Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page12 of 46 1 2 warrant requirement is triggered, courts employ the reasonable expectation of privacy test 3 established in Katz v. United States, 389 U.S. 347, 360-61 (1967) (Harlan, J., concurring).3 Under 4 Katz, the Court follows a “two-part inquiry.” California v. Ciraolo, 476 U.S. 207, 211 (1986). 5 First, the Court asks whether there exists a “subjective expectation of privacy in the object of the 6 challenged search.” Kyllo v. United States, 533 U.S. 27, 33 (2001). If so, the Court asks second 7 whether “society [is] willing to recognize that expectation as reasonable.” Id. (alteration in 8 original). The Court now turns to this dual inquiry. 9 United States District Court Northern District of California To determine whether a “search” has taken place such that the Fourth Amendment’s B. Fourth Amendment “Search” 10 1. Reasonable Expectation of Privacy in Historical CSLI 11 Neither the U.S. Supreme Court nor the Ninth Circuit has squarely addressed whether cell 12 phone users possess a reasonable expectation of privacy in the CSLI, historical or otherwise, 13 associated with their cell phones. The closest the Ninth Circuit has come was to issue a warning 14 several years back in an unpublished decision: “The government’s use at trial of [defendant’s] cell 15 site location information raises important and troublesome privacy questions not yet addressed by 16 this court.” United States v. Reyes, 435 F. App’x 596, 598 (9th Cir. 2011). In the absence of any 17 binding authority, the Court ventures into this “troublesome” area of Fourth Amendment law as a 18 matter of first impression. 19 Fortunately, the U.S. Supreme Court’s cases on electronic surveillance prove instructive. 20 In United States v. Knotts, the U.S. Supreme Court first applied the Katz test to electronic 21 surveillance, holding that the Fourth Amendment was not violated when the government used a 22 beeper to track a vehicle’s movements on public roads. 460 U.S. 276, 277 (1983). The beeper 23 24 3 25 26 27 28 A “search” also occurs for Fourth Amendment purposes “[w]hen the Government obtains information by physically intruding on persons, houses, papers, or effects.” Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (internal quotation marks omitted). Here, there is no argument that the government’s obtaining CSLI could constitute a search under this theory of common law trespass. 12 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION