The Constitutionality Of Law Enforcement’s Use Of Cell Phone Data To Track Suspects

Kristen Larson and Regina Keenan

In Tracey v. State (SC11-2254), the Florida Supreme Court held that a trial court erred in admitting evidence obtained from real time cell site location tracking which was not authorized by a court order, and regardless of any federal or state statutory provisions, is “within the purview of the Fourth Amendment [of the United States Constitution] for which probable cause was required.” This quashed the opinion by the Fourth District Court of Appeal (DCA) in Tracey v. State, 69 So.3d 992 (Fla. 4th DCA 2011).
In 2007, a confidential informant told law enforcement personnel that Tracey was selling cocaine. Based solely on this testimony, they obtained a court order allowing them to record the phone numbers of incoming and outgoing phone calls on Tracey’s phone. Although the court order did not include real time cell site location information, the cell phone service provider included it with the other information. Law enforcement then used this information to track Tracey’s location, ultimately pulling him over after he picked up a drug shipment. Tracey was subsequently convicted of possession of over 400 grams of cocaine in addition to three lesser offenses related to his arrest.
The Fourth DCA upheld this evidence, stating that although the officers did not have the probable cause required to obtain a court order for the monitoring of the cell site location data, the arrest took place on a public road where it “could have been observed by the naked eye,” and therefore did not violate the Fourth Amendment.
TheSupreme Court disagreed, stating that with few exceptions, searches outside the judicial process are per se unreasonable under the Fourth Amendment. Fourth Amendment protections have become more important because advanced technology allows the government to locate persons of interest easily and at low cost. Because there is no United States Supreme Court case on this point, the Court examined whether there was a constitutionally protected, justified, reasonable, or legitimate expectation of privacy.
The Court noted that Justice Sotomayor, in United States v. Jones, 565 U.S. 945, 946 (2012) (Sotomayor, J., concurring), stated that location tracking, even for a short period of time, can reveal substantial amounts of information (e.g. political, professional, religious, and sexual associations) that may alter the citizen and government relationship in a way that is unfavorable to a democratic society (i.e. knowing that the government might be watching may chill associational and expressive freedoms). Jones also backtracks from the notion that simply sharing information with a third party is automatically a per se waiver of an individual’s Fourth Amendment rights. Here, Justice Canady and Justice Polson dissent with the Court’s conclusion that third-party disclosure is not applicable.
The Court then examined whether this meets the two-prong test in Katz v. United States, 389 U.S. 347 (1967) (that it is an objectively reasonable right to privacy if the individual manifested a subjective expectation of privacy and if society is willing to recognize that expectation as reasonable). The Court agreed that simply transmitting cell phone information – even if on a public road – is subject to an objectively reasonable expectation of privacy. The Court noted that a high risk of an inadvertent violation of the Fourth Amendment should not be placed on society, especially when a probable cause warrant is justified.
The Fourth Amendment protects people, not places, and the Court found that cell phones are personal “effects,”with a reasonable expectation of privacy due to their constant status as a virtual extension of the user. This view is supported by Riley v. California, 134 S.Ct. 2473, 2484 (2014), which states “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of the human anatomy.”
The Court did note that it was not reaching the issue of “exigent circumstances” or other bases for exception to the warrant requirements of the Fourth Amendment. Since the law enforcement personnel did not have probable cause and a probable cause warrant, they were not authorized to use the real time cell site location tracking and the evidence obtained from it is “subject to suppression.” Therefore, Tracey’s motion to suppress should have been granted.