In United States v. Gilliam, 15-387, the Second Circuit (Newman, Winter, Cabranes) held that, under the exigent circumstances present in that case, law enforcement could use cell phone GPS data to locate a suspect without obtaining a warrant consistent with both the Stored Communications Act and the Fourth Amendment. This appeal presents one of many unanswered questions arising out of cellphone technology. While cellphones are far from new, there are still some questions about how cellphone data can be used in investigations and at trial.
The appeal arose out of the defendant Jabar Gilliam’s conviction for sex trafficking of a 16-year-old minor known as Jasmin. Law enforcement became involved when Gilliam took Jasmin from Maryland to New York to work as a prostitute for him there, and Jasmin’s foster mother reported her missing. Maryland State Police Corporal Chris Heid requested that Sprint provide the GPS location information for Gilliam’s cell phone, without a warrant, based on an exigent situation involving immediate death or serious bodily injury. Sprint provided the information, which allowed NYPD officers to locate Gilliam in the Bronx and arrest him. He was later convicted after trial of sex trafficking of a minor by force, fraud or coercion and of transporting a minor in interstate commerce for purposes of prostitution, and sentenced to 240 months’ imprisonment.
The Court, in an opinion by Judge Newman, first dealt with the Stored Communications Act, which allows communications providers to turn certain data over to law enforcement under exigent circumstances. The Court held that GPS location information is the sort of information covered by the Stored Communications Act’s reference to “a record or other information pertaining to a subscriber . . . (not including the contents of communications . . .).” 18 U.S.C. § 2702(c)(4). GPS location information falls within the statutory phrase “other information"; the Court noted that Congress intended the phrase to cover “information about the customer’s use of the service.”
The Court then held that, under the facts of this case, the disclosure without a warrant met both the Stored Communications Act’s requirement that the provider believe there to be “an emergency involving danger of . . . serious physical injury to any person” and the Fourth Amendment category of “exigent circumstances” where a warrant is not required. In support, the Court noted that at the time he made the request to Sprint, Corporal Heid had heard from (1) Jasmin’s foster mother, who mentioned a “boyfriend” known as Jabar, (2) Jasmin’s social worker, who was concerned that Jasmin was being forced into prostitution by Gilliam, and (3) Jasmin’s biological mother, who shared the same concerns, and reported that Gilliam had told her that he was planning to take Jasmin to New York. The risk of sexual exploitation of a minor involves a serious risk of serious bodily injury to the minor at the hands of the pimp or his customers, or through the risk of sexually-transmitted disease.
Though Gilliam argued that a delay to obtain a warrant would not have added to the risk of harm, the Court held that Corporal Heid “acted reasonably” on “credible information.” It noted that Gilliam’s argument “calls to mind the plight of social workers who have to decide whether to face a lawsuit for quickly removing a child from the home of an abusive parent or for failing to act in time to prevent the child’s injury.” Finally, the Court held that Corporal Heid’s affirmation gave Sprint a good faith basis to believe that the disclosure of GPS information was necessary to protect a missing child.
Although there has been much talk of amending the Stored Communications Act’s provisions relating to the search and seizure of email communications, this case seems to involve a relatively straightforward application of the statute’s warrant exception for subscriber information. One might imagine ways in which this exception could be exploited in non-emergent situations, but it is difficult to question the use of it here, in order to avoid the exploitation of a minor in prostitution.