New York State Appellate Court Says Cell Site Location Records Have No Expectation Of Privacy

from the may-our-children-look-back-at-these-decisions-and-laugh-over-their-avocado-toast dept

The Supreme Court will deliver its ruling on the issue of cell site location info later this year, possibly changing the contours of the Third Party Doctrine for the first time since its erection out of thin air more than four decades ago. Until then, a patchwork of decisions has been handed down by state courts, some finding state law provides more protection for cell phone users than the US Constitution. At the federal level, however, years of precedent has resulted in a mostly-unified front by appellate courts. According to their decisions, cell site location info is a third-party record, undeserving of Fourth Amendment protections.

One of New York State's appellate courts has sided with the federal level. According to its recent decision, there are no privacy expectations in CSLI collected and stored by cell phone providers.

[W]e conclude that the acquisition of that information was not a search requiring a warrant under either the federal or state constitution. As the People point out, this case involves only historical cell site location information, contained in the business records of defendant's service provider, which placed his phone within a certain cell site "sector" at the time he used the phone to make calls, send text messages, or receive calls or messages. Under these circumstances, we conclude that the acquisition of the cell site location information was not a search under the Fourth Amendment to the federal constitution because defendant's use of the phone constituted a voluntary disclosure of his general location to his service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties…

The court goes on to declare that even if it had felt like suppressing the evidence and extending privacy protections to CSLI, it wouldn't have helped the defendant.

As a final matter, we agree with the People that any error in the court's refusal to suppress defendant's cell site location information is harmless. The evidence of defendant's identity as a participant in the crime is overwhelming, and there is no reasonable possibility that the verdict would have been different if the location information had been suppressed…

This decision will stand even if the Supreme Court upends 40+ years of Third Party Doctrine rulings. Decisions like these are rarely retroactively applied. Even if Carpenter wins his Supreme Court case, it's likely the lower court will allow the evidence to remain in play, pointing out officers were reasonable to rely on precedential decisions finding no Fourth Amendment protections for third party records. The same goes for the defendant here. Post-decision alterations to the contours of the Constitution rarely help those whose rights have been determined to be violated after the fact.

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Filed Under: 4th amendment, cell site location info, csli, expectation of privacy, location info, new york, privacy