Individuals Do Not Have Expectation of Privacy in Historical Cellphone Location

Under the third-party doctrine, a person’s historical cell phone location is admissible in court because there is no reasonable expectation of privacy in that information

State v. Jenkins, 2016 BL 294061, Neb., No. S-14-1087, 9/9/16.

The Nebraska Supreme Court ruled that law enforcement did not violate the federal or state constitution by using the historical cell location of a woman who was arrested and later convicted. They argued, using the third party doctrine, that the woman did not have a reasonable expectation of privacy in her location because she freely conveyed that information to her phone company. The police used her location from her cell records to tie her to a double-murder crime scene.

The supreme court, following, Smith v. Maryland, found that when a customer uses their phone, they assume the risk that the company will reveal certain information under the third-party doctrine. The court stated, “Each time she sent or received a call or text message, her cellular service provider generated a record which included the date and time of the communication and the sector and cell tower sites used to route the communication.” The court found that the information became a business record, saying, “This historical CSLI was recorded and kept by the cellular service provider in the ordinary course of business.”

The court rejected the defendant’s argument that the cell phone location data should be treated like a regular GPS tracking device for purposes of the Fourth Amendment because the case did not involve “tracking” and was not conducted by the government. “The fact that the business records in Smith showed exactly where the caller was (in his home) at the time the calls were placed did not preclude the Court from applying the third-party doctrine and concluding he had no reasonable expectation of privacy in the telephone records.”

https://www.bloomberglaw.com/public/desktop/document/State_v_Jenkins_294_Neb_684_2016_Court_Opinion?1475083414

GPS Tracking on Cell Phone OK if for Exigent Circumstances

Without answering issues regarding the expectation of privacy in a suspect’s GPS coordinates through their cell phone, a court ruled that exigent circumstances warranted tracking of a cell phone

United States v. Caraballo, 2016 BL 247520, 2d Cir., No. 14-4203-cr (Con), 8/1/16.

   The Second Circuit punted on the privacy issue of whether a Fourth Amendment search is conducted when a state actor uses the GPS coordinates of a suspect’s cellphone during an investigation. Rather, it relied on exigent circumstances in the case to justify the search. While the circuit court affirmed the lower court’s holding, finding that there were exigent circumstances for the search, it did not, however, make a ruling on the trial court’s determination that the use of GPS coordinates violates an expectation of privacy. The Sixth Circuit is the only jurisdiction so far to address whether the use of GPS coordinates from a cell phone violate an expectation of privacy, holding that individuals have “no reasonable expectation of privacy in the real-time GPS location of their cell phones.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Caraballo_No_123839cr_L_2016_BL_247520_2d_Cir_Aug?1470857495

GPS Tracker Okay Even if Outside Warrant’s Geographic Limits

Information from a GPS tracker attached outside the geographic limits set by a warrant is admissible evidence

United States v. Faulkner, 2016 BL 204488, 8th Cir., No. 15-2286, 6/27/16.

   The Eight Circuit affirmed a lower court’s ruling to not suppress information gathered from a GPS tracking device used in an investigation. The GPS was used after the police obtained a warrant, but was applied outside the geographical limits set by the magistrate. It did, however, meet the other specifications of the warrant.

   The defendant argued that under Jones v. United States, a GPS tracking device that is used outside the geographic range of the warrant makes any gathered evidence inadmissible. The circuit court, in response, interpreted the Supreme Court’s decision as only the incorporation of GPS tracking devices into the Fourth Amendment’s limits on searches, not necessarily setting the parameters of warrants for such devices. The court went further, saying “[T]he technical deficiency that the warrant specified a certain county for placement of the GPS device when it was actually placed in a neighboring county….is not a Fourth Amendment violation under these circumstances.” Moreover, the court found that Jones and “its application is of limited value for [the defendant].”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Faulkner_No_152252_2016_BL_204488_8th_Cir_June_27?1467834940

GPS Tracking Data Not Prohibited by Exclusionary Rule Because of Officer’s Good Faith

Evidence gathered from a GPS tracker device is admissible because it was collected before United States v. Jones, which required police to obtain a warrant for GPS tracking

United States v. Mitchell, 2016 BL 210529, 10th Cir., No. 15-3006, 6/30/16.

   The Tenth Circuit found that GPS evidence collected before the United States v. Jones decision was admissible in court. The ruling follows similar decisions from other jurisdictions, including the Fifth, Seventh, Eight, and Ninth Circuits. Only the D.C. Circuit has taken the opposite view.

   Before Jones, police did not need a warrant to collect information from a GPS tracker attached to a suspect’s car. Moreover, there was existing case law allowing the use of similar electronic tracking devices, such as electronic radio transmitters that attach to vehicles. The court recognizing the legality of the search before the Supreme Court decision stated, “[W]e think a reasonable officer could be forgiven for thinking, prior to Jones, that existing appellate precedent authorized him to install and monitor a GPS device on a private vehicle without a warrant.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Mitchell_No_153006_2020_BL_210529_10th_Cir_June_3?1467818975