Originally published June 20 2014
Police need a warrant to track cell phones, federal judge rules
by J. D. Heyes
(NaturalNews) A federal appeals court has ruled that police need to obtain a search warrant in order to track the cellular telephones of criminal suspects, a ruling that could help finally resolve a key privacy issue in the technological age that has split courts and judges around the country.
A three-judge panel of the 11th Circuit Court of Appeals in Atlanta held that the government violated the Fourth Amendment privacy rights of Quartavius Davis, who had been convicted of robbing seven stores in 2010, including a Little Caeser's pizza house, a Walgreens drugstore and a jewelry shop. He had been sentenced to roughly 162 years in prison.
During his initial trial prosecutors introduced evidence that included cellphone records placing Davis and his cohorts near the scene of each of the robberies. The evidence included cell phone tower records to which the group's phones were connected when they placed and received calls, court documents said, according to a report in The Wall Street Journal.
The paper continued:
To obtain a court order for the records, prosecutors needed to show only that the records were relevant and material to an ongoing investigation. But after [the recent] ruling, prosecutors in the 11th Circuit, which encompasses Alabama, Florida and Georgia, will have to meet a higher standard: probable cause, or a reasonable belief that a person committed a crime.
'Fourth Amendment violation'
"Cell site location information is within the subscriber's reasonable expectation of privacy," wrote Judge David B. Sentelle for a unanimous panel. "The obtaining of that data without a warrant is a Fourth Amendment violation."
Even though the court held that Davis' rights were violated, his convictions will nonetheless stand, as well as most of his punishment, despite claims by sentencing overhaul advocates that his sentence was overly harsh. The 11th Circuit said police had been acting in good faith when they sought a court order instead of a warrant because they were, in fact, following a federal law.
The paper said that Davis' legal team is looking at its options, according to Jacqueline Shapiro, one of his lawyers. The legal team could ask the 11th Circuit to rehear the case or the team could petition the U.S. Supreme Court to review it.
Meanwhile Peter Carr, a spokesman for the Justice Department, told the WSJ, "We are reviewing the decision and considering our options."
A pair of federal appeals courts, the Fifth Circuit based in New Orleans and the Sixth Circuit based in Cincinnati, have both ruled that police are able to obtain cellphone location data without first getting a warrant. Meanwhile, the Third Circuit, based in Philadelphia, has held that federal magistrate judges have the discretion to decide whether a warrant is required to obtain location data.
"This is the first time a court has addressed this issue after a criminal conviction based on a full set of facts," Nathan Freed Wessler, a lawyer with the American Civil Liberties Union, which filed a brief in the case in support of a warrant requirement, told the WSJ.
'Cellphones present unique privacy situations'
In a statement, Wessler further noted:
This opinion puts police on notice that when they want to enlist people's cell phones as tracking devices, they must get a warrant from a judge based on probable cause. The court soundly repudiates the government's argument that by merely using a cell phone, people somehow surrender their privacy rights.
So far the Supreme Court has not ruled on the issue. In 2012, the justices ruled that attaching a Global Positioning System (GPS) tracker to the vehicle of a suspect was a violation of the Fourth Amendment's protection against unreasonable searches, but the court stopped short of ruling that a warrant was required.
The high court is currently considering whether cops must obtain a warrant to search the contents of a suspect's cellphone. They are expected to rule in June.
In the recent cellphone case, Sentelle said that unique privacy considerations come with cellphones.
"One's cellphone, unlike an automobile, can accompany its owner anywhere," he wrote. "Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one."
Sources for this article include:
http://online.wsj.com
http://jurist.org
www.aclu.org
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