The Supreme Court’s Carpenter decision added Fourth Amendment protections to historical cell site location information (CSLI). The Court recognized people had a privacy interest in their location info, even if it was collected and stored by third parties. This narrow finding — that historical cell site info is covered by the Fourth Amendment — has created ripples that are rocking the Third Party Doctrine boat, resulting in the Carpenter decision being applied to other records historically believed to be outside the Constitution’s protections.
Kentucky’s Court of Appeals has extended protections to real-time cell site location info — something the country’s top court expressly refused to do. (via FourthAmendment.com)
During an investigation of an armed robbery, police officers contacted the suspect’s cell phone carrier and had an employee “ping” the phone to discover its location. The officers remained in contact with the carrier for the next hour-and-a-half, pinging the phone until they located the phone and the suspect. Officers intercepted the suspect upon his return to the town where the robbery took place. No warrant was sought.
Citing the Supreme Court’s Carpenter decision (and a recent Massachusetts state court ruling), the court [PDF] agrees with the defendant: it’s makes little sense to say tracking someone’s past movements with historical CSLI is somehow be more worthy of Constitutional protection than actively tracking them using real-time CSLI.
We agree that the acquisition of real-time CSLI implicates significant, legitimate privacy concerns. As the Supreme Judicial Court of Massachusetts recently observed, when the police are able to ping a cell phone in order to discover its location, they also acquire the ability to identify the real-time location of its owner, which is “a degree of intrusion that a reasonable person would not anticipate[.]” Commonwealth v. Almonor, 120 N.E.3d 1183, 1195 (Mass. 2019) (quoting State v. Earls, 70 A.3d 630, 642 (N.J. 2013)). This distinguishes the situation from one in which the police track an individual in the public thoroughfare or seek access to records held by a third party. “Although our society may have reasonably come to expect that the voluntary use of cell phones — such as when making a phone call — discloses cell phones’ location information to service providers, and that records of such calls may be maintained, our society would certainly not expect that the police could, or would, transform a cell phone into a real-time tracking device without judicial oversight.”
Tracking people using CSLI does more than reveal their movements in public spaces — places they could theoretically be observed by anyone, including law enforcement. It also tracks their movements in private spaces, since their phones go wherever they go. This puts it in Fourth Amendment territory.
Thus, because pinging a cell phone enables the police almost instantaneously to track individuals far beyond the public thoroughfare into areas where they would have a reasonable, legitimate expectation of privacy, we conclude that a warrant is required to acquire real-time CSLI.
The government argued that the good faith exception should apply. The real-time pings were performed two years before the Supreme Court delivered its Carpenter ruling. Beyond that, the officers said the state courts had delivered no rulings on point that would have put cops on notice they needed warrants to obtain real-time CSLI.
Wrong, says the court. The standard that needs to be applied to gray areas where privacy rights might be implicated isn’t the lack of a “no” from the courts. It’s the absence of a “yes.”
Unfortunately for our purposes, the Hedgepath Court did not rule on the matter because it was able to resolve the case on other grounds, but its commentary makes it clear that at the time Reed’s cell phone was pinged, there was no clearly established, binding precedent in Kentucky regarding real-time CSLI upon which the police could rely. In the absence of such precedent, the decision to proceed without a warrant and without a showing of exigent circumstances or other exception does not support a finding of good faith.
Very few courts are willing to draw the line here. Usually, good faith is granted if no case on point has directly established cops cannot do certain things. But officers should be held to a higher standard: one that demands they have clearly established legal standards before they act, not simply assume the lack of legal blessing (from the legislature or courts) will make their questionable actions acceptable.
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