SCOTUS requires search warrant for cellphone location history

The U.S. Supreme Court has recently ruled that law enforcement searches for the location history of cellphones near crime scenes are covered by the Fourth Amendment, requiring warrants to obtain the data, reported the Pennsylvania Capital-Star.

But the high court left unsettled when searches for the information are reasonable — likely meaning the justices will eventually weigh in again on the privacy rights of Americans in the electronic era.

In a 6-3 decision, the Supreme Court ruled that police officers conducted a search for the purposes of the Fourth Amendment when they obtained cellphone location history data during an investigation into a bank robbery in Virginia. The amendment protects against unreasonable searches and seizures by the government.

“An individual has a reasonable expectation of privacy in records about his cell phone’s location, and police intrude on that constitutionally protected interest when they demand the information — even though for only a limited time, and from a third-party tech company,” Justice Elena Kagan wrote in the majority opinion.

Kagan was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Brett Kavanaugh and Kentanji Brown Jackson. Justice Neil Gorsuch concurred in the judgment but did not join the majority opinion.

Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Amy Coney Barrett.

States ask warrants be upheld

Over the past two decades, geofence warrants have become a major tool of law enforcement. At a basic level, they allow police to identify phones within a geographic area for a certain period of time. The data can be tremendously valuable to investigators, offering a way to develop suspects in crimes where their identities aren’t otherwise known. 

Civil liberties advocates warned that geofence warrants ensnare people in digital dragnets, handing the government data on anyone who happens to be in the wrong place at the wrong time. They argued that accessing data on anyone within a certain area — the geofence — amounts to a general warrant prohibited by the Constitution.

A broad bipartisan coalition of states urged the justices to uphold the warrants. Thirty-one states and the District of Columbia filed a brief with the court arguing that geofence warrants can be more precise than many traditional investigative methods when supported by probable cause and appropriately tailored. In the brief, they urged the justices not to prohibit geofence warrants altogether.

Geofence warrants can generate critical leads when the perpetrators of crimes are otherwise unknown, they wrote. When suspects are unknown but the suspected wrongdoing is linked to a specific place and time, location data provides one of the narrowest available tools for finding leads, the brief argues.

Credit union robbery in Virginia

The case centered on a 2019 robbery of a federal credit union in Midlothian, Virginia. Okello Chatrie was convicted of armed robbery after surveillance footage showed the robber using a cellphone. A detective then obtained a geofence warrant directed at Google for devices within 150 meters of the credit union within an hour of the robbery.

Google initially provided anonymized data in response to the warrant. The detective then requested and received additional location data on nine users. Finally, the detective received de-anonymized information on three users, without obtaining an additional warrant.

While Google has since changed the way it stores location history data to limit geofence warrants, other apps and tech firms collect the data. Lawyers for Chatrie argued that geofence warrants open the door to the authorities requesting information on everyone at a sensitive location — perhaps an abortion clinic or a political convention — at a particular time.

The records serve as a “personal journal of a user’s movements,” Kagan wrote. Location history resembles other private materials like emails, documents, photos and calendars that, even if stored on Google’s servers, users reasonably view as their own, she wrote. Users, in turn, expect the data to be shielded from the “inquisitive eyes” of the government, Kagan wrote.

‘Reasonable’ question unanswered

But Kagan and the court’s majority didn’t wade into whether the search of Chatrie was reasonable under the Fourth Amendment. While the warrant in the case was an uncommon, multi-step warrant, Kagan wrote, the lower appeals court found that a search did not occur, so it did not decide whether the warrant was reasonable.

“We are, as we have said many times before, ‘a court of review, not of first view,’” Kagan wrote. “It is therefore now up to the Court of Appeals to decide whether, at each step of the search process, the warrant satisfied the Fourth Amendment’s requirements of particularity and probable cause.”

In his dissent, Alito wrote that the Supreme Court’s decision “further destabilizes” longstanding jurisprudence on the Fourth Amendment. He accused the majority of issuing an advisory opinion by not addressing whether the search of Chatrie’s data was reasonable.

“Indeed, by refusing to review the one question that could have at least theoretically given Chatrie some hope of relief, the Court carefully set the stage for its planned performance: striking a pose as a great champion of privacy in the digital age. I cannot support this irresponsible escapade,” Alito wrote.

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Handing your phone to police could expose you to unintended problems

No matter what, teaching people they can add their IDs to their phones means some people will inevitably leave the house without physical ID, and that means creating the opportunity for cops to demand phones — which you should never, ever do, reported The Verge. Technical details of your digital ID aside, handing your phone to a police officer grants law enforcement a lot of power over some of your most intimate personal data.

In Riley v. California, the Supreme Court unanimously held that police need a warrant to search through cell phones, even during otherwise lawful arrests. But if you hand over your unlocked phone to a police officer and offer to show them something, “it becomes this complicated factual question about what consent you’ve granted for a search and what the limits of that are,” Brett Max Kaufman, a senior staff attorney in the ACLU’s Center for Democracy, told The Verge. “There have been cases where people give consent to do one thing, the cops then take the whole phone, copy the whole phone, find other evidence on the phone, and the legal question that comes up in court is: did that violate the scope of consent?”

If police do have a warrant to search your phone, numerous courts have said they can require you to provide biometric login access via your face or finger. (It’s still an unsettled legal question since other courts have ruled they can’t.) The Fifth Amendment typically protects giving up passcodes as a form of self-incrimination, but logging in with biometrics often isn’t considered protected “testimonial” evidence. In the words of one federal appeals court decision, it requires “no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking.”

The court said its ruling shouldn’t necessarily extend to “all instances where a biometric is used to unlock an electronic device” because Fifth Amendment questions “are highly fact dependent and the line between what is testimonial and what is not is particularly fine.” And as Recode pointed out in 2020, a defense attorney could argue that any evidence found this way is illegal and should be suppressed — but that’s a risky bet. “It’s fair to say that invoking one’s rights not to turn over evidence is stronger than trying to have the evidence suppressed after the fact,” Andrew Crocker, a senior staff attorney for the Electronic Frontier Foundation, told Recode for that piece.

You might be thinking at this point: you’ve got nothing incriminating on your phone! And an officer may well come to that conclusion. But they could also find something you didn’t even realize was there. “There are a lot of laws on the books, and if a prosecutor or police officer decides to go after you, are you sure you didn’t do anything?” Jay Stanley, a senior policy analyst with the ACLU’s Speech, Privacy, and Technology Project, told The Verge. “You’re only opening yourself to abuse, to errors, to mistakes. There could be a coincidence that placed you at the scene of a crime that you weren’t even aware of.” Even if you assume most officers are acting in good faith, there are plenty of documented instances of officers abusing their power and facing no legal repercussions. There’s no reason to preemptively hand over something that could be used against you.

There are some minor protections built into Apple and Google’s current systems — you can display an encrypted ID without fully unlocking your phone, and various authorities can scan your ID wirelessly if they have special readers. But you don’t want to be in a situation where you’re searching the web for the technical and policy details of your digital ID system when a cop demands your phone — you’re much better off handing over your physical ID card.

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Superior Court Takes Up Question of Consent Involving Cellphone Data

Matthew T. Mangino

The Legal Intelligencer
December 9, 2021

In spring 2021, following a reargument en banc the Pennsylvania Superior Court was faced with an “important” question, “What police must do to obtain a knowing and voluntary consent to search by permission all or part of a cellular phone’s data.”

The case came to the Superior Court following a decision by the Butler County Common Pleas Court. The trial judge suppressed evidence extracted from a defendant’s phone and the commonwealth appealed. Last fall, a three-member panel of the Superior Court affirmed the trial court’s order to suppress, and in December 2020 the court granted the commonwealth’s application for reargument. 

Judge Daniel D. McCaffery of the Pennsylvania Superior Court  summarized the facts of the case in his Oct. 12 opinion in Commonwealth v. Gallagher, No. 1529 WDA 2019, 2021 PA Super 204 (en banc). On Nov. 9, 2014, an officer with the Adams Township Police Department in Butler County responded to a 911 call from a 16-year-old female who was “hysterical, panicky and scared.” 

The young woman told the officer that she had been picked up in McKeesport by the defendant, Tod A. Gallagher, and his friend. They consumed alcohol, after which she claimed she woke up on the side of a road with the defendant on top of her with his hand down the front of her pants. She then ran and hid in the woods. 

After a brief investigation, the defendant, Gallagher, was summoned to the police station. While at the station, he was informed by a detective that he was not under arrest and was free to leave at any time. He agreed to speak with the detective and, during the conversation, the detective asked Gallagher “if he minded if we looked at his phone.” Gallagher was then asked to sign a consent form for electronic media.

During the interview the police did a “data dump” of Gallagher’s phone. Some of the data was cited in the case against Gallagher for attempted rape. Defense counsel filed a motion to suppress.

The Superior Court concluded that “in the context of their conversation, it was far from clear that “looking at” his phone would include a complete data dump, as opposed to flipping through his photograph folder, which is what Gallagher was doing when the officer asked if Gallagher would mind if he looked at it.

The court did not believe that the exchange between the detective and Gallagher put him “on notice as to the true scope of the search sought.” The court then turned its attention to “the written form Gallagher was given and asked to sign.” 

The trial court found the form lacked a clear explanation of what the signer was waiving, and the extent of the search to which the signer submitted. The record also revealed that Gallagher was never advised of his constitutional right to privacy nor was he told he was free to deny the request to look at his phone. 

The Superior Court found “no basis to disturb the trial court’s factual findings as to the form in question.” 

The cellphone has earned a special status in terms of search and seizure. In Riley v. California and United States v. Wurie, 573 U.S. 373 (2014), the U.S. Supreme Court found that “Cellphones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person. Notably, modern cellphones have an immense storage capacity. Before cellphones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cellphones can store millions of pages of text, thousands of pictures, or hundreds of videos.”  

The Supreme Court in Riley was considering the lawfulness of a cellphone search after an arrest. Police searched David Riley’s cellphone after he was arrested on gun charges and found evidence of gang activity. The Fourth Amendment requires police to obtain a warrant before they conduct a search unless an exception applies. The exception at issue in Riley’s case was a search incident to a lawful arrest.

The U.S. Supreme Court held unanimously that police must first obtain a warrant before searching an arrested person’s cellphone.   

The high court continued, “A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cellphones keep on their person a digital record of nearly every aspect of their lives.”

The prosecution in Gallagher argued, “Common sense and a view of the surrounding situation would indicate to any reasonable, semi-intelligent person that if a request is being made of him, the converse option is also a possible right available to him.” 

Gallagher countered that the township’s consent form “did not advise him what his rights were, and the detective never told him that he was free to leave and free to withhold consent.”

A request to “look at” a suspect’s cellphone is not the same as downloading all of the data in a cellphone—the amount of which only a few years ago was beyond comprehension. While requesting to look at a single photograph or photographs may involve a simple matter of consent, a data dump will require the explanation of the suspect’s rights, a specific acknowledgement of the scope of the search and the knowing and voluntary waiver of those rights. Otherwise, a search warrant is required.

“If a person is showing another a certain feature or application on their phone and was asked ‘hey, can I look at that?’” McCaffrey continued, “it would be reasonable to assume that they were being asked about that particular feature or application (in this situation, the photograph application) as opposed to a global capture of all data on the device.” 

The court in Gallagher, concluded, “One who consents to a search retains the right to control the scope of consent given; this is intrinsic to the nature of consent and the consent exception to the warrant requirement.”

In closing, McCaffrey wrote, “Given the totality of the circumstances, neither the verbal exchange nor the form Gallagher was given can establish … that Gallagher made a knowing and voluntary waiver of his rights to the cellphone.” The en banc court affirmed the order of suppression.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County. He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com.

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