Just Because CSLI Warrants Are New-Ish Doesn’t Mean You Can You Can Skimp On The Probable Cause
As far back as I can remember, cell site location info (CSLI) was always covered by the Third Party Doctrine. That court-created doctrine said anything “voluntarily” handed over to third parties can be obtained by the government. Without a warrant.
That not only includes bank records, phone records, and other transactional records we possibly haven’t even considered to be of interest to the government, but for the longest time — long after nearly everyone carried a cell phone with them wherever they went — location data generated by connections to cell towers could also be had without a warrant.
“Voluntary?” Hardly. To use your cell phone, you need to connect to a tower. It’s either/or, a binary calculation that says using a cell phone means creating a digital trail of your movements.
In 2018, the Supreme Court finally decided this was not only not exactly a voluntary transaction, but that the government shouldn’t have the power to engage in long-term tracking of citizens without a warrant. Enter the warrant requirement, which meant obtaining weeks or months of CSLI now needed a bit more paperwork and a bit more respect for the Fourth Amendment.
In terms of law enforcement work, a half-decade ago is a minute ago. It takes years for cops to finally comprehend the meaning and scope of constitutional decisions that don’t play out in their favor. They can fuck up for months or years and still get a “good faith” pass because law is hard and stuff.
Sooner or later, courts get a little tired of giving cops passes for deliberately failing to stay abreast of legal developments that occurred years ago. The Supreme Court of Georgia recently took law enforcement to task for thinking it could search someone’s cell phone using nothing but copied-pasted boilerplate and conclusory statements in its sworn affidavit.
The same sort of thing is going on here. I’m not even going to try to summarize the case to this point. This suppression order is the 519th document on the docket in a case that involves multiple charges, multiple defendants, and a still-unresolved prosecution of drug conspiracy case.
In fact, the order [PDF] doesn’t even make it clear it’s a suppression order. Multiple things are being handled here, and the federal court placed this one on the docket with a summary that leads with “ORDER GRANTING 355 Motion to Participate in Voir Dire as to Angela Cable.” Whew.
But this order does include a pretty thorough rejection of the government’s CSLI warrant half-assery. A wiretap that captured conversations between the co-conspirators also captured a single phone call involving defendant Angela Cable that may have included references to drug trafficking. This lone call became the basis for further government intrusion, some of which the court doesn’t find acceptable.
From this single call, the affiant concluded Defendant Cable was using her cell phone “to facilitate transactions involving drugs” and GPS data from her phone provider would “assist agents in locating and identifying vehicles and the locations that [were] being used as ‘stash houses’ for illegal drugs and/or drug proceeds.” Based on that analysis and information regarding the affiant’s background and experience, a Magistrate Judge issued a search warrant for geolocation data regarding Defendant Cable’s cell phone.
Ah, the old “training and experience” hook, which was attached to a couple of conclusory statements, some boilerplate, and a lot of assumptions about what this location info would reveal to investigators.
The magistrate judge issued a report and recommendation denying Cable’s attempt to suppress the CSLI. The district court says the magistrate is wrong about a few things.
Probable cause is still the standard, even if the warrant requirement is, in the grand scheme of things, fairly new. While the affidavit did provide information that linked Cable to her co-defendants and their alleged drug running, it did not do much to link her personal movements — those that could be ascertained from the location data — to the criminal acts being investigated.
The Court thus agrees the affidavit established, first, Defendant Cable’s involvement with Ruiz in the distribution of methamphetamine and, second, her use of her cell phone to assist in this illegal activity. But the affidavit provided no link between her mere use of the cell phone and probable cause to conclude the phone’s geolocation data would provide evidence of a crime. The affidavit alleged GPS data from the phone “will assist agents in locating and identifying vehicles and the locations that [were] being used as ‘stash houses” for illegal drugs and/or drug proceeds.” The affidavit did not, however, explain any basis for that conclusion.
A warrant has to do more than establish probable cause that criminal acts have occurred. It needs to link the suspected activity to the place being searched. In this case, it was Cable’s cell provider. The only data sought was location data, which wasn’t evidence of anything… at least not according to what had already been observed during the investigation.
Absent some allegation linking the movement of the phone to evidence of illegal activity, the mere use of a phone to conduct illegal activity does not establish probable cause to believe the location information tracked by the phone will provide evidence of a crime. People can, of course, use cell phones to speak about a crime without their locations providing evidence of the crime. So the mere use of a phone does not establish probable cause that one’s movements will provide evidence of a crime.
And what law enforcement had at the point the warrant was sought was nothing that suggested her location data would be evidence of anything other than her possession and use of a cell phone.
The affidavit includes no factual allegations to suggest Defendant Cable visited stash houses, moved drugs or drug proceeds between locations, or made any other movements as part of the drug trafficking. Merely conferencing together two people on a phone (albeit for illegal purposes) does not make the location from which the call was made (let alone movements while not using the phone) relevant to the investigation.
The court reverses this part of the magistrate’s recommendation. Probable cause isn’t an extremely high bar to clear. But no effort was made to step over it here.
In a conclusory manner, the affiant characterizes Defendant Cable as a “courier” but provides no basis for that assertion, and the other facts alleged do not support it.
But even though this is (at least partly) a suppression order, there is no suppression here. Good faith trumps bad police work and the location data survives to be used against Cable during her jury trial.
Having reviewed the warrant, the Court concludes that, even if the warrant lacked probable cause, the government would nonetheless be entitled to the benefit of the good-faith exception.
Welp. That’s the way it goes sometimes. Good faith beats bad warrant in a court of law. However, not every decision goes this way. And cops who think an affidavit needs nothing more than boilerplate with some “training and experience” seasoning need to be called out by courts more often, even if the end result is judicial forgiveness. If they’ve been told once, they’re not nearly as likely to be considered to be acting in “good faith” the next time around.
Filed Under: 4th amendment, angela cable, csli, location, probable cause, warrants