United States District Court Northern District of California Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page21 of 46 1 Fourth Amendment. In reaching its decision, the Florida Supreme Court explained that “because 2 cell phones are indispensable to so many people and are normally carried on one’s person, cell 3 phone tracking can easily invade the right to privacy in one’s home or other private areas, a matter 4 that the government cannot always anticipate and one which, when it occurs, is clearly a Fourth 5 Amendment violation.” Tracey, 152 So. 3d at 524. Relying on Justice Sotomayor’s concurrence 6 in Jones, the Florida Supreme Court found that “owners of cell phones or cars equipped with GPS 7 capability do not contemplate that the devices will be used to enable covert surveillance of their 8 movements.” Id. (citing Jones, 132 S. Ct. at 956 at n.* (Sotomayor, J., concurring)). On that 9 basis, the Tracey Court held that the defendant “had a subjective expectation of privacy in the 10 location signals transmitted solely to enable the private and personal use of his cell phone,” and 11 that “such a subjective expectation of privacy of location as signaled by one’s cell phone—even 12 on public roads—is an expectation of privacy that society is now prepared to recognize as 13 objectively reasonable.” Id. at 525-26 (citing Katz, 389 U.S. at 360-61 (Harlan, J., concurring)). 14 Six more states have legislated privacy protections for historical CSLI. Colorado, Maine, 15 Minnesota, Montana, Tennessee, and Utah have passed statutes expressly requiring law 16 enforcement to apply for a search warrant to obtain this data. See Colo. Rev. Stat. § 16-3- 17 303.5(2); Me. Rev. Stat. tit. 16, § 648; Minn. Stat. §§ 626A.28(3)(d), 626A.42(2); Mont. Code 18 Ann. § 46-5-110(1)(a); Tenn. Code Ann. § 39-13-610(b); Utah Code Ann. § 77-23c-102(1)(a). In 19 Utah, for example, “a government entity may not obtain the location information . . . of an 20 electronic device without a search warrant issued by a court upon probable cause,” subject to a 21 handful of exceptions. Utah Code Ann. § 77-23c-102(1)(a). At least six additional states— 22 Illinois, Indiana, Maryland, Virginia, Washington, and Wisconsin—have passed laws requiring 23 police to obtain a search warrant to track a cell phone in real time. See 725 Ill. Comp. Stat. 24 168/10; Ind. Code § 35-33-5-12; Md. Code Ann., Crim. Proc. § 1-203.1; Va. Code Ann. 19.2- 25 56.2; Wash. Rev. Code 9.73.260; Wis. Stat. § 968.373(2). Indiana, for instance, generally bars 26 government tracking of cell phones in real time unless law enforcement “has obtained an order 27 28 21 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION