Fl Supreme Court Says Warrant Needed for Cell Tower Data

Courts continue to be divided on whether a search warrant is needed for cops to obtain cell site locator data. This week the Florida Supreme Court ruled a warrant is necessary. It is the first state to decide the issue based on the 4th Amendment.

The case specifically involves cell tower data for a convicted drug dealer that police obtained from a telecom without a warrant. But the way the ruling is written, it would also cover the use of so-called “stingrays”—sophisticated technology law enforcement agencies use to locate and track people in the field without assistance from telecoms.

Agencies around the country, including in Florida, have been using the technology to track suspects—sometimes without obtaining a court order, other times deliberately deceiving judges and defendants about their use of the devices to track suspects, telling judges the information came from “confidential” sources rather than disclose their use of stingrays. The new ruling would require them to obtain a warrant or stop using the devices.

The case is Tracey v. Florida and the opinion is here.

The ACLU hails the decision (see quote in linked article.) Volokh Conspiracy says given the conflict among courts, the decision is likely to increase the chances the Supreme Court will take up the issue.

Tracey sets up a particularly interesting dynamic in the Eleventh Circuit, which has a cell-site case pending en banc in United States v. Davis. If the en banc Eleventh Circuit holds that cell-site data is protected, it sets up a clear federal circuit split with the 5th as well as a partial split with the 6th. On the other hand, if it holds that cell-site data is unprotected, it sets up a federal/state split in the same jurisdiction with the Florida Supreme Court. With Davis pending and the Fourth Circuit’s Graham case pending on this as well, I suspect Supreme Court review is likely relatively soon.

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    The FL Supreme CT continues to (5.00 / 1) (#11)
    by ruffian on Mon Oct 20, 2014 at 04:34:19 PM EST
    be the best FL institution there is. Glad to see something come out of FL I can agree with politically.

    Not related to the exact post (none / 0) (#1)
    by jbindc on Mon Oct 20, 2014 at 12:44:10 PM EST
    But more Fourth Amendment news.

    Supreme Court agrees to hear case involving the privacy of hotel/motel guest lists.

    The hotel guest list case involves a Los Angeles city ordinance that gives local police the authority to inspect hotel guest records at any time, without a search warrant and without the hotel's consent.  At issue in the case is both whether hotels have any commercial privacy interest in their guest records, and whether, if they do, police must first get a court's permission before examining those documents.

    In taking the case to the Supreme Court, however, the city also raised a question that, depending on how the Supreme Court answers it, could end the case without a ruling at this point on the privacy of hotel guest lists.  That is the question of whether a "facial challenge" is ever allowed against a law that allegedly violates the Fourth Amendment.  Because the Fourth Amendment focuses on whether a search is "reasonable," the specific facts in a case may have a strong bearing on whether that test is satisfied.  In a facial challenge, however, the test is whether a law can be used in any case, no matter what the facts are.  If facial challenges to such claims are barred, then the only legal avenue open is a challenge to the law as carried out in a given factual scenario.

    The city told the Court that there are at least seventy laws at the state and local level across the country that permit police to inspect hotel guest records without prior court approval.  "These laws," the city petition said, "expressly help police investigate crimes such as prostitution and gambling, capture dangerous fugitives and even authorize federal law enforcement to examine these registers -- an authorization which can be vital in the immediate aftermath of a domestic terrorist attack."

    The case is Los Angeles v. Patel.

    I'm shocked, shocked to find ... (5.00 / 2) (#5)
    by Donald from Hawaii on Mon Oct 20, 2014 at 03:27:22 PM EST
    ... that there's gambling and prostitution going in Los Angeles. But I'm even more shocked, shocked to see LAPD and the city's corporation counsel indirectly equate those two activities with the crime of domestic terrorism -- and in the same sentence, no less.

    Such overwrought hyperbole and over-the-top comparisons are not only foolish, they are also potentially counterproductive, and can actually undercut whatever credibility the city's argument might otherwise merit. Some people really need to get a grip.

    But personally, I've always tended to agree with the observation offered by Benjamin Franklin, that those who would freely divest themselves of their civil liberties in exchange for vague promises of safety, really deserve neither liberty nor safety.

    If somebody is such an imminent threat or bad actor that he or she needs to be spied and / or eavesdropped upon by local, state and / or federal authorities, then whatever case that can be built against that person is surely worth the time it takes for those authorities to do it right, by first obtaining a court's prior consent before they engage in any snooping.

    The only exception I'd consider would be when someone is perceived to be in imminent danger of bodily harm, i.e., a kidnapping victim being held for ransom, or the general public from the aforementioned terrorist threat. But even then, the authorities best be prepared to accept the potential legal consequences and fallout for their preemptive actions, should a judge subsequently find them to have acted illegally or unconstitutionally.



    The hotel may have a (none / 0) (#2)
    by oculus on Mon Oct 20, 2014 at 03:19:09 PM EST
    right of privacy, but not the guest?

    Dunno (none / 0) (#3)
    by jbindc on Mon Oct 20, 2014 at 03:22:33 PM EST
    If you sign a hotel register, how much privacy do you really have if the next guest in will sign under your name and see it there?

    I cannot remember the last time I actually (5.00 / 1) (#6)
    by caseyOR on Mon Oct 20, 2014 at 04:14:40 PM EST
    signed a hotel guest register. The desk clerk pulls my name up on the computer and signs me in. The guest who follows me never sees my name.

    I suspect what the police want here are computer lists of hotel guests.

    The days of Joe Friday walking into a hotel, demanding to see the register, and running his finger down the pages until he finds the signature of the bad guy are long gone.


    My mental image was the detective (none / 0) (#8)
    by ruffian on Mon Oct 20, 2014 at 04:17:19 PM EST
    from Psycho, at the Bates Hotel.

    I Have Never Signed an... (5.00 / 1) (#9)
    by ScottW714 on Mon Oct 20, 2014 at 04:25:38 PM EST
    ...actual registry at a hotel.  Weddings, funerals, and some occasional tourist spot is the only places I have ever seen registries.

    But that is BS in that you can not stay at most hotels without identification, it's not optional.

    But remarkably, at least here in Texas, hourly hotels generally don't require ID.

    How that is going to help reduce prostitution is a mystery.


    You just can't keep a good Ranger down (5.00 / 1) (#10)
    by NYShooter on Mon Oct 20, 2014 at 04:32:23 PM EST
    Having eliminated all other crimes in the Lone Star State those valiant Lawmen can now double down on the tough ones.

    I really can't recall being asked for my ID (none / 0) (#13)
    by Reconstructionist on Mon Oct 20, 2014 at 04:46:44 PM EST
    when I check in. Even when I don't have reservations they usually just take my credit card and the only thing they ask for is the license number of the car I am parking.

    But, I have had cases where my clients, often if not always black, were not only required to show ID but the motel made a photocopy of it and provided it to the cops.


    Here's more (none / 0) (#4)
    by jbindc on Mon Oct 20, 2014 at 03:23:37 PM EST
    Well.... the last time I saw a hotel register like (none / 0) (#7)
    by ruffian on Mon Oct 20, 2014 at 04:16:44 PM EST
    that may have been in the early 70s.

    Interesting point though - do the computerized registration systems in use almost everywhere carry with them a new expectation of privacy?


    The court may be preparing (none / 0) (#12)
    by Reconstructionist on Mon Oct 20, 2014 at 04:38:34 PM EST
      to distinguish expressly between your right to privacy in the hotel room which you are renting and reasonably believe to be protected from uninvited intrusion and the records of the hotel which you do not believe to be under your control  and in which your expectation of privacy might be lesser.

    Looking at the Volokh link (none / 0) (#14)
    by Reconstructionist on Mon Oct 20, 2014 at 04:52:20 PM EST
      I see tis case is being challenged by the hotels subject to a law requiring them to maintain records and produce them for inspection upon demand, not by a guest whose information was obtained from a search of hotel records.

      That could mean my surmise the court was going to expressly state guests do not have a reasonable expectation of privacy in their personal information given to the hotel might be off base and not  be addressed at all because the issue will be limited whether the hotel owners have a protected privacy in their business records which trumps the  ordinance.


    The Castle Doctrine (5.00 / 2) (#16)
    by fishcamp on Tue Oct 21, 2014 at 07:51:47 AM EST
    must not come into play in this situation, or I guess it would have been mentioned?

    Well, played, sir. (none / 0) (#17)
    by jbindc on Tue Oct 21, 2014 at 08:05:46 AM EST
    Is the link messed up? (none / 0) (#15)
    by republicratitarian on Mon Oct 20, 2014 at 10:04:21 PM EST
    It keeps opening my email when I click on it.