Judge Uses Good Faith Exception to Save Cell Site Data Search
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.
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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