Miami-Dade County

Appeal court raises standard for searching a suspect’s cellphone location

Federal authorities must obtain a search warrant to gather the cellphone location records of criminal suspects as a result of an unprecedented appeals court decision on a constitutional issue that often arises in investigations.

The 11th Circuit Court of Appeals, reviewing a 2011 armed-robbery case in Miami, found Wednesday that federal prosecutors must establish probable cause to obtain a warrant from a magistrate judge before accessing cellphone tower tracking data. They can no longer use a court order, based on a lower probability that a crime was committed, to gather that information from a suspect’s cellphone service company.

The ruling, by an appeals court panel in Atlanta, won’t necessarily affect older cases, including that of a Goulds man who appealed his robbery conviction after being sentenced to 162 years in prison. But the decision will require the U.S. attorney’s office in Miami and other jurisdictions in Florida, Georgia and Alabama to follow new search standards to satisfy Fourth Amendment requirements.

The court’s decision, if appealed, could end up being reviewed by the U.S. Supreme Court. On Thursday, the U.S. attorney’s office declined to comment on whether it would appeal.

The ruling will likely also not affect any convictions in state court, where cellphone location records are regularly used in investigations.

For instance, in the South Miami-Dade murder of NFL player Sean Taylor, killed in a 2007 burglary to his home, detectives pinpointed the location of suspects by tracking their cellphones. The burglary mastermind was convicted this week of murder and sentenced to life in prison.

In Miami-Dade, prosecutors also obtain orders, from state court judges, to gather historical cellphone data that pinpoints a suspect’s physical location. The state attorney’s office is reviewing its procedures but may begin obtaining “probable cause” documents to gather the same data, even though the federal appeals court’s ruling is not binding.

The appeals panel cited a cellphone user’s expectation of privacy in making its decision.

“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 panel wrote in a unanimous opinion. “In short, we hold that cell-site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.”

In the Miami case, prosecutors obtained four people's cellphone location records from their wireless carrier over a 67-day period for a robbery investigation. A federal magistrate cleared the way using a standard that the tracking data was “relevant and material” to an investigation — lower than the probable cause standard required by the Fourth Amendment.

In the case of Quartavious Davis, the Goulds man, investigators gathered 11,606 location records — an average of 173 points each day. He was convicted based on the cellphone location evidence and he appealed, citing a constitutional violation. But the appeals panel also upheld his conviction, concluding that prosecutors acted in “good faith” to obtain the magistrate’s order.

The American Civil Liberties Union praised the appeals court’s decison raising the standard for cellphone location searches.

“The court’s opinion is a resounding defense of the Fourth Amendment’s continuing vitality in the digital age,” said American Civil Liberties Union Staff Attorney Nathan Freed Wessler, who argued the case in April after filing a friend-of-the-court brief.

“This opinion puts police on notice that when they want to enlist people’s cellphones as tracking devices, they must get a warrant from a judge based on probable cause,” Wessler said in a statement. “The court soundly repudiates the government’s argument that by merely using a cellphone, people somehow surrender their privacy rights.”

Miami Herald staff writer David Ovalle contributed to this story.