Search and Seizure in the Digital Age: Eleventh Circuit to (Re)consider Whether Cell Tower Data is Protected by the Fourth Amendment


By: Mark A. Begnaud

On September 4, 2014, the Eleventh Circuit Court of Appeals voted to rehear the case of United States v. Quartavious Davis en banc. In the original opinion, the Court found that all cell-site data is protected by the Fourth Amendment. The vote to rehear the case vacates the panel decision, and the case will be set for a future en banc argument before the full Eleventh Circuit.

The facts of the case show a relatively straightforward prosecution for a string of armed robberies. Quartavious Davis was convicted of robbing a Little Caesar’s Restaurant, a Walgreen’s pharmacy, and several other businesses with a group of accomplices. At trial, the prosecution called two of Davis’s accomplices to testify, called two eyewitnesses, and introduced surveillance video from four of the robberies.

The Fourth Amendment issue arose in the prosecution’s decision to also introduce records from cellular service providers showing that Davis and his accomplices had placed and received phone calls near the robbery locations around the times of the robberies. Davis objected, arguing that this information was protected by the Fourth Amendment and that law enforcement officers should have obtained a warrant before gathering it (they had obtained a court order but no search warrant).

The Eleventh Circuit panel agreed with Davis’s argument, in an opinion that has been criticized by [at least one constitutional scholar]  as a “radical… reinterpretation of the Fourth Amendment.” In addressing the question of how a person can have a Fourth Amendment right to privacy in his public movements, the court distinguished a single observation of a person in public from the type of broad information gleaned from cellular data: “the car owner can reasonably expect that although his individual movements may be observed, there will not be a ‘tiny constable’ hiding in his vehicle to maintain a log of his movements.”

Notably, the original Davis opinion created a circuit split, as the [Fifth Circuit] has held that the Fourth Amendment does not protect cell-site data. The issue is also in front of the [Fourth Circuit] at present. The original decision is [United States v. Davis, 754 F.3d 1205 (11th Cir. 2014)]