has not, and the text of the Fourth Amendment remains the same. 3 The Fourth Amendment

Transcription

1 OH, THE PLACE S YOU LL GO WITH YOUR CELL PHONE AND THE PRIVACY YOU LL FORGO I. INTRODUCTION Sixteen years ago, the CEO of a major computer company starkly said, You ll have zero privacy anyway. Get over it. 1 And, he may be right. Technology, and the use of it, has erupted and drastically changed American lives. 2 Yet, while technology has changed, the Constitution has not, and the text of the Fourth Amendment remains the same. 3 The Fourth Amendment reads: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant s shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 4 Finding harmony been the text of the Fourth Amendment and technology has plagued the courts, and most recently the Eleventh Circuit. The Court in Davis 5 refused to expand the notion of a search under the Fourth Amendment 6 and in doing so chose to reiterate the third-party doctrine thereby upholding both legal 7 and statutory precedent. 8 The Court was faced with deciding what a search under the Fourth Amendment looks like in terms of a court order allowing historical cell tower data to be seized by the government. For starters, it does not look like a search at all. Historically, the Fourth Amendment search clause is analyzed under one of two doctrines, the trespass doctrine or the reasonableness doctrine. 9 Fourth Amendment jurisprudence is aware of the advancements of technology and courts have responded to technology through both doctrines. 10 Congress too has responded. In response to the advancement of electronic communication, Congress enacted statues with specificity towards electronic communications. 11 1

2 The Stored Communications Act ( SCA ) require[s] the disclosure by a provider of electronic communication services of the contents of a wire or electronic communication that is in electronic storage in an electronic communication system by a governmental entity. 12 Under 2703(d) of the SCA, to obtain the data, a court order for disclosure... may be issued by any court that is a court of competent jurisdiction and shall is only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the evidence sought is related to an investigation. 13 This note explores the matrix of caselaw regarding the Fourth Amendment, and the Court s unwillingness to expand the right to privacy to apply to some types of technology. This note further analyzes why the Fourth Amendment does not and should not protect the third-party production of historical cell tower data. Part II of this note will narrate the history of privacy under the Fourth Amendment s trespass doctrine and reasonableness doctrine. Part III reviews the Davis opinion in depth, including the events leading up to the decision. Part IV argues that the Davis ruling is the logical next step for inferior courts to take, which preserves the fundamental law, while at the same time acknowledges the expansion of technology. Part V offers a final reflection. II. THE WAXING AND WANING OF THE FOURTH AMENDMENT The contemporary method of analyzing the Fourth Amendment is derived from the concurring justice in Katz. 14 Justice Harlan outlined a two-pronged test that asks first, does individual have a actual (subjective) expectation or privacy, and second, is this expectation one that society is prepared to recognize as reasonable. 15 This is known as the reasonableexpectation-of-privacy test. 16 However, this has not always been the method. 17 Primitive Fourth Amendment jurisprudence recognizes an individual s property rights in his persons, houses, papers, and effects, and violating such property rights is considered trespass. 18 However, 2

3 historical phone data, as will be demonstrated, cannot be trespassed upon, thereby indicating that if it must fall under the Fourth Amendment, it would be through the reasonableness doctrine. A. WE DO NOT FORGIVE THOSE WHO TRESPASS AGAINST US The Supreme Court recently 19 invoked eighteenth century logic to awaken the notion that the government s physical intrusion on [a] defendant s private property was a search and violated the Fourth Amendment. 20 Justice Scalia uttered the same words that the court in Entick 21 spoke, our law holds the property of every man so scared, that no man can set his food upon his neighbors close without his leave; if he does he is a trespasser... if he will tread upon his neighbor s ground, he must justify by law. 22 Therefore, to understand the Fourth Amendment, one must understand that until the latter half of the 20th century the Fourth Amendment was tied to common-law trespass. 23 The Supreme Court in Knotts and Karo ruled on the constitutionality of a tracking device put within a container in a car. In Knotts 24 the Court upheld the placement of a beeper 25 into a container 26 carried in Knotts car in which the police then tracked. 27 The Supreme Court ruled that the police did not violate the Fourth Amendment by monitoring the beeper s signal to locate the suspect because during the entire time he was being monitored, the suspect was either traveling on public roads or clearly visible from a public location, thereby the police never trespassed upon his property. 28 The next year, the Court ruled that trespass had occurred in Karo. 29 The facts in Karo line up similar to Knotts, however, the distinction lies in the fact that Karo brought the container within his home. 30 The Court stated that the Government could not be completely free from the constraints of the Fourth Amendment... whether a particular article... is in an individuals home Therefore, [t]he critical different between Knotts and Karo was not how the location information was ascertained, but rather where the beepers 3

4 were while broadcasting their location to the police. 32 In short, these two cases stand for the proposition that the Fourth Amendment can only be invoked with relation to tracking devices when the line is crossed (i.e. trespass) from a public sphere into the home. 33 The most recent tracking case is Jones. 34 In Jones, police installed a GPS tracking device on the undercarriage of [Jones ] Jeep while it was parked in a public parking lot. 35 Through this device, the police obtained specific locational data that connected Jones to drug crimes. 36 The Court refused to allow the data as evidence because the installation of the GPS trespassed upon Jones effect, i.e. his jeep. 37 However, the concurrence did not view the case through the trespass lens, instead choosing to deploy a different theory, the reasonableness doctrine. 38 B. NO REASONABLE EXPECTATION OF PRIVACY IN THE THIRD-PARTY DOCTRINE Individuals do not have any reasonable-expectation-of-privacy in the business records owned and maintained by a third-party business. 39 In Miller, 40 the Government was investigating Mr. Miller for tax fraud, and during the investigation subpoenaed two banks to obtain records of his accounts. 41 The Supreme Court held that no Fourth Amendment protections were afforded to Miller regarding the records because he did not have ownership nor procession of them. 42 Further, the records were the business records of the bank that were not classified as confidential communication. 43 Finally the Court declared, information voluntarily conveyed here, by the depositor of the records, takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. 44 Through Miller, the thirdparty doctrine was born. 45 If the Supreme Court left any doubt regarding the third-party doctrine regarding one s reasonable expectation of privacy in third parties, the Supreme Court in Smith 46 held that telephone users have no reasonable expectation of privacy in dialed telephone numbers recorded 4

5 through pen registers and contained in the third-party telephone company s records. 47 At the request of the police, the telephone company installed a pen register... to record the numbers dialed from the telephone of [Smith s] home. 48 From the pen register, information was gathered to indict Smith. 49 The Court rejected the notion that the numbers gathered from the information was Smith s property. 50 The Court further said we doubt, that people in general entertain any actual expectation of privacy in the numbers they dial and [a]ll telephone users realize that they must convey phone numbers to the telephone company. 51 Therefore, the Smith Court reiterated the premise first articulated in Miller, a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. 52 The caselaw above is explicitly clear: information given to a third party is not protected by the Fourth Amendment. 53 However, what it fails to do is analyze the Fourth Amendment with respect to historical cell locational data from cell phone towers. While the Supreme Court has yet to rule on the issue, three circuits 54 have. At the center of all three cases 55 was the same Federal Statute, 18 U.S.C. 2703, and whether a warrant was needed to substantiated the specific and articulable facts. The Third Circuit failed to articulate any substantial decision 56 on this issue besides stating, [a] warrant requires probable cause, but there is no such explicit requirement for securing a 2703(d) order. 57 The Fifth Circuit upheld 2703(d) in, In re Application of the United States of America for Historical Data Set 58 ( In re Application ) and deemed no warrant was per se necessary, but ultimately deferred to the legislature for future guidance. 59 In In re Application, the Government filed three applications under 2703 requesting a court order to compel the cell phone service provider for a particular cell phone to produce sixty days of historical cell site data and other subscriber information, however, a judge denied each historical data set request. The judge gave 5

6 the Government a chance to submit a brief, but ultimately denied the historical data set request all together because considering Supreme Court precedent and the facts presented, the Government needed a warrant to get the data under The government subsequently appealed. On appeal, the Court conducted a statutory analysis 61 of 2703 before turning to the constitutional question. On the constitutional question, the Court focused the issue not on what is being recorded, but who records it. 62 Looking at the statute through this lens, the Court said, [t]he third party [telephone company] can store data disclosed to it at its discretion. And once an individual exposes his information to a third party, it can be used for any purpose. 63 The next step the Court made was to develop the notion that even though the third party in this case must have possession of the records of the cell phone user, 64 the cell site information is clearly a business record. 65 The Court then turned to the voluntary notion 66 and acknowledged the knowledge cell phone users have of their phone s transmissions. 67 Further, in ruling that cell phone usage is voluntary, the Court made a point to address the advancement in technology by stating [n]ew technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worth-while. 68 Ultimately, if the people have an issue with this tradeoff, 69 it is up to legislature to determine the boundaries, and since they have done so through 2703, the constitutionality should stand. 70 III. DAVIS V. UNITED STATES : LIL WAYNE GOES TO PRISON Few things demonstrate the widespread digitalization of our society more than the dramatic transformation of mobile telephones over the past two decades and the increasing reliance upon... these devices in our everyday lives. 71 Few things indeed- including Mr. Davis using his cell phone to communicate while committing a series of armed robberies within two months. 72 The central question addressed in Davis was whether the court order authorized by 6

7 the Stored Communication Act, 2703(d), compelling the production of a third-party s business records containing historical cell tower location information violated Davis s Fourth Amendment rights. 73 The Eleventh Circuit, en banc, ruled that Davis s Fourth Amendment rights were not violated, and the order was constitutional. 74 Davis was suspected of a series of armed robberies in South Florida between August and October Davis was incited, and upon his arrest, the government acquired MetroPCS s 76 business records by court order pursuant to 2703(d). 77 These business records were used in addition to the insurmountable evidence the Government already had against Davis. 78 To obtain the MetroPCS records, the Government had to produce specific and articulable facts showing reasonable grounds 79 for a court order, per 2703(d). The Government provided a detailed summary of the evidence implicating Davis in the seven robberies, including post-miranda statements from two accomplices and DNA evidence. 80 On this evidence, the order was granted. MetroPCS complied and produced the following information: (1) telephone numbers of calls made by and to Davis s cell phone; (2) whether the call was outgoing or incoming; (3) the date, time, and duration of the call; (4) the number assigned to the cell tower that wirelessly connected the calls from and to Davis; and (5) the sector number associated with the tower. For ease of reference, the fourth and fifth items are collectively called historical cell tower location information. 81 This information the historical cell tower data did not reveal any contents of Davis s calls such as text messages or voice recordings, and the only information gathered was when the phone was being used to dial or receive a phone call. 82 Prior to trial, Davis attempted to suppress this evidence by claiming it violated his rights guaranteed under the Fourth Amendment; however, the district court denied the motion. 83 7

8 Davis was tried before a jury, during which the historical cell data was introduced. A custodian of records from MetroPCS, identified and testified about the business records testifying that MetroPCS s toll records... are created and maintained in the regular course of its business. 84 The business records, allowed the government to determine the precise physical location of the cell towers that connected calls made by and to Davis s cell phone around the time of robberies, not the precise location of the cell phone or of Davis. 85 Unsurprisingly, Davis objected to this evidence, and again the district court overruled the objection. 86 A jury convicted Davis and he was sentenced to 1,941 months in prison. 87 Davis appealed to the Eleventh Circuit. In hearing the case, a panel for the Eleventh Circuit ruled that Davis s rights were violated through the Government s obtainment of stored telephone communications records from MetroPCS, a third-party telephone service, provider. 88 However, the conviction stood. 89 The Eleventh Circuit, en banc, began their analysis by stating, Davis can assert neither ownership nor possession of the third-party s business records. 90 Therefore, as this statement indicates, the court analyzed the case through the third-party doctrine. Under which, the Court held Davis was aware that his cell phone information could be stored by the company, which is likely why he used the alias Lil Wayne. 91 Further, the Court addressed the advancement of technology by comparing the facts to Miller, by stating the method of call connecting does not require a different constitutional result just because the telephone company has decided to automate. 92 The Court refuted the theory that Jones applies 93 because no physical intrusion occurred. 94 After refuting Jones, the Court addressed the reasonableness clause. 95 The Court said, Davis s alleged privacy expectation were minimal because there was no overhearing or recording of any conversations nor a GPS real-time tracking of precise movements and the 8

9 order was based on a neutral and detached magistrate [] [finding] based on specific and articulable facts... reasonable grounds to believe the records were relevant. 96 The Court concluded by stressing the necessary balance between the prevention of criminals from committing future offences to the societal interest in vindicating the rights of the innocent. 97 And because of this balance, Davis had at most a diminished expectation of privacy in the business records and the disclosure of such records pursuant to a court order authorized by Congress served substantial government interest. 98 A concurring judge wrote to articulate, as judges of an inferior court, we must leave the Supreme Court the task of developing exceptions to the rules it has required us to apply. 99 The dissenting judges however refuted the idea of the third-party doctrine and instead believed that a warrant was needed to allow the search. 100 IV. COMPELLING THE PRODUCTION OF A THIRD-PARTY TELEPHONE COMPANY S BUSINESS RECORDS CONTAINING HISTORICAL CELL TOWER DATA DOES NOT VIOLATE THE FOURTH AMENDMENT A. THE CART REMAINS BEHIND THE HORSE The Court in Davis refused to put the metaphorical cart before the horse, and instead chose to keep in place the third-party doctrine, and ultimately constitutional precedent dating to While the concurrence in Jones suggests that perhaps we are at an age where the doctrine no longer applies, this argument is specious. The idea that the Fourth Amendment should suddenly protect the information you reveal to a third-party will create a chilling effect for years to come. We all carry our cell phones or use the interest, and time and time again we are told whatever we say or do on the internet, to wit Facebook, Instagram, Snapchat can and will get out. It is no secret that the information we put into our cell phones will escape the screen. And, as Miller and Smith both articulate, when information is given to a third party, it cannot be protected

10 As a Supreme Court justice once wrote [w]ays may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. 103 This day has come, however this quote indicates the importance of the Fourth Amendment to remain neutral to the changes of technology. 104 Therefore, [j]ust as the Fourth Amendment should protect that which technology exposes, so should the Fourth Amendment permit which technology hides. 105 Therefore, for the Fourth Amendment to remain neutral, the rulings in Miller and Smith 106 hold true to a more advanced form of technology a cell phone, which emits historical cell tower data when in use. The third-party doctrine in relation to business records, established in Miller, 107 subsequently applies to all third-parties in relation to business records, including here. As the Court said in In re Application, the issue is not what is recorded, but who records it. 108 Therefore, as the Court in Davis articulated, it was MetroPCS who recorded the data, through the normal course of businesses, and the Government obtained the data ex post facto. The Fourth Amendment must remain neutral to technology, therefore to do so the theories articulated in Smith, Miller, and In re Application must hold true for Davis. B. NO GEORGE ORWELL S 1984 EXISTS IN 2015 The Fourth Amendment was drafted with the purpose of safeguard[ing] the privacy and security of individuals against arbitrary invasions by government officials. 109 The Court s ruling in Davis reiterates this point. The Government did not usurp the power from the people; rather, the Government was compliant with the statutory requirements of 2703(d). Enough evidence was provided to a neutral and detached magistrate to show specific and articulable facts to demonstrate that there are reasonable grounds to believe the information is relevant and material to a criminal investigation. 110 The Government did not become the ominous Big Brother and secretly collected Davis s records to build a case against him. Rather, the 10

11 Government had enough evidence to prove to a neutral and detached magistrate that Davis s telephone locational data was reasonably tied to the facts presented before him. The Eleventh Circuit emphasized that at no point did the Government overstep its authority given by Congress to obtain MetroPCS s business records. Davis differs from the Jones and Karo fact pattern, and rather more closely follows the Knotts fact pattern. In both Jones and Karo, the Government monitored the defendant in a manner that violated the Fourth Amendment s trespass clause. While in Knotts and Davis, no trespass ever occurred and no home or effect was ever trespassed upon. Furthermore, Davis s information was gathered ex post facto, while the information Knotts was real time tracking. While some may distinguish that Knotts differs because the police tracked Mr. Knotts from a public thoroughfare, the difference is immaterial because at no point in Davis was Davis ever tracked, only the location of the closest cell tower data was complied by the Government. No line, from public into the constitutionally protected private sphere, was ever crossed. The concurrence in Jones notes the that Government s ability to record an individual s movement may violate the Fourth Amendment, however in Davis it would be impossible for the Government to do such. The data collected was not live tracking, it was not location specific, and it only worked when the phone was placing or receiving a call. The analogy between Jones and Davis should be refuted on all accords; there was no trespass and no GPS that provided a specific detail of movements. Therefore, it was not the work of overly zealous, overreaching police work, it was ultimately the work statutory compliance, and the Eleventh Circuit held true to the precedent before it by not expanding the Fourth Amendment s trespass clause to include historical cell phone data. 11

12 C. WHO S GOT THE POWER The Court left open the notion that something more 111 could violate one s reasonable expectation of privacy. However, while admitting this, it is also important to recognize that it is not the Eleventh Circuit, nor any inferior court s job to overrule 2703(d). 112 The power to overrule this statute belongs in the hands of either Congress or the Supreme Court. 113 Using the felicitous words of Judge Hand, embrace the exhilarating opportunity of anticipating the overruling of the Supreme Court decision.... [t]hat is the Supreme Court has given reason to doubt the rule s breadth, it alone must decide the exception to its rule. 114 This principle was followed in Davis, In Re Application, and the Third Circuit by strictly applying 2703(d) 115 to the facts before them. It is not the job of the inferior courts to deem a federal statute unconstitutional; it is the job of the Supreme Court, or Congress. To do otherwise, would overstep the bounds of the American Jurisprudence. V. CONCLUSION The Eleventh Circuit accurately followed the Fourth Amendment jurisprudence before it. The Court rejected the idea of creating a new caveat to trespass or reasonableness doctrine. In doing so, the Eleventh Circuit kept the Fourth Amendment neutral to technology and the balance between the criminal and the innocent remains same. While the Supreme Court precedent speaks volumes, it fails to address the specific question articulated in Davis. It would be wrong to say the issue regarding historical cell tower data is not an issue for the Supreme Court, or the issue is not ripe is a federal statute, which deals with the privacy of data collection, the potential privacy implications matter. Technology has dramatically advanced since 1976, and while the text of the Fourth Amendment remains the same, our idea of privacy, or lack thereof, likely has not. 12

13 1 Kyle Malone, The Fourth Amendment and the Stored Communications Act: Why the Warrantless Gathering of Historical Cell Site Location Information Poses No Threat to Privacy, 39 PEPP. L. REV. 701, 741 (2012) (emphasis added) (in response to a question asked about online privacy). 2 See generally Mathew S. Adams, The Great Cell Phone Tower Data Debate Bound To Hit SCOTUS Docket Soon Are We Living In George Orwell s 1984?, E-DISCOVERY STAGE, (January 2, 2015), (last viewed June 16, 2015). 3 See U.S. CONST. amend. IV. 4 Id. 5 United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc). 6 See generally Orin Kerr, Eleventh Circuit Rules for the Feds on Cell-Site Records But Then Overreaches, THE WASHINGTON POST, (May 5, 2015), (last visited June 30, 2015). 7 See generally United States v. Miller, 425 U.S. 435 (1976); see also Smith v. Maryland, 442 U.S. 735 (1979); United States v. Knotts, 460 U.S. 276 (1983); United States v. Karo, 468 U.S. 705 (1984). 8 See generally, 18 U.S.C See Davis, 785 F.3d at See generally Nathaniel Wackman, Historical Cellular Location Information And The Fourth Amendment, 1 U. ILL. L. REV. 263, 283 (2015) (citing United States v. Knotts, 460 U.S. 276 (1983). 13

14 11 See In re Application of the United States for an Order Directing Provider of Elec. Commc ns Serv. to Disclose Records to the Gov t., 620 F.3d 304, 306 (3d Cir. 2010) U.S.C U.S.C. 2703(d) (emphasis added). 14 Katz v. United States, 389 U.S. 347 (1967). 15 Nathaniel Wackman, Historical Cellular Location Information And The Fourth Amendment, 1 U. ILL. L. REV. 263 (2015) (quoting Katz v. United States, 389 U.S. 347, 361 (1967)). 16 Smith v. Maryland, 442 U.S. 735, 739 (1979) (citing Katz, 389 U.S. 347). 17 See United States v. Jones, 132 S. Ct. 945, 949 (2012). 18 See id. cf. Kyllo v. United States, 533 U.S. 27, 31 (2001) to be specific. 20 United States v. Davis, 785 F.3d 498, 513 (11th Cir. 2015) (en banc) (citing United States v. Jones, 132 S. Ct. 945, 948 (2012)). 21 Entick v. Carrigan, 95 Eng. Rep. 807 (C.P. 1756). 22 United States v. Jones, 132 S. Ct. 945, 949 (2012) (quoting Entick v. Carrigan, 95 Eng. Rep. 807 (C.P. 1756)). 23 Id. 24 United States v. Knotts, 460 U.S. 276 (1983). 25 Wackman, supra note 15, at (The tracking device which emitted a radio-signal pulse at regular intervals and could only be followed manually by a police office... who stayed within signal rant to avoid looking track of the device. ). 26 Which was subsequently bought by the defendant in the store. 27 Malone, supra note 1, at

15 28 Malone, supra note 1, at 714 (citing Knotts, 460 U.S. 276 at ). 29 United States v. Karo, 468 U.S. 705 (1984). 30 Malone, supra note 1, at Malone, supra note 1, at 715 (quoting Karo, 468 U.S. 705 at 718). 32 Malone, supra note 1, at See generally United States v. Knotts, 460 U.S. 276 (1983); see also (United States v. Karo, 468 U.S. 705 (1984)). 34 United States v. Jones, 132 S. Ct. 945 (2012). 35 Id. at Id. 37 Id. at 949 ( The Government physically occupied private property for the purpose of obtaining information. ). 38 Id. at 957 (Sotomayor, J., concurring) ( it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in the information voluntarily disclosed to third parties. ). 39 United States v. Davis, 785 F.3d 498, 507 (11th Cir. 2015) (en banc) ((citing Smith v. Maryland, 442 U.S. 735, (1979) (citing United States v. Miller, 425 U.S. 435 (1976))). 40 United States v. Miller, 425 U.S. 435 (1976). 41 Id. at Id. at Id. at Id. at 443 (citing United States v. White, 401 U.S. 745, (1971)). 45 Orin S. Kerr, The Case For the Third-Party Doctrine, 107:56 MICH. L. REV. 561, 563 (2009). 15

16 ( The rule is simple: By disclosing to a third party, the subject gives up all of his Fourth Amendment rights in the information revealed. ). 46 Smith v. Maryland, 442 U.S. 735 (1979). 47 United States v. Davis, 785 F.3d 498, 508 (11th Cir. 2015) (en banc) (citing Smith v. Maryland, 442 U.S. 735, (1979)). 48 Smith, 442 U.S. at Id. at Id. at 741 (The court acclaimed that [s]ince the pen register was installed on telephone company property at the telephone company s central offices, [Smith] obviously [could not] claim that his property was invaded or that police intruded into a constitutionally protected area. ). 51 Id. at Smith v. Maryland, 442 U.S. 735, (1979). 53 See generally Smith, 442 U.S. at 739; see also United States v. Miller, 425 U.S. 435 (1976). 54 The Third Circuit and Fifth Circuit will only be discussed in this section, the Eleventh Circuit s decision will be discussed infra III. 55 Respectively within each circuit. 56 In re Application of the United States For an Order Directing Provider of Elec. Commc ns Serv. To Disclose Records to the Gov t., 620 F.3d 304 (3d Cir. 2010). The Court vacated and remanded for further proceedings. 57 Id. at In re Application of the United States of Am. For Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013). 16

17 59 See id. at Id. at Id. at 607 (Determining that 2703 abides by the cardinal principle of statutory construction by having no clause, sentence or word shall be superfluous, void, or insignificant. ). 62 See id. at Id. at In re Application of the United States of Am. For Historical Cell Site Data, 724 F.3d 600, 611 (5th Cir. 2013) (The Court defines business records as records of transactions to which the record-keeper is a party also fits well with the historical and statutory distinction between communications content and addressing information and addressing information, which the business needs to route those communications [ s, telephone calls] appropriately and efficiently are not. ). 65 Id. at Articulated in United States v. Miller, 425 U.S. 435 (1976). 67 In re Application, at 613 ((citing United States v. Madison, No CR, 2012 WL , at *8 (S.D.Fla. July 20, 2012) [C]ell-phone users have knowledge that whey they place or receive calls, they, through their cell phones, are transmitting signals to the nearest cell towers, and, thus, to their communications service providers. ). 68 Id. at Id. at 610 (quoting SEC v. Jerry T. O Brien, Inc., 467 U.S. 735, 743 (1984)( [i]t is established that, when a person communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities. ). 17

18 70 See In re Application of the United States of Am. For Historical Cell Site Data, 724 F.3d 600, (5th Cir. 2013). 71 Adams, supra note United States v. Davis, 785 F.3d 498, 500 (11th Cir. 2015) (en banc). 73 Id. at See id. 75 Id. 76 Id. at 511(MetroPCS stored cell tower records ). 77 Id. at United States v. Davis, 785 F.3d 498, 501 (11th Cir. 2015) (en banc) (The Government had testimony from two co-defendants, eyewitness testimony, surveillance videos, and DNA as evidence against Davis) U.S.C. 2703(d). 80 Davis, 785 F.3d at Id. at Id. at Id. at United States v. Davis, 785 F.3d 498, 503 (11th Cir. 2015) (en banc). 85 Id. at Id. 87 Id. at Id. at Id. at 505 based on the good-faith exception to the exclusionary rule. 18

19 90 United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (en banc). 91 Id. at Id. at 512 (quoting Smith v. Maryland, 442 U.S. 735, (1979)). 93 As the panel analyzed the facts under. 94 Id. at Id. at 515 ( Historical cell tower location data is materially distinguishable from the precise, real-time GPS tacking in Jones and reasonable expectations of privacy under the Fourth Amendment do not turn on the quantity of non-content information MetroPCS collected ). 96 United States v. Davis, 785 F.3d 498, 517 (11th Cir. 2015) (en banc). 97 Id. at Id. 99 Id. at 519 (Pryor, J., concurring). 100 Id. at 533 ( [t]he judiciary must not allow the ubiquity of technology which threatens to cause greater and greater instructions into our private lives to erode our constitutional protections. ). 101 See generally United States v. Miller, 425 U.S. 435 (1976). 102 See generally Miller, 425 U.S. at ; see also Smith v. Maryland, 442 U.S. 735 (1979). 103 Kerr, supra note 45, at Id. 105 Id. 106 Along with all other Fourth Amendment cases discussed throughout this note. 107 See generally United States v. Miller, 425 U.S. 435 (1976). 108 In re Application of the United States of Am. For Historical Cell Site Data, 724 F.3d 19

20 600, 610 (5th Cir. 2013). 109 Malone, supra note 1, at 714 (quoting Camara v. Mun. Ct. of S.F., 387 U.S. 523, 528 (1967)) U.S.C. 2703(d). 111 More than locational cell phone data (i.e. live tracking, GPS tracking, specific tracking). 112 See United States v. Davis, 785 F.3d 498, 519 (11th Cir. 2015) (en banc) (Pryor, J., concurring). 113 See In re Application, at Davis, at 521 (quoting Evas v. Sec y, Fla. Dep t Of Corr., 699 F.3d 1249, 1263 (11th Cir. 2010)). 115 United States v. Davis, 754 F.3d 1205, 1211 (11th Cir. 2014), reh g en banc granted, opinion vacated, 573 Fed. Appx. 925 (11th Cir. 2014) ( [T]he question of whether cell site location information is protected by the Fourth Amendment... has never been determined... [t]wo circuits have considered the question, but not in the context of the use of the evidence in a criminal proceedings. ). I hereby certify that I have completed this submission in accordance with the Competition rules and in accordance with the collaboration and academic integrity requirements of the University of Miami School of Law Honor Code. Signed