Eleventh Circuit Court of Appeals - Published Opinions

Friday, June 13, 2014

Davis: Fourth Amendment protects cell site location informaton

In U.S. v. Davis, No. 12-12928 (June 11, 2014), the Court held that “cell site location information” – cell phone tower-based information about where a person is located when he places or receives a cell phone call – is within a cell phone subscriber’s reasonable expectation of privacy, and that the government violates the Fourth Amendment when it obtains this information from a cell phone provider without a warrant. The Court analogized cell site location information to the tracking of a person’s whereabout through a GPS, which the Supreme Court held in Jones was subject to Fourth Amendment protection. The Court held, however, that in Davis’ case the police relied in good faith on a federal statute, 18 U.S.C. § 2703, that permitted obtaining cell site location information based on a court order without probable cause. Citing U.S. v. Leon, the Court therefore did not apply the exclusionary rule to the cell phone records. The Court recognized that the prosecutor engaged in improper bolstering during closing argument when he told the jury that a witness told the same story to the jury that “he has told me one hundred times.” But the Court noted that the trial judge instructed the jury to ignore these comments, and the jury is presumed to follow a judge’s instructions. Turning to sentencing, the Court agreed with Davis that the seven-year portion of his 1,941 month-sentence for multiple Hobbs Act and firearm violations was invalid, because the jury made no finding of “brandishing,” as recently required by Alleyne. The Court noted that the evidence that Davis brandished a firearm was not overwhelming. The Court rejected Davis’ claim that his sentence was cruel and unusual, in violation of the Eighth Amendment. The Court noted that Davis’ crimes were “numerous and serious.” Finally, the Court rejected Davis’ claim that there was insufficient evidence of his advance knowledge that an accomplice would use a firearm during one of the robberies, as recently required by Rosemond v. U.S. for aiding and abetting liability. The Court noted that the jury could infer that Davis “saw the gun in the car” as he and his accomplices were driving to commit a robbery, and could also have inferred knowledge based Davis’ participation in prior robberies, or that he assisted in planning this robbery.