On Tuesday of this week, the en banc Eleventh Circuit will hear oral argument in United States v. Davis, the case I blogged about here and here on whether the Fourth Amendment protects cell-site records. The en banc briefs are here, and an exhibit from the trial showing some of the cell-site records is here. The Eleventh Circuit doesn’t post oral argument audio, so we’ll likely be stuck relying on press accounts to find out what happened.

Whichever way the Eleventh Circuit rules, Supreme Court review is a possibility. It seems likely that Fourth Amendment protection for cell-site data will be the next big Fourth-Amendment-and-technology case at the Supreme Court, following the GPS case in 2012 and the searching-cellphones-on-arrest case in 2014. But when?

Let’s recall the lower court cases so far. The Fifth Circuit has held that there is no Fourth Amendment protection for historical cell-site records, and the Florida Supreme Court has held that the Forth Amendment protects cell-site records at least in real time. The Fourth Circuit held argument in mid-December on a historical cell site case, and in Davis we’ll get a ruling from the en banc Eleventh Circuit on the same issue. There may be some other cases working their way up to state Supreme Courts or even a federal circuit that I don’t know about. (The Third Circuit offered some dicta on the issue in 2010 without reaching a decision, but that doesn’t count.)

In light of these cases, decided and pending, there’s likely to be a colorable case for Supreme Court review no matter how the Fourth and Eleventh Circuits rule. Supreme Court review focuses heavily on “splits,” that is, clear and outcome-determinative disagreement among federal circuits and state supreme courts about how the law applies. If the Fourth and Eleventh Circuits hold that the Fourth Amendment applies, it creates a plausible split with the Fifth. If they hold that the Fourth Amendment applies, they create a plausible split with the Florida Supreme Court — especially pressing in the case of the Eleventh Circuit, as it would be within the same jurisdiction.

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