California Appellate Court Holds (Unpublished) That There Is No Legitimate Expectation of Privacy in Real-Time Cell Site Location Information

In this case, the Defendant was convicted of conspiracy to commit murder along with a number of other offenses. The Defendant was arrested based on the warrantless retrieval of his cell site location information.

In an unpublished opinion, the Appellate court decided that the defendant had no legitimate expectation of privacy in his real-time cell-site location information, relying on the fact that it was briefly accessed to locate him.

When the matter was pending in front of the trial court, the prosecutor made an extensive argument that this retrieval was based on exigent circumstances (which, based on violence and threats that are detailed in the opinion, one would find compelling). The trial court did not reach that issue, finding instead that there is no legitimate expectation of privacy in your real-time CSLI.

The Court distinguished this case from both Carpenter and the GPS Jones decision because the real-time CSLI did not pinpoint his location. The Court approved of this police action because the defendant (turned out to be) was in public when his phone was pinged and because (as it turned out) they accessed his location in a singular effort.

The Court emphasizes that this rationale is limited and that they’re not saying that accessing real-time CSLI can never be a search, but the decision offers absolutely no limiting prinicple and provides no deterrent from law enforcement using our phones to access our location at any one given time at will with no level of suspicion required.

This case is a tremendous departure from other cases previously noted on this blog that use an exigent circumstances analysis for law enforcement to access real-time CSLI without a warrant. It is this author’s opinion that the Court should have gone to an exigent circumstances analysis in this case.

The case is People v. Tham Bui, 2019 Cal. App. Unpub. LEXIS 2031, 2019 WL 1325260, Cal. Ct. Appeals, 6th Dist. (March 25, 2019).

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