Cellular Location Tracing and the 4th Amendment – Staff Editor Submission

The CLR opened up the floor to our Staff Editors for insightful and engaging submissions for the blog.  Several editors stepped up to the task and we greatly appreciate their hard work and submissions.  Stay tuned for more great blog submissions!

The first of what trust will be a very compelling series of submissions, was written by Michael LaGarde.  Below is a discussion of the recent case decided in Florida that discusses the 4th Amendment implications of obtaining individual’s locations using cellular phone tracing:

Tracey v. State  — 69 So.3d 992 (2011).

Based on a tip, law enforcement requested to trace incoming and outgoing calls for a cell phone belonging to Shawn Tracey, which he had registered under a false name. The court went beyond the request and also allowed tracking of the phone’s Cell Site Location Information. Tracey was later convicted of possession of more than 400 grams of cocaine as well as other charges. Tracey appealed, claiming the trial court erred in denying his motion to suppress evidence derived from real-time or prospective CSLI under the Fourth Amendment. On appeal, the court upheld his conviction finding there was no Fourth Amendment violation. The Supreme Court of Florida granted review on January 28, 2013 and the decision is forthcoming.

Issue: Does the use of real time CSLI constitute a search under the Fourth Amendment?

A) Is there an expectation of privacy on public roads where Tracey was tracked?

The Supreme Court has held that there is no Fourth Amendment violation in such circumstances because the electronic tracking has “revealed no information that could not have been obtained through visual surveillance” United States v. Karo, 468 U.S. 705, 707(1984) (explaining United States v. Knotts, 460 U.S. 276 (1983)).

Since the appellate court’s decision, the Supreme Court has called into question the exact scope of the ruling in Knotts. In United States v. Jones, U.S., 132 S.Ct. 945 (2012) the Supreme Court found that installing a GPS device on a car constituted a search under the Fourth Amendment. While the majority relied on an analysis of the physical trespass in installing the GPS, two concurring opinions went further in analyzing reasonable expectation of privacy in the context of modern electronic surveillance. Here, Tracey argues that the concurring opinions joined by five justices support the proposition that the appellate court applied too restrictive an interpretation of the Fourth Amendment. The Government argues that the surveillance in Jones is distinguishable because law enforcement physically installed a GPS device for weeks, whereas no such physical intrusions occurred in Tracy’s case.

B) Is there a legitimate expectation of privacy for CSLI?

Tracey’s argument relies on the Fourth Amendment’s requirement to show probable cause to use other forms of electronic tracking. Most individuals take their cell phones with them everywhere, meaning CSLI can reveal sensitive information such as mental health treatment, sexual encounters, religious observance, political activity and more. Could the mere use of cell phones oblige individuals to give up their expectation of privacy to all of this sensitive information?

The Government’s argument points out that there is no legitimate expectation of privacy when someone speaks or shares with a third party over the phone. Is the fact that the cellular providers already track the call information to be used in billing enough to eliminate the expectation of privacy? Perhaps the Court should find the opposite, basing its decision on the government’s position that Tracey was not tracked, but was triangulated using the standard cell tower technology essential to the operation of cellular phones – something that inherently carries no expectation of privacy.

Likely Outcome and Further Questions:

As suggested by five U.S. Supreme Court justices, the sheer volume of private information available to law enforcement through CSLI seems to merit strict restraints as well as a reassessment of Four Amendment precedent. While it is possible the case will be decided on narrower grounds due to procedural or statutory considerations, the Supreme Court of Florida is unlikely to actually uphold the use of CSLI in this case.

Important questions that may or may not be addressed by the impending decision in this case include:

  • Is there a legally significant distinction between prospective CSLI (specifically real-time) and historical CSLI for Fourth Amendment purposes?
  • Does providing a false identity when purchasing a phone really imply no legal expectation of privacy?
  • Does the Knotts precedent regarding the Fourth Amendment on public roads still apply where there has been no trespass AND no significant accumulation of information?
    • E.g., where CSLI is used to track a suspect in a car over a short period of time?