United States District Court, D. Connecticut
ORDER DENYING MOTION TO SUPPRESS
JEFFREY ALKER MEYER, UNITED STATES DISTRICT JUDGE
Defendant Christopher Chavez moves to suppress information acquired by the Government from his telephone company-Verizon-concerning the location of cell phone towers that were used or accessed in connection with communications involving a specific telephone number that the Government associates with defendant. Defendant principally contends that this information-known as “cell site location information”-should be suppressed because the Government did not obtain it by means of a search warrant on the basis of a showing of probable cause. Because I conclude that the Government’s acquisition of this information was neither a “search” nor “seizure” that is subject to the requirements of the Fourth Amendment and because I conclude that any legal violation here would not warrant a remedy of suppression of evidence, I will deny the motion to suppress.
In June 2015, the Government applied for and obtained an order from a United States Magistrate Judge to direct Verizon to disclose records reflecting the location of cell towers relating to the use of certain cellular telephones, including a cellular telephone that was allegedly used by defendant Christopher Chavez. The Stored Communications Act is a federal law that authorizes the Government to seek such information from telecommunications companies provided that the Government first obtains a court order on the basis of an application that identifies “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).
The Government’s application here described the extensive background of its criminal narcotics investigation and why it would be of particular significance to identify the physical whereabouts of defendant at the time that his telephone was used from August 9 to August 31, 2014. At the oral argument of this matter, the Government stated its intention to introduce evidence at trial of a single day of defendant’s cell site location information. It is apparent from my review of the Government’s application that it sets forth specific and articulable facts and that the requested cell-site location information was clearly relevant and material to the Government’s investigation of extensive cocaine trafficking operations.
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A predicate to any claim of a Fourth Amendment violation is that there has been either a “search” or a “seizure.” A “search” for purposes of the Fourth Amendment occurs when the police intrude upon a person’s reasonable expectation of privacy, or if the police otherwise trespass upon a person’s body, house, papers, or effects for the purpose of acquiring information. See Florida v. Jardines, 133 S.Ct. 1409, 1414 (2013); United States v. Jones, 132 S.Ct. 945, 951 n.5 (2012). A “seizure” of property for purposes of the Fourth Amendment occurs when the police meaningfully interfere with an individual’s possessory interest in that property. See Soldal v. Cook County, Ill., 506 U.S. 56, 61 (1992).
Here, the Government acquired information about defendant that was in the possession of a third-party-Verizon-and that the acquisition of this information did not involve any trespass upon defendant’s body, house, papers, or effects and did not involve any interference at all with defendant’s possessory interests in any of his property. In United States v. Miller, 425 U.S. 435, 440-43 (1976), the Supreme Court held that a bank customer has neither a property interest nor a reasonable expectation of privacy in banking records obtained by law enforcement from a customer’s bank. A bank’s records are not a customer’s “private papers, ” but are “the business records of the banks, ” and a bank customer “can assert neither ownership nor possession” over such documents for Fourth Amendment purposes. Id. at 440. The Court further ruled that a bank customer has no reasonable expectation of privacy in his banking records, because they “contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Id. at 442. As the Court explained, “[t]he depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government, ” and “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Id. at 443.
In essence, the Supreme Court made clear in Miller the basis for the so-called “third-party doctrine” of the Fourth Amendment: that a person does not have a right or interest that is protected under the Fourth Amendment to prevent the Government from obtaining information about a person that is in the custody of a third party and including information that the person has voluntarily disclosed to a third party. See also Smith v. Maryland, 442 U.S. 735 (1979) (customer has no legitimate expectation of privacy in telephone company’s records of telephone numbers dialed by the customer).
The third-party doctrine has been subject to tsunamis of criticism. But it doubtlessly remains good law today. See, e.g., Am. Civ. Liberties Union v. Clapper, 785 F.3d 787, 822 (2d Cir. 2015). The Second Circuit has yet to address whether the Fourth Amendment applies to the acquisition of cell-site location information, but it is no surprise in light of Miller and Smith that other federal appellate courts have concluded that the Fourth Amendment’s warrant and probable cause requirements do not apply when the Government acquires cell-site location information from a telecommunications provider. See United States v. Davis, 785 F.3d 498, 506-17 (11th Cir. 2015) (en banc); In re United States for Historical Cell Site Data, 724 F.3d 600, 611-13 (5th Cir. 2013); In re Application of U.S. for an Order Directing a Provider of Elec.
Commc’n Serv. to Disclose Records to Gov't, 620 F.3d 304, 313 (3d Cir. 2010); see also In re Application of the U.S.A. for an Order Pursuant to 18 U.S.C. 2703(c), 2703(d) Directing AT & T, Sprint/Nextel, T-Mobile, Metro PCS, Verizon Wireless, 42 F.Supp.3d 511, 517 (S.D.N.Y. 2014) (collecting more cases).
Defendant has not advanced a convincing reason to distinguish the Supreme Court’s rulings in Miller and Smith-that is, to show why the Government’s obtaining of cell-site location information from a telephone company is materially different or more intrusive than the Government’s obtaining of financial records from a customer’s bank (Miller) or telephone dialing and toll records from a telephone company (Smith). Indeed, as the Government noted at oral argument, the cell-site location information-unlike a GPS tracking device-does not actually “pinpoint” the location of a telephone’s user. It does no more than identify that the telephone at issue-while in use-is within certain range in a proximate direction (within a 120-degree “wedge” direction) from a specific cellular telephone tower.
Disclosure of such broad, zonal locational information is not more intrusive than disclosure of the kind of information that is routinely disclosed in banking or credit card records concerning whom one is paying for particular products or services (e.g., to pay doctors, to buy medicines, to withdraw cash from an ATM at a casino, to buy racy or artsy films, or to make religious donations, etc.). And it is not more intrusive than disclosure of the telephone numbers that someone has called (e.g., telephone calls to doctors, to one’s paramour, or to houses of worship, etc.). As Miller and Smith make clear, the Government’s acquisition from third parties of such financial and telephone records-no matter how directly or inferentially revealing-does not intrude upon a reasonable expectation of privacy under the Fourth Amendment.
Does it matter that cell-site location information may potentially disclose that a customer is not in a public location but is in the protected sanctity of his home? Ordinarily, of course, the Fourth Amendment applies with maximum effect to what we seek to keep private in the home. And so the Fourth Amendment applies if a law enforcement agent positions himself outside someone’s home and uses high-tech thermal imaging technology to try to determine details about heat patterns that are within the home. See Kyllo v. United States, 533 U.S. 27 (2001). Similarly, the Fourth Amendment applies if law enforcement officers place an electronic “beeper” or “bug” on an article of property possessed by a suspect and then use its signals to monitor the suspect within his home. See United States v. Karo, 468 U.S. 705 (1984).
But neither Kyllo nor Karo involved the third-party doctrine-in which a suspect voluntarily discloses information to a third party and when the Government in turn obtains such information from and with the aid of this third party. In the third-party doctrine context, it is irrelevant that a suspect has voluntarily disclosed information while in the privacy of his home and despite the fact that such disclosure doubtlessly reveals something about what a suspect has chosen to say or to do within his home. See Smith, 442 U.S. at 737 (no Fourth Amendment protection as to “the numbers dialed from the telephone at petitioner’s home”) (emphasis added); United States v. White, 401 U.S. 745 (1971) (no Fourth Amendment protection as to ...