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United States v. Graham, 11-0094, LEXIS 26954 (D. Md. Mar. 1, 2012), was a Maryland District Court case in which the Court held that historical cell site location data is not protected by the Fourth Amendment. Judge Richard D. Bennett reviewed this case in light of the recent Supreme Court opinion in United States v. Antoine Jones, and came to his conclusion primarily using the third-party doctrine, which is that "information voluntarily disclosed to a third party ceases to enjoy Fourth Amendment protection". Therefore, the Stored Communications Act governs the disclosure of historical cell site location data collected by a network provider to the government and it does not need to meet the Fourth Amendment standard of probable cause to be released.

Background
The Defendants, Aaron Graham and Eric Jordan, were charged for a series of armed robberies of commercial entities including Burger King restaurant and McDonald's restaurant in Baltimore, Maryland on February 5, 2011. Ten minutes after the McDonald's robbery, the defendants were found by the police and provided their cell phone numbers to the arresting officers. Two cell phones were recovered from the Defendant's car, which matched the numbers that the Defendants had provided earlier. Before the Baltimore Detective Christopher Woerner searched the contents of the phones, he requested search warrants for the devices from the Circuit Court.

On March 25, 2011, Magistrate Judge Susan K. Gauvey, pursuant to the Stored Communications Act, granted the government's request to order Sprint/Nextel, Inc. to "disclose to the government 'the identification and address of cellular towers (cell site locations) related to the use of' the Defendants' cellular telephones". The request pertained to data for August 10-15, 2010; September 18-20, 2010; January 21-23, 2011; and February 4-5, 2011 to be able to link the Defendants to multiple prior robberies, which Gauvey determined fit the standard of the government offering "specific and articulable facts showing that there are reasonable grounds to believe that the records and other information sought are relevant and material to an ongoing criminal investigation". On July 15, 2011, the government was granted a second order from Magistrate Judge Paul W. Grimm for the cell site location for the period of July 1, 2010 through February 6, 2011. Spring/Nextel, Inc. provided the data to the government pursuant to this order.

On December 8, 2011, Judge Bennett of the District Court held a hearing to determine if the Cellular Phone Data and Historical Cell Site Location Data should be granted the motion to suppress at the Defendant's request.

Defendants' Claims
The Defendants argued that the historical cell site location data acquired without a warrant was in violation of the Fourth Amendment because the "length of time and extent of the cellular phone monitoring intruded on the Defendants' expectation of privacy". The Defendants claimed that the data granted to the government allowed the "government to paint an intimate picture of the Defendants' whereabouts over an extensive period of time". They contended that the implications of this technology allow the government to retroactively surveil a suspect through a device he carries with him twenty-four hours a day, even to constitutionally protected places such as the home.

Plaintiff's Claims
In response to the Defendants' claims, the government argued that they lack standing because Defendant Jordan used a fictitious name and address when subscribing to the phone service and this demonstrated a lack of privacy interest in the location records. The government also contended that the records were the proprietary business records of the cell phone carriers and that the Defendants voluntarily gave their records to the cellular service company. The government analogized the cell site location data with the pen register, and used the third-party doctrine from the Supreme Court case of Smith v. Maryland to argue that the defendants voluntarily gave their information to the third party which did not implicate the Fourth Amendment based off of precedent.

The government also contended that the Stored Communications Act's "lower 'specific and articulable facts' standard provides adequate privacy protections...and notwithstanding recent cases ('United States v. Antoine Jones), the majority of courts have concluded that "the government's acquisition of cell site location data without a warrant does not violate the Fourth Amendment" . Lastly, the government argued that, if the Court were to conclude that the acquisition of the cell site location data was unconstitutional, the appropriate remedy would not be suppression of the evidence.

Expectation of Privacy and Third Party Doctrine
In Katz v. United States, the Supreme Court held that the "Fourth Amendment protects people, not places. What a person knowingly exposes to the public...is not subject of Fourth Amendment protection". Therefore, as to the government's argument about the defendant's lack of standing because of the ficticious name he used, the Court considered the issue combined with the legitimacy of the expectation of privacy in the historical cell site location data. First the Court cited Smith v. Maryland, where the Supreme Court held that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties," and that the users of third party services are aware that they are conveying their information to the companies in order for the service to work. Using the reasoning of United States v. Miller, the Court determined that historical cell site location records were not the Defendant's private papers, but were the business records of the cellular providers. Coupling this logic with the Fourth Circuit's in United States v. Bynum, which "concluded that because Bynum voluntarily conveyed his location to his internet company, he enjoyed no reasonable expectation of privacy in that information," the Court determined that the third-party doctrine was applicable to historical cell site location information and that the Fourth Amendment was therefore not implicated.

Mosaic Theory
Next, the Court considered the question of time - if there was an exception to the third-party doctrine if the records requested were "cumulative." Judge Bennett cited multiple past orders in various districts which held that there was no Fourth Amendment violation if the request was for a concrete and short period of time. However, citing the mosaic theory of the Fourth Amendment created in United States v. Maynard (the D.C. Circuit case leading to the Supreme Court United States v. Antoine Jones case), the court found that "individual investigatory steps taken by law enforcement do not amount to a Fourth Amendment violation, but when viewed in the aggregate...infringe on a person's reasonable expectations of privacy". However, Judge Bennett disagreed with this reasoning and stated that Congress expressly intended to require only "specific and articulable facts" in their enactment of the Stored Communications Act for the precise purpose that individuals do not have a legitimate expectation of privacy in information conveyed to third parties. Therefore, citing the majority opinion in Jones, Judge Bennett reasoned, that if technology is altered in the future to intrude on the reasonable expectation of privacy, the legislature would be the body best fit to address this issue.

Differences from United States v. Jones
Because the Jones case set the Supreme Court precedent for surveillance by the government using certain electronic devices to be violations of the Fourth Amendment, Judge Bennet elucidated the distinctions between Jones and the case at hand. A GPS device was the issue in Jones, and Judge Bennett noted that unlike GPS information, historical cell site location data is only retroactive, not prospective - it does not give the government the ability to track the precise movements of the suspect in real time. The next difference between the two and from Smith v. Maryland that Judge Bennett noted was that historical cell site location can "only reveal which cellular towers were used to route a particular call" and therefore can only give a general location where a cell phone was used and only where the closest cellular tower was. Also, Judge Bennet separates the cases because the GPS surveillance was conducted without a valid warrant in Jones, but in this case, the Stored Communications Act had the standard of "specific and articulable facts," which enabled the judicial branch to prevent and remedy executive overreaching.

Lastly, Judge Bennett specified that the majority opinion in Jones ultimately did not consider whether the "search" in the case violated the individual's reasonable expectation of privacy and therefore, until a higher court analyzes this question or Congress comes up with a different solution from the Stored Communications Act, Judges must apply the facts of the case to the law as is currently interpreted.

Appropriate Remedy
Because the officers pursuing the historical cell site location data relied in good faith on the Stored Communications Act and the Orders issued by the Magistrate Judges, the exclusionary rule does not apply as per Illinois v. Krull. There was no challenge to whether the Stored Communication Act applied to this case. Therefore, the data would still be admissible in the trial as evidence and suppression would not be the appropriate remedy.

Holding
Relying heavily on the third-party doctrine, Judge Bennett concluded that the Defendants' Fourth Amendment rights were not violated when the government, according to the standards of the Stored Communications Act, acquired their historical cell site location data. The Defendants' Motion to Suppress Evidence of historical cell site data was therefore denied.