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When Cops Track Your Cell Calls and Location On Public Roads: No Expectation of Privacy

| September 8, 2011

That police state glance.

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

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15 Responses for “When Cops Track Your Cell Calls and Location On Public Roads: No Expectation of Privacy”

  1. rdh says:

    That’s OK as long as it is in the line of duty and not their personal venue..

  2. sam says:

    I take my right to privacy very serious. After reading this I will now dispose of my cell phone and contract. I will only communicate thru pigeons. Excuse me, I have to go purchase some bird seed !


    I hope we don’t become a police state that allows the government to record us continuously while we are outside of the confines of our house. Big Brother is watching you.

  4. The Geode says:

    Too late. As paranoid citizens signed away their rights via “Patriot Act” hoping it would be used on those they were prejudiced against, little did they know that the law was designed to be used against THEM! Everybody claims to “have nothing to hide” until the cops come knocking on their door.

  5. Liana G says:

    @ The Geode

    Spot on! I do have plenty to hide! I value my privacy very much. This form of big government and its method of job creation is very unsettling. Ron Paul 2012!
    Interesting photo choice, and perhaps the reason white males are targeted by black police officers.

    • FlaglerLive says:

      Liana, the picture is a scene from “Enemy of the State,” the 1998 movie with Will Smith and Gene Hackman in which Smith plays a guy chased by the NSA because he has video of an assassination of a congressman opposed to the expansion of state surveillance powers.

  6. Liana G says:

    Thanks! Sorry I’m not much of a movie/tv person.

  7. Lin says:

    Why would anyone be worried about being tracked if they doing nothing wrong?
    Why would cops track them if they have done nothing wrong?

  8. The Geode says:

    @ Liana – I can’t believe you actually think that “Black officers target White males”. Trust me, it’s QUITE the opposite. @Lin – Why would anyone be worried about being tracked if they doing nothing wrong?
    Why would cops track them if they have done nothing wrong? Answer: Because they can!

  9. Liana G says:

    @ The Geode – they don’t? Profiling from both sides has turned out to be good for business even if it was not the initial intention. Won’t you agree that the middle class white male is in a better position to pay his traffic tickets and is more likely to speed?

  10. The Geode says:

    WHAT! Now you’re implying that Blacks can’t pay tickets? How does the cop know the “job status” of a person he pulls? How does he know when to allow a poor Black male to pass only to wait for an “middle class” White male? Obviously you’re a “White woman” or else you’d Know better. I happen to be a BLACK male and I KNOW when I have been “profiled”. …and I HAVE. I have a job AND I can pay any ticket or fine they write. (providing I am wrong) Presumptions like that keep racism alive and kicking. I can care less because very few racist can do me harm. I have found out the hard way that that the police DON’T profile for business they profile because of assumptions. They don’t know the person’s “job status” but they sure as heck KNOW THEIR COLOR! Besides, there are a very few “middle class” anybody here. …Everybody is just as poor as I am. …even though I am Black.

  11. Liana G says:

    @ The Geode


    I never implied that blacks/all blacks can’t pay tickets, but that poor folks are unable to for obvious economics reasons, and seriously, how fast do you think their old clunker will go? I must say that I don’t usually see old clunkers being pulled over. The humane side of our police officers?

    The cop knows the “job status” of a person he pulls over because the middle class advertise their status by the vehicle they drive.

    If the vehicle screams middle class, according to research driven data, the person behind the wheel is most likely white, which means that he can afford to pay. Unfortunately, when it comes to middle class upward mobility, equal opportunity is a foreign term.

    Well, I am glad that you are aware that profiling is still alive and kicking in this country, but I can assure you that my comments were not based on presumptions but rather on national research (so no it was not based on Flagler either) that has been done on this topic and can be found on the internet should you be interested in finding out. There are also several great books out there on this and other interesting profiling stuff that goes on. A great book to read is ‘What Cops Know’ by Connie Fletcher.

    Actually, from reading your other posts, I profiled you as being an educated middle class Back male (please don’t be offended, this is not meant to be insulting). Yours on me, on the other hand, is way off :)

  12. The Geode says:

    I can show you job-less bums living in Bunnell driving around in a more expensive car than yours and I don’t know what you drive. What screams “I got money” more than some “assumed drug dealer” with spinning rims, custom paint job and a 10,000 stereo system? Again, I stand by my assertion that a cop cannot KNOW how much money a person has OR his job status. He CAN however, assume that a person driving the above mentioned vehicle and BLACK is a “hoodlum” and will pull him over for the express purpose of searching his car. Profiling is NOT for business. Do you actually think that a cop gives a hoot about “business”?
    You DID imply that “middle class males” were in a “better position to pay tickets”. A better position than who? …or what. I would LOVE to see the research that proves that cops would rather stop a “middle class white male” than a “suspicious” Black male. To cops AND to the rest of the Nation (or a large portion) we are BORN suspects and get treated accordingly. Like I said, you have NO idea how it is to deal with discrimination on a daily basis.
    I have very thick skin and I didn’t take anything you said as “offensive”. When you are as out-spoken as I am, you’ll learn to laugh at everything. …if you think this is bad, you should see what I put on facebook.

  13. Liana G says:

    @ The Geode

    Agreed, I did say that middle class white males are in a better position to pay tickets …better than the poor, regardless of color, same way they can afford a lot of other stuff that the poor cannot. And the same can be said for ANY middle class person versus the poor. Because that is what money does, it enables folks to buy wants and needs. The research is out there, unfortunately I do not have the time to go did it up, but books I have plenty of on hand so they are a lot quicker for me to pull. I do believe middle class white males are just as upset to know that they are being profiled for that very reason, which is why the research is out there.

    “I can show you job-less bums living in Bunnell driving around in a more expensive car than yours and I don’t know what you drive. What screams “I got money” more than some “assumed drug dealer” with spinning rims, custom paint job and a 10,000 stereo system?”

    If they can afford that, they have money which makes them middle class or upper.

  14. The Geode says:

    @ Liana – There are “multi-million” dollar athletes whose income is on a level that surpasses yours, mine and ANY other three people you know yet they gravitate to the slums they escaped. Hood-mentality. Just like the athletes mentioned, “hood-mentality” allows fast money to be dis-respected money. THAT is why they “don’t move up in classes”. Do you think a poor person who suddenly obtains money REALLY concern themselves with “class”?
    Your argument is getting boring. You claim to have “research” on profiling while I have first hand knowledge. You are concerned with money and “classes” when everyday we see “nuvo riche” rappers and entertainers SHOW us that money is “class-less”. ….regardless of color.

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