Fourth Circuit Revives Circuit Split Over Cell Site Data

Mickey Stevens, MJLST Note & Comment Editor

In August, the United States Court of Appeals for the Fourth Circuit revived the dispute over whether the use of historical cell site location data constitutes a “search” under the Fourth Amendment, and whether obtaining that cell site data requires a warrant. That court’s decision in United States v. Graham, Nos. 12-4659, 12-4825, 2015 WL 4637931 (4th Cir. 2015), now conflicts with the Third, Fifth, and Eleventh Circuits on how to treat the use of cell site data in criminal investigations.

A September 2014 MJLST blog post discussed the then-existing circuit split between the Eleventh Circuit holding that a warrant was required to obtain cell site data and the Fifth and Third Circuits holding that a warrant was not necessary to do so. Since the time of that post, the legal landscape regarding cell site data has undergone significant changes.

First, the Eleventh Circuit vacated their initial decision in United States v. Davis, 754 F.3d 1205 (11th Cir. 2014), and granted a rehearing. Upon rehearing, the Eleventh Circuit came to the exact opposite conclusion, holding that the government did not conduct a “search” by obtaining cell site data, and that no warrant was necessary even if that conduct did constitute a search. United States v. Davis, 785 F.3d 498 (11th Cir. 2015). The Eleventh Circuit’s decision upon rehearing agreed with previous decisions from the Third and Fifth Circuits and eliminated the circuit split that was created by the initial decision.

Then, the Fourth Circuit decided Graham. The Graham opinion closely mirrors the Eleventh Circuit’s initial Davis decision, holding that the government conducts a “search” when it obtains and inspects cell site data and that a warrant is necessary to obtain cell site data. The court reasoned that the third-party doctrine, which says that information provided to third-parties such as cell phone service providers is no longer protected by a reasonable expectation of privacy, should not be applied to cell site data because cell phone users do not voluntarily share their location. This is the same approach that the initial Davis court took, thus renewing the debate over how to apply this doctrine to modern cell site data.

In July, a petition for writ of certiorari was filed with the Supreme Court of the United States asking for review of the Eleventh Circuit’s rehearing decision in Davis. The Eleventh Circuit’s own flip-flopping on these issues, combined with Graham’s revival of a circuit split, provides good reason for the Supreme Court to resolve these open questions regarding the gathering and use of cell site data in criminal investigations.