U.S. Supreme Court to Rule on Use of Cell Phone Location Data in Criminal Cases

The Fourth Amendment prohibits police from conducting warrantless searches and seizures. Over the past century or so, courts have found that police may conduct a search or seize property without a warrant under certain circumstances, provided that they have probable cause to believe that they will find evidence directly related to criminal activity. Technological advances have also required ongoing challenges to the Fourth Amendment’s warrant requirement. The use of digital tracking evidence has recently posed many challenges for defendants, prosecutors, and courts. The U.S. Supreme Court heard oral arguments in late 2017 in a case challenging the use of cell phone location data by police without a warrant. The court is likely to issue a decision in Carpenter v. United States in the summer of 2018, which may affect Texas criminal cases moving forward.

An individual must have a “reasonable expectation of privacy” for the Fourth Amendment’s warrant requirement to apply. See Katz v. United States, 389 U.S. 347 (1967). When an individual voluntarily discloses information to a third party, courts have generally held that they no longer have a reasonable expectation of privacy in that information. This is known as the “third-party doctrine.” For example, the Supreme Court held that the warrantless use of a pen register to record the phone numbers dialed from a telephone was not a “search” under the Fourth Amendment, since the telephone company would receive and keep records of those numbers. Smith v. Maryland, 442 U.S. 735 (1979).

The Carpenter case questions whether certain uses of telecommunications technology involve a genuinely voluntary disclosure. In Smith, the court treated dialing a telephone number as the voluntary disclosure of information. Almost any sort of electronic communication, however, requires “disclosing” information to the telecommunications provider. This raises questions about how voluntary such a disclosure could be. The only alternative would be to limit all communications to in-person conversation, which is not exactly practical in the 21st century.

The defendants in Carpenter were charged with violations of the Hobbs Act based on location information obtained by police from cell phone service providers. Cell phone networks transmit and receive signals using cell towers. Cell phones maintain regular contact with the closest tower in order to ensure consistent service. The service providers keep records showing which towers “pinged” a cell phone at specific times. These records, while not showing an individual’s specific location, can show that their cell phone was within a specific area at a specific time. The defendants challenged the admissibility of this evidence, citing a Supreme Court case ruling that the warrantless use of a GPS tracking device on a suspect’s car violated their Fourth Amendment rights. United States v. Jones, 565 U.S. 400 (2012).

The Sixth Circuit rejected the plaintiffs’ Jones argument. It held that, while Jones involved “secretly attach[ing] a GPS device to the underside of [the defendant’s] vehicle,” this case involved “business records obtained from a third party” much like in Smith. United States v. Carpenter, 819 F.3d 880, 889 (6th Cir. 2016). The court also noted that, while GPS location data can be “accurate within about 50 feet,” cell tower location data can be “as much as 12,500 times less accurate.” Id. It affirmed the lower court’s judgment.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown, a criminal defense attorney in West Texas, has defended people against charges in state and federal courts since 1992. Contact us today at (432) 687-5157 or online to schedule a confidential consultation with an experienced and skilled criminal justice advocate.

More Blog Posts:

Appellate Court Rules on Question of Whether the Fourth Amendment Protects IP Addresses from Surveillance, Texas Criminal Lawyer Blog, November 2, 2017

Court Allows Search Warrant for Entire Email Account Under Stored Communications Act, Texas Criminal Lawyer Blog, June 8, 2017

Texas Law Requiring Warrant for Law Enforcement to Access Email May Have Federal Counterpart, Texas Criminal Lawyer Blog, May 25, 2017

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