When Cops Track Your Cell Calls and Location On Public Roads: No Expectation of Privacy
FlaglerLive | September 8, 2011
In a case more interesting for its look at the state of modern tracking technology and the brave new world we all live in than for its legal ramifications, a Florida appeals court said Wednesday the police didn’t violate a drug dealer’s rights when they used his cell phone either to install a device that recorded and decoded every number dialed and received, or to pinpoint his whereabouts as he drove across the state.
While the legal outcome of the case may catch some people off guard (any idea how close the government can get to your cell phone with GPS?), the legal issue breaks no significant new ground. The question in the case has, according to a Florida ruling, already been answered in a unanimous decision by the U.S. Supreme Court, with a caveat: the Supreme Court did so almost 30 years ago, in 1983, addressing the tracking of beepers, well before the widespread use of cell phones. And while Supreme Court justices were unanimous on the ruling, four justices refused to sign the opinion because they disagreed that the case did not, as the majority claimed, raise constitutional questions.
The Fourth District Court of Appeal said the Supreme Court has already made it clear that police aren’t violating the Fourth Amendment protection against illegal search and seizure when they use high tech equipment to track someone, as long as the person is in a public place. If they were to somehow use technology to track you in your home – that would violate your expectation of privacy. But if you’re just driving on the street, you have no such expectation.
“A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” the U.S. Supreme Court said in U.S. v. Knotts, which the 4th DCA relied on in its ruling Wednesday. “When [the driver of the monitored vehicle] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.”
Therefore likewise, the defendant in the Florida case, Shawn Alvin Tracey, has no constitutional claim that would lead to evidence being excluded in his case. He was convicted of cocaine possession and a number of other crimes. (Tracey was convicted of possessing more than 400 grams of cocaine.)
The court did, however, acknowledge some discomfort with the difference between the constitution allows, and what most people expect is possible.
There are also federal and state statutes in play in the Tracey case, because the police didn’t specify in their warrant request that they planned to track Tracey in real time using his cell phone. They simply asked a judge to let them use a slightly lower-tech technique where they would be able to see who Tracey was calling and who was calling him. But instead, they used technology from the cell towers “communicating” with Tracey’s phone to find him.
But federal law specifically says that when police don’t get a warrant in such cases, or don’t meet the standard for getting it, the evidence can’t be thrown out – the only remedies are for the defendant to sue in civil court, or for law enforcement to pursue a separate criminal case against the agents who tracked the person.
While nothing changes in Tracey’s case, the ruling by the three judge panel is interesting in its description of just what the police can do these days – and its discussion of how much privacy people think they have.
In urban areas with lots of cell towers, phone companies and law enforcement agents can get within about 200 feet of where a phone is just based on which tower it is nearest to – because phones have to constantly signal to the nearest tower so they can be “found” by incoming calls.
But police can get even a narrower idea than that of where a phone is because they can determine which side of a cell tower is receiving a phone’s signal.
But it’s really even closer.
“The individual’s location is, however, most precisely determinable by triangulating (using) the three nearest cellular towers,” the court said. “Alternatively, the phone can be tracked extremely accurately-within as little as 50 feet-via the built-in global positioning system (“GPS”) capabilities of over 90 percent of cell phones currently in use.”
While the constitutional issue has been decided by the U.S. Supreme Court, the 4th DCA acknowledged that most people probably don’t think they can be found so easily, while also noting that we all volunteer to go along with such big brother-type monitoring by the fact that we carry a phone without anyone making us do so.
It’s unlikely cell phone customers are aware that their providers collect and store even “historical” information about where their phone has been, much less have the ability to track in real time where it is.
“Location information can be extraordinarily personal and potentially sensitive, revealing precisely the kind of information that an individual wants and reasonably expects to be private,” the court said.
“Technology evolves faster than the law can keep up, extending the search capabilities of law enforcement and transforming our concept of privacy,” Judge Robert M. Gross wrote for the court. “Cell phones are ubiquitous, and some consumers embrace them as personal tracking devices. While some cell phone users share their location through geographic ‘tagging’ on social networking platforms, others are not comfortable broadcasting their real-time location, and may maintain an expectation of privacy with respect to their location in private areas. However, on search and seizure issues, we are bound to follow United States Supreme Court precedent interpreting the Fourth Amendment…..A person’s location on a public road is not subject to Fourth Amendment protection.”
In 1983, when theSupreme Court ruled on the matter, Justice William Brennan, in his concurrence, wrote that several precedents, including Katz v. United States, 389 U.S. 347 (1967), “made quite clear that the Fourth Amendment protects against governmental invasions of a person’s reasonable “expectation[s] of privacy,” even when those invasions are not accompanied by physical intrusions. Cases such as Silverman v. United States, 365 U.S. 505, 509 -512 (1961), however, hold that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment even if the same information could have been obtained by other means. ” He added: “I am not at all sure that, for purposes of the Fourth Amendment, there is a constitutionally significant difference between planting a beeper in an object in the possession of a criminal suspect and purposefully arranging that he be sold an object that, unknown to him, already has a beeper installed inside it.”
–David Royce, News Service of Florida, and FlaglerLive