United States v. Graham

Here is another interesting submission from one of our staff editors to engage all in though for this summer.  The below submission discusses historical cellular cite location data and its implications on the Fourth Amendment.

Special thanks for this submission goes to Chelsea Gilbertson, one of our staff editors.  As always, CLR greatly appreciates the hard work of our editors and their submissions.

United States v. Graham

In United States v. Graham, the court decided an issue of first impression regarding whether historical cell site location data violates the right to privacy as protected by the Fourth Amendment of the constitution. 846 F. Supp. 2d 384, 387 (D. Md. 2012).  The defendants in the case were involved in a series of robberies and volunteered their cellular phone numbers subsequent to their arrests.  Id.  at 386.  Under the Stored Communications Act (SCA), 18 U.S.C. §§ 2701, et seq., the government obtained a warrant obligating Sprint/Nextel Inc.  to disclose the locations of the cellular towers associated with the defendants’ cellphone activity. Id.  Through the use of such warrants, the defendants were charged with several criminal counts including conspiracy to commit robbery. Id.  Defendants appealed the admissibility of the evidence collected under Historical Cell Site Location Data. Id.  Defendants made a challenge to the use of historical cell site location data in furtherance of the prosecution’s case against them. Id.

The issuing judges in this case both granted the first warrant under the SCA and the second for the cell site location using the standard under the SCA, “finding that the government ‘offered specific and articulable facts showing that there are reasonable grounds’” that the information they sought was relevant to the on-going investigation. Id. at 386-87.  The defendants did not challenge the constitutionality of the SCA, rather they argue using the lower standard of “specific and articulable,” instead of probable cause violates their Fourth Amendment right to privacy. Id.

First, the prosecution rebutted that the defendants lacked standing.  They argued one of the defendants provided a fictitious name to the cellular provider; hence, he cannot claim an expectation of privacy. Id. at 397.  Moreover, the government argued that the actual party in interest is Sprint/Nextel Inc., as they have possession of the information. Id.

The court applied the third party standard first articulated in the Fourth Circuit in the past. Id. at 400.  The court cited precedent where it had applied the third party doctrine to Internet subscriber information and found there was no reasonable expectation of privacy for those customers and their information. Id at 399.  Accordingly,  customers who voluntarily turn over their information to a third party have no reasonable expectation of privacy. Id at 399-400.

The government’s third argument is that historical cell site location does not require probable cause.  As applied under the CSA, only the lower standard of “specific and articulable facts” is required. Id. at 388.  Defense countered that the information gathered under cell site location data is collected retroactively and over an extended period of time, thereby making the process unconstitutional.  The Court found  issue with aggregation under the mosaic theory of surveillance. Id. at 402.  The Court articulated its concern that by aggregating multiple acts of surveillance, it can render surveillance unconstitutional that was previously, and would otherwise remain, constitutional. Id. at 402-403.

The Court also looked at the theories from other courts, like the Eastern District of New York and the Southern District of Texas, which suggest that “under certain circumstances, applications seeking cell site location data must be granted only after a showing of probable cause. Id. at 388.  Finally, the Court sided with only applying the SCA’s lower standard, regardless of the period of time in question. Id. at 389.

The government argued in the alternative that even if the Court were to find that this use of historical cell site location data collected is unconstitutional, it should not be suppressed because it was collected in good faith.

The court concluded by applying the third party standard and the lower standard of specific and articulable facts to the collection of historical cell site location data., which did not violate the defendants’ Fourth Amendment right to privacy. Id. at 404.


We want to hear your opinions on this and other privacy issues recently discussed on the blog.

Riley v. California

Continuing our series of thought-provoking and relevant submissions from staff editors is the below brought to us by Matthew Hamblin.  We greatly appreciate the hard work of our editors and their submissions.  Below is a discussion of the recent case that was heard by the Supreme Court on April 29, 2014, regarding 4th Amendment search and seizure.  We look forward to see the forthcoming Supreme Court opinion on this case.

David Leon Riley v. The State of California

The Fourth Amendment protects citizens from unreasonable searches and seizures made by the government. This requires a warrant supported by probable cause unless there are exigent circumstances that justify a warrantless search. During a lawful arrest, a police officer may conduct a lawful warrantless search incident to that arrest to protect the officer or to prevent the destruction of incriminating evidence. Items within direct control or immediately associated with the defendant’s person may be search at the time of the arrest. Personal property immediately associated with the defendant may be searched fully in an inventory search or booking search. Mr. Riley was lawfully arrested with his digital smartphone in his hand. There was a cursory search on site and an invasive search later at the station.  Does the station search comport with the Fourth Amendment because Riley’s smartphone immediately associated with his person?

In this case, the Supreme Court will approach the issue of whether a digital smart phone is a within the “direct control” standard illustrated in U.S. v. Chadwick or is under the “immediately associated with defendant’s person” standard illustrated in US v. Edwards when seized in a warrantless search.  Is a smartphone’s digital storage similar to a footlocker found in a car, or is it similar to clothing or a wallet found on an arrestee?

The California Supreme Court held that Riley’s phone was “immediately associated with the defendant’s person.” The Court applied reasoning from People v. Diaz, in which the court said that a cell phone was personal property at the time of the arrest and is therefore subject to a warrantless search at the time of his lawful arrest and during the administrative processing at the station. The court said that, “a delayed search of an item immediately associated with the arrestee’s person may be justified as incident to a lawful custodial arrest without consideration as to whether an exigency for the search exists.” People v. Riley, Cal. App. 4th Dist. (2013); citing People v. Diaz, (2011) 51 Cal.4th 84. Petitioner Riley requested Certiorari with the Supreme Court, claiming that the phone was not immediately associated with his person and the subsequent search of the phone’s digital contents was too remote in time and place from his arrest to comport with the Fourth Amendment.


After an arrest arising out of a “dribe-by” shooting, police observed Lincoln Park gang indicia consistent with membership. An officer made a cursory search of Riley’s smartphone at that time. The officer noticed that each entry was noted with a “ck.” Typically, this nomenclature is used to signify the user as a “Crip Killer.”

A detective later fully searched the phone at the police station two hours later. He was aware that it was common practice for gang members to take videos or pictures of themselves with firearms. The phone’s digital contents provided more than pictures of firearms. The police found video clips of gang initiation with Riley’s car visible in the background. They also uncovered phone records showing that the phone was at the location of the “drive-by” and the location where Riley’s vehicle had been found.

Riley was charged with several serious offenses and later moved to suppress the  evidence from the phone because the full search of the phone was made too “remote in time and place from the arrest.”


The Fourth Amendment prohibits warrantless searches incident to an arrest that are “too remote in time and place” of items merely within “the arrestee’s immediate control.” United States v. Chadwick, 433 U.S. 1. However, a search may be remote in time and place of an item “of the personal property immediately associated with the person of the arrestee.” United States v. Edwards, 415 U.S. 800. An officer in a search incident to a lawful arrest may “conduct a full search of the person [of the arrestee].” United States v. Robinson, 414 U.S. 218.  However, the search incident to an arrest exception must be “reasonably limited” to protect police from hidden weapons and to “prevent the destruction of evidence” United States v. Chimel, 392 U.S. 752, 764 (1969).

This approach is justified in Maryland v. King.  There, the Court explained that that government has an important interest in the warrantless searches of persons arrested for serious crimes. Maryland v. King, 133 S.Ct. 1958 (2013).  Once arrested the arrestee has a diminished expectation of privacy in objects found on his corporeal person such as his DNA for testing. Id.

In Chadwick, the Courtinvalidated a search of a locked 200-pound footlocker an hour and a half after its seizure incident to the arrest. United States v. Chadwick, 433 U.S. 1. There, the Court said that while the locker could have been searched at the time of the arrest, an hour and a half was too far removed from the time and place of the arrest. Id. The Court distinguished the footlocker from the person of the arrestee holding that it was merely in the arrestee’s direct control and not directly associated with his person. Id. The California Supreme Court in People v. Diaz, held that the Fourth Amendment allows officers to search the entire smartphone’s digital contents since the phone is personal property immediately associated with the arrestee. People v. Diaz, 244 P.3d 501, 510 (Cal. 2011).

However, The First Circuit court in United States v. Wurie held that police officers are forbidden from searching the digital contents of a cell phone incident to an arrest without a warrant. United States v. Wurie, ­_ F.3d __, 2012 WL 2129119, at *11 (1st Cir. May 17, 2013). These courts rely on the Chadwick rational and hold that the information held on a smartphone is not similar to information held in a physical closed container found on the person during a lawful arrest.

On one hand, Riley argues that the Edwards analogy does not apply. Indeed, a smartphone has the capacity to store an entire warehouse worth of private information similar to a diary or a computer. This amount of information goes beyond what a person could carry on his person. The government may have access to all of a person’s contacts, years of past texts, email correspondence and calendared appointments if all of the information within a smartphone may be seized. This would include photographs, personal videos, and other information that might be held on a computer such as medical records and banking activity accessed by the internet. Thus, it cannot be said that all of the content’s on a person’s phone can be deemed “immediately associated” with the person carrying the phone. The seizure of this amount of information would be unreasonable invasion of privacy per the Fourth Amendment.

A full search of a smartphone’s content would be equivalent to a general warrant because it would be indistinguishable from searching an entire warehouse or home full of information intended to be kept private by the owner.  It would be the modern day equivalent of a general search. Should the police have that level of access to a person’s life without a specific legal warrant detailing what incriminating evidence the police are seeking?

Further still, the nature of the digital contents of a smart phone diminish the government’s justification found in Chimel in conducting a search incident to an arrest. Further still, there is not inventory search justification. Unlike tangible items that may go missing when containers and vehicles are impounded, the digital content’s on a phone are unlikely to go missing. Unlike tangible weapons that could harm an arresting officer or contraband that could be destroyed before a search, digital items will remain on the phone or in the provider’s servers. Either of which could be searched with a valid legal warrant later.

The search of a smartphone may not further the government interests that justify a search incident to an arrest and impinges upon personal privacy because of the sheer amount of information that can be accessed by the smartphone. That amount of information would not comport with the Framer’s original intent to prohibit general warrants.

On the other hand, the State argues that the digital contents of the phone are no different from physical documents found in a container associated with a person at the time of the arrest.

A cell phone is personal property. As the California Supreme Court stated, personal property found on a person at the time of his arrest may be subject to a warrantless search. Since the phone was in Riley pocket at the time of his arrest it can be considered “immediately associated with his person.” Like the clothing taken form the defendant in Edwards, Riley’s cell phone was an item of personal property on his person at the time of his lawful arrest.

Furthermore, a cell phone can readily identify an arrestee as easily as the DNA taken from the defendant in King.  There is no requirement that information gained in a search incident from an arrest be simply used as identification. Information gained by analyzing swabbed DNA may provide evidence of drug use or any number of things. Information contained in a smartphone may be used for identification and yet still be used by the prosecution since that data was seized in the arrest.


 The Court’s opinion will turn on whether the digital information contained in a smartphone is to be considered “within the direct control” of an arrestee or whether that information was “immediately associated” with the person of the arrestee. This of course will turn on how to court views a smartphone. The phone itself is personal property. However, the data found within that phone can lead to a treasure trove of information that a defendant has manifested an intent for it to remain private. Therefore, the phone itself may be view as “immediately associated” with Riley. On the other hand, the data within may be considered within “the direct control” of Riley.

Overall, how data is legally treated is a very ripe issue. Smartphones have become pervasive through our society. The personal data stored on these devices and servers in which those devises have access is immense. Government agencies from the local police to the NSA use them on a daily basis. The trend has been to let the government have more access to this information for effective surveillance and police work. How the Court decides this case will go to showing the extent of that continuing trend.


Cellular Location Tracing and the 4th Amendment – Staff Editor Submission

The CLR opened up the floor to our Staff Editors for insightful and engaging submissions for the blog.  Several editors stepped up to the task and we greatly appreciate their hard work and submissions.  Stay tuned for more great blog submissions!

The first of what trust will be a very compelling series of submissions, was written by Michael LaGarde.  Below is a discussion of the recent case decided in Florida that discusses the 4th Amendment implications of obtaining individual’s locations using cellular phone tracing:

Tracey v. State  — 69 So.3d 992 (2011).

Based on a tip, law enforcement requested to trace incoming and outgoing calls for a cell phone belonging to Shawn Tracey, which he had registered under a false name. The court went beyond the request and also allowed tracking of the phone’s Cell Site Location Information. Tracey was later convicted of possession of more than 400 grams of cocaine as well as other charges. Tracey appealed, claiming the trial court erred in denying his motion to suppress evidence derived from real-time or prospective CSLI under the Fourth Amendment. On appeal, the court upheld his conviction finding there was no Fourth Amendment violation. The Supreme Court of Florida granted review on January 28, 2013 and the decision is forthcoming.

Issue: Does the use of real time CSLI constitute a search under the Fourth Amendment?

A) Is there an expectation of privacy on public roads where Tracey was tracked?

The Supreme Court has held that there is no Fourth Amendment violation in such circumstances because the electronic tracking has “revealed no information that could not have been obtained through visual surveillance” United States v. Karo, 468 U.S. 705, 707(1984) (explaining United States v. Knotts, 460 U.S. 276 (1983)).

Since the appellate court’s decision, the Supreme Court has called into question the exact scope of the ruling in Knotts. In United States v. Jones, U.S., 132 S.Ct. 945 (2012) the Supreme Court found that installing a GPS device on a car constituted a search under the Fourth Amendment. While the majority relied on an analysis of the physical trespass in installing the GPS, two concurring opinions went further in analyzing reasonable expectation of privacy in the context of modern electronic surveillance. Here, Tracey argues that the concurring opinions joined by five justices support the proposition that the appellate court applied too restrictive an interpretation of the Fourth Amendment. The Government argues that the surveillance in Jones is distinguishable because law enforcement physically installed a GPS device for weeks, whereas no such physical intrusions occurred in Tracy’s case.

B) Is there a legitimate expectation of privacy for CSLI?

Tracey’s argument relies on the Fourth Amendment’s requirement to show probable cause to use other forms of electronic tracking. Most individuals take their cell phones with them everywhere, meaning CSLI can reveal sensitive information such as mental health treatment, sexual encounters, religious observance, political activity and more. Could the mere use of cell phones oblige individuals to give up their expectation of privacy to all of this sensitive information?

The Government’s argument points out that there is no legitimate expectation of privacy when someone speaks or shares with a third party over the phone. Is the fact that the cellular providers already track the call information to be used in billing enough to eliminate the expectation of privacy? Perhaps the Court should find the opposite, basing its decision on the government’s position that Tracey was not tracked, but was triangulated using the standard cell tower technology essential to the operation of cellular phones – something that inherently carries no expectation of privacy.

Likely Outcome and Further Questions:

As suggested by five U.S. Supreme Court justices, the sheer volume of private information available to law enforcement through CSLI seems to merit strict restraints as well as a reassessment of Four Amendment precedent. While it is possible the case will be decided on narrower grounds due to procedural or statutory considerations, the Supreme Court of Florida is unlikely to actually uphold the use of CSLI in this case.

Important questions that may or may not be addressed by the impending decision in this case include:

  • Is there a legally significant distinction between prospective CSLI (specifically real-time) and historical CSLI for Fourth Amendment purposes?
  • Does providing a false identity when purchasing a phone really imply no legal expectation of privacy?
  • Does the Knotts precedent regarding the Fourth Amendment on public roads still apply where there has been no trespass AND no significant accumulation of information?
    • E.g., where CSLI is used to track a suspect in a car over a short period of time?



JonBenet Controversy and the Grand Jury

Procedural rules mandate that the deliberations of a grand jury and related documents should normally be withheld from the general public.  It has long been the view that the prosecutor retains discretion to charge or not to charge a defendant based on the grand jury’s decision to indict.

This has recently been challenged in the case of the Jonbenet Ramsey with respect to the then prosecutor’s decision to not pursue charges even though the grand jury voted to indict the victim’s parents.  There are a few issues that readily come to mind including: 1) the death of Jonbenet’s mother, Patricia Ramsey, and 2) nearly 18 years passed since the tragic death, leaving much of the evidence difficult to find or non-existent.

Many local and national news media outlets have extensively covered this story recently.  One article found on the CNN website discusses the probability and possibility of the prosecution to file new charges, given the inherent issues surrounding the evidence in the case.

Should grand jury deliberations be more or less transparent? Do you think it is proper to publicly release grand jury documents?  If so, how do you think this case should be resolved? How much discretion should the prosecution have if a grand jury makes their indictment decision?

We would like to hear your opinions.

Local Death Penalty

The District Attorney (“DA”) in the 2nd Judicial District of Colorado (Denver) decided to seek the death penalty after a gruesome crime scene at a Denver area bar.  Dexter Lewis and several accomplices are accused of stabbing five people to death and setting the bar ablaze.  Dexter Lewis now faces death row if convicted.  Interestingly, the Denver DA has not sought the death penalty in another case since 1999.  An article discussing the crime and the DA’s decision to seek the death penalty can be found here.

This case marks the first death penalty case brought in Denver in well over a decade and now joins the Aurora Movie Theater Shooting case for #2 Colorado death penalty case of the year. Do these cases suggest that it is somewhat unusual to adjudicate a death penalty case locally, or do we preserve the death penalty for the worst cases that come along every once in a while?

What is going on in Denver?

So why have there been so few death penalty cases in Denver?  Some question whether a jury will go for the death penalty in Denver.  Perhaps that is part of the reason why death penalty cases are far and few between.  Of course, some jurisdictions in Colorado seek the death penalty more often than Denver.  Surely, demographics play some part in these decisions.  Not only the jury makes the decisions; the prosecution has a difficult determination to make.  In a typical death penalty case, the prosecutor would weigh aggravating factors against mitigating factors in determining whether to pursue the death penalty.  Anyone interested can review the statutory aggravating and mitigating factors by reviewing C.R.S. 18-1.3-1201 (2012).

Here is a quick look at some death penalty statistics for Colorado:

According to the folks at www.deathpenltyinfo.org, Colorado is home to a total of four death row inmates, including Nathan Dunlap.  Governor John Hickenlooper granted Mr. Dunlap temporary stay for execution proceedings originally scheduled for the end of this month.  Before this case, Gary White was the last individual to be executed in Colorado in 1997.  The last time a Denver jury sentenced a person to death was in 1986.  Lately, Colorado has gone years without seeking the death penalty and other years with no more than one or two death penalty cases.

Many factors Could Be at Play

Is it possible that the death penalty light is flickering out?  Is the status quo just fine? Perhaps prosecutors cannot justify many cases to be punishable by death sentence because of the aggravating/mitigating factors.  Maybe juries are less likely to sentence a person to death so prosecutors do not ask for it often?  Maybe death penalty cases are too expensive and complex to adjudicate?

Let us know what you think: