On July 13, 2016, the Court of Appeals of Georgia decided the State v. Hill[i], in which the court examined whether a person has a reasonable expectation of privacy in their cellular phone number and name on their account. The relevant facts of Hill are as follows:
A law enforcement officer, who was the only witness at the hearing on Hill’s motion to suppress, testified that on June 1, 2014, he investigated a taxi cab driver’s claim that a man had fled without paying his cab fare. The man who fled had left a cellular phone in the back seat of the cab. The officer turned on the phone but a passcode prevented him from accessing any data contained therein. The officer, however, was able to place an emergency call from the phone, and from that call a 911 dispatcher provided him with the number assigned to the phone and with Hill’s name and date of birth.”[ii]
Hill was charged with theft of services under Georgia law. He filed a motion to suppress and argued that the officer violated his rights under the Fourth Amendment because using his phone to call 911 to obtain the phone number and name constituted an unreasonable, warrantless search. The trial court granted Hill’s motion and the State appealed to the Court of Appeals of Georgia.
The issue on appeal was whether Hill possessed a reasonable expectation of privacy in his phone number, name on his cellular account and his date of birth.
The court of appeals first noted several general legal principles that apply in this case. The court stated
A Fourth Amendment search occurs when a government official physically intrudes or trespasses on a person’s property. United States v. Jones, ___ U. S. ___, ___ (II) (A) (132 SCt 945, 181 LE2d 911) (2012). This case does not involve such a physical intrusion or trespass. A Fourth Amendment search also occurs “when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U. S. 27, 33 (II) (121 SCt 2038, 150 LE2d 94) (2001) (citation omitted). See Katz v. United States, 389 U. S. 347, 361 (88 SCt 507, 389 U. S. 347, 88 S. Ct. 507, 19 LE2d 576) (1967) (Harlan, J., concurring). Conversely, “a Fourth Amendment search does not occur … unless the individual manifested a subjective expectation of privacy in the object of the challenged search, and society is willing to recognize that expectation as reasonable.” Kyllo, supra (citation and punctuation omitted).[iii]
In other word, if the government intrudes into an area in which a person has a reasonable expectation of privacy, then a search has occurred.
The court of appeals next set out to determine if Hill possessed such a reasonable expectation of privacy in his cellular phone number, name on his account and his date of birth.
The court first noted that the majority of the courts that have considered this issue have agreed that a person’s name and address is not information about which a person can have a reasonable expectation of privacy.[iv]
Second, the court noted that
[A]lthough the content of personal communications is private, the information necessary to get those communications from point A to point B is not.” United States v. Carpenter, 819 F3d 880, 886 (II) (A) (6th Cir. 2016). Consistent with this distinction, we have held in a case involving a landline phone that the Fourth Amendment “protects only the content of a telephone conversation and not the fact that a call was placed or that a particular number was dialed.” Stephenson, supra, 171 Ga. App. at 939 (citation and punctuation omitted).[v]
Third, the court stated that when a person uses a phone account, they are willing turning information such as the phone number and their name over to third parties, and a person does not possess a reasonable expectation of privacy in information he willingly turns over to third parties.
Fourth, the court stated that although a police officer cannot access data inside the phone without a warrant or an exception to the warrant requirement, an officer can take other action to determine the phone’s owner. The court stated
[C]ourts have held that the officer can take other action with a cellular phone lawfully in his or her possession to determine the phone’s owner. For example, the officer can remove the battery from a phone to acquire an identifying subscriber number, analogous to a serial number, without implicating the Fourth Amendment, because the subscriber has no “reasonable expectation of privacy in the serial number of his cell[ular] phone or other identifying information.” State v. Green, 164 S3d 331, 344 (La. App. 2015). See also United States v. Lowe, 2014 U. S. Dist. LEXIS 145457, *20 (II) (A) (D. Nev. 2014). vi
Fifth, the court of appeals noted that swiping a credit card’s magnetic strip to determine information contained in the magnetic strip is not a search under the Fourth Amendment because that information would be transmitted to a third party during the use of the credit card.[vii]
Sixth, while Hill argued that Riley v. California established that officers conducted a Fourth Amendment search of a cell phone when they accessed files in the phones to examine videos, photos, text messages and call logs, the court of appeals here distinguished that case from Hill’s case. [viii] Riley involved a warrantless search of the contents of a cell phone, incident to the owner’s arrest, which the Supreme Court held violated the Fourth Amendment due to the amount of data a cell phone can hold compared to other items that are typically searched incident to arrest. The court of appeals stated
We do not construe Riley to prohibit an officer in lawful possession of a cellular phone from placing a call on that phone in an attempt to obtain identifying information about its owner. Moreover, we do not construe Riley to recognize a legitimate expectation of privacy in identifying noncontent information such as the person’s own phone number, address, or birthdate, simply because that information was associated with a cellular phone account rather than a landline phone account or a piece of physical mail.
Therefore, for the reasons discussed above, the court of appeals reversed the grant of the motion to suppress and held that Hill did not possess a reasonable expectation of privacy in his phone number, name on his cellular account or his date of birth, therefore the officer did not violate the Fourth Amendment when he caused the phone to dial 911 for the purpose of obtaining that information.
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Citations
[i] Id. (citing See United States v. L’Isle, 825 F.3d 426, 431-433, 2016 U. S. App. LEXIS 10345, **9-13 (II) (8th Cir. 2016); United States v. Bah, 794 F3d 617, 629-633 (6th Cir. 2015))
[ii] Id. at 321
[i] 338 Ga. App. 57 (789 S.E. 2d 317)(2016)
[ii] Id. at 318
[iii] Id. (emphasis added)
[iv] Id. at 319 (citing : Smith, supra, 442 U. S. at 743-747 (II) (B) (government used “pen register” to record telephone numbers of calls made from defendant’s landline phone); United States v. Forrester, 512 F3d 500, 509-511 (III) (B) (1) (9th Cir. 2008) (government used “mirror port” technology to learn, among other things, the “to/from” addresses of defendant’s e-mail messages); United States v. Choate, 576 F2d 165, 174-177 (9th Cir. 1978) (government arranged for “mail cover,” under which postal service provided government agency with information appearing on the face of envelopes or packages addressed to defendant); People v. Elder, 63 Cal. App. 3d 731, 134 Cal. Rptr. 212, 215 (I) (Cal. App. 1976) (government obtained name and address of subscriber to particular telephone number); Ensley v. State, 330 Ga. App. 258, 259 (765 SE2d 374) (2014) (government obtained subscriber information associated with defendant’s Internet service account); Stephenson v. State, 171 Ga. App. 938 (321 SE2d 433) (1984) (government obtained defendant’s address and telephone number by arranging for telephone company to trace and “trap” a harassing call made by defendant to victim); State v. Neely, 2012 Ohio 212, 2012 Ohio App. LEXIS 165, *11 (III) (Ohio App. 2012) (cellular phone subscriber has no reasonable expectation of privacy in his own phone number and “the police can trace from a phone number dialed to the identity of the subscriber of the phone from which that number was dialed”); Duncan, supra, 817 A2d at 465-469 (government first obtained [***6] from shopkeeper the account number associated with defendant’s bank card, and then obtained from defendant’s bank his name and address). Cf. State v. DeFranco, 426 N.J. Super. 240, 43 A3d 1253, 1259 (II) (N.J. Super. 2012) (finding that New Jersey Constitution, which defendant argued afforded more privacy protections than Fourth Amendment, was not violated when government obtained his cellular phone number from his employer, because defendant’s “professed subjective expectation of privacy” in his phone number was not one “that society would be willing to recognize as reasonable”) (citations omitted).
[v] Id. (emphasis added)
[vi] Id. at 320 (emphasis added)
[vii] Id. (citing See United States v. L’Isle, 825 F.3d 426, 431-433, 2016 U. S. App. LEXIS 10345, **9-13 (II) (8th Cir. 2016); United States v. Bah, 794 F3d 617, 629-633 (6th Cir. 2015))
[viii] Id. at 321
