Supreme Court review of cell-site cases?

On Tuesday of this week, the en banc Eleventh Circuit will hear oral argument in United States v. Davis, the case I blogged about here and here on whether the Fourth Amendment protects cell-site records. The en banc briefs are here, and an exhibit from the trial showing some of the cell-site records is here. The Eleventh Circuit doesn't post oral argument audio, so we'll likely be stuck relying on press accounts to find out what happened.

Whichever way the Eleventh Circuit rules, Supreme Court review is a possibility. It seems likely that Fourth Amendment protection for cell-site data will be the next big Fourth-Amendment-and-technology case at the Supreme Court, following the GPS case in 2012 and the searching-cellphones-on-arrest case in 2014. But when?

Let's recall the lower court cases so far. The Fifth Circuit has held that there is no Fourth Amendment protection for historical cell-site records, and the Florida Supreme Court has held that the Forth Amendment protects cell-site records at least in real time. The Fourth Circuit held argument in mid-December on a historical cell site case, and in Davis we'll get a ruling from the en banc Eleventh Circuit on the same issue. There may be some other cases working their way up to state Supreme Courts or even a federal circuit that I don't know about. (The Third Circuit offered some dicta on the issue in 2010 without reaching a decision, but that doesn't count.)

In light of these cases, decided and pending, there's likely to be a colorable case for Supreme Court review no matter how the Fourth and Eleventh Circuits rule. Supreme Court review focuses heavily on "splits," that is, clear and outcome-determinative disagreement among federal circuits and state supreme courts about how the law applies. If the Fourth and Eleventh Circuits hold that the Fourth Amendment applies, it creates a plausible split with the Fifth. If they hold that the Fourth Amendment doesn't apply, they create a plausible split with the Florida Supreme Court—especially pressing in the case of the Eleventh Circuit, as it would be within the same jurisdiction.

Maybe, but there are two important caveats. [UPDATE: Actually, only one caveat. See below.]

First, the Florida Supreme Court repeatedly tried to limit its holding to real-time cell-site monitoring as opposed to historical access. There are possible grounds to say that at least some kinds of real-time cell-site monitoring might raise some different issues. So if the Fourth and Eleventh hold that there is no protection, you could say that there is no split because the Florida Supreme Court's decision was only about real-time monitoring. It's a possible argument, although it's worth noting that the Florida Supreme Court didn't actually offer a legal basis for limiting its holding to real-time monitoring. It announced the limitation, but it didn't actually develop a clear reason why it could make a difference.

Similarly, it's possible to say that a Fourth and Eleventh Circuit finding cell site protection for historical cell site data wouldn't create a real split with the Fifth Circuit given the unusual procedure of the Fifth Circuit case. [BUT SEE UPDATE BELOW] Recall that the Fifth Circuit case arose when the government applied for an order for historical cell site data and the Magistrate Judge denied the application on Fourth Amendment grounds. In response to an academic amicus brief that raised ripeness problems with ruling in that context absent any facts, the Fifth Circuit limited its analysis to whether access to historical cell site records was "per se" unconstitutional. By answering only the issue of "per se" unconstitutionality, which I take to be kind of like asking whether a statute is facially unconstitutional, the Fifth Circuit arguably only answered whether access to historical cell site records always violated the Fourth Amendment, not whether it would in a particular case. If you take that reading of the case, then perhaps there would be no split with a decision finding a Fourth Amendment violation based on a specific set of facts. This is a possible argument, but not an obvious one, as the reasoning actually adopted by the Fifth Circuit applies more broadly than that limited reading would suggest.

Putting all these pieces together, it's hard to know when the Supreme Court might be interested. We might get a clear split from the Fourth and/or Eleventh Circuit cases, but the Court might decide to wait a while given the possible arguments that there is not yet a super-clear split. As always, stay tuned.

UPDATE: A reader reminds me that in a subsequent case, United States v. Guerrero, 768 F.3d 351 (5th Cir. 2014), the Fifth Circuit applied the reasoning of its initial cell-site case to an as-applied set of facts involving historical cell site records. After Guerrero, the Fifth Circuit rule is clear: Historical cell-site data is not protected. So scratch that second caveat above.

Also, another reader points out in United States v. Skinner, where the Sixth Circuit also suggested that cell-site data is not protected. Maybe, although recall that Skinner involved pinging a phone, which raises some different issues.