First, the facts. Davis participated in seven armed robberies. He helped rob a Wendy’s restaurant, a Walgreen’s pharmacy, a beauty salon, and a bunch of other places. The evidence against Davis was pretty strong. At trial, eyewitnesses testified that Davis was a participant in some of the armed robberies. At one, armed with a gun, he pointed his gun at a victim’s head, pushed a 77-year old woman to the ground, and robbed them. At another, Davis was seen firing shots at an eyewitness who tried to write down the license plate number of the getaway car. Davis’s DNA was recovered from the getaway car. Video surveillance footage at some of the victim stores showed him committing the crime, as well. So far, it’s a pretty old-fashioned robbery case.
As part of its evidence, however, the government also obtained cell-site records of suspected members of the groups that committed the robberies. They obtained the records under the federal Stored Communications Act, which requires the government to get court orders based on “specific and articulable facts” but not probable cause. The records existed because cellular service providers record the cell tower that a phone was connected to when a cell call was placed and when it was ended. The records generally tell you the neighborhood the phone was in when the call was placed and ended, as the cell tower used is usually (but not always) the one closes to the phone.
The cell-site records obtained in Davis showed that during six of the seven robberies, the phones belonging to members of the alleged conspiracy (Davis included) placed and received calls in the neighborhoods where the robberies occurred at around the time of the crimes. At trial, the prosecutor used the fact that Davis’s cell phone had placed/received calls from co-conspirators at the time of the robberies in the area around the victimized stores to indicate that he was one of the robbers.
In its decision, the Eleventh Circuit held that obtaining Davis’s cell-site records to show that his phone was used to place and receive calls with other robbers unconstitutionally “searched” Davis in violation of the Fourth Amendment. Judge Sentelle’s opinion is not a model of clarity, unfortunately. But as best I can tell, the reasoning goes something like this:
1. The Fourth Amendment adopts a “privacy theory” that is apart from physical intrusion. The most instructive starting points to understand the “privacy theory” are the concurring opinions in United States v. Jones and the D.C. Circuit’s Maynard decision.2. Under the privacy theory, an invasion of privacy happens when something that should be considered a private affair — that is, something “private in nature” — becomes known to the government.3. Privacy invasions can happen in two ways. When the government obtains information about what is happening in public, the privacy invasion occurs when the government aggregates and analyzes so much public information about someone that they eventually learn something private. The person is “searched” when the aggregation and analysis of information reveals the thing that is private in nature, which is the point of the mosaic theory adopted in Maynard and echoed in the concurring opinions in Jones.4. On the other hand, privacy invasions can happen more directly. If the government learns a fact about someone that reveals something that had been private, that learning can violate the Fourth Amendment without the need for aggregation.5. Indeed, more broadly than that, if the government obtains a category of records that might reveal something that had been private, collecting any amount of that category of records is inherently a search that requires a warrant.
As applied in Davis, obtaining the defendant’s cell site records “searched” him because it could be used to learn things that are “private in nature” about him, such as whether he was “near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.” That information is private in nature, and cell site records could reveal them. Obtaining his cell-site records was therefore a search that required a warrant, even though it was only used to show that Davis was in the general area where the robberies occurred.
The first thing to note about Davis is that it starts with and expands upon the novel mosaic theory of the Fourth Amendment. Davis constructs a broader theory of the Fourth Amendment of which the mosaic approach is only one part. The core idea seems to be that the government needs a warrant to use investigative techniques that could reveal things about you that are not the government’s business. The government has no business knowing if you are cheating on your spouse, or what medications you’re on, or where you pray, or if you’re going to see a prostitute. That’s your private business. So if the government uses an investigative technique that might reveal that kind of information, they have unreasonably “searched” you unless they first have a warrant.
If I’m interpreting the decision correctly, the Eleventh Circuit theory of the Fourth Amendment can be understood as an energized version of the privacy tort of “public disclosure of private facts” incorporated into Fourth Amendment law. To bring a civil action under the public disclosure of private facts tort, a plaintiff must establish four elements:
1. Public Disclosure: The disclosure of facts must be public. Another way of saying this is that the plaintiff must “give publicity” to the fact or facts in question.
2. Private Fact: The fact or facts disclosed must be private, and not generally known.
3. Offensive to a Reasonable Person: Publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities.
4. Not Newsworthy: The facts disclosed must not be newsworthy. Stated differently, the facts disclosed must not be a matter of legitimate public concern.
It seems to me that the Eleventh Circuit’s theory of the Fourth Amendment is an extra-strong version of this tort. Three of the four elements are weakened to make the theory stronger for use in the Fourth Amendment context. For the “public disclosure” element, disclosure to the government is enough; for the “private fact” element, the mere potential for a private fact being disclosed is enough; and for the “offensive to a reasonable person” element, a fact causing mild embarrassment appears (from the examples given) to be sufficient.
This approach is really different from traditional Fourth Amendment analysis. In the old days of the Fourth Amendment — before August 6, 2010, when the DC Circuit decided Maynard — the search inquiry of the Fourth Amendment hewed pretty closely to the basic idea of physical intrusion. The Katz inquiry permitted surveillance that was not a technical intrusion to count as a search. But as a practical matter, interpretations of Katz followed the basic distinction between surveillance that broke inside private spaces (a search) and surveillance that merely observed what occurred in public (not a search). For the details, see here, here, and here.
Davis replaces that tradition with a more generalized notion that a search occurs when something that seems to the judges like a privacy invasion appears to have occurred. Depending on how you look at the Fourth Amendment, this is either a “look ma no hands” free-form departure from text, history, and precedent or else a welcome turn towards the true Constitution that the Warren Court promised in Katz but that the Supreme Court later failed to deliver. Either way, it seems really hard to know how to apply the more generalized privacy invasion standard. It’s hard for me to say what police techniques are searches if the analysis in Davis is correct.
I’ll conclude with two additional thoughts. First, even if you accept the Eleventh Circuit’s basic theory, its application to cell-site records strikes me as very puzzling. That’s true for three reasons. The first is one I noted in my earlier post; the judicial guess that people don’t know how cell phones work strikes me as very dubious.
Second, I don’t think cell-site records are sufficiently precise to actually show the kind of detail that Judge Sentelle was worried about — information like whether you’re at a specific store, apartment, or place or worship. My sense is that the records tend to reveal location at the level of neighborhood not precise building or block. And historical cell-site records are only generated when a communication is made or received. As a result, they don’t track every location a person goes; they only track where the phone was when a communication was made. Given that, Sentelle’s speculation that cell-site records are more granular just seems wrong.
And third, Sentelle’s view that the mere potential to disclose private facts makes collecting cell-site records a search seems contrary to the Supreme Court’s guidance in Karo v. United States: “we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. . . . It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence.”
Judge Sentelle’s response to these concerns, to the extent he responds at all, strikes me as a non sequitur. He writes on page 20:
While it is perhaps possible that information could be sufficiently vague as to escape the zone of reasonable expectation of privacy, that does not appear to be the case here. The prosecutor at trial stressed how the cell phone use of the defendant established that he was near each of six crime scenes.
I don’t get this. If the issue is whether cell-site record collection is sufficiently precise to invade privacy, how does a prosecutor’s statement in one case establish that? Prosecutors do not create Fourth Amendment law in their closing arguments. How is the statement relevant to what the Constitution protects? And frustratingly, Judge Sentelle doesn’t even tell us what the prosecutor’s Constitution-defining statement was. We don’t get a quote, or even a record cite. We just get a one-sentence summary in passing.
My final thought is that we’ll likely see more cases on this question pretty soon. The Fourth Circuit has a pending case United States v. Graham that has been briefed but is currently on hold pending the outcomes of Riley and Wurie. In Graham, the district court expressly rejected the mosaic theory; on appeal, the ACLU et. al. filed the same basic brief that it filed in Davis. The Graham court certainly knows about Davis (see the 28(j) letter filed last week), so now the Fourth Circuit will have a lot of choices to make. Follow the Fifth Circuit? Follow the mosaic theory? Follow the Eleventh Circuit? Do something else?
Stay tuned, as always.