Judge Uses Good Faith Exception to Save Cell Site Data Search

The Supreme Court ruled warrantless GPS monitoring of Antoin Jones violated his Fourth Amendment rights and could not be used at his trial. (Opinion here, background here.) Basically,

The case concerned Antoine Jones, who was the owner of a Washington nightclub when the police came to suspect him of being part of a cocaine-selling operation. They placed a tracking device on his Jeep Grand Cherokee without a valid warrant, tracked his travels for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

The Government then sought to introduce cell site locator data obtained by a court order (but not a search warrant establishing probable cause.) The judge has now ruled the cell site data can come in at trial. She said she didn't have to rule on the issue of whether a search warrant is required because the good faith exception to the warrant requirement saves the search. Wired's report is here.

The opinion is here. EFF filed this amicus brief. The Government's argument is here.(In non-legalese, here.) [More...]

At oral arguments in the Jones case, Justice Breyer said to the Government counsel:

“If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” And that, Justice Breyer said, “sounds like ‘1984.’ ”

In my opinion, it should be no different for real-time (prospective vs. historical) cell site locator data.

The Government also uses cell site locator records to get real time information. They can ping the phone and find out you are home. They can direct law enforcement to your location so they know where to establish physical surveillance on you.

It should be a no-brainer that when the Government seeks information about your location from your cell phone they need a warrant based on probable cause, not some boiler-plate statement to the judge that the information is relevant to an ongoing investigation.

Put another way, in my view, cell-site locator information, whether historical or prospective, intrudes upon users’ reasonable expectations of privacy. It turns the cell phone into a tracking device, and under the Fourth Amendment, a warrant should be required. The Third Circuit in the first federal appeals court decision on the issue disagreed. More here.

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    I have to disagree a bit about the Supreme Court (5.00 / 2) (#1)
    by Peter G on Wed Dec 19, 2012 at 03:50:08 PM EST
    Jones decision.  The Supreme Court did not actually rule that "warrantless GPS monitoring of Antoine Jones violated his Fourth Amendment rights" or that the resulting evidence "could not be used at his trial." The Supreme Court ruled that the surreptitious attachment of the GPS device to Jones's car was a "search" within the meaning of the Fourth Amendment.  For this reason, the initial intrusion and the tracking that resulted had to be justified as "reasonable" to be lawful under the Constitution and admissible in court -- either by issuance of a warrant or under some other legal rule.  On that basis alone, the Supreme Court sent the case back for further consideration. This new opinion does not explain where that matter stands, after being sent back.  This new opinion, as you point out, deals with cell-site-based location information obtained by court order (not from the GPS device attached to the car), with the question being, as you noted, whether those orders were invalid because they were issued on less than "probable cause," as would be required for a traditional search warrant. But according to the Supreme Court, when a police officer in "good faith" follows the command of a facially valid warrant, then the exclusionary rule is not applied.  So even if another, higher court later rules that the warrant was invalid, the illegally-obtained evidence can be used anyway. This is part and parcel of the Rehnquist Court's limitations on the Warren Court-era "exclusionary rule" decisions.  "Good faith" is not an exception to the warrant requirement, in other words; it's an exception to the exclusionary rule.  Here, the judge has extended the "good faith" exception from the context of warrants, where it unfortunately definitely applies, to a situation involving another, less demanding kind of court order.  That's dubious.