Supreme Court Rejects Cell-Phone Tracking By Police

By  //  October 18, 2014

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5-2 decision sided with suspected cocaine dealer

THE CAPITAL, TALLAHASSEE, FLORIDA – Pointing to privacy rights, the Florida Supreme Court on Thursday said police need to get warrants before using cell-phone information to conduct “real-time” tracking of criminal suspects.

Justices, in a 5-2 decision, sided with a man who was arrested in 2007 in Broward County after a search of his vehicle uncovered a kilogram brick of cocaine hidden in a spare-tire well. Police tracked the man, Shawn Alvin Tracey, through location information given off when cell-phone calls are made.

In a 46-page majority opinion, Chief Justice Jorge Labarga wrote that using the information without a warrant violated Tracey’s Fourth Amendment constitutional rights, which protect people from unreasonable searches and seizures. Labarga, in ruling that evidence against Tracey should be suppressed, also pointed to the public’s dependence on cell phones.

Jorge Labarga
Jorge Labarga

“We cannot overlook the inexorable and significant fact that, because cell phones are indispensable to so many people and are normally carried on one’s person, cell phone tracking can easily invade the right to privacy in one’s home or other private areas, a matter that the government cannot always anticipate and one which, when it occurs, is clearly a Fourth Amendment violation,” wrote Labarga, who was joined in the majority by justices Barbara Pariente, R. Fred Lewis, Peggy Quince and James E.C. Perry.

The American Civil Liberties Union of Florida issued a statement calling the decision a “big victory for privacy in Florida.”

Benjamin Stevenson

“The Florida Supreme Court has definitively stated what we have asserted all along: that police can’t track your movements in public using these cell phone tracking tools without first getting a warrant,” ACLU attorney Benjamin Stevenson said in the statement.

“Technology is changing all the time, but just because a technology you own is newer than the constitution’s protections doesn’t mean it is exempt from them. Police all over the state should now put an end to warrantless cell phone surveillance once and for all.”

But Justice Charles Canady, in a dissenting opinion, wrote that given the “known realities of how cell phones operate … cell phone users have neither a subjective expectation of privacy nor an objectively reasonable expectation of privacy regarding the cell site information generated by their cell phones.”

Charles Canady
Charles Canady

“Individuals may very reasonably desire that information they provide to third parties —such as a cell service provider, a bank, or a credit card company — be kept private,” wrote Canady, who was joined in dissent by Justice Ricky Polston.

“But a strong desire for privacy is not equivalent to a legitimate expectation of privacy.”

The Tracey case started after police received information that he bought large amounts cocaine, which was transported from Broward County to the state’s West Coast for distribution. In October 2007, police received a court order to use technology that recorded telephone numbers dialed from Tracey’s cell phone and numbers from incoming calls.

More than a month later, officers learned that Tracey would be coming to Broward County to pick up drugs to transport to the Cape Coral area, where he lived, according to Thursday’s ruling. Without getting additional court approval, police used electronically generated cell-phone information to track his movements in real time, ultimately leading to the arrest.

A circuit judge and the 4th District Court of Appeal rejected arguments that evidence in the case should be suppressed, but Labarga wrote that a warrant, based on probable cause, was required for the location information.

“Simply because the cell phone user knows or should know that his cell phone gives off signals that enable the service provider to detect its location for call routing purposes, and which enable cell phone applications to operate for navigation, weather reporting, and other purposes, does not mean that the user is consenting to use of that location information by third parties for any other unrelated purposes,” Labarga wrote.

“While a person may voluntarily convey personal information to a business or other entity for personal purposes, such disclosure cannot reasonably be considered to be disclosure for all purposes to third parties not involved in that transaction.”