As John Elwood noted recently at SCOTUSblog, the Supreme Court has relisted a set of pending cert petitions on whether the Fourth Amendment protects historical cell-site data. The relisting means that the justices didn’t turn down the petitions at the usual time. They are holding the petitions, deferring a decision on whether to grant them. That’s usually a sign of some interest at the court. How much interest there is, we don’t yet know.
I have mixed views on whether the court should take these cases. On one hand, there’s no split. Every circuit court and state supreme court to rule on the issue has ruled that the Fourth Amendment does not protect historical cell-site data. The cert petitions claim a circuit split with the U.S. Court of Appeals for the 3rd Circuit, but I don’t think that’s right. The 3rd Circuit merely speculated about the possibility of Fourth Amendment protection in the course of making a statutory ruling.
A clear split would be helpful in this kind of case because once you say that historical cell-site data can be protected, you then get to the really hard issue of when it is protected. Is it always protected? Is it protected only in some aggregate fashion under a mosaic theory? Does the resolution of the location data in the records make a difference? Is there a warrant requirement? What is the particularity of a cell-site warrant? There are no obvious answers to those questions. It might help the justices in a future Supreme Court decision to have the benefit of circuit court rulings trying to answer those questions.
On the other hand, there’s a plausible argument that the court should take the cases now without a split. That argument can draw on several different points. First, whether the Fourth Amendment protects historical cell site data is a hugely important question. The Supreme Court should step in and rule on it an some point. Second, while there is no split, there are certainly lots of opinions on the other side. Most obviously, there were 4th Circuit and 11th Circuit panel decisions, both later overturned en banc, that could provide the food for thought on the other side (even if rather unusual food for thought) that a split would ordinarily help provide.
Third, this issue is coming up so often, in almost every state and circuit, that a split is likely to emerge eventually. Fourth, the technology seems relatively stable, permitting the justices to weigh the need for equilibrium-adjustment. And fifth, the Davis good faith exception would apply down the road where a circuit has already ruled, which may counsel toward granting cert sooner to ensure that there are real stakes in the litigation when the Supreme Court decides it.
Of course, as a Fourth Amendment nerd I think it would be great if the court took these cases. The more Fourth Amendment cases on the docket, the better! As for whether they will, stay tuned as always.