By Steve Lash
BridgeTower Media Newswires
BALTIMORE, MD — Police do not need search warrants to get the cellphone-tower records of suspected criminals in trying to track their whereabouts when the crime was committed, the Trump administration has said in urging the U.S. Supreme Court not to hear the appeal of two convicted Baltimore bank robbers.
In papers filed with the justices this month, acting U.S. Solicitor General Noel J. Francisco said the Constitution’s prohibition on unreasonable searches does not apply to cellphone records because individuals have “no reasonable expectation of privacy” in information they willingly gave to their service providers in placing or receiving calls.
Thus, the police did not need a search warrant to request and receive from Sprint/Nextel the tower records of Aaron Graham and Eric Jordan, Francisco wrote.
“[C]ell-phone users presumably understand that their phones emit signals that are conveyed through their service providers, through facilities close to the area of the phone’s use, as a necessary incident of making or receiving calls,” Francisco added. “Additionally, any subjective expectation of privacy in information transmitted to a cellular-service provider by engaging its cellular network would not be objectively reasonable because a person has no legitimate expectation of privacy he voluntarily turns over to third parties.”
Francisco submitted the brief as the high court considers whether to hear Graham and Jordan’s appeal.
The 4th U.S. Circuit Court of Appeals, in upholding the men’s convictions, ruled in May that individuals have no reasonable expectation of privacy in the business records kept by third-party cellphone service companies. As a result, the Constitution’s Fourth Amendment prohibition on unreasonable searches does not apply and a warrant is not needed, the full 4th Circuit added in its 12-3 decision.
Graham and Jordan’s defense attorneys, in petitioning the Supreme Court to hear the appeal, have argued that individuals do have a reasonable expectation that their cellphone conversations – including via social media -- are private communications that cannot later by tracked by law enforcement without a warrant issued by a judge based upon a showing of probable cause of illegal activity.
“Many forms of modern electronic communication belie the legal fiction that sharing data with intended recipients is the same as sharing it with the world,” wrote Maryland Federal Public Defender James Wyda and his assistant, Meghan Skelton, on behalf of Graham in October. “Yet the 4th Circuit’s interpretation of Fourth Amendment law treats a private photograph shared only with a spouse on Snapchat for a limited time as the equivalent of a billboard on a busy highway, open to view by all who drive by.”
Jordan filed a separate request for Supreme Court review. He is represented by attorney Ruth J. Vernet, a Rockville solo practitioner.
The high court has not said when it will decide whether to hear the men’s appeal. In its controversial decision, the 4th Circuit cited the Supreme Court’s 1979 ruling that police do not need a warrant before getting from telephone companies the call records of users of landline telephones. In Smith v. Maryland, the high court said the customers had voluntarily exposed their calling history to the company and thereby “assumed the risk” that it would disclose the information to investigators without their need to obtain a search warrant.
The 4th Circuit said the cellphone contracts of the 21st century are no different than the landline service of the 20th for Fourth Amendment purposes. Cellphone users, like landline callers, voluntarily convey to their service providers the information necessary to complete the connection, the 4th Circuit added.
But Graham’s defense attorneys contend that tracking cell-tower sites, which move with the caller, is a greater invasion of privacy than reviewing landline call records, which reflect stationary locations.
“A modern cellphone is not a telephone in any sense that this (Supreme) Court would have recognized in 1979, when it considered in Smith what happens when a person dials a landline phone,” the attorneys wrote in their request for Supreme Court review.
“Treating the smartphones and their capabilities at issue in this case like a copper-wire phone ‘is like saying a ride on horseback is materially indistinguishable from a flight to the moon,’” they added, quoting from the Supreme Court’s 2014 decision in Riley v. California.
But Francisco, in urging the justices to deny the appeal, wrote that the holding in Smith survives technological advances, namely that “an individual has no Fourth Amendment interest in records pertaining to the individual that are created by third parties or in information he voluntarily conveys to third parties.”
A U.S. District Court jury in Baltimore had convicted Graham and Jordan in May 2012 of committing a series of armed robberies in and around the city in early 2011. They were sentenced to prison terms of 147 and 72 years, respectively.
The evidence against them included records from Sprint/Nextel indicating the location of cellphone towers the men used in placing or receiving calls or text messages at or about the time of the robberies.
Police had obtained the records from Sprint/Nextel via subpoena under the federal Stored Communications Act and not by a warrant.
The 4th Circuit, in upholding the convictions, said it was mindful of the privacy concerns raised due to the ubiquitous use of cellphones. However, these concerns must be addressed either by the Supreme Court or Congress, as judges remain bound by the high court’s Smith decision, the 4th Circuit held.
Graham’s request for review is docketed at the Supreme Court as Aaron Graham v. United States, No. 16-6308. Jordan’s request is docketed as Eric Jordan v. United States, No. 16-6694.
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