Just Wait Five Minutes

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The ongoing debate between privacy and cell tower data has been a heated one. However, the North Carolina Court of Appeals ruled on September 15, explaining that historical data involves anything not collected in real time. This means that cell tower data collected five minutes ago is historical.

In the case where this decision came about, Paul Perry appealed the judgement after a North Carolina jury convicted him of multiple drug trafficking charges. The State’s evidence showed that on December 10, 2012, Raleigh Police Department detective M.K. Mitchell arrested Kenneth Holderfield for possession of marijuana. Holderfield provided the detective with the cellphone number of his drug supplier. According to the court document, the following day Detective Mitchell submitted a sworn application for to access records associated with the telephone number provided by Holderfield. This application requested account and billing information, along with the complete call detail records.

Superior Court Judge Lucy N. Inman signed the order, and the detective submitted it to AT&T. The wireless carrier provided the location records of the cell towers accessed whenever a call was made to or from the drug dealer’s phone. Detective Mitchell testified that there was an approximately five- to seven-minute delay between the time the phone pinged a cell phone tower and the time AT&T received and calculated the location and sent the latitude and longitude coordinates to him (STATE V. PERRY, The Opinion of the Court).

Very long story short, these locations led to an arrest. The defendant originally requested the search of the telephone records be suppressed. “He argued law enforcement’s receipt of the records of the coordinates of the towers his cell phone had ‘pinged’ constituted an unreasonable search without a warrant,” the Opinion of the Court explained. However, the motion was denied. The defendant asserts the AT&T records obtained via his cell phone constituted “real-time” information, and argues a search warrant supported by probable cause was required.

The North Carolina Court of Appeals disagreed. They concluded that the information was historical because it showed where the phone was previously rather than where it was in real time. “After careful review of the record and trial transcripts, we conclude the cell tower site location information acquired and stored by AT&T and provided to the officers were historical records,” the Opinion of the Court explained.

This gives law enforcement entities the right to seek “historical” records even from the future. Once a request is made and the third party has to obtain it, it’s technically “historical” because of the time it takes to get to law enforcement officials.

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