United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. LEE, UNITED STATES DISTRICT JUDGE
February 2016, Defendant Joel Rosario was charged with
interstate transportation of stolen property and possession
of a firearm in violation of federal law. During the
investigation leading to these charges, the Government
obtained historical cell-site location information (CSLI) for
Rosario's cell phone from his service provider. Rosario
has moved to suppress the CSLI, contending that the
Government violated his Fourth Amendment rights by procuring
it without first obtaining a warrant. For the reasons that
follow, the Court holds that the Government's acquisition
of CSLI from Rosario's service provider was not a search
in violation of the Fourth Amendment. Rosario's motion to
suppress is therefore denied.
around December 5, 2013, a store in Ann Arbor, Michigan, was
burglarized after it closed for the day. Gov't's
Resp. Def.'s Mot. Suppress at 1, ECF No. 95. The store
specialized in the sale of firearms, rare coins, and precious
metals. Id. Twenty-four firearms, as well as various
collector coins and other property, were stolen from the
to the store's owner, three men entered the store to look
at firearms about forty-five minutes before closing time on
December 5. Id. The next morning, the owner
discovered that the store had been burglarized overnight.
Id. at 2. The owner also determined that, after the
store had closed for the day on December 5, it had received a
phone call from a private caller. Id. The owner
passed this information to law enforcement officers, who in
turn contacted Comcast, the store's telephone service
provider, to request the private caller's phone number.
Id. Comcast accommodated this request and provided
the phone number to the officers. Id.
open-source records, officers determined that Sprint was the
service provider for the cell phone corresponding to the
number Comcast had provided. Id. The officers
contacted Sprint to request CSLI for the cell phone, and
Sprint provided the requested information. Id. The
CSLI revealed that the phone had “pinged” off of
various cell towers in Illinois on December 3 and 4.
Def.'s Mot. Suppress at 2, ECF No. 81. It also revealed
that the phone had pinged off of a tower in Lansing,
Michigan, at 9:26 p.m. on December 4 and a tower in Ann
Arbor, Michigan, at 11:14 p.m. later that same night.
Id. Finally, the CSLI showed that, from 11:14 p.m.
on December 4 to 6:37 p.m. on December 5, all of the pings
from the cell phone came from towers in the Ann Arbor area.
addition to requesting the CSLI, officers attempted to
determine the owner of the cell phone that was associated
with the number Comcast had provided. See Resp. at 2
n.1. After surveying hotels in the Ann Arbor area, officers
learned that the phone number had been provided to a Comfort
Inn under Rosario's name. Id.
February 24, 2016, Rosario was indicted with one count of
interstate transportation of stolen property in violation of
18 U.S.C. § 2314 and one count of possession of a
firearm in violation of 18 U.S.C. § 922(g) in connection
with the robbery that took place in Ann Arbor. Id.
at 3. The Government disclosed the CSLI to defense counsel
during discovery, Mot. Suppress at 2, and Rosario now argues
that the CSLI was improperly used as a basis for his arrest
and prosecution. Reply at 2, ECF No. 112.
has moved to suppress the CSLI that the Government requested
from Sprint. He argues that the Government requested the CSLI
in violation of his Fourth Amendment rights by failing to
first obtain a warrant supported by probable cause
authorizing the CSLI's acquisition. See Id. at
Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects[ ]
against unreasonable searches and seizures.” U.S.
Const. amend. IV. A “search” falling within the
ambit of the Fourth Amendment occurs “when the
government violates a subjective expectation of privacy that
society recognizes as reasonable.” Kyllo v. United
States, 533 U.S. 27, 33 (2001); accord United States
v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006).
Seventh Circuit has not addressed whether the
Government's acquisition of CSLI from a third-party
service provider violates a reasonable expectation of privacy
so as to constitute a search under the Fourth Amendment.
See United States v. Daniels, 803 F.3d 335, 351 (7th
Cir. 2015) (expressly declining to decide this question);
United States v. Thousand, 558 F. App'x 666, 670
(7th Cir. 2014) (same). So far, however, every federal court
of appeals to confront this issue has held that the
acquisition of CSLI from a third-party service provider is
not a Fourth Amendment search. United States v.
Graham, 824 F.3d 421, 424-25 (4th Cir. 2016) (en banc),
petition for cert. filed (Sept. 26, 2016) (No.
16-6308); United States v. Carpenter, 819 F.3d 880,
886-90 (6th Cir. 2016), petition for cert. filed
(Sept. 26, 2016) (No. 16-402); United States v.
Davis, 785 F.3d 498, 511 (11th Cir. 2015) (en banc),
cert. denied, 136 S.Ct. 479 (2015); In re
Application of the U.S. for Historical Cell Site
Data, 724 F.3d 600, 608-15 (5th Cir. 2013). Districts
courts within the Seventh Circuit to consider this issue have
likewise concluded that the acquisition of CSLI is not a
Fourth Amendment search. United States v. Adkinson,
No. 4:15-CR-25, 2017 WL 1318420, at *5 (S.D. Ind. Apr. 7,
2017); United States v. Wheeler, 169 F.Supp.3d 896,
910 (E.D. Wis. 2016); United States v. Lang, 78
F.Supp.3d 830, 836 (N.D. Ill. 2015); Rogers, 71
F.Supp.3d at 750; United States v. Benford, No.
2:09-CR-86, 2010 WL 1266507, at *3 (N.D. Ind. Mar. 26, 2010).
holding that the acquisition of CSLI from a service provider
is not a Fourth Amendment search, courts have relied on the
third-party doctrine. Under the third-party doctrine, an
individual does not have a reasonable expectation of privacy
in information that he voluntarily turns over to a third
party, and the Government therefore does not engage in a
Fourth Amendment search when it acquires such information.
Smith v. Maryland, 442 U.S. 735, 743 (1979);
United States v. Miller, 425 U.S. 435, 442 (1976).
The reason for this rule is that an individual “takes
the risk, in revealing his affairs to another, that the
information will be conveyed by that person to the
Government.” Miller, 425 U.S. at 443. The
third-party doctrine applies to information provided to a
third party “even if the information is revealed on the
assumption that it will be used only for a limited purpose
and the confidence placed in the third party will not be
the Supreme Court precedents expounding the third-party
doctrine, Smith v. Maryland brings the most to bear
on the present case. In Smith, the Court considered
whether the Government's use of a pen
register to record the numbers dialed on a home
telephone constituted a search under the Fourth Amendment.
442 U.S. at 736. The Court applied the third-party doctrine
to hold that such use of a pen register is not a Fourth
Amendment search. Id. at 743-46. In so holding, the
Court explained that, “[w]hen he used his phone,
petitioner voluntarily conveyed numerical information
[i.e., the phone numbers he dialed] to the telephone
company and ‘exposed' that information to its