Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page10 of 46 1 a supplemental brief regarding the Eleventh Circuit’s en banc decision in United States v. Davis, 2 785 F.3d 498 (11th Cir. 2015), which overruled the original panel opinion2 cited by Judge Illston 3 in Cooper. Gov’t Supp. Br. at 3. United States District Court Northern District of California 4 On May 20, 2015, the Court invited the Public Defender to file a written response to the 5 arguments made in the government’s appeal and supplemental brief. ECF No. 7. The Court also 6 authorized the government to file a reply and set a hearing on the matter for June 24, 2015. Id. At 7 a minimum, the requested briefing was to address “(1) whether the Supreme Court’s decisions in 8 United States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979), control 9 the outcome here; (2) the Eleventh Circuit’s en banc decision in Davis; and (3) whether if the 10 Court concludes that the Fourth Amendment requires a warrant supported by probable cause, the 11 Court must find any part of the Stored Communications Act unconstitutional.” ECF No. 7 at 2. 12 The Court also asked that the government be prepared to answer various questions regarding cell 13 phone technology at the June 24 hearing. Id. at 2-3. 14 On June 12, 2015, the Public Defender filed its response to the government’s appeal. ECF 15 No. 17. Three days later, the Public Defender filed an amended response. Opp. at 32. On June 5, 16 2015, the Court granted separate requests by the ACLU and EFF to file amicus briefs in support of 17 the Public Defender. ECF Nos. 12, 13. On June 12, 2015, the ACLU and EFF filed their amicus 18 briefs. ACLU Br. at 18; EFF Br. at 13. On June 19, 2015, the government filed its reply. Gov’t 19 Reply at 12. The Court held a hearing on this matter on June 24, 2015. 20 On June 25, 2015, the Court ordered supplemental briefing on the issue of whether cellular 21 service providers ever retain historical CSLI when that CSLI is generated from a cell phone’s 22 communications with the cell tower of another provider. ECF Nos. 24, 25. The government and 23 24 2 25 26 27 28 The original panel opinion, authored by D.C. Circuit Judge David Bryan Sentelle sitting by designation, unanimously held that “cell site location information is within the subscriber’s reasonable expectation of privacy” such that “[t]he obtaining of that data without a warrant is a Fourth Amendment violation.” United States v. Davis, 754 F.3d 1205, 1217 (11th Cir. 2014), rev’d en banc, 785 F.3d 498 (11th Cir. 2015). 10 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION