Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page30 of 46 1 application for historical CSLI was filed in 2010. Fifth Circuit Opinion, 724 F.3d at 602. In fact, 2 before the Fifth Circuit, the government argued that CSLI was “not sufficiently accurate to reveal 3 when someone is in a private location such as a home.” Id. at 609. Here, by contrast, the 4 government explained at oral argument that CSLI from a femtocell could be used to locate an 5 individual at her home. Hr’g Tr. at 31:16-32:4. This distinction has constitutional significance 6 because femtocells, like the beeper in Karo, can “reveal a critical fact about the interior of the 7 premises that the Government is extremely interested in knowing and that it could not have 8 otherwise obtained without a warrant.”9 468 U.S. at 715. United States District Court Northern District of California 9 The Eleventh Circuit’s decision was equally limited by its facts. The en banc panel in 10 Davis cabined its voluntariness analysis to making or receiving phone calls because the cellular 11 provider at issue there did not record “any cell tower location information for when the cell phone 12 was turned on but not being used to make or receive a call.”10 785 F.3d at 503. Judge Adalberto 13 Jordan emphasized this point in his concurrence: “Finally, it is important to reiterate that the cell 14 site information was generated from calls Mr. Davis made and received on his cellphone, and was 15 not the result of his merely having his cellphone turned on. There was, in other words, no passive 16 tracking based on Mr. Davis’ mere possession of a cellphone, and I do not read the Court’s 17 opinion as addressing such a situation.” Id. at 524 (Jordan, J., concurring). 18 19 20 21 22 23 24 25 26 27 28 9 That Smith involved a home landline telephone is of no moment. Regardless of the petitioner’s location, the Smith Court found, “his conduct was not and could not have been calculated to preserve the privacy of the number he dialed.” 442 U.S. at 743. When, as in this case, the information the government seeks is an individual’s location, the U.S. Supreme Court’s subsequent case law on electronic surveillance is more on point. See, e.g., Karo, 468 U.S. at 714 (emphasizing that “private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable”). 10 The cellular service provider in Davis also did not record “any data at all for text messages sent or received.” 785 F.3d at 503. This fact did not go unnoticed by the dissent, which explained that “the vast majority of communications from cell phones are in the form of text messages and data transfers, not phone calls.” Id. at 542 (Martin, J., dissenting). “The frequency of text messaging,” continued the dissent, “is much greater than the frequency of phone calling— particularly among young cell phone users.” Id. The Fifth Circuit’s decision also did not address text messaging. 30 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION