Privacy and Tracking Cell Phone Use

Our cell phones have been described as the biographer of our daily lives.  If deconstructed, a cell phone can tell an awful lot about its owner.

Increasingly, cell phone carriers are being subpoenaed in high-conflict, or fault-based divorce cases.  The cell phone records identify the persons with whom an individual communicates throughout the day, and where that communication occurred.

The information contained in cell phones is also important in the law enforcement context.  Formerly reserved for federal agents, local law enforcement is now getting in on this information bonanza thanks to a smorgasboard of services provided by cell phone carriers.

The legal question posed by the practice is whether local police departments must obtain a probable cause-based warrant prior to securing our cell phone information from our carrier.  The answer is unclear.

Recently, SCOTUS decided United States v Jones, requiring a warrant prior to installing a GPS tracking device on a drug suspect's vehicle.  The decision in Jones did not address whether a warrant is needed in the case of obtaining cell phone records; including the geographic information in the now-ubiquitous GPS navigation systems embedded in cell phones.

In addition to geo-tracking data, there is also "cloning": having a cell phone, for example, download [to police] copies of sent and received texts.

This information is deemed so important to law enforcement agencies, some are by-passing the cell phone carriers altogether, purchasing their own cell phone tracking equipment in order to avoid the cost and delay of dealing directly with the various carriers.  In February, police in Grand Rapids, for example, were able to track a cell phone call placed by a stabbing victim who had been secreted away in a basement.

At present, however, there are few guidelines for cell carriers and the disparate local police agencies as to what information can be provided, and what evidentiary standard must be met in such disclosures.

With the SCOTUS decision in Jones less than clear, and with the federal circuit courts of appeal divided on the issue, Congress and the state legislatures are looking at the issue.  Privacy law is going to be a growing branch of our jurisprudence in the next few decades.

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Posted in: cell phone,cloning,criminal law,divorce,GPS,lawyer,privacy law,SCOTUS

Satelite Tracking Devices May Constitute a Fourth Amendment "Search"

At the Law Blogger, we often see the use of GPS tracking devices in the divorce context.  What happens when the police use such devices to gather evidence of crime?  Are your movements constitutionally protected?

Two cases percolating their way to the SCOTUS (a petition for certiorari already filed in one) involve police use of high-technology tracking devices.  The High Court will be asked to decide: a) whether the prolonged monitoring of a suspect via GPS technology is a "search" under the meaning of the Fourth Amendment; and b) whether police entry onto private property to plant the device invalidates such a search.

If the petitions are granted, these questions could be briefed, argued and decided in the 2011 term of the Court; the "day-after-tomorrow" on our common law clock.

Brief legal background:  More than 25-years ago, SCOTUS ruled in U.S. vs Knotts that the police could use an electronic "beeper" to track a suspect's movements to and within a drug lab without triggering the warrant requirement of the Fourth Amendment.  Federal courts throughout the various circuits across the country, and the patchwork of state courts, have developed a wide array of conflicting laws governing the extent and duration such monitoring can take before the surveillance becomes a search requiring a warrant based on probable cause.

Now its time for the SCOTUS to clarify things.

In Pineda-Moreno vs United States, petitioner, an Oregonian, maintained a huge pot farm hidden deep within the forests of Southern Oregon and Northern California.  Using a variety of high-tech GPS devices, some as small as a stick of gum, federal agents were able to build a manufacture/distribution case against Juan Pineda-Moreno.

The federal agents came onto the curtailage (privately-owned surrounding area) of Mr. Pineda-Moreno's manufactured home to place a variety of devices onto his Jeep from June through September back in 2007.  They were even able to replace the batteries on some of the tracking devices.  Juan was oblivious to their efforts.

In his guilty plea (he is currently finishing up a 4-year prison sentence), Pineda-Moreno preserved his right to challenge the fed's "search" of his person; his movements.  The Ninth Circuit Court of Appeals ruled the agents' tracking was not a "search" within the meaning of the Fourth Amendment.

The other case is coming to SCOTUS via a likely government petition for cert in Maynard vs U.S. where the D.C. Circuit has ruled far differently than the Ninth Circuit on a variety of related issues.

SCOTUS has long held that police may closely scrutinize a vehicle; particularly a moving vehicle.  What this technology, and now, these cases, focus the Court on is whether extensive tracking transforms our vehicles from objects of public viewing (without any reasonable expectation of privacy) into purveyors of private information which can only be tapped via a probable cause warrant.

Stay tuned as SCOTUS catches up to, and rules on, the latest law enforcement surveillance techniques.

Sidebar Note to all you certified marijuana users out there, palliative or recreational; federal charges are a real risk, with harsher sentencing consequences.

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Posted in: attorney,Fourth Amendment,GPS,medical marijuana,SCOTUS,search and seizure,surveillance