IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1328
Filed: 15 September 2015
Wake County, Nos. 12 CRS 227771, 13 CRS 3178
STATE OF NORTH CAROLINA
v.
PAUL GREGORY PERRY
Appeal by defendant from judgments entered 6 February 2014 by Judge Henry
W. Hight in Wake County Superior Court. Heard in the Court of Appeals 1 June
2015.
Attorney General Roy Cooper, by Assistant Attorney General Elizabeth Jill
Weese and Assistant Attorney General Derrick C. Mertz, for the State.
W. Michael Spivey for defendant-appellant.
Hatch, Little & Bunn, LLP, by Laura E. Beaver, Graebe Hanna & Sullivan,
PLLC, by Mark R. Sigmon, and ACLU of North Carolina Legal Foundation, by
Christopher A. Brook, for amici curiae American Civil Liberties Union of North
Carolina Legal Foundation and American Civil Liberties Union.
TYSON, Judge.
Paul Gregory Perry (“Defendant”) appeals from judgment entered after a jury
convicted him of: (1) trafficking heroin by possession; (2) trafficking heroin by sale;
(3) maintaining a dwelling place for the sale of a controlled substance; (4) trafficking
heroin by transportation; and (5) conspiracy to traffic heroin by possession,
STATE V. PERRY
Opinion of the Court
transportation, and sale. We find no error in Defendant’s conviction or judgments
entered thereon.
I. Factual Background
A. State’s Evidence
The State’s evidence tended to show that on 10 December 2012, Raleigh Police
Department detective M.K. Mitchell (“Detective Mitchell”) arrested Kenneth
Holderfield (“Holderfield”) for possession of marijuana. Holderfield provided
Detective Mitchell with the telephone number of his drug supplier, whom Holderfield
referred to as “Sincere.” Holderfield also called the number and placed the call on the
speaker while in the presence of Detective Mitchell. Detective Mitchell testified he
heard Sincere state “he was in Charlotte and would be coming to Raleigh tomorrow.”
Detective Mitchell also testified Holderfield asked Sincere if he would “front
[Holderfield] eight grams.” Sincere replied, “We’ll talk about it when I get to Raleigh
tomorrow.”
The following day, Detective Mitchell submitted a sworn application for a
phone records production order to access records associated with the telephone
number provided by Holderfield, pursuant to 18 U.S.C. § 2703(d) and N.C. Gen. Stat.
§§ 15A-261, 15A-262, and 15A-263, to the Wake County Superior Court. The
application sought complete account and billing information, and complete call detail
records “with cell site information including latitude, longitude, sector azimuth and
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orientation information for the target telephone number(s)” for the period from 13
November 2012 through 12 December 2012. Detective Mitchell’s application also
requested “precision location/GPS, E911 locate or Mobile Locate Service if applicable
from December 11, 2012 through December 12, 2012.”
Detective Mitchell’s duly sworn statement stated:
The Raleigh Police Department is conducting an
investigation of a Drug Trafficking case that occurred in
Raleigh. There is probable cause to believe that records for
[Defendant’s telephone number] constitute evidence of a
crime and/or the identity of a person participating in this
crime, to wit:
This cellular telephone number was obtained from a
cooperating defendant who was arrested as a result of drug
trafficking. The possessor of the phone . . . is being
investigated as a major drug trafficker in the Raleigh area.
This information has been corroborated by this Detective.
It is believed that information received in the records
requested in this court order will be crucial in the
progression of this investigation.
Superior Court Judge Lucy N. Inman signed the order and Detective Mitchell
submitted it to AT&T, the cellular phone service provider and holder of the account
associated with the phone number. AT&T provided the records of the location of the
cell phone tower “hits” or “pings” whenever a call was made to or from the cell phone.
AT&T sent emails of the longitude and latitude coordinates of these historical cell
tower “hits” to Detective Mitchell every fifteen minutes. Detective Mitchell testified
an approximately five- to seven-minute delay occurred between the time the phone
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Opinion of the Court
“pinged” a cell phone tower and the time AT&T received and calculated the location
and sent the latitude and longitude coordinates to him.
After receiving the emails of the records from AT&T, Detective Mitchell
entered the coordinates into a Google Maps search engine to determine the physical
location of the last tower “pinged” from Defendant’s phone. Detective Mitchell
testified “the hits can range from . . . [a] five or seven meter hit to a couple hundred
meter hit,” which alerts law enforcement to the general area of the phone’s last
“pinged” location.
On 11 December 2012, at approximately 4:00 p.m., Detective Mitchell received
a record of a “hit” from one of AT&T’s cell towers, which placed the phone within a
few meters of the Red Roof Inn, located on South Saunders Street, near Interstate 40
in Raleigh, North Carolina. Detective Mitchell and other law enforcement officers
from the Criminal Drug Enterprise Unit of the Raleigh Police Department began
conducting surveillance from unmarked vehicles stationed around the Red Roof Inn.
Detective Mitchell testified he received a record, which allowed him to further
“pinpoint” the phone’s location “down to a certain amount of rooms” in the hotel.
Lieutenant Norris Quick (“Lieutenant Quick”) received confirmation from the
hotel’s front desk clerk that “someone had just checked into” one of the rooms located
within the block of rooms Detective Mitchell had identified. The front desk clerk gave
the officers the key to the room next to the room recently occupied.
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Opinion of the Court
Lieutenant Quick and another officer conducted surveillance from the adjacent
room. Lieutenant Quick observed two men enter the adjoining hotel room and leave
after approximately five minutes. The officers inside the hotel room transmitted a
description of the men leaving the room to officers stationed outside of the hotel.
Detective Mitchell and Detective Bruce Richard Bizub (“Detective Bizub”) were inside
an unmarked patrol car and saw one of the men enter a Toyota Corolla and drive
away. The officers followed the vehicle and “started calling on the radio for marked
units in the area.”
Eventually, a marked patrol vehicle initiated a traffic stop within two miles of
the Red Roof Inn. The driver of the Toyota Corolla was identified as Kenneth Wheeler
(“Wheeler”). The officers found ten bindles of heroin on Wheeler’s person. Wheeler
was arrested and told the officers he had obtained the heroin from the Red Roof Inn.
Detective Mitchell began preparing an application for a search warrant for
Defendant’s hotel room.
Before Detective Mitchell could complete the search warrant, Lieutenant
Quick transmitted a request for backup at the hotel. Four individuals were leaving
the adjoining room in a hurry. Someone had apparently called the occupants to warn
them Wheeler had been stopped and arrested. The officers detained three males,
including Defendant, and one female in the hallway.
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Opinion of the Court
The officers observed two black plastic grocery bags located on the floor near
the four individuals. The bags were open to allow the officers to see inside. The bags
contained brown boxes, rubber bands, and digital scales. Detective Mitchell testified,
based on his training and experience, he recognized the brown boxes as the type used
to contain plastic bags of heroin.
While the four individuals were standing in the hallway, the female suspect,
Kiara Ledbetter (“Ledbetter”), voluntarily removed a large bag from inside her pants
and gave it to Lieutenant Quick. Lieutenant Quick testified Ledbetter told him, “Oh,
no, I’m not going down for this. This isn’t mine. It’s Paul’s.” The bag appeared to
contain heroin.
Defendant, Ledbetter, and the two other individuals, Keyondre Owens
(“Owens”) and Paul Shell (“Shell”), were taken into custody, advised of their Miranda
rights, and searched by Detectives Mitchell and Bizub. Shell possessed ten bindles
of a substance believed to be heroin in the front pocket of his jeans. Defendant
possessed $1,620 in cash, but no heroin on his person. A forensic drug chemist with
the City-County Bureau of Identification subsequently confirmed the identity of the
substances as heroin, including the bindles found on Wheeler during the traffic stop.
On 11 March 2013, a grand jury indicted Defendant for: (1) trafficking by
possession, 28 grams or more of heroin; (2) trafficking heroin by sale; and (3)
maintaining a dwelling used for keeping or selling controlled substances. On 8 July
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2013, Defendant was also indicted for: (1) trafficking heroin by transportation; and
(2) conspiracy to traffic heroin by possession, transportation, and sale.
B. Defendant’s Motion to Suppress
On 13 November 2013, Defendant filed a pretrial motion to suppress the search
of telephone records and determination of the location of his cell phone, and any
evidence seized as a result of these searches. He argued law enforcement’s receipt of
the records of the coordinates of the towers his cell phone had “pinged” constituted
an unreasonable search without a warrant based upon probable cause in violation of
the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United
States, and under Article I, Section 20 of the Constitution of North Carolina.
Defendant also moved to suppress statements he made to officers on 11 and 12
December 2012, and to suppress evidence obtained as a result of an unconstitutional
search and seizure.
The trial court heard Defendant’s motions prior to trial on 3 February 2014
and entered a written order denying Defendant’s motions to suppress on 20 February
2014. In its order, the trial court made the following findings of fact:
11. That on December 11, 2012, M. K. Mitchell appeared
before the Honorable Lucy N. Inman, Superior Court
Judge, and presented to her an Application For Phone
Records together with a proposed Order concerning
[Defendant’s] cell phone number . . . .
....
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Opinion of the Court
20. That Detective Mitchell was possessed of sufficient
facts to conclude that violations of the North Carolina
controlled substances laws were being committed and were
about to be committed by the person possessing the cell
phone . . . at the time he made the Application.
21. That the Application contained a sufficient factual
basis from which a neutral magistrate could conclude that
the issuance of the Order was appropriate in order to assist
in the investigation of violation of drug trafficking laws.
22. That the contents of the Application contained the
identity of the law enforcement officer making the
application . . . and the identity of the Law Enforcement
Agency conducting the investigation . . . .
23. That the contents of the Application also contained
a certification that the information sought in the Phone
Records Production Order will assist with the investigation
of this drug trafficking case.
24. That the contents of the Application in the Order
tendered to Judge Inman complies with [N.C. Gen. Stat.
§§] 15A-262 and 263 and with 18 U.S.C. [§] 2703.
C. Defendant’s Testimony at Trial
Defendant’s case proceeded to trial before a jury on 3 February 2014.
Defendant testified he was a heroin user, and Ledbetter sold heroin. He stated he
had traveled to Raleigh with Shell and Owens to purchase heroin from Ledbetter.
Defendant stated he rented a room at the Red Roof Inn. He traveled to the train
station to pick up Ledbetter and drove her back to the Red Roof Inn. Shell and Owens
were inside the hotel room “bagging up” heroin. Defendant testified the heroin was
already in the hotel room when he arrived, but he helped Shell and Owens bag it.
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Opinion of the Court
Defendant also testified he did not sell heroin to anyone from the hotel room, and only
Shell and Ledbetter had brought heroin into the hotel room.
The jury returned a verdict of guilty on all five charges. The trial court
sentenced Defendant to mandatory minimum sentences of 225 to 282 months
imprisonment for his three trafficking convictions, to run consecutively. The trial
court also sentenced Defendant to 14 to 26 months imprisonment for sale of heroin,
and 6 to 8 months imprisonment for intentionally maintaining a dwelling for keeping
or selling controlled substances, to run concurrently with the mandatory sentences.
Defendant gave notice of appeal in open court.
II. Issues
Defendant argues the trial court erred by: (1) denying his motion to suppress
evidence obtained by using “real-time tracking” of his cell phone without a warrant;
and (2) reviewing and sealing relevant documents without disclosure to Defendant.
III. Fourth Amendment Analysis
Defendant argues the trial court erred by denying his motion to suppress any
evidence obtained as a result of an unlawful search of his cell phone records and
location of his phone. He contends his Fourth and Fourteenth Amendment rights
under the Constitution of the United States, and under N.C. Const. art I, § 20, the
analogous provision of the Constitution of North Carolina, were violated because law
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Opinion of the Court
enforcement obtained this information without a search warrant based on probable
cause.
A. Standard of Review
Appellate review of a suppression order “is strictly limited to determining
whether the trial judge’s underlying findings of fact are supported by competent
evidence, in which event they are conclusively binding on appeal, and whether those
factual findings in turn support the judge’s ultimate conclusions of law.” State v.
Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted). Whether
the findings of fact support the conclusions of law is reviewed de novo. State v.
Baublitz, 172 N.C. App. 801, 806, 616 S.E.2d 615, 619 (2005). “Under a de novo
review, the court considers the matter anew and freely substitutes its own judgment
for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d
290, 294 (2008) (citations and internal quotation marks omitted).
B. The Stored Communications Act
Third-party records pertaining to Defendant’s cell phone were obtained from
AT&T, pursuant to a judicial order issued under the Stored Communications Act
(“the SCA”), as codified in 18 U.S.C. § 2703 (2013), and N.C. Gen. Stat. §§ 15A-261,
15A-262, and 15A-263. The SCA authorizes a governmental entity to “require a
provider of electronic communication service or remote computing service to disclose
a record or other information pertaining to a subscriber to or customer of such
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Opinion of the Court
service[.]” 18 U.S.C. § 2703(c)(1) (2013). The SCA requires the governmental entity
to obtain one of the following prior to disclosure: (1) a warrant; (2) a court order; or
(3) the consent of the subscriber or customer. 18 U.S.C. § 2703(c)(1)(A)-(C). 18 U.S.C.
§ 2703(c)(1) specifically excludes the contents of communications from being
disclosed. Id.
A court order compelling disclosure pursuant to 18 U.S.C. § 2703(d) “shall issue
only if the governmental entity offers 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) (emphasis supplied).
C. Historical Versus “Real-time” Information
Defendant asserts the AT&T records obtained via his cell phone constituted
“real-time” information, and argues a search warrant supported by probable cause
was required. We disagree. Courts in other jurisdictions, which have considered
disclosure of records under the SCA, have concluded the federal statute permits the
disclosure of “historical,” as opposed to “real-time,” information.
The majority of federal courts which have considered the issue have concluded
that “real-time” location information may only be obtained pursuant to a warrant
supported by probable cause. See United States v. Espudo, 954 F. Supp. 2d 1029,
1034-35 (S.D. Cal. 2013). The distinguishing characteristic separating historical
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Opinion of the Court
records from “real-time” information is the former shows where the cell phone has
been located at some point in the past, whereas the latter shows where the phone is
presently located through the use of GPS or precision location data. See In re
Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013)
(holding the receipt of cell site location information under the SCA does not
categorically violate the Fourth Amendment as to historical information, but
expressly limiting this holding to historical information only); 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, 307-08 (3rd Cir. 2010) (“[T]here is no dispute that historical [cell
site location information] is a ‘record or other information pertaining to a subscriber
. . . or customer[.]’”).
Several courts have held the SCA permits a government entity to obtain cell
tower site location information from a third-party service provider in situations
where the cell tower site location information sought pre-dates the court order and
where the cell tower site location information is collected after the date the court
order issues. Although the former may technically be considered “historical” while
the latter is “prospective” in relation to the date of the court order, both are considered
“records” under the SCA. The government entity only receives this information after
it has been collected and stored by the third-party service provider. See United States
v. Booker, No. 1:11-CR-255-1-TWT, 2013 WL 2903562, at *6 (N.D.Ga. June 13, 2013)
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(holding “[t]he SCA makes no distinction between historical and prospective cell site
location information”); In re Application of the U.S. for an Order for Disclosure of
Telecomms. Records & Authorizing the Use of a Pen Register and Trap and Trace, 405
F. Supp. 2d 435, 444 (S.D.N.Y. 2005) (holding prospective cell site data is
“information” under the SCA “inasmuch as cell site information is transmitted to the
Government only after it has been in the possession of the cell phone company” and
noting nothing in the SCA limits when “information may come into being” leaving it
“susceptible to an interpretation that the ‘information’ sought might come into being
in the future”); In re Application of the U.S. for an Order Authorizing the Use of Two
Pen Register and Trap and Trace Devices, 632 F. Supp. 2d 202, 207 n.8 (E.D.N.Y.
2008) (“The prospective cell-site information sought by the Government . . . becomes
a[n] ‘historical record’ as soon as it is recorded by the [third-party] provider.”).
Defendant cites two cases in his brief from the state courts of New Jersey and
Florida, which held an individual’s reasonable expectation of privacy is implicated by
“real-time” cell phone tracking, and a warrant is required. See Tracey v. Florida, 152
So. 3d 504 (2014) (holding police officers’ use of “real-time” cell tower site location
information to track defendant was a search falling under the purview of the Fourth
Amendment); State v. Earls, 70 A.3d 630 (2013) (holding a warrant is required for the
use of “real-time” cell tower site location information because Article I, Paragraph 7
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Opinion of the Court
of the New Jersey Constitution provides greater protection against unreasonable
searches and seizures than the Fourth Amendment).
After careful review of the record and trial transcripts, we conclude the cell
tower site location information acquired and stored by AT&T and provided to the
officers were historical records. The cases Defendant relies on are inapplicable to the
facts before us. North Carolina appellate courts have held Article I, Section 20 of the
Constitution of North Carolina provides the same protections against unreasonable
search and seizure as the Fourth Amendment to the Constitution of the United
States. See State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254, 260 (1984) (citation
omitted).
Detective Mitchell testified the emails he received of records from AT&T
consisted of latitudinal and longitudinal coordinates of the cell towers Defendant’s
cell phone “pinged” when connected. He further testified “[t]hey’re historical hits;
they’re not active [or] right on time” and there is “probably a five- or seven-minute
delay.” Other evidence shows AT&T emailed the delayed recorded information to
Detective Mitchell every fifteen minutes.
Detective Mitchell and the other officers followed Defendant’s historical travel
by entering the coordinates of cell tower “pings” provided by AT&T into a Google
Maps search engine to determine the physical location of the last tower “pinged.”
Defendant’s cell phone was never contacted, “pinged,” or its precise location directly
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Opinion of the Court
tracked by the officers. The officers did not interact with Defendant’s cell phone, nor
was any of the information received either directly from the cell phone or in “real
time.” All evidence shows the cell tower site location information provided by AT&T
was historical stored third-party records and properly disclosed under the court’s
order as expressly provided in the SCA. 18 U.S.C. § 2703(d). This argument is
overruled.
D. Reasonable Expectation of Privacy
Since the location information acquired from Defendant’s cell phone was
“historical,” rather than “real-time,” we address whether the retrieval of this
information constituted a search under the Fourth Amendment, and required a
warrant. Whether the retrieval of cell tower site location information, triggered by
Defendant’s use of his cell phone, constituted a “search” hinges on whether Defendant
can show either a trespass or a reasonable expectation of privacy in the information
his cell phone transmitted to AT&T. The Supreme Court of the United States has
not decided whether historical cell tower site location information raises Fourth
Amendment issues. Similarly, this issue appears to be a case of first impression for
North Carolina appellate courts.
The Fourth Amendment to the Constitution of the United States, as made
applicable to the sovereign states through the Fourteenth Amendment, provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
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seizures shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV.
Subject to “a few specifically established and well-delineated exceptions,” the
Fourth Amendment protects privacy interests by prohibiting officers from conducting
a search without a valid warrant based on probable cause. Coolidge v. New
Hampshire, 403 U.S. 443, 455, 29 L. Ed. 2d 564, 576 (1971); see also State v. Allison,
298 N.C. 135, 141, 257 S.E.2d 417, 421 (1979).
The analogous provision in the Constitution of North Carolina, Article I, the
Declaration of Rights, Section 20, provides “[g]eneral warrants, whereby any officer
or other person may be commanded to search suspected places without evidence of
the act committed, or to seize any person or persons not named, whose offense is not
particularly described and supported by evidence, are dangerous to liberty and shall
not be granted.” N.C. Const. art. I, § 20. Our Supreme Court has held Article I,
Section 20 provides the people the same protection against unreasonable searches
and seizures as the Fourth Amendment of the Constitution of the United States.
Arrington, 311 N.C. at 643, 319 S.E.2d at 260 (holding Article I, Section 20 of the
Constitution of North Carolina provides the same protections against unreasonable
searches and seizures as the Fourth Amendment); State v. Garner, 331 N.C. 491, 506,
417 S.E.2d 502, 510 (1992) (citations omitted) (holding “there is nothing to indicate
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anywhere in the text of Article I, Section 20 any enlargement or expansion of rights
beyond those afforded in the Fourth Amendment as applied to the states by the
Fourteenth Amendment”).
Defendant argues his Fourth Amendment rights were violated when law
enforcement obtained historical cell tower site location information transmitted from
his cell phone, without a warrant and without probable cause, in order to locate him.
We disagree.
A “search” occurs under the Fourth Amendment in one of two circumstances.
Under the common law “trespass theory,” a search occurs upon a physical intrusion
by government agents into a constitutionally protected area in order to obtain
information. United States v. Jones, __ U.S. __, __, 181 L. Ed. 2d 911, 918 (2012).
Without a physical trespass and under the more commonly employed “reasonable
expectation of privacy theory,” a search occurs when the government invades
reasonable expectations of privacy to obtain information. Katz v. United States, 389
U.S. 347, 351, 19 L. Ed. 2d 576, 582 (1967) (holding “the Fourth Amendment protects
people, not places” and finding an unconstitutional search in the attachment of an
eavesdropping device to a public telephone booth without a warrant).
Under Katz and subsequent cases, the test for whether an unreasonable search
occurred depends on whether: (1) “the individual manifested a subjective expectation
of privacy in the object of the challenged search[;]” and, (2) “society is willing to
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recognize that expectation as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 150
L. Ed. 2d 94, 101 (2001) (citation and internal quotation marks omitted).
The State argues Defendant cannot assert any reasonable expectation of
privacy in the non-content information his phone transmitted to, and which became
a record stored by, AT&T, a third party. The State contends no “search” occurred,
and neither the Fourth Amendment nor the analogous provision in the Constitution
of North Carolina are implicated by these facts. The State relies on several Supreme
Court of the United States cases, which held a defendant lacked a reasonable
expectation of privacy in information he provided to a third party, which the third
party later provided to a government entity.
In United States v. Miller, the Supreme Court of the United States held the
defendant had no reasonable expectation of privacy in his bank records, maintained
by the bank and procured by governmental subpoena. 425 U.S. 435, 442-43, 48 L. Ed.
2d 71, 79 (1976). The Court stated:
[T]he 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, 48 L. Ed. 2d at 79 (citations omitted).
In Smith v. Maryland, the Supreme Court of the United States considered
whether the defendant had a reasonable expectation of privacy in the telephone
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numbers he dialed on his home telephone. 442 U.S. 735, 737, 61 L. Ed. 2d 220, 225
(1979). At the government’s request, the telephone company installed a pen register
to obtain the defendant’s call history.
Applying the reasoning set forth in Miller, the Court held the acquisition of
this information by the government did not constitute a search, because the
defendant had no “legitimate expectation of privacy” in the numbers he dialed on his
phone. Id. at 742, 61 L. Ed. 2d at 227. The Court explained “even if [the defendant]
did harbor some subjective expectation that the phone numbers he dialed would
remain private, this expectation is not one that society is prepared to recognize as
reasonable,” and explicitly held “a person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties.” Id. at 743-44, 61 L. Ed. 2d at
229 (emphasis supplied) (citations and internal quotation marks omitted).
This Court has expressly recognized the third-party doctrine discussed in
Miller and Smith as an exemption from the requirement of a warrant based upon
probable cause. See State v. Suggs, 117 N.C. App. 654, 659-60, 453 S.E.2d 211, 214-
215 (1995) (holding “the defendant’s constitutional protection against unreasonable
search and seizure is not implicated” where telephone records were obtained from
third-party telephone company); State v. Melvin, 86 N.C. App. 291, 295-96, 357 S.E.2d
379, 382-83 (1987) (holding SBI obtaining defendant’s bank records from the bank
“could not constitute a governmental ‘search’ for Fourth Amendment purposes”
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because defendant had no Fourth Amendment privacy interest in records maintained
by third party); State v. Overton, 60 N.C. App. 1, 31, 298 S.E.2d 695, 713 (1982)
(holding Miller was controlling and defendant’s Fourth Amendment rights were not
violated when the government obtained information from his bank account, credit
union account, and telephone records maintained by third party).
In a case decided after Miller and Smith, but prior to the present technological
state of cellular communications, the Supreme Court of the United States addressed
electronic tracking of individuals. In United States v. Knotts, government agents
located an illegal drug lab by installing an electronic “beeper” into a container of
chemicals. 460 U.S. 276, 75 L. Ed. 2d 55 (1983). The battery-operated radio
transmitter emitted a signal that could be retrieved and tracked with a radio receiver.
The beeper was installed with the consent of the owner of the container prior to its
sale to the defendant. Law enforcement received the signals from the beeper to track
the defendant to his cabin. The Court held neither a search nor a seizure had
occurred, because tracking the vehicle carrying the container on public roads and into
an open field did not invade any reasonable expectation of privacy. Id. at 285, 75 L.
Ed. 2d at 64.
The Supreme Court of the United States has not ruled on whether citizens
have a reasonable expectation of privacy in the disclosure of their approximate and
historical locations by cell tower site location data under the Fourth Amendment.
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However, the Court has recognized serious privacy interests are involved in locating,
monitoring, and tracking individuals through the use of technological advances. In
United States v. Jones, the Supreme Court held the physical attachment of a GPS
tracking device to the defendant’s vehicle is a trespass and constitutes a search under
the Fourth Amendment. __ U.S. __, 181 L. Ed. 2d 911 (2012).
The majority’s opinion in Jones relied upon a trespass-based rationale and held
“the Government’s installation of a GPS device on a target’s vehicle, and its use of
that device to monitor the vehicle’s movements, constitutes a ‘search.’” Id. at __, 181
L. Ed. 2d at 918. Justice Sotomayor’s concurring opinion in Jones reaffirmed the
Court’s continued adherence to Katz, stating “even in the absence of a trespass, a
Fourth Amendment search occurs when the government violates a subjective
expectation of privacy that society recognizes as reasonable.” Id. at __, 181 L. Ed. 2d
at 924 (Sotomayor, J., concurring) (citations and internal quotation marks omitted).
Justice Sotomayor’s opinion also warns of inevitable changes in society’s
reasonable expectations of privacy as technology advances. Id. at __, 181 L. Ed. 2d.
at 925 (“[T]he same technological advances that have made possible nontrespassory
surveillance techniques will also affect the Katz test by shaping the evolution of
societal privacy expectations.”).
In his separate concurring opinion, Justice Alito noted:
[T]he Katz test rests on the assumption that this
hypothetical reasonable person has a well-developed and
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stable set of privacy expectations. But technology can
change those expectations. Dramatic technological change
may lead to periods in which popular expectations are in
flux and may ultimately produce significant changes in
popular attitudes. New technology may provide increased
convenience or security at the expense of privacy, and
many people may find the tradeoff worthwhile. And even
if the public does not welcome the diminution of privacy
that new technology entails, they may eventually reconcile
themselves to this development as inevitable.
Id. at __, 181 L. Ed. 2d at 932 (Alito, J, concurring).
Justice Alito’s opinion also made keen observations about technological
advances, which hold particular relevance at bar. He referred to the emergence of
new devices, which permit greater monitoring of an individual’s movements in recent
years, and stated:
Perhaps most significant, cell phones and other wireless
devices now permit wireless carriers to track and record
the location of users . . . . For older phones, the accuracy of
the location information depends on the density of the
tower network, but new “smart phones,” which are
equipped with a GPS device, permit more precise tracking.
For example, when a user activates the GPS on such a
phone, a provider is able to monitor the phone’s location
and speed of movement . . . . Similarly, phone-location-
tracking services are offered as “social” tools, allowing
consumers to find (or to avoid) others who enroll in these
services. The availability and use of these and other new
devices will continue to shape the average person’s
expectations about the privacy of his or her daily
movements.
Id. at __, 181 L. Ed. 2d at 933.
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STATE V. PERRY
Opinion of the Court
The facts in the case before this Court are distinguishable from the facts and
ultimate holding in Jones. Unlike in Jones, no physical trespass onto Defendant’s
person or property occurred. Defendant has not shown any evidence of any GPS or
“real-time” tracking. The officers only received the coordinates of historical cell tower
“pings” after they had been recorded and stored by AT&T, a third party.
Additionally, the physical trespass in Jones was not authorized by a warrant
or court order of any kind. Most importantly, Jones did not rely upon the long-
standing principle repeatedly affirmed by the Supreme Court of the United States,
the federal courts, and this Court that “the Fourth Amendment does not prohibit the
obtaining of information revealed to a third party and conveyed by him to
Government authorities.” Miller, 425 U.S. at 443, 48 L. Ed. 2d at 79. See also
Ostergren v. Cuccinelli, 615 F.3d 263, 282 (4th Cir. 2010); Doe v. Broderick, 225 F.3d
440, 449 (4th Cir. 2000); United States v. Horowitz, 806 F.2d 1222, 1226 (4th Cir.
1986).
E. Recent Cases from the U.S. Court of Appeals for the Third, Fifth, and Eleventh
Circuits
In examining whether Defendant showed a reasonable expectation of privacy
in the cell tower site location information stored and transmitted by AT&T, we find
several recent decisions from the United States Court of Appeals for the Third, Fifth,
and Eleventh Circuits persuasive and instructive.
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STATE V. PERRY
Opinion of the Court
In In re Application of the United States for an Order Directing a Provider of
Electronic Communication Service to Disclose Records to the Government (“In re
Application (Third Circuit)”), the Third Circuit held “[cell site location information]
from cell phone calls is obtainable under a § 2703(d) order,” which “does not require
the traditional probable cause determination” necessary for a warrant. 620 F.3d at
313.
In In re Application of the United States for Historical Cell Site Data (“In re
Application (Fifth Circuit)”), the Fifth Circuit held a court order issued under 18
U.S.C. § 2703(d) compelling production of a cellular provider’s business records
showing historical cell tower site location information did not implicate the Fourth
Amendment, and no search warrant was required. 724 F.3d at 614-15.
The Fifth Circuit’s decision emphasized the cellular company, not the
government, was responsible for the initial collection and storage of the cell tower
information. Id. at 609-10. The Fifth Circuit’s decision stated:
The Government does not require service providers to
record this information or store it. The providers control
what they record and how long these records are retained.
. . . In the case of such historical cell site information, the
Government merely comes in after the fact and asks a
provider to turn over records the provider has already
created.
Id. at 612.
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STATE V. PERRY
Opinion of the Court
Their decision also noted these business records do not contain any content of
the user’s communications and concluded no reasonable privacy was expected in
these records because
[a] cell service subscriber, like a telephone user,
understands that his cell phone must send a signal to a
nearby cell tower in order to wirelessly connect his call. . .
. [and] cell service providers’ and subscribers’ contractual
terms of service and providers’ privacy policies expressly
state that a provider uses a subscriber’s location
information to route his cell phone calls. In addition, these
documents inform subscribers that the providers not only
use the information, but collect it.
Id. at 613.
The Fifth Circuit’s decision also analogized the lack of a reasonable expectation
of privacy in this case to that in Smith v. Maryland, supra, and stated: “Cell phone
users, therefore, understand that their service providers record their location
information when they use their phones at least to the same extent that the landline
users in Smith understood that the phone company recorded the numbers they
dialed.” Id.
This decision also agreed with some of the concerns expressed by the
concurring Supreme Court Justices in Jones “that technological changes can alter
societal expectations of privacy.” Id. at 614. See Jones, __ U.S. at __, 181 L. Ed. 2d at
932. However, the Fifth Circuit stated, “[a]t the same time, law enforcement tactics
must be allowed to advance with technological changes, in order to prevent criminals
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STATE V. PERRY
Opinion of the Court
from circumventing the justice system.” Id. at 614 (citation and internal quotation
marks omitted).
The United States Court of Appeals for the Eleventh Circuit, en banc, followed
the Fifth Circuit’s reasoning and held the defendant did not hold a reasonable
expectation of privacy in third-party cell tower records created by the telephone
company and turned over to the government. United States v. Davis, 785 F.3d 498,
511 (11th Cir. 2015) (en banc). See also United States v. Skinner, 690 F.3d 772, 778
(6th Cir. 2012) (holding “[t]here is no inherent constitutional difference between
trailing a defendant and tracking him via [cell site location information] technology”).
The Eleventh Circuit’s en banc decision reiterated long-standing Fourth
Amendment principles.
[L]ike the bank customer in Miller and the phone customer
in Smith, [the defendant] can assert neither ownership nor
possession of the third-party’s business records he sought
to suppress. . . .
More importantly, like the bank customer in Miller and the
phone customer in Smith, [the defendant] has no subjective
or objective reasonable expectation of privacy in
MetroPCS’s business records showing the cell tower
locations that wirelessly connected his calls at or near the
time of six of the seven robberies.
Davis, 785 F.3d at 511.
The facts at bar are consistent with the holdings in In re Application (Third
Circuit), In re Application (Fifth Circuit), and Davis. The officers investigating
- 26 -
STATE V. PERRY
Opinion of the Court
Defendant received historical cell tower site location information, stored as a business
record by AT&T, a third party, pursuant to a court order. Defendant voluntarily
conveyed this information to AT&T, his service provider.
Law enforcement did not use GPS, “real-time” information, or “ping,” track,
trace, or otherwise contact Defendant’s cell phone. No physical trespass occurred on
any of Defendant’s person or property, nor was the content of any of Defendant’s
communication disclosed. Officer Mitchell testified there was a five- to seven-minute
delay in the cell tower site information he received from AT&T. Defendant failed to
show any reasonable expectation of privacy in these third-party stored records. The
acquisition of this information did not constitute a “search” under the Fourth
Amendment to the Constitution of the United States or Article I, Section 20 of the
Constitution of North Carolina. Defendant’s argument is overruled.
F. United States v. Graham
Defendant has filed a Memorandum of Additional Authority citing the United
States Court of Appeals for the Fourth Circuit’s recent opinion, United States v.
Graham. After careful review, we find it clearly distinguishable from the facts at bar.
The Fourth Circuit held “the government conducts a search under the Fourth
Amendment when it obtains and inspects a cell phone user’s historical [cell site
location information] for an extended period of time.” Graham, Nos. 12-4659, 12-4825,
2015 WL 4637931, at *8 (4th Cir. Aug. 5, 2015) (emphasis supplied).
- 27 -
STATE V. PERRY
Opinion of the Court
In Graham, the government sought cell tower site location information for
multiple defendants for a period of 221 days. To the contrary, the officers at bar
sought cell tower site location information for only portions of two days, and after
Detective Mitchell overheard Defendant tell Holderfield he would be traveling from
Charlotte to Raleigh the following day. It cannot reasonably be argued that portions
of two days constitutes an “extended period of time,” to implicate the Fourth
Amendment or Article I, Section 20 of the Constitution of North Carolina. Id. See
Jones __ U.S. at __, 181 L. Ed. 2d at 934 (Alito, J., concurring) (citation omitted)
(“[R]elatively short-term monitoring of a person’s movements on public streets
accords with expectations of privacy that our society has recognized as reasonable.”);
Skinner, 690 F.3d at 780 (holding DEA agents tracking defendant’s cell phone for
three days did not rise to “a level of comprehensive tracking that would violate the
Fourth Amendment”).
The Fourth Circuit’s majority opinion purported to distinguish the long-
standing tenet of the third-party doctrine that an individual cannot claim a legitimate
expectation of privacy in information he has voluntarily turned over to a third party.
Smith, 442 U.S. at 743-44, 61 L. Ed. 2d at 229. The Fourth Circuit’s majority opinion
relied on the notion that the defendants did not “voluntarily disclose” their cell tower
site location information to their service providers, and found the third-party doctrine
to be inapplicable. This supposition directly contradicts the conclusions reached by
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STATE V. PERRY
Opinion of the Court
all other federal appellate courts, who have considered this question. See Davis, 785
F.3d at 511 (holding defendant had no “objective reasonable expectation of privacy in
. . . business records showing the cell tower locations that wirelessly connected his
calls”); Skinner, 690 F.3d at 777 (holding defendant “did not have a reasonable
expectation of privacy in the data given off by his voluntarily procured pay-as-you-go
cell phone”); In re Application (Fifth Circuit), 724 F.3d at 615 (holding the government
can use “[s]ection 2703(d) orders to obtain . . . cell site information” without
implicating the Fourth Amendment); In Re Application (Third Circuit), 620 F.3d at
313 (holding that cell tower site location information “is obtainable under a § 2703(d)
order and that such an order does not require the traditional probable cause
determination”).
Judge Motz’s dissenting opinion in Graham notes the majority’s holding that
“cell phone users do not voluntarily convey [cell site location information]
misapprehends the nature of [cell site location information], attempts to redefine the
third-party doctrine, and rests on a long-rejected factual argument and the
constitutional protection afforded a communication’s content.” Graham, at *41 (Motz,
J., dissenting) (emphasis supplied).
As most cell phone users know all too well, however,
proximity to a cell tower is necessary to [place outgoing
calls, send text messages, and route incoming calls and
messages.] Anyone who has stepped outside to “get a
signal,” or has warned a caller of a potential loss of service
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STATE V. PERRY
Opinion of the Court
before entering an elevator, understands on some level,
that location matters.
A cell phone user thus voluntarily enters an
arrangement with his service provider in which he knows
that he must maintain proximity to the provider’s cell
towers in order for his phone to function. Whenever he
expects his phone to work, he is thus permitting—indeed,
requesting—his service provider to establish a connection
between his phone and a nearby cell tower. A cell phone
user therefore voluntarily conveys the information
necessary for his service provider to identify the [cell site
location information] for his calls and texts.
Id. at *41-*42 (citation omitted).
G. Good-Faith Exception
Even if we were to accept Defendant’s arguments and find a search warrant
based upon probable cause was required under these facts, we hold the good-faith
exception to the Fourth Amendment warrant requirement applies, as all three judges
on the Fourth Circuit concluded in Graham.
The exclusionary rule “generally prohibits the introduction at criminal trial of
evidence obtained in violation of a defendant’s Fourth Amendment rights[.]” United
States v. Stephens, 764 F.3d 327, 335 (4th Cir. 2014) (citation and quotation marks
omitted). However, the Supreme Court of the United States recognizes a good-faith
exception to the exclusionary rule where law enforcement acts “with an objectively
reasonable good-faith belief that their conduct is lawful[.]” Davis v. United States, __
U.S. __, __, 180 L. Ed. 2d 285, 295 (2011) (citation and internal quotation marks
- 30 -
STATE V. PERRY
Opinion of the Court
omitted). The Court has held the good-faith exception applies where law enforcement
relies on a search warrant or other court order issued by a neutral magistrate. United
States v. Leon, 468 U.S. 897, 922-23, 26, 82 L. Ed. 2d 677, 698-99 (1984).
The majority opinion in Graham held:
[T]he government is entitled to the good-faith exception
because, in seeking Appellants’ [cell tower site location
information], the government relied on the procedures
established in the SCA and on two court orders issued by
magistrate judges in accordance with the SCA. . . .
Appellants do not claim that the government was dishonest
or reckless in preparing either application. Upon
consideration of each of the government’s applications, two
magistrate judges of the district court respectively issued §
2703(d) orders to Sprint/Nextel for the disclosure of
Appellants’ account records. There is nothing in the record
to suggest that either magistrate abandoned her or his
detached and neutral role such that a well trained [sic]
officer’s reliance on either order would have been
unreasonable.
Id. at *21 (citations and internal quotation marks omitted).
The circumstances surrounding the issuance of the court order at bar are
nearly identical to those in Graham. Detective Mitchell relied on the procedures
established in the SCA when he submitted his sworn application for a phone records
production order pursuant to 18 U.S.C. § 2703(d) (2013). Defendant does not argue
Detective Mitchell was “dishonest or reckless” in preparing his application. Graham,
at *21. There is also nothing in the record to suggest Judge Inman “abandoned her .
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STATE V. PERRY
Opinion of the Court
. . detached and neutral role such that a well trained [sic] officer’s reliance on either
order would have been unreasonable.” Id.
The law enforcement officers reasonably relied on the SCA in exercising their
option to seek a § 2703(d) order and obtain Defendant’s historical stored cell tower
site location records from third-party AT&T. The good-faith exception applies to
Defendant’s Fourth Amendment claims.
IV. Disclosure of Sealed Documents
Defendant also argues the State provided documents to the trial court in
camera during his trial. Defendant requests this Court to review the documents and
determine whether they are material to his guilt, sentencing, or arguments raised on
appeal.
A. Standard of Review
The proper standard of review for reviewing sealed documents from the trial
court is de novo. State v. Scott, 180 N.C. App. 462, 463-64, 637 S.E.2d 292, 293 (2006)
(citations omitted), disc. review denied, 361 N.C. 367, 644 S.E.2d 560 (2007). “Under
a de novo review, the court considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669
S.E.2d 290, 294 (2008) (citations and internal quotation marks omitted).
B. Analysis
- 32 -
STATE V. PERRY
Opinion of the Court
The trial court sealed the documents for appellate review. The documents were
not disclosed to Defendant or his counsel. Pursuant to defense counsel’s request, the
Wake County Clerk of Superior Court provided the sealed documents to this Court
for review. If the trial court conducts an in camera inspection of documents, but
denies the defendant’s request for the documents, they should be sealed and “placed
in the record for appellate review.” State v. Hardy, 293 N.C. 105, 128, 235 S.E.2d 828,
842 (1977).
On appeal, this Court is required to examine the documents to determine if
they contain information that is “both favorable to the accused and material to [either
his] guilt or punishment.” Pennsylvania v. Ritchie, 480 U.S. 39, 57, 94 L. Ed. 2d 40,
57 (1987) (citations omitted). Defendant is constitutionally entitled to disclosure of
this evidence, only if the sealed records contain evidence which is both “favorable”
and “material.” Id. at 59, 94 L. Ed. 2d. at 58-59.
We have carefully examined the sealed documents, and conclude they do not
contain any information favorable and material to Defendant’s guilt or punishment.
See State v. McGill, 141 N.C. App. 98, 102-03, 539 S.E.2d 351, 355-56 (2000) (noting
favorable evidence “includes evidence which tends to exculpate the accused as well
as any evidence adversely affecting the credibility of the government’s witnesses” and
evidence is material “only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different”).
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STATE V. PERRY
Opinion of the Court
V. Conclusion
The trial court properly denied Defendant’s motion to suppress the cell tower
site location information obtained by law enforcement. These stored historical
records were provided by AT&T, a third party, pursuant to a valid court order.
Defendant had no reasonable expectation of privacy in these third-party records.
Smith, 442 U.S. at 737, 61 L. Ed. 2d at 225. The procurement of this information was
not a “search,” and did not require the issuance of a warrant based upon probable
cause. Neither the Fourth Amendment of the Constitution of the United States nor
Article I, Section 20 of the Constitution of North Carolina was implicated.
We have reviewed the documents sealed by the trial court. Our review shows
they contain no favorable or material information to Defendant’s guilt or punishment.
Defendant received a fair trial, free from prejudicial errors he preserved and
argued. We find no error in Defendant’s conviction by the jury or in the trial court’s
judgment entered thereon.
NO ERROR.
Judge DIETZ concurs.
Chief Judge McGEE concurs in a separate opinion.
- 34 -
No. COA14-1328 – State v. Perry
McGEE, Chief Judge, concurring.
I concur in the final disposition of the majority’s opinion finding no error in the
trial court’s denial of Defendant’s motion to suppress the evidence obtained by State
law enforcement officers from AT&T pursuant to a judicial order issued under the
Stored Communications Act (“the SCA”) in accordance with 18 U.S.C. § 2703(d).
However, I respectfully disagree with the majority’s characterization of the
information obtained pursuant to that judicial order — which order was entered and
executed on 11 December 2012 for information generated and transmitted on the
same day from AT&T to law enforcement officers after only a “five- to seven-minute
delay” — as “historical” information, rather than “real-time” information.
As described by the majority, on 11 December 2012, the trial court issued an
order pursuant to an application under 18 U.S.C. § 2703(d)1 authorizing AT&T to
provide law enforcement officers with “cell site information including latitude,
longitude, sector azimuth and orientation information” from 13 November 2012
through 12 December 2012, as well as “precision location/GPS, E911 locate or Mobile
Locate Service” from 11 December 2012 through 12 December 2012 for Defendant’s
cell phone. Such order required that law enforcement officers needed only to
1 The other statutes referenced in the order were N.C. Gen. Stat. §§ 15A-261, 15A-262, and
15A-263. These statutes concern the application and approval procedures by which the State may
install or use either a pen register or a trap and trace device. Nonetheless, since Defendant does not
challenge any evidence gathered through these statutory mechanisms, and challenges only evidence
gathered pursuant to the authority conveyed by 18 U.S.C. § 2703(d) of the SCA, we need not undertake
an examination of these statutes.
STATE V. PERRY
McGEE, C.J., concurring
demonstrate “specific and articulable facts showing that there [we]re reasonable
grounds to believe that the contents of a wire or electronic communication, or the
records or other information sought, [we]re relevant and material to an ongoing
criminal investigation.” 18 U.S.C. § 2703(d) (2012). In other words, to obtain this
judicial order for Defendant’s cell phone information, law enforcement officers were
required to meet a “statutory standard [that wa]s less than the probable cause
standard for a search warrant.” See United States v. Davis, 785 F.3d 498, 505 (11th
Cir. 2015).
On appeal, Defendant challenged the issuance of the judicial order with which
law enforcement officers obtained the cell site information for Defendant’s cell phone
from AT&T for 11 December 2012 on 11 December 2012 as an erroneous
authorization of an unconstitutional search using “real-time”2 information obtained
from Defendant’s cell phone without establishing probable cause and securing a
warrant before conducting this search. Law enforcement officers — as well as the
2 While some courts have determined that “real-time” cell site information is a subset of
“prospective” cell site information, see In re U.S. for an Order Authorizing Installation & Use of a Pen
Register (Maryland Cell Site Case), 402 F. Supp. 2d 597, 599 (D. Md. 2005), “[c]ourts generally use
both ‘prospective’ and ‘real-time’ interchangeably to refer to this type of data.” United States v. Espudo,
954 F. Supp. 2d 1029, 1034 n.1 (S.D. Cal. 2013). An example given to illustrate the distinction between
these terms is as follows: “[I]magine the government receives a court order on a Monday granting
access to prospective cell site information (i.e. all cell site information generated going forward). On
Thursday, the government begins tracking the phone in real time; such information is both prospective
and real time cell site information. On Friday, the government goes back and accesses the records of
the phone’s location on Tuesday and Wednesday; such information is prospective but not real time cell
site information.” Maryland Cell Site Case, 402 F. Supp. 2d at 599 n.5. However, in order to more
plainly distinguish “real-time” or “prospective” cell site information from “historical” cell site
information, I use the term “real-time” cell site information to encapsulate both “real-time” and
“prospective” information, except when directly quoting other cases that use the term “prospective.”
2
STATE V. PERRY
McGEE, C.J., concurring
majority opinion — described the information obtained from AT&T as “historical”
information, rather than “real-time” information. I believe the majority’s
characterization of the information acquired from AT&T as “historical,” rather than
“real-time,” is incorrect.
“Cell phones operate through the use of radio waves. To facilitate cell phone
use, cellular service providers maintain a network of radio base stations — also
known as cell towers — throughout their coverage areas.” In re Application for Tel.
Info. Needed for a Crim. Investigation (California Cell Site Case),
No. 15-XR-90304-HRL-1(LHK), __ F. Supp. 3d __, __ (N.D. Cal. July 29, 2015). “Most
cell towers have multiple cell sectors (or ‘cell sites’) facing in different directions.” Id.
at __. “A cell site, in turn, is a specific portion of the cell tower containing a wireless
antenna, which detects the radio signal emanating from a cell phone and connects
the cell phone to the local cellular network or Internet.” Id. at __; see United States
v. Graham (Graham II), Nos. 12-4659 and 12-4825, __ F.3d __, __ (4th Cir. Aug. 5,
2015) (“Cell sites are placed at various locations throughout a service provider’s
coverage area and are often placed on towers with antennae arranged in sectors
facing multiple directions to better facilitate radio transmissions.”).
“Whenever a cell phone makes or receives a call, sends or receives a text
message, or otherwise sends or receives data, the phone connects via radio waves to
an antenna on the closest cell tower, generating [cell site location information].”
3
STATE V. PERRY
McGEE, C.J., concurring
California Cell Site Case, __ F. Supp. 3d at __; Graham II, __ F.3d at __ (“A cell phone
connects to a service provider’s cellular network through communications with cell
sites, occurring whenever a call or text message is sent or received by the phone.”).
“When the phone connects to the network, the service provider automatically
captures and retains certain information about the communication, including
identification of the specific cell site and sector through which the connection is
made.” Graham II, __ F.3d at __. “By identifying the nearest cell tower and sector,
[cell site location information] can be used to approximate the whereabouts of the cell
phone at the particular points in time in which transmissions are made.” Id. at __.
“The cell sites listed can be used to interpolate the path the cell phone, and the person
carrying the phone, travelled during a given time period.” Id. at __. “The precision
of this location data depends on the size of the identified cell sites’ geographical
coverage ranges.” Id. at __.
As commonly used, “historical” cell site location data “refers to the acquisition
of cell site data for a period retrospective to the date of the order, whereas ‘prospective’
or ‘real-time’ cell site data refers [to] the acquisition of data for a period of time going
forward from the date of the order.” Espudo, 954 F. Supp. 2d at 1034. In other words,
“‘[r]eal time’ cell site information refers to data used by the government to identify
the location of a phone at the present moment . . . [and] refers to all cell site
information that is generated after the government has received court permission to
4
STATE V. PERRY
McGEE, C.J., concurring
acquire it,” Maryland Cell Site Case, 402 F. Supp. 2d at 599; see also United States v.
Graham (Graham I), 846 F. Supp. 2d 384, 391 n.7 (D. Md. 2012) (“In a more invasive
search, the government will request that the carrier retain records for all of a
handset’s automatic registrations, which occur approximately every seven to ten
minutes. Such a request is prospective, as it asks for data generated after the court’s
order or warrant and involves data being generated and turned over to law
enforcement in real time, or close to it.” (second emphasis added)), aff’d by Graham II,
Nos. 12-4659 and 12-4825, __ F.3d __ (4th Cir. Aug. 5, 2015), and “encompasses only
that location information that already has been created, collected, and recorded by
the cellular service provider at the time the court authorizes a request for that
information.” In re U.S. for an Order Authorizing Disclosure of Location Info. of a
Specified Wireless Tel., 849 F. Supp. 2d 526, 535 n.4 (D. Md. 2011). However,
“[r]ecords stored by the wireless service provider that detail the location of a cell
phone in the past (i.e.: prior to entry of the court order authorizing government
acquisition) are known as ‘historical’ cell site information.” Maryland Cell Site Case,
402 F. Supp. 2d at 599.
As the majority recognizes, most federal courts that have considered this issue
have concluded that a request from law enforcement for real-time cell site information
5
STATE V. PERRY
McGEE, C.J., concurring
pursuant to the SCA requires probable cause,3 while a request for historical cell site
information requires only specific and articulable facts. Thus, the characterization
of information as “historical” or “real-time” — and, thus, the standard to which law
enforcement must adhere in order to obtain such information — rests upon whether
the information sought was generated before or after the issuance date of the order
authorizing the transmission of information pursuant to 18 U.S.C. § 2703.
In the present case, law enforcement officers filed an application pursuant to
18 U.S.C. § 2703(d) on 11 December 2012:
Requesting complete call detail records (see below), with
cell site information including latitude, longitude, sector
azimuth and orientation information for the target
telephone number(s)[.]
Requesting precision location/GPS, E911 locate or Mobile
Locate Service if applicable from December 11, 2012
through December 12, 2012 for the phone number(s) listed
below and additionally upon request, precision
location/GPS for an additional thirty (30) days from the end
date of this order for any new number(s)
identified/associated with the account or account holder(s)
as a result of account modifications[.]
Evidence presented at trial established that AT&T sent emails at regular intervals
to law enforcement officers on 11 December 2012, that such emails contained
3 See, e.g., In re U.S. for Orders Authorizing Installation & Use of Pen Registers, 416 F. Supp.
2d 390, 391 (D. Md. 2006); In re U.S. for an Order Authorizing Installation & Use of a Pen Register,
415 F. Supp. 2d 211, 214 (W.D. N.Y. 2006); In re U.S. for an Order (1) Authorizing the Use of a Pen
Register, 396 F. Supp. 2d 294, 300 (E.D. N.Y. 2005); In re Application for Pen Register, 396 F. Supp. 2d
747, 765 (S.D. Tex. 2005).
6
STATE V. PERRY
McGEE, C.J., concurring
longitude and latitude coordinates of Defendant’s cell phone as captured by AT&T’s
cell tower sites, and that the information provided by AT&T was sent with a
frequency and contemporaneousness with Defendant’s then-current location — from
somewhere between every five to seven minutes to every fifteen minutes — to allow
law enforcement to track Defendant’s location, through the information provided by
AT&T, to a hotel where Defendant was physically located. For instance, one law
enforcement officer testified that, by using the coordinates from AT&T, law
enforcement “w[as] able to say for sure that [Defendant’s cell phone] was in that
hotel.”
However, the majority has determined that the information acquired from
AT&T was “historical,” based on the following testimony: (1) that there was “probably
a five- or seven-minute delay” from when Defendant’s cell phone connected with the
cell tower sites; (2) that “AT&T emailed the delayed recorded information to [the law
enforcement officer] every fifteen minutes[;]” and (3) that law enforcement did not
receive the information directly from Defendant’s cell phone but, instead, had to enter
the coordinates provided from AT&T’s “stored records” “into a Google Maps search
engine to determine the physical location of the last tower ‘pinged.’”
Because most federal courts recognize that historical cell site information
consists of information generated prior to the issuance date of a judicial order that
allowed law enforcement to obtain such records for a given defendant, and because I
7
STATE V. PERRY
McGEE, C.J., concurring
believe allowing the majority’s characterization of the information provided by AT&T
to law enforcement, based on the facts in this case, would effectively obliterate the
distinction between “historical” and “real-time” cell site information, I must
respectfully disagree with the majority’s characterization. Nevertheless, because I
agree with the majority opinion that the good-faith exception to the Fourth
Amendment warrant requirement would allow the challenged evidence to stand, I
decline to undertake an examination of whether the majority properly concluded that
Defendant had a reasonable expectation of privacy in the real-time cell site
information obtained by law enforcement from AT&T in light of Graham II and
California Cell Site Case.
8