.” Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006). 100 Case: 12-12928 Date Filed: 05/05/2015 Page: 101 of 102

Court recognized:

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

Riley, 134 S. Ct. at 2493. But still, the Court insisted that law enforcement officers

get a warrant before searching a cell phone incident to arrest. So too here. I would

simply require the government do what it has done for decades when it seeks to

intrude upon a reasonable expectation of privacy. That is, “get a warrant.” Id. at

2495.

V.

The majority proclaims that its holding today is “narrow[],” Maj. Op. 14,

limited only to cell site location data, and only to the kind of data the government

could obtain in 2010. But “[s]teps innocently taken may one by one lead to the

irretrievable impairment of substantial liberties.” Glasser v. United States, 315

U.S. 60, 86, 62 S. Ct. 457, 472 (1942). Under the reasoning employed by the

majority, the third-party doctrine may well permit the government access to our

precise location at any moment, and in the end, our entire digital lives. And

although Mr. Davis—as the majority reminds us in great detail, see Maj. Op. 3–

5—has been convicted of very serious crimes and is not therefore the most

101 Case: 12-12928 Date Filed: 05/05/2015 Page: 102 of 102

sympathetic bearer of this message, 10 “the rule[s] we fashion [are] for the innocent

and guilty alike.” Draper v. United States, 358 U.S. 307, 314, 79 S. Ct. 329, 333

(1959) (Douglas, J., dissenting). I would not subject the citizenry to constant

location tracking of their cell phones without requiring the government to get a

warrant. The Fourth Amendment compels this result. I respectfully dissent.

10 Though regardless of the outcome of this en banc appeal, Mr. Davis’s convictions will stand and he will remain incarcerated due to the good-faith exception. See supra note 1. 102