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Kentucky Supreme Court Announces Obtaining Real-Time CSLI Data Constitutes a Search Under Fourth Amendment, Addressing Legal Question U.S. Supreme Court Explicitly Left Open in Carpenter

by Anthony W. Accurso

In a case of first impression, the Supreme Court of Kentucky upheld a suppression order, holding that individuals have a reasonable expectation of privacy in their real-time cell-site location information (“CSLI”) and that searches thereof are subject to the Fourth Amendment.

Late one evening, Dovontia Reed called his acquaintance, Kirby Caldwell, asking to meet him at a gas station in Versailles. Caldwell alleged that once he arrived, Reed threatened him at gunpoint, demanding his cash.

After Reed left, Caldwell notified police of the incident and described Reed’s vehicle to the responding officer. The officer then obtained the vehicle’s plate number from the gas station’s security footage. Caldwell also provided the phone number Reed used to call him earlier that night. The officer contacted dispatch and requested they contact Reed’s cell-service carrier to obtain Reed’s real time CSLI.

The cell-service carrier to tracked Reed’s movements for approximately 90 minutes and relayed the information to police. When it appeared that Reed was returning to Versailles, an officer intercepted Reed’s vehicle and arrested him.

Reed was charged with one count of first-degree robbery, and based on information obtained during his arrest, the Commonwealth also charged him with possession of a handgun by a convicted felon and receiving stolen property.

During pretrial, he sought to suppress the CSLI and all evidence obtained as a result of the CSLI search on the ground that the officer was required to get a warrant to obtain his location data from the cell-service carrier yet failed to do so. The trial court denied his motion, finding no search had occurred, so he entered a conditional guilty plea, reserving the right to appeal this issue, which he did.

The Court of Appeals reversed, ruling that obtaining CSLI constitutes a search for Fourth Amendment purposes. The Commonwealth moved for discretionary review, which the Kentucky Supreme Court granted.

The Court began its analysis by noting the state Constitution is materially similar to the U.S. Constitution, so the Kentucky Supreme Court follows the U.S. Supreme Court’s “interpretation and application of the Fourth Amendment for guidance in construing Section 10” of the state Constitution. Youman v. Commonwealth, 224 S.W.860 (Ky. 1920). It then stated the familiar principle that “[t]o run afoul of the Fourth Amendment, an action by police must be warrantless, must constitute a search, and no established exception to the warrant requirement must be applicable.” See Coolidge v. New Hampshire, 403 U.S. 443 (1971); Cook v. Commonwealth, 826 S.W.2d 329 (Ky. 1992).

Since the police action at issue in this case was warrantless, and the “Commonwealth failed to raise any argument that an established exception … existed,” the Court’s analysis hinged on whether obtaining Reed’s real-time CSLI constituted a search under the Fourth Amendment.

The Court observed that it has adopted the following two-prong approach, based upon Justice Harlan’s concurrence in Katz v. United States, 389 U.S. 347 (1967), of determining whether a police action is a Fourth Amendment search: (1) whether “the individual manifests a subjective expectation of privacy in the object of the challenged search” and (2) whether “society is willing to recognize that subjective expectation as reasonable.” LaFollette v. Commonwealth, 915 S.W.2d 747 (1996). If both prongs are satisfied, a warrantless search of the challenged object is unconstitutional under the Fourth Amendment, the Court stated. LaFollette.

The Court then discussed Carpenter v. United States, 138 S. Ct. 2206 (2018), in which the U.S. Supreme Court held that a person has a subjective expectation of privacy in his cell phone’s historical CSLI and that society is prepared to recognize such expectation as reasonable because the Supreme Court is unwilling to leave people’s privacy rights under the Fourth Amendment “at the mercy of advancing technology.” However, the Carpenter Court limited its holding to historical CSLI, explicitly declining to address the issue of real-time CSLI – which is the narrow legal issue in this case.

Turning to the present case, the Court stated that it must answer the question left open in Carpenter, i.e., whether individuals have a reasonable expectation of privacy in their real-time CSLI for purposes of the Fourth Amendment.

The Court noted that in obtaining a person’s cell phone real-time CSLI, “police commandeer the cell phone and its transmission for the purpose of locating that individual.” It proclaimed: “Such an appropriation of an individual’s cell phone is precisely the sort of invasion that we find the average citizen unwilling to accept.” The Court reasoned that accessing real-time CSLI is “deeply invasive and certainly implicates the same or greater privacy interests as acquisition of an individual’s historical CSLI,” which was at issue in Carpenter.

The Court also approvingly quoted Justice Alito in United States v. Jones, 565 U.S. 400 (2012), where he warned about the potential dangers of location tracking systems and software in vehicles and cell phones and instructed that, in the absence of statutory law, it is up to the courts to limit such technologies to “a degree of intrusion” anticipated by a reasonable person. Thus, the Court held that “individuals have an objectively reasonable expectation that their cell phones will not be used as real-time tracking devices through the direct and active interference of law enforcement” and that a search of a cell phone’s contents is subject to the protection of the Fourth Amendment.

Applying its newly announced rule to the present case, the Court concluded that the police subjected Reed to a warrantless search by obtaining his real-time CSLI, and no recognized exception to the warrant requirement applies. Consequently, the Court ruled that Reed’s real-time CSLI was unlawfully obtained and thus must be excluded from evidence.

Accordingly, the Court affirmed the decision of the Court of Appeals and remanded the case to the trial court. See: Commonwealth v. Reed, 647 S.W.3d 237 (Ky. 2022). 

Editor’s note: Anyone interested in CSLI and the Fourth Amendment should read the Court’s full opinion because it primarily discusses U.S. Supreme Court case law on the issue.

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