Warrantless Search of Cell Phone Data Barred Unless Necessary for Officer’s Safety or to Preserve Evidence

2008-1781.  State v. Smith, Slip Opinion No. 2009-Ohio-6426.
Greene App. No. 07-CA-47, 2008-Ohio-3717.  Judgment of the court of appeals reversed, and cause remanded to the trial court.
Moyer, C.J., and Pfeifer, O’Connor, and Lanzinger, JJ., concur.
Lundberg Stratton, O’Donnell, and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-6426.pdf

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(Dec. 15, 2009) The Supreme Court of Ohio ruled today that the Fourth Amendment prohibition against unreasonable searches and seizures requires police to obtain a warrant before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances.

The Court’s 4-3 majority decision, which reversed a ruling of the 2^nd District Court of Appeals, was authored by Justice Judith Ann Lanzinger.

Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. During the arrest, police searched Smith and found a cell phone on his person.  The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. Officers subsequently searched the contents of Smith’s phone without a search warrant or his consent. They discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number. Smith was charged with possession of cocaine, trafficking in cocaine, tampering with evidence and two counts of possession of criminal tools.

During pretrial proceedings, Smith moved to suppress all evidence police had obtained through the search of his cell phone, arguing that in conducting that search without first obtaining a warrant, the officers had violated his constitutional right against unreasonable search and seizure. The trial court ruled that it would not allow the state to use photographs taken from Smith’s cell phone, but denied the motion to suppress as it related to the call records and stored numbers discovered on Smith’s phone, citing a 2007 federal court decision, United States v. Finley, which held that a cell phone is similar to a closed container found on an arrestee’s person and therefore subject to search by an arresting officer without a warrant. Smith was convicted on all counts and sentenced to 12 years in prison.

He appealed his convictions and sentence, asserting among other claims that the trial court had erred in denying his motion to suppress evidence obtained through the warrantless phone search. In a 2-1 decision, the 2^nd District Court of Appeals affirmed the action of the trial court.  The dissenting member of the three-judge panel cited a different federal court’s decision, United States v. Park, which held that a cell phone is not a “container” as that term is used in prior Fourth Amendment cases, and that a warrantless police search of data stored in a defendant’s cell phone was unconstitutional. Smith sought and was granted Supreme Court review of the 2^nd District’s ruling with regard to the constitutionality of the phone search.

In today’s decision, Justice Lanzinger wrote: “Smith bases his challenge on the Fourth Amendment to the United States Constitution, which provides protection against unreasonable searches and seizures. It is well established that searches conducted without a warrant are per se unreasonable, subject to certain ‘jealously and carefully drawn’ exceptions.’  Jones v. United States (1958).  … The exception that the state relies on is the search incident to arrest, which allows officers to conduct a search that includes an arrestee’s person and the area within the arrestee’s immediate control. … This exception ‘derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.’ Arizona v. Gant (2009). … But when the interests in officer safety and evidence preservation are minimized, the court has held that this exception no longer applies.”

Noting that neither the U.S. Supreme Court nor any other state supreme court appears to have ruled on the Fourth Amendment implications of a cell phone search, Justice Lanzinger said the two leading cases on that issue appear to be the conflicting federal court decisions cited in the 2^nd District’s majority and dissenting opinions.

She wrote: “In United States v. Finley …the Fifth Circuit upheld the district court’s denial of defendant’s motion to suppress call records and text messages retrieved from his cell phone. … Finley was arrested during a traffic stop after a passenger in his van sold methamphetamine to an informant.  During the search incident to the arrest police found a cell phone in Finley’s pocket. He was taken along with his passenger to the passenger’s house, where other officers were conducting a search.  While Finley was being questioned there, officers examined the cell phone’s call records and text messages, finding evidence that appeared to be related to narcotics use and drug trafficking. … In upholding the search, the Fifth Circuit analogized Finley’s cell phone to a closed container found on an arrestee’s person, which may be searched. … Notably, Finley had conceded that a cell phone was analogous to a closed container. … Because Smith does not concede here that a cell phone is analogous to a closed container, the analysis in Finley is not entirely applicable.”

“The United States District Court for the Northern District of California, disagreeing with the Fifth Circuit’s decision in Finley, granted a defendant’s motion to suppress the warrantless search of his cell phone. United States v. Park (N.D.Cal., May 23, 2007). Police officers observed Park entering and leaving a building that they had under surveillance and for which they had obtained a search warrant. When they executed the warrant and searched the building, they found evidence of an indoor marijuana-cultivation operation.  They arrested Park and took him to booking, where they searched him and found a cell phone.  Before turning over the cell phone to the booking officer, the arresting officer recorded names and phone numbers found in Park’s cell phone. … Because the search of the cell phone’s contents was not conducted out of concern for the officer’s safety or to preserve evidence, the court found that it did not fall under the search-incident-to-arrest exception and that the officers should have obtained a warrant to conduct the search.”

In this case, Justice Lanzinger wrote, “The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. Objects falling under the banner of ‘closed container’ have traditionally been physical objects capable of holding other physical objects.  Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’ New York v. Belton (1981).”

While acknowledging several federal court decisions during the 1990s that treated electronic pagers and computer memo books as closed containers for search and seizure purposes, Justice Lanzinger wrote: “Each of these cases, however, fails to consider the Supreme Court’s definition of ‘container’ in Belton, which implies that the container must actually have a physical object within it.  Additionally, the pagers and computer memo books of the early and mid-1990s bear little resemblance to the cell phones of today. Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container.  We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.”

“Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” wrote Justice Lanzinger.  “Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.”

“ … We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone. We accordingly reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion.”

Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor.

Justice Robert R. Cupp entered a dissenting opinion, joined by Justices Evelyn Lundberg Stratton and Terrence O’Donnell, stating that in his view the majority erred by “needlessly theorizing” about  cell phone capabilities in the abstract rather than following Finley and similar decisions which have held that police may conduct warrantless searches of closed containers found on the person of an arrestee.  He wrote: “As the majority opinion recognizes, a cell phone’s digital address book is akin to traditional address books carried on the person. Courts have upheld police officers’ search of an address book found on an arrestee’s person during a search incident to a lawful arrest. … The phone’s call list is similar, showing a list of telephone numbers that called to or were called from the phone.

Thus, I would hold that the search here—which resembles police officers’ search of a traditional address book found on the person of an arrestee during a search incident to arrest—is permissible under the Fourth Amendment.

“The majority bases its broad holdings on its estimation of the possible capabilities of other cell phones and computers. But here only the address book and call records were admitted into evidence.  The issue of a more in-depth warrantless search of ‘data within a cell phone’ is not before us.  I would leave for another day, to a case that factually raises the issue directly, the question of whether police may perform more in-depth searches of information on cell phones that have capabilities akin to a computer.”

Contacts
Stephen K. Haller, 937.562.5250, for the state and Greene County prosecutor’s office.

Craig M. Jaquith, 614.644.1568, for Antwaun Smith.

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Thanks to Julian Quattlebaum III of the Channel Law Group for sending this along!

This guide discusses how local government agencies can properly and effectively deal with RF safety issues that come up in connection with wireless siting cases (primarily cell sites, but also broadcast, ham radio, and commercial two-way users, as well).

While written primarily for California public law attorneys, attorneys around the country will find many important and useful gems in the article.

The editor of the Public Law Journal has kindly granted permission for me to reproduce the article in PDF format.

Please follow this link to download the article download page.

I’m pleased to report that Clearwire (through its outside counsel, Suzanne Toller  reached out to me and set up a face-to-face meeting to discuss their plans, their process, and their network technology.  That meeting occurred last month.

Following the meeting, which lasted two hours, Suzanne followed-up with a six page letter discussing the points we covered in the meeting.  While the letter, properly, reflects Clearwire’s views, I think it is helpful as it extend the dialog and expands on the information base.

I invite you to read ‘the rest of the story’ on a special page at my law firm web site, TelecomLawFirm.com, which you can reach by clicking here.

Jonathan

Before you sign on the dotted line, it’s worth pulling our your original lease (and any amendments you’ve signed) to see whether adding Clearwire (or any new proposed site occupant) is permitted or required under the lease, or whether this is an opportunity for you to adjust your site revenue upwards to reflect the new addition, and ‘true-up’ other open items connected with your tower lease.

Be especially careful if your wireless carrier tenant approaches you for permission to sublease to another wireless firm AND asks for a rent reduction at the same time.   Talk about galling!

I’ve had site landlords approach me recently who find themselves in one or more of the ugly positions I’ve just listed.  If you’d like legal assistance to avoid giving away potential new revenue, and to avoid giving away your current revenue, drop me an electronic note or give me a call.

Jonathan Kramer, Esq.
Kramer Telecom Law Firm, PC
Los Angeles

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I’ll let you read the posting, and then the industry agent’s email incorporating my reply.  Then I’ll offer a few closing comments and invite you to reply.

I want to alert my local government planning and legal colleagues in Southern California that Sprint/Nextel is now in the process of submitting something on the order of 1,400 applications to local government planning agencies (and potentially to public works departments) for what often appear to be–but are not–modifications to existing Sprint/Nextel sites.  Rather, what is happening is that Sprint/Nextel, under its name and logo on the applications and plans, is sponsoring in applications for Clearwire Communications, a separate legal entity under separate management, which is merely 51% owned by Sprint.

Clearwire is a wireless Internet service provider. It is *not* a wireless phone company. Clearwire does *not* hold a CPUC Certificate of Public Convenience and Necessity. Clearwire is not entitled to access the right-of-way in the same way that Sprint/Nextel does. This is particularly important where Sprint sponsors Clearwire applications for ROW sites that really should generate revenue to local governments if the governments elect to approve such ROW incursions.

The Clearwire projects are not existing site modifications by Sprint/Nextel to its own site, but rather entirely new projects (and new RF emissions) from a new and separate legal entity, Clearwire, to be collocated on existing Sprint/Nextel sites. Where Clearwire needs a site but there is no existing Sprint/Nextel site to serve as a platform, the firm is proposing collocations on other existing cell sites. These collocations do *not* automatically occur under Government Code Sections 65850.6 and 65964. There are many triggers that must first occur prior to these code sections kicking-in to require collocation, and its very unlikely they will apply in a particular case involving Clearwire given its multiple microwave and panel antenna systems.

Where no existing sites are available, Clearwire is proposing new sites. Clearwire has indicated that they are typically planting new sites at the rate of about 2 per square mile.

Clearwire’s network design in nearly every case dictates that it use three or four microwave antennas to interconnect each of its sites with that many more other sites, yet the applications I have seen submitted to my government clients are usually coming in one at a time. This piecemeal filing approach raises CEQA questions as Clearwire’s method of submitting individual applications masks the fact that each site is part of a much larger and unified project that cannot operate without the multiple sites communicating with each other, and back to the Clearwire Internet access node (called the POP or point of presence).

For those communities that bar microwave antennas for site-to-site or site-to-switch interconnection because they are unnecessary visual elements, consider whether granting microwave dishes to Clearwire (which is a cost-saving issue for them) will interfere with your future ability to bar or limit microwave antennas to wireless telephone companies.

I recommend that the planning desk look for Sprint/Nextel plans with site numbers formatting like CA-XXX-YYYY, where XXX are three letters related to the county or market where the project is to be located, and YYYY is the specific four digit site number. The site number may be followed by a single letter. If these projects come across the desk, consider whether you are dealing with a single site, or (far) more likely a project, and to proceed with due caution. At the least, consider issuing an incomplete letter and requiring Clearwire to come in and disclose all of their project sites and interconnections, and then consider whether your agency wants to evaluate the entire project under CEQA. More and more governments are now taking that cautious approach.

I have photos of a few Clearwire sites in Portland, Oregon and Modesto, California posted to the government planners wireless example gallery at www.cellularpcs.com/gallery/

-Jonathan

The industry member’s response, with my embedded reply back shown in italics, is below:

Hello Jonathan

A colleague of mine forwarded your statement below to me. After reading it, I feel compelled to reach out to you with my own comments. Not entirely clear as to what your objective is, perhaps business is slow for you as with many of us as of late.

JK: As a municipal and private attorney, an RF engineer holding many licenses; and as a contract wireless planner and planning instructor for many governments, my goal is to to ensure that my constituency (governments and selected private entities) is aware of this deployment and the legal and practical considerations that attach to the deployment. Business is just fine, thanks.

Whatever the case may be, your message below is startling and in my opinion, somewhat predatory in nature.

JK: Predatory is defined in the Encarta Dictionary (http://encarta.msn.com/dictionary_1861737372/predatory.html) as:

1. greedily destructive: greedily eager to steal from or destroy others for gain
2. relating to predators: relating to or characteristic of animals that survive by preying on others
3. ruthlessly aggressive: extremely aggressive, determined, or persistent

I respectfully disagree with your opinion that my message suggests predatory behavior. I have no desire to destroy, or the other things in the definitions. Rather, my desire is that my constituency properly understand what is happening with the Clearwire deployment, and why it raises legal and procedural issues that should be addressed as applications are being tendered and considered. As a wireless planner working for governments for the past 17+ years, I believe that most of those on the private site who regularly deal with me would reach a softer or different characterization of my actions.

Your statement regarding ROW is valid. However, this is not applicable to the majority of sites that Clearwire is working on in the Southern California area. Perhaps limiting your message to ROW issues only would have been the better approach here.

JK: I appreciate your recognition of the ROW issue, but is merely one element that permitting agencies need be aware of. Some of the drop/swaps will be proposed for the ROW; many will not. It would not make sense for me to limit my comments to just the ROW since the deployment will likely be in both arenas.

Further, whether the proposal is for a mod to Sprint’s own facility or not, the fact is that on land not located in the public right of way jurisdictions should consider these proposals as a colo/cohab modifications or new-build project regardless of the entity name or CPUC status and review the request on it’s own merit with consideration to the degree of intensification and/or design relative to the land development standards in effect at the time of application.

JK: This is an area where each jurisdiction will evaluate a project against their local municipal code rules, as well as CEQA, and the PUC. Since we’re dealing with different legal entities, and addressing your non-ROW discussion, how the project is understood by the local agency is important to the proper application of the local code. Also, under some local government municipal codes, it does make a difference whether Sprint is proposing a mod to its own site, or if the proposal is really for a new and different occupant that is subject to its own permit process.

You state that “..Sprint/Nextel is now in the process of submitting something on the order of 1,400 applications to local government planning agencies (and potentially to public works departments) for what often appear to be–but are not–modifications to existing Sprint/Nextel sites. Rather, what is happening is that Sprint/Nextel, under its name and logo on the applications and plans, is sponsoring in applications for Clearwire Communications, a separate legal entity under separate management, which is merely 51% owned by Sprint”. Further, you claim that the microwave dishes being proposed is merely a “cost saving issue”. Unless you have some proof of this, I would tend to believe that the statement is unfounded.

JK: A wireless mesh network for backhaul is a cost saving consideration. A WiMax provider could use redundant fiber or multiple T1 network to achieve the same results, but those alternative would involve different capital and recurring cost considerations.

Jonathan, you seem to be suggesting that Sprint/Nextel and Clearwire is acting less than honest about their intent by maintaining the Sprint and/or Nextel name and logo on the plans. I am not entirely comfortable with your statement and am disappointed in you as a “telecom lawyer” for publicly making such accusations.

JK: The fact is that Sprint/Nextel is a separate entity. The firms are managed differently. There are other partners involved. See: http://newsroom.clearwire.com/phoenix.zhtml?c=214419&p=irol-newsArticle_Print&ID=1141157&highlight=

I do not suggest that Sprint/Nextel’s sponsorship of the applications is dishonest, but rather that some may governments and others may see the bold letters at the top of the plans and on the applications that say Sprint/Nextel, and miss the important little letters that disclose that Clearwire is the actual owner of the project. It is not an accusation; but rather a fact that important to properly understand who is requesting what.

Based on my exposure to your work over the years, I think you have done a reasonably good and thorough job representing your public sector clients.

JK: Thank you.

This is why I am so startled by your message below. Your message implies that you have factual information relative to the relationship between parties and their intent as well as the objectives of their site designs relative to cost.

JK: The information regarding the ownership is public record. Their deployment intent is clear from reading the information they have released, and disclosed in public meetings.

You are potentially encouraging local jurisdictions to question the intent of the wireless applicant to a degree that could possibly be prohibitive and questionably illegal relative to legislation that supports such endeavors.

JK: I am encouraging local jurisdictions to ensure that they understand who the actual applicant is and what the rights and duties are of that applicant. Asking for factual and accurate disclosures to permit the local agency to determine the proper course under its local code is neither prohibitive nor illegal in this sense.

Clearly, with 1,400 sites planned (per you), the intent is to provide improved wireless telecommunication service, whether it be for Clearwire or Sprint/Nextel or both. Whether it be for telephone or internet or both, what is the problem here?

JK: Again, the rights that must be respected flow from the legal status of the real applicant. Cell phone companies have rights that are different from Internet-only providers; which are different from, say, trunked radio system operators. Real problem can arise if the rights asserted by an applicant are not the rights as granted to that applicant, and if a permitting agency mishandles an application as, for example, a standalone project rather than as part of a larger multi-site project.

The overall feeling that I have after reading your message is that Sprint/Nextel and/or Clearwire is up to something unethical and potentially illegal.

JK: I respect your right to your feelings, but nowhere in my message did I say or suggest that the actions are either “unethical or potentially illegal.”

The potential for confusion regarding the applicant and its rights I’ve discussed is based on how the applications are already coming in. The comments I’ve received from local governments confirms that the confusion already exists. But confusion does not rise (or sink) to the behavior you incorrectly read into my words.

If I were a city decision maker and after reading your statement I would be very concerned and as such, I may be compelled to question the validity of every Clearwire/Sprint application. In fact, I may even be compelled to question any wireless application more so than I would under normal circumstances.

JK: City decision makers are by and large very smart people, just as you are. As a planner in this area, I’m sure you understand that wireless planning is different and more detailed that planning a building, or permitting a business to conduct a conditional use. Special state rules come into play, as do federal rules and court decisions, when considering wireless site applications. Again, that’s why understanding who the applicant is and their real rights is key to ensuring compliance with the regulatory and judicial framework that controls in this area. Being compelled to question any application more than normal is a personal decision for a planner which is, I believe, largely based on trust factors. This is an area where accurate knowledge prevents the planner from falling into the “Fool me once, shame on you; fool me twice, shame on me” trap.

Your statements may cause discomfort with the local jurisdictions and will likely result is undue delays in processing time as well as cast a negative light on the wireless entities that have every right to build or modify their wireless network in the most efficient and expeditious manner.

JK: Processing of planning applications is governed by various state laws (for example the PSA). If an application comes in that may misstate material information, then the delay…if any…will be due to the entity misstating the information, don’t you agree? And if an entity misstates material information, then who is casting the light you speak of? I do not suggest that Sprint, Clearwire, or anyone else is misstating material information, but confusion does already exist.

The cost of such endeavors should not be such a concern to local planning departments when considering the proposal. Further, when considering the equipment needed to reach the coverage objective, the applicant should use the least intrusive and reasonable means possible.

JK: The cost issue isn’t core. There are many cases where microwave backhaul is appropriate, and I have stated that in various project reviews I have conducted over the years. There are other considerations, however, that come into play in wireless siting within and outside of the right-of-way including, as just two examples, CEQA and ADA compliance.

From what I have witnessed, Sprint and/or Clearwire has made more than reasonable efforts to adhere to this approach. Causing any level of prohibition to this approach is, at a minimum, unfair.

JK: I accept that this is your belief, but I do not adopt or reject it for myself. I’m not sure what you mean by “any level of prohibition” either functionally or legally.

The expectation that I have for someone of your professional stature and experience is to maintain a healthy balance between applicant and jurisdiction and use methods of practice that are proactive and most importantly, fair. Local jurisdictions that enter into contract with you expect that you will review applications for wireless facilities with the intent of making sure that the proposal is consistent with all applicable rules defined in Telecom Act. That stated, perhaps you could take a softer and more cautious approach when advising your public-sector colleagues. I believe that fostering trust among all parties is the better way to do business for all of us.

JK: The Telecom Act may or may not apply; the state collocation laws may or may not apply; various provisions of the local municipal code may or may not apply. There are many considerations, beyond the Telecom Act, that must be factored into proper planning.

I agree with you that fostering trust among the parties is a better way to do business. Trust springs from honesty, so the more honest we are, the greater then trust that we should be accorded.

Over the nearly 20 years I’ve been doing wireless siting work, I have developed a reputation for calling it like I see it, and trying to bring parties together. The wireless industry calls on me to help them develop that trust when they ask me to lecture at industry meetings (as I have several times this year at my own expense, and in previous invited by unpaid trips to lecture at national PCIA conferences, for example).

I am a charter member and public supporter of CalWA and the educational outreach it promotes. I frequently recommend that government officials join CalWA to learn and hear more about the industry. Twice this year, at government conferences that I have coordinated, I have invited CalWA wireless industry professionals to attend and present. My efforts are based on developing a better relationship between the various stakeholders…call it trust…

I would be open to discussing this matter further should you wish. If in fact, if you do possess factual documentation that supports your claims, I would gladly review the information and if valid, consider retracting some of my above-opinions.

Thanks for taking the time to read my comments and consider my suggestions.

JK: Hopefully I’ve addressed the bulk of your comments and concerns. I don’t ask that you change your opinions, but merely that you consider mine as I’ve further explained them in this reply. I’ve taken the time to respond because I found your comments thoughtful, even where I disagree with them. That’s just part of the interplay between peers who clearly respect either other, but may have cause to disagree with each other.

Warmly,

Jonathan

I’ve posted this because I want to make it clear (no pun intended) that as I’ve already said on another of my sites, I look forward to Clearwire’s deployment in SoCal, and I hope to use their static IP service as a back-up at my office.

It’s important to local governments that the material elements of a project be properly disclosed during the review process.  This ensures that the applicant is accorded the proper processing, rights, and duties under the local code.  Accuracy and transparency are, therefore, key to achieving those results.

As I’ve recently used as an analogy, Sprint/Nextel’s sponsorship of Clearwire projects is akin to opening up a set of drawings for a commercial office building and the name splashed across the top of each page in bold letters is “United States of America, General Services Administration” yet the small print shows that the true legal owner will be “AIG Insurance” rather than GSA.  Well, yes, the U.S. is the majority owner (at least for now) of AIG, but the legal rights and duties of each are very different.

I also want to make it clear that as a telecom attorney and wireless planner working for local governments, it is common for us to alert our peers to issues that we uncover, and that are likely to impact our peers.  We share this information to ensure that we all have the benefit of what others have learned, developed, determined, uncovered, etc.

I’m interested in your comments, which you can voice below.

Jonathan

U.S. Supreme Court

Today the U.S. Supreme Court denied cert in the Sprint v. County of San Diego and Level 3 v. St. Louis cases.

For local governments and telecom carriers in the 9th Circuit, this means that telecom carriers who want to challenge a zoning decision will in most ever case have to show that the local ordinance, AS APPLIED, acts as a prohibition to the provision of a telecom service.

Under the old, now overruled standard, a telecom carrier needed only to show that a local ordinance could prevent a provider from providing a telecom service (the so-called ‘facial attack’).

Tom Bunton, Esq., of the County Counsel’s office in San Diego is a hero to local governments.

Jonathan

In an appeal filed in the U.S. Court of Appeals, Third Circuit, the DOJ says it should have the the authority to compel wireless carriers to provide cell phone switch data that is historical in nature, and without the need to first obtain a warrant.

The argument posed by the DOJ is that historical records of cell phone use and towers used by a subscriber is not akin to a pen register or trap-and-trace devices, thus no warrant should be needed.

The problem for the DOJ is that cell phone records, and specifically records of what towers were used, amount to location data, and telephone number data (as would be disclosed by a pen register).  It’s hard to understand why the DOJ thinks that the same data that would require a warrant where it in connection with a landline phone would not need a warrant if in connection with a mobile phone.  The DOJ rests its argument as follows:

Under the longstanding canon of expressio unius est exclusio alterius (“the expression of one is the exclusion of the other”), a court should presume that if “Congress wanted to include such a requirement … it knew exactly how to do so.”

This, of course, is silly since it presumes that Congress knows all technology now in existence, and what will come into existence in the unforeseeable future.  It is essentially a loop-hole way into saying that what Congress didn’t know is what it intended to omit.  Yeah, right.

For an example of how the police use cell phone tower data to assert that someone is somewhere when something is happening, look at the following excerpt from the Affidavit for an Arrest Warrant for one Donna Moonda, which is found on the US DOJ website:

With the assistance of the cellular telephone companies involved, investigators were able to map out Damian Bradford’s travel on May 13, 2005, by accessing cell tower locations  where the calls were routed. It has been confirmed that Damian Bradford was the individual utilizing the cell phone through numerous interviews with individuals who either called Bradford or received a call from him. In the early afternoon hours of May 13, 2005, that information showed Bradford moving North and Donna Moonda traveling South in Pennsylvania to a meeting location mid-way between their residences. Shortly thereafter, Donna Moonda traveled back to Hermitage and Bradford traveled back to the Aliquippa area, north of Pittsburgh, Pennsylvania. In mid-afternoon, Bradford traveled North until he eventually reached Hermitage, Pennsylvania, between 3-4 p.m. At approximately 4:30 p.m. the Moondas, along with Donna Moonda’s mother, Dorothy Smouse, left Hermitage, Pennsylvania and traveled on the Ohio Turnpike on a planned trip to Toledo, Ohio. Cell site information, along with time/distance calculations, showed Damian Bradford moving in sync with the Moondas from Pennsylvania to the Ohio Turnpike.

In the end, what the DOJ wants is a judge-made exception of the 4th Amendment.  That Amendment prohibits warrantless searches, which is exactly what the DOJ wants in connection with cell phone records.

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