Do police need a search warrant to get your cell site location information (CSLI)?
In State v. Warner, decided on April 13, 2022, the SC Supreme Court confirmed that police do need a search warrant to get cell phone records that are held by a third party like your service provider (cell-site location information or CSLI).
They also held that it is okay for magistrates to issue search warrants for documents that are held in other jurisdictions (a power that defendants certainly do not have under SC law), and, although the court noted that there was no probable cause stated in the search warrant that was issued in Warner’s case, they affirmed the conviction.
It’s a short but convoluted opinion that can be a bit confusing at first. The main takeaways are:
- Police do need a search warrant supported by probable cause to get CSLI data, and
- SC magistrates can issue search warrants for foreign corporations that do business in SC, even when the documents sought are located in another jurisdiction.
State v. Warner – It’s Okay for Magistrates to Issue Search Warrants for Other Jurisdictions
First, the SC Supreme Court held that it is legal for a SC magistrate to issue a search warrant “to an out-of-state entity for records that are not physically located in this State.”
SC Code §17-13-140 says:
Any magistrate… may issue a search warrant to search for and seize… property constituting evidence of crime or tending to show that a particular person committed a criminal offense… The property described in this section, or any part thereof, may be seized from any place where such property may be located, or from the person, possession or control of any person who shall be found to have such property in his possession or under his control.
The Court held that, because T-Mobile does business in SC and specifically in Anderson County where the search warrant was issued, it falls within the language of §17-13-140 even though neither the company nor the documents sought were located in SC:
T-Mobile clearly does business in South Carolina, in particular, in Anderson County. T-Mobile, therefore, is subject to the jurisdiction of an Anderson County magistrate. The warrant sought records reflecting information generated in South Carolina through the interaction of Warner’s cell phone and cell towers in Anderson County. While the T-Mobile office to which officers were told to send the warrant is located in New Jersey, section 17-13-140 specifically provides, “The property described in this section . . . may be seized . . . from the person, possession or control of any person who shall be found to have such property in his possession or under his control.” T-Mobile is in possession and control of property that section 17-13-140 permits to be seized. T-Mobile is a “person” doing business in Anderson County. Thus, T-Mobile is subject to the jurisdiction of our courts, and we find it was not beyond the power of the magistrate to issue the warrant.
So, the magistrate had the authority to issue the search warrant for Warner’s CSLI, but was a search warrant even required under the Fourth Amendment in this situation?
Police Need a Search Warrant to Get Cell Phone Records – Including CSLI
Warner was convicted of murdering a convenience store clerk during a botched robbery. One piece of evidence they showed the jurors was CSLI records that placed Warner’s phone near the store at the time of the murder.
At trial, Warner moved to suppress the cell phone records, arguing that a SC magistrate does not have jurisdiction to issue a search warrant for documents located in New Jersey (T-Mobile). The trial court agreed, but then allowed the CSLI into evidence anyway because the trial court found that a warrant wasn’t required in the first place.
The SC Supreme Court found that 1) the magistrate was authorized to issue a subpoena for out-of-state records, 2) at the time of Warner’s trial (2017), cell phone records held by third parties (as opposed to information that is found on a cell phone in the defendant’s possession) were not protected by the Fourth Amendment, but 3) CSLI data is now protected by the Fourth Amendment based on the US Supreme Court’s decision in Carpenter v. US (2018).
Let’s look at a timeline of events:
- 2014 – in Riley v. California, the US Supreme Court held that cell phone data is subject to the Fourth Amendment (but the opinion did not reference CSLI or cell phone data held by third parties like T-Mobile),
- April 30, 2015 – date of the murder,
- May 4, 2015 – search warrant issued to T-Mobile (in New Jersey),
- 2016 – in US v. Graham, the Fourth Circuit Court of Appeals held that cell-site location information (CSLI) is not protected by the Fourth Amendment,
- 2017 – Warner’s trial: based on Riley v. California and US v. Graham, there is no expectation of privacy in CSLI records, and
- 2018 – after Warner’s trial, the US Supreme Court holds in Carpenter v. US that we do, after all, have a privacy interest in our cell phone data held by third parties.
In 2017, Riley and Graham were controlling precedent:
In 2017, therefore, at the time of Warner’s trial, it appeared that a person had no reasonable expectation of privacy in their CSLI held by a cell phone service provider and the Fourth Amendment did not require a warrant for the seizure of CSLI. The trial court in this case relied on Graham in finding the Fourth Amendment did not apply, stating “the search warrant under the Graham case was not needed.” Based on Graham, the trial court found Warner’s voluntary use of his cell phone and the consequent provision of CSLI to the cell phone service provider resulted in the loss of any expectation of privacy Warner may have otherwise had in the information.
After 2018, Carpenter is controlling precedent:
In 2018, however—after Warner’s trial and while his appeal was pending at the court of appeals—the Supreme Court held CSLI is subject to the warrant requirement of the Fourth Amendment. Carpenter, 585 U.S. at ____, 138 S. Ct. at 2217, 201 L. Ed. 2d at 525.
So, no search warrant was required at the time of Warner’s trial, because Carpenter was not decided until after his trial. Carpenter does apply retroactively, however, and the SC Supreme Court notes that there was no probable cause stated for the search warrant:
Warner argued in his suppression motion, for example, the affidavit supporting the warrant did not set forth probable cause. We agree. The affidavit states only, “Information was received through crime stoppers indicating that Justin Warner is a possible suspect. The informant’s information was corroborated and a record search revealed that Warner has this listed number to him.”
The author of the SC Supreme Court opinion thinks it is “inconceivable” that a magistrate would sign a search warrant that doesn’t state probable cause and so remands the case for the trial court to find out if perhaps the detective supplemented his sworn affidavit with oral testimony:
It is inconceivable to us that the magistrate did not require the experienced detective to supplement the affidavit with sworn testimony, or if the magistrate did not require it, that the detective did not provide it on his own. It is unclear, however, whether the information in the affidavit was supplemented before the magistrate issued the warrant. Because the record on this issue—and perhaps other issues—was never fully developed during the suppression hearing, we remand to the trial court for a ruling on any unresolved issues related to Warner’s motion to suppress.
Of course, even if there was no supplemental sworn testimony to support probable cause, the trial court should consider not applying the exclusionary rule:
If the trial court determines the affidavit was not supplemented, and thus the warrant lacked probable cause, the trial court should also consider whether the exclusionary rule should apply.
The Court lays out a blueprint for the trial court to preserve Warner’s conviction on remand:
- Carpenter’s effect is retroactive, so a warrant is now required and was required at the time of Warner’s trial,
- The search warrant did not contain probable cause and was therefore invalid unless the officer supplemented the affidavit with oral statements to the magistrate,
- The trial court should provide the officer and magistrate the opportunity to truthfully testify under oath that, although the affidavit didn’t state probable cause, the officer said it verbally to the magistrate where no one could hear and there would be no record of it,
- If there truly was no probable cause presented to the magistrate (and the officer is not willing to lie about it), that’s okay because the exclusionary rule should not apply anyway (because the officer cannot be expected to know what the US Supreme Court would decide in Carpenter before it happened, the good-faith exception applies and the exclusionary rule does not), and
- Even if the exclusionary rule applies, the dissent points out that it was harmless error because there was overwhelming evidence of guilt, and the cell phone location records were cumulative to the other evidence of guilt.
Criminal Defense Lawyers in Conway, SC
Attorney Johnny Gardner has thirty years of trial experience defending misdemeanors and felonies in SC courtrooms, including General Sessions Court, magistrate courts, and municipal courts.