Prof. Orin Kerr wrote about the Maryland Court of Special Appeals’ decision in State v. Andrews yesterday at the Volokh Conspiracy. The case deals with cell-site simulators used by law enforcement to track suspects’ cell phones, and how this new technology interacts with the requirements of the 4th Amendment.
I like Orin’s categorization of four possibilities for how courts could determine when the use of a cell-site simulator is a search. As explained in my recent Federalist Society Review article, I vote that its use is not a search, and that no warrant is required as a matter of constitutional law.
The Andrews court’s opinion is flawed in two major regards. First, it fails to meaningfully examine the level of connectivity that modern smartphones have, and the impact of the third party rule on whether the 4th Amendment protects this data. Most phones now connect in multiple manners, and transmit large amounts of connectivity data. The court is now stating that there is a general expectation of privacy in all of this connectivity data, without really understanding the volume of connectivity in typical cell phone communication.
Second, the court places too much reliance on the 4th Circuit’s decision in U.S. v. Graham. In my opinion, Graham is an outlier. All other circuits that have examined this issue (5th, 6th, and 11th) have rejected the warrant requirement. There is a good chance that the en banc review of Graham will reach the same result. The court paid little attention to the significant body of contrary law that is currently out there. If the court was determined to require a warrant, it would have been safer to base its decision on the Maryland constitution rather than federal constitutional law.