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83. Did the collection of the data violate the Fourth Amendment?
The resident was charged with multiple counts of destruction of property. Defense counsel has moved to exclude the cell-phone site-location data, arguing that its collection violated the Fourth Amendment.
Over the course of a year, police in a small town received complaints about vandalism in public parks. They connected the incidents because the vandal left specific graffiti at each site, and investigation provided the police with a reasonable suspicion that the perpetrator was a specific local resident. Using an online directory that the resident had joined, the police obtained the resident's cell-phone number. The police then subpoenaed the cell-phone provider to provide one year of historical cell-phone site-location data. The data showed that for each incident, the resident's cell phone had been in the vicinity of the vandalized property.
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A is incorrect. While it is true that there is no reasonable expectation of privacy in information shared with a third party, the Court in Carpenter v. United States, 138 S. Ct. 2206 (2018) specifically rejected this principle with regard to historical cell-phone site-location data.
B is incorrect. The cell-phone number is not the targeted evidence. Although the phone number may be widely accessible, that fact does not create a right of access to historical cell-phone site-location data (which is created by the cell-phone provider) or to the contents of the phone itself. To acquire extensive historical cell-phone site-location data, the police must obtain a warrant.
C is incorrect. A subpoena need not be based on «probable cause.» In addition, Carpenter v. United States, 138 S. Ct. 2206 (2018) held that the government could not rely on a subpoena to obtain extensive historical cell-phone site-location data. When the government wants to obtain that sort of data, it must first get a warrant.