United States District Court Northern District of California Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page28 of 46 1 undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with 2 nonmedical personnel without her consent.”7 Id. at 78. Similarly, here, a cell phone user’s 3 reasonable expectation of privacy in her location at virtually all times is not destroyed simply 4 because law enforcement would have to obtain the records of her whereabouts from a third party. 5 See United States v. Warshak, 631 F.3d 266, 285-86 (6th Cir. 2010) (finding a reasonable 6 expectation of privacy in the content of e-mails stored by a third-party service provider); cf. United 7 States v. Jacobsen, 466 U.S. 109, 114 (1984) (recognizing “a legitimate expectation of privacy” in 8 “[l]etters and other sealed packages” even though they may be entrusted to third-party mail 9 carriers while in transit); Stoner v. California, 376 U.S. 483, 487-88, 490 (1964) (rejecting the 10 argument that “the search of [a] hotel room, although conducted without the petitioner’s consent, 11 was lawful because it was conducted with the consent of the hotel clerk,” because a hotel guest’s 12 Fourth Amendment rights cannot be “left to depend on the unfettered discretion” of a third party 13 clerk). 14 Importantly, the Court is not holding that Miller and Smith are no longer good law. Only 15 the U.S. Supreme Court may do so.8 The Court instead finds that Miller and Smith do not control 16 the analysis here because the generation of historical CSLI via continually running apps or routine 17 pinging is not a voluntary conveyance by the cell phone user in the way those cases demand. 18 Where, as here, an individual has not voluntarily conveyed information to a third party, her 19 expectation of privacy in that information is not defeated under the third-party doctrine. See, e.g., 20 Third Circuit Opinion, 620 F.3d at 317-18; Tracey, 152 So. 3d at 522. 21 22 23 24 25 26 27 28 7 The Ferguson majority made no mention of the third-party doctrine, an omission underscored by Justice Scalia in dissent. 532 U.S. at 94-95 (Scalia, J., dissenting). 8 The Court notes that in her concurrence in Jones, Justice Sotomayor wrote that Miller and Smith, two cases decided in the 1970s, were “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” 132 S. Ct. at 957 (Sotomayor, J., concurring). 28 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION