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

Police Cannot Search a Smartphone Left Unattended Without a Passcode

A person does not lose their expectation of privacy in their smartphone that is left unattended and without an access passcode

State v. Peoples, 2016 BL 296299, Ariz., No. CR-15-0301-PR, 9/12/16.

The Arizona Supreme Court found that a person’s expectation of privacy does not disappear when a smartphone is left unattended without a passcode. The court upheld a broad expectation of privacy in a personal smartphones because of the amount of personal information found on a phone. This line of reasoning follows the U.S. Supreme Court’s rationale in Riley v. California, which placed the requirement on police to obtain a warrant before searching a person’s smartphone. In their decision, the Arizona Supreme Court said, “Cell phones are intrinsically private, and the failure to password protect access to them is not an invitation for others to snoop.”

http://www.bloomberglaw.com/public/document/State_v_Peoples_No_CR150301PR_2016_BL_296299_Ariz_Sept_12_2016_Co.

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

StingRay Evidence Collected Without a Warrant Violates Fourth Amendment

Evidence gathered by a cell-site simulator that allows police to identify the location of cell phones is suppressed because it violates the Fourth Amendment's prohibition of unreasonable searches

United States v. Lambis, 2016 BL 222804, S.D.N.Y., No. 15cr734, 7/12/16.

  

   A federal district court suppressed evidence gathered after police used a cell-site simulator, sometimes referred to as “StingRay.” The device creates a simulated cell signal that connects with nearby cell phones, much like a cell tower. Through the device, law enforcement can collect the name and numbers of cell phones connected to the device as well as know what text messages or incoming and outgoing calls are being made. In this case, however, the StingRay was used to track the exact location of a cell phone of someone during an investigation. By calculating the strength of the single, DEA agents were able to find the location of the cell phone and its owner.
 

   In making this ruling, the court held that the use of the StingRay equipment used to find the defendant in his apartment was an unreasonable search because the cell phone location would not have been available otherwise. The court compared this case to the thermal-imaging device used in Kylio v. United States, where the Supreme Court found the equipment violated the Fourth Amendment. There, “the Court reasoned that distinguishing between ‘off-the-wall' observations and ‘through-the-wall surveillance' would ‘leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home.” Like the thermal-imaging device, the StingRay is not in use by the general public, leading the court to rule that “[a]bsent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Lambis_No_15cr734_2016_BL_222804_SDNY_July_12_201?1469216106