On February 14, 2019, the Seventh Circuit Court of Appeals decided the United States v. Adkinson[i], in which the court examined whether the Fourth Amendment was violated when T-Mobile conducted two cell tower dumps, searched cell site location information and provided that data to the FBI, after several of their stores were robbed. The relevant facts of Adkinson, taken directly from the case, are as follows:
Adkinson and others, in July 2015, robbed a T-Mobile phone store in Clarksville, Indiana, and then a Verizon store in Kentucky the next day. With handguns drawn, they stole approximately 100 cell phones and other items. They later robbed nine additional stores, including three more T-Mobile stores.
T-Mobile investigated the first robberies. As part of its investigation, T-Mobile conducted “tower dumps”: it pulled data from cell sites near the first two victim stores to identify which phones had connected to them—and thus were close to the crimes. From these dumps, T-Mobile determined that only one T-Mobile phone was near both robberies and that Adkinson was an authorized user on that phone’s account. Each time a phone connects to any cell site, it also generates a time-stamped record known as cell-site location information. From its records, T-Mobile determined where Adkinson’s phone traveled. It went from Chicago to the Indiana-Kentucky border, approached the Verizon store the day it was robbed, and returned to Chicago that evening. T-Mobile voluntarily gave this data to the FBI. The record does not reflect whether T-Mobile did so on its own or at the FBI’s request. T-Mobile delivered similar data after two more of its stores were robbed.
The government charged Adkinson in the Southern District of Indiana, New Albany Division (which encompasses Clarksville).[ii]
Adkinson filed a motion to suppress and argued that the evidence obtained from his cell phone location should be suppressed because it was obtained without a search warrant. The district court denied the motion. Adkinson was convicted. He subsequently appealed the denial of his motion to suppress to the Seventh Circuit Court of Appeals.
On appeal, Adkinson argued that the location information, particularly from the cell tower dumps, should be suppressed because T-Mobile was acting as an agent for the government when it obtained and provided that information to the FBI.
The court of appeals affirmed the denial of the motion to suppress and cited several reasons for their decision, which will be discussed below.
- T-Mobile was not acting as an agent of the government.
First, the court held that T-Mobile was not acting as an agent for the FBI when it obtained the cell tower data and provided it to the FBI. The court stated
A search or seizure by a private party does not implicate the Fourth Amendment” unless the private party “is acting as an instrument or agent of the government.” United States v. Shahid, 117 F.3d 322, 325 (7th Cir. 1997) (internal quotation omitted). To demonstrate agency, Adkinson must establish either that T-Mobile agreed to act on the government’s behalf and to be subject to its control or that the government ratified T-Mobile’s conduct as its own. United States v. Aldridge, 642 F.3d 537, 541 (7th Cir. 2011) (citing RESTATEMENT (THIRD) OF AGENCY §§ 1.01, 4.01 (2006)).[iii] [emphasis added]
In Adkinson’s case, the court of appeals noted that T-Mobile first obtained the cell location data, acting in its own interests to prevent more robberies and to recover its property. Additionally, merely providing data to the FBI, that it obtained in its own interests, does not transform T-Mobile into an agent for the FBI. Further, Adkinson argued that T-Mobile was essentially the “government” because they are a provider of cellular service, which is basically a “public utility replacement.” The court stated that that cellular service companies are not the government for the purposes of the Fourth Amendment. Lastly, the court stated that the FBI’s mere receipt of the information provided by T-Mobile is not a “ratification” of T-Mobile’s conduct such that T-Mobile would be an agent of the government.
- Adkinson consented to T-Mobile collecting his data and providing it to the government.
The court of appeals also considered the fact that T-Mobile’s service provider contract contains a clause whereby the customer consents that T-Mobile can disclose information when it is reasonably necessary to “protect its rights, interests, property, or safety or that of others.”[iv] The court stated
A defendant can voluntarily consent in advance to a search as a condition of receiving contracted services. See Medlock v. Trustees of Indiana Univ., 738 F.3d 867, 872 (7th Cir. 2013).[v] [emphasis added]
The court of appeals reasoned that T-Mobile acted in accordance with its policy and the consent provided by Adkinson (contained in the contract) when they obtained cell phone location data and provided it to the FBI.
- The Supreme Court’s decision in Carpenter v. United States[vi] does not require suppression of the evidence.
In 2018, the Supreme Court decided Carpenter, in which they held that the government must have a search warrant supported by probable cause to compel a cellular service provider to search for and provide the data that it’s cell sites reveal regarding a user’s past movements. This is typically referred to as cell site location data and allows the government to track routes and locations used by a person. However, the court of appeals noted that Adkinson failed to object to this data being used at his motion to suppress because the FBI obtained a court order for this information. Since it was not argued in the motion to suppress, it cannot be appealed.
Adkinson did contest, in the motion to suppress, the use of his location obtained in the initial cell tower dump of his location which is what led them to recognize his phone was in proximity of both store robberies. Regarding the cell tower dumps, the court stated
[Carpenter] did not invalidate warrantless tower dumps (which identified phones near one location (the victim stores) at one time (during the robberies)) because the Supreme Court declined to rule that these dumps were searches requiring warrants.[vii] [emphasis added]
- The good faith exception would prevent the cell site location data from being suppressed.
Lastly, the court noted that even if Adkinson were permitted to argue that Carpenter should require the suppression of the cell site location data, the good faith exception to the exclusionary rule would apply. The court stated that, at the time the FBI obtained the court order for the cell site location data, Carpenter, in which the Supreme Court required a search warrant for such data, had not been decided; as such, the FBI relied, in good faith, on existing court precedent in which a court order was sufficient to obtain the cell site location information. Therefore, the good faith exception to the exclusionary rule would apply.
Therefore, the court of appeals affirmed the denial of the motion to suppress.
[i] No. 17-3381 (7th Cir. Decided February 14, 2019)
[ii] Id. at 2-3
[iii] Id. at 7
[iv] Id. at 8
[vi] 138 S. Ct. 2206 (2018)
[vii] Adkinson at 8 (citing Carpenter, 138 S. Ct. 2220)