THIRD CIRCUIT RULES PROBABLE CAUSE NOT NECESSARY FOR CELL PHONE LOCATION RECORDS

The Third Circuit Court of Appeals ruled that probable cause was not necessary to support an order for historical cellular tower data,, also known as cell site location information (CSLI) which among other things provides the location a cell phone call is made from.

The Stored Communications Act which allows for the issuance of orders for CSLI based on a showing of specific and articulable facts establishing reasonable grounds specifically excluding tracking devices. ¹Of course most searches require a search warrant and probable cause. But comparing the use of cell phone information to tracking devices that do not follow the caller into their home the Court found that a search warrant is not necessary to obtain the telephone information. Under 18 U.S.C. § 2703(d) only order following an ex parte hearing is necessary.

However a magistrate has the discretion to require probable cause if there is a proper showing. Section 2703(d) states that a court order for disclosure under . . . may be issued by any court that is a court of competent jurisdiction and shall issue only if an intermediate standard that falls between a strong standard which requires probable cause for a search warrant and a weaker standard necessary for a subpoena exists. The combination of the use of the language “may be issued” and “only if” makes the requirement that there be a showing of specific and articulable facts establishing reasonable grounds a minimum standard but not a necessary standard, allowing a magistrate upon a proper, but unstated, showing to require a stronger showing such as probable cause in a proper case. The Court remanded the case to the trial court to determine whether the government has made a proper standing.