Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page37 of 46 1 warrant,” the U.S. Supreme Court has held, “a search is reasonable only if it falls within a specific 2 exception to the warrant requirement.” Id.; see also Karo, 468 U.S. at 717 (“Warrantless searches 3 are presumptively unreasonable, though the Court has recognized a few limited exceptions to this 4 general rule.”). United States District Court Northern District of California 5 The only exception to the warrant requirement advanced by the government here is 6 consent. It is well established that the government need not obtain a warrant when it has the 7 consent of the individual whose person or property is to be searched. See Karo, 468 U.S. at 717 8 (recognizing consent as one of the “limited exceptions” to the Fourth Amendment’s warrant 9 requirement). “Consent searches are part of the standard investigatory techniques of law 10 enforcement agencies” and are “a constitutionally permissible and wholly legitimate aspect of 11 effective police activity.” Fernandez v. California, 134 S. Ct. 1126, 1132 (2014). 12 The question here, then, is whether cell phone users have consented to the government’s 13 acquisition of the historical CSLI associated with their cell phones. Undoubtedly, this question 14 bears some relation to the issue of voluntariness discussed in Part III.B.2, supra. The Court’s 15 focus here, however, will be on the privacy policies issued by the cellular service providers of the 16 target cell phones identified in the government’s application: Verizon and AT&T. The mere 17 existence of a privacy policy, the Court notes, does not dispose of the consent inquiry for Fourth 18 Amendment purposes. In City of Ontario v. Quon, for example, the U.S. Supreme Court assumed 19 that a police officer “had a reasonable expectation of privacy in the text messages sent on the 20 pager provided to him by the City,” even though the department “made it clear that pager 21 messages were not considered private” and “[t]he City’s Computer Policy stated that ‘users should 22 have no expectation of privacy or confidentiality when using’ City computers,” including pagers. 23 560 U.S. at 758, 760 (brackets omitted). 24 Of primary concern to the Court is the fact that subscribers of Verizon and AT&T cannot 25 possibly have consented to the government’s acquisition of CSLI generated by their cell phones 26 but collected by an entirely different provider. There are at least two reasons why another 27 28 37 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION