No Warrant Needed for Cell Phone Tower Location Data

Do police need a warrant to access cell phone tower location data?

Last year, the 11th Circuit Court of Appeals appeared to have triggered a circuit split on this question. It initially decided that a warrant supported by probable cause was required to access cell phone tower location data. At least two other circuits had decided that a warrant was not required. But an en banc panel of the 11th Circuit reversed that opinion and held that a warrant is not required. Police only have to show "'specific and articulable facts showing that there are reasonable grounds to believe' that the records sought 'are relevant and material to an ongoing criminal investigation.'"

Cell phone tower data was used in the prosecution's case against Adnan Syed who was convicted of the 1999 murder of his girlfriend near Baltimore and documented by the Serial podcast. The 11th Circuit noted in its opinion that location data that comes through cell phone towers is not unambiguous. For example, the towers have different areas of influence. The towers can sometimes indicate if the subject cell phone was north, south, east, or west of the tower. But that information is not reliable.

Regardless of the reliability of cell phone tower data, a person's location can be very private. The 11th Circuit's decision sought to balance the individual's privacy concerns against law enforcement needs. It held that consumers should address their concerns to cell phone service providers or the legislature. "'[T]he recourse for these desires is in the market or the political process; in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections.'"

The 11th Circuit had been the first to hold that law enforcement requests for location data must be supported by probable cause. The en banc reversal makes it less likely that the United States Supreme Court will decide the issue.

State v. Davis
http://online.wsj.com/public/resources/documents/2015_0505_11thdavis.pdf

PCRA Primary Route for Late Withdrawal of Guilty Plea

In a decision issued yesterday, the Utah Court of Appeals reiterated that a criminal defendant must use the Post-Conviction Remedy Act (PCRA) to try to withdraw a guilty plea once sentencing has taken place. PCRA petitions can be costly and time-consuming, so many criminal defendants prefer to file for relief in criminal court. But the Court of Appeals' memorandum decision requires PCRA instead of a motion to withdraw a guilty plea.

State v. Tafui, 2015 UT App 118
http://www.utcourts.gov/opinions/appopin/State v. Taufui20150507.pdf

Reckless Security Broker Not a Criminal

The Court of Appeals reversed a conviction for securities fraud today based on the trial court's misleading jury instructions. Shawn Moore was convicted at trial of securities fraud, sale by an unlicensed agent, and pattern of unlawful activity. His defense was that his actions were not "willful."

The trial judge instructed the jury about the mes rea necessary for conviction in three instructions, but the most problematic was Instruction 50. While the judge instructed the jury about willful mens rea in two other instructions, those instructions were also incomplete and did not remedy the problems in Instruction 50.

Instruction 50 - The most problematic instruction

In securities law, salespeople are under a duty to investigate.
A salesperson cannot deliberately ignore that which he has a duty to know and recklessly state facts about matters of which he is ignorant. A salesperson cannot recommend a security unless there is an adequate and reasonable basis for such recommendation. By his recommendation he implies that a reasonable investigation has been made and that his recommendation rests on the conclusions based on such investigation.
Where the salesperson lacks essential information about a security, he should disclose this as well as the risks which arise from his lack of information. A salesperson may not rely blindly upon the issuer of the security for information concerning a company.

This instruction clearly conflates the willful mens rea required by the statute with the much lower reckless mens rea by actually using the word "recklessly." The Court of Appeals also stated that "Nowhere in the applicable statutory framework is there any language akin to Instruction 50 imposing criminal liability for acts amounting to willful blindness or a violation of a duty to know."

Surprisingly, the trial court drew the language for Instruction 50 from an SEC case suspending brokers' licenses. That case held that the standard for the license revocation was much lower than the criminal or even the civil standard.

Interesting Dicta
Judge Davis, who authored the opinion, went on to briefly address certain issues that he thought might arise on remand but that he was not required to reach because the Instruction 50 issue was dispositive. The other judges on the panel disagreed that the issues should be reached and, so, did not join. Nevertheless, his thoughts on the subjects could be helpful. The following are the issues he addressed.

1. In criminal cases, experts cannot offer opinions on whether the defendant possessed a certain mental state.
2. Trial judges must address all the mandatory factors in making a restitution ruling.

2015 UT App 112, http://www.utcourts.gov/opinions/appopin/State v. Moore20150430.pdf