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A federal appellate court on Wednesday widened a split among circuits on a major privacy question thats pending before the U.S. Supreme Court: Fourth Amendment protection for cellphone location information.

In United States v. Graham, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held that the governments warrantless search of the cellphone location information of two accused robbery defendants violated their Fourth Amendment rights. However, because the government relied in good faith on court orders issued under the federal Stored Communications Act, the information could be admitted as evidence in their trial.

Last month, the American Civil Liberties Union and private counsel filed a petition for review in the high court in Davis v. United States. In that case, a divided en banc Eleventh Circuit held that the criminal defendant had no reasonable expectation of privacy in cellphone location records held by his service provider. And even if a Fourth Amendment search had taken place, the court said, use of an Stored Communications Act order rather than a warrant was reasonable because the privacy intrusion was minor and the government had a compelling interest in investigating crimes.

The petition asks the justices to decide whether the Fourth Amendment warrant requirement applies to these searches and seizures. It also asks whether the good-faith exception to the exclusionary rule applies when the search was based on a court order sought by a prosecutor, particularly when the relevant statute gave the prosecutor the option of pursuing a warrant.

In the Fourth Circuit case decided Wednesday, the government secured court orders, under the Stored Communications Act (SCA) for 221 days worth of cellphone location information from Sprint/Nextel. The government ultimately used the information at trial to establish the defendants locations at various times before and after most of the charged robberies.

Senior Judge Andre Davis, joined by Judge Stephanie Thacker, wrote:

Examination of a persons historical CSLI (cell site location information) can enable the government to trace the movements of the cellphone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Cellphone users have an objectively reasonable expectation of privacy in this information. Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.

The established exception in this case, Davis added, was the good faith exception to the exclusionary rule.

Here, the government is entitled to the good-faith exception because, in seeking appellants CSLI, the government relied on the procedures established in the SCA and on two court orders issued by magistrate judges in accordance with the SCA, Davis wrote.

The Stored Communications Act includes no direction on when the government should seek a warrant versus an order, he said.

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Fourth Amendment Protects Cellphone Location Data, Appeals ...