MIAMI — Investigators must obtain a search warrant from a judge in order to obtain cellphone tower tracking data that is widely used as evidence to show suspects were in the vicinity of a crime, a federal appeals court ruled Wednesday.
In the first ruling of its kind nationally, a three-judge panel of the 11th U.S. Circuit Court of Appeals determined that people have an expectation of privacy in their movements, and that the cell tower data was part of that. As such, obtaining the records without a search warrant is a violation of the Fourth Amendment’s ban on unreasonable searches and seizures, the judges ruled.
“While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene,” the judges wrote. “There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.”
The ruling does not block investigators from obtaining the records that show which calls are routed through specific towers as well as which phones are nearby. It simply requires a higher legal showing of probable cause that a crime is or was being committed to obtain a search warrant rather than a less-strict court order.
“The court soundly repudiates the government’s argument that merely by using a cellphone, people somehow surrender their privacy rights,” said ACLU attorney Nathan Freed Wessler, who argued the case.
The U.S. Supreme Court, while also not yet ruling on cellphone tower records, in 2012 decided that secretly attaching GPS devices to track suspects’ vehicles also constituted a search under the Fourth Amendment. The justices did not, however, decided that investigators must always obtain a search warrant to do that.
The 11th Circuit decision, which relied heavily on the GPS decision, applies for now only in Florida, Georgia and Alabama. Ultimately the Supreme Court will likely resolve the issue.
The ruling came in the Miami case of Quartavious Davis, who is serving a 162-year prison sentence for a string of violent armed robberies. The judges refused to overturn his convictions and sentence over the cellphone tracking issue. They applied a “good faith” exception preventing authorities from being punished for relying on a law later found unconstitutional.