State v. Perry, 243 N.C. App 156 (Sept. 15, 2015)

In this drug case, no fourth amendment violation occurred when law enforcement officers obtained the defendant’s cell cite location information (CSLI) from his service provider, AT&T, without a warrant based on probable cause. The court noted that while courts have held that “real time” CSLI may be obtained only pursuant to a warrant supported by probable cause, the Stored Communications Act (SCA) allows for access to “historical” information upon a lesser showing. It continued: “The distinguishing characteristic separating historical 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.” The court concluded that the CSLI at issue was historical information:

[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 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.

The court found it significant that an officer testified that there was a 5- to 7-minute delay in the CSLI that he received from AT&T. The court went on to conclude that retrieval of the “historical” information was not a search under the fourth amendment. Noting that the U.S. Supreme Court has not decided whether “historical” CSLI raises a fourth amendment issue, the question is one of first impression North Carolina. The court distinguished the U.S. Supreme Court’s recent decision in United States v. Jones, 132 S. Ct. 945 (2012) (the government’s installation of a GPS tracking device on a vehicle and its use of that device to monitor the vehicle’s movements on public streets constitutes a “search” within the meaning of the Fourth Amendment)in three respects. First, unlike in Jones, here, there was no physical trespass on the defendant’s property. Second, the tracking in question here was not “real-time” the court reiterated: “officers only received the coordinates of historical cell tower ‘pings’ after they had been recorded and stored by AT&T, a third party.” Third, the trespass in Jones was not authorized by a warrant or a court order of any kind whereas here a court order was entered. And, “[m]ost importantly,” Jones did not rely on the third-party doctrine. Citing decisions from the Third, Fifth and Eleventh Circuits, the court held that obtaining the CSLI did not constitute a search under the fourth amendment. The court distinguished the recent Fourth Circuit opinion in United States v. Graham, on grounds that in that case the government obtained the defendant’s historical CSLI for an extended period of time. Here, only two days of information were at issue. The court rejected the Graham court’s conclusion that the third-party doctrine did not apply to CSLI information because the defendants did not voluntarily disclose it to their service providers. The court continued, concluding that even if it were to find that a search warrant based on probable cause was required, the good faith exception would apply.

One judge concurred in the final disposition but disagreed with the majority’s characterization of the information as historical rather than real-time. That judge “believe[d that] 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.” However, she agreed that the good faith exception applied.