Jones in Review: "Second majority" application to cell site location information

This week, Cybercrime Review is featuring a series of posts that takes a look at how federal and state courts are applying the Supreme Court's decision in United States v. Jones (previously discussed here).

Now that GPS use will often require a search warrant, law enforcement has begun to increasingly use cell site location information (CSLI) in investigations. Some courts read Jones no farther than the trespassory interest detailed by Justice Scalia, and they hold that Jones did not alter the rules for obtaining CSLI. Other courts, however, read the concurring opinions by Justices Alito and Sotomayor to stretch much farther - suggesting that any attempt by government to track citizens long-term can only be done with a search warrant.

United States v. Sereme, 2012 WL 1757702 (M.D. Fla. 2012)

Jones does not apply to the use of CSLI. Because there was no physical trespass, no constitutional violation occurred. 

The Supreme Court has not answered the broader question presented here which is whether the Government's monitoring of an individual's movements through their cell phone for a certain period of time constitutes a “search” within the meaning of the Fourth Amendment, and more importantly whether that “search” requires a warrant issued upon probable cause of some other level of suspicion, such as the traditional reasonable suspicion.

In re Application, 2012 WL 989638 (D. Mass. 2012)

Despite the concerns of Alito and Sotomayor in Jones, probable cause is not required for issuance of a 2703(d) order to obtain historical CSLI until the Supreme Court or Congress “definitively considers the matter.”

Commonwealth v. Pitt, 29 Mass.L.Rptr. 445 (Mass. Sup. Ct. 2012)

CSLI is protected by a reasonable expectation of privacy, and the failure to obtain a warrant in violation of the Fourth Amendment requires suppression.