4th DCA Rules: Real Time Cell Phone Location Tracking Does Not Violate 4th Amendment

Sep 13, 2011   

On September 7, 2011, the Florida Fourth District Court of Appeal upheld a lower court ruling that law enforcement did not violate the Fourth Amendment by using “real time” cell site location information (“CSLI”) to track the movements and location of a suspect on public roads. A copy of the Courts Opinion can be read here.

In this case, the defendant, Shawn Alvin Tracey, was the subject of a narcotics investigation when law enforcement filed an application for an order authorizing the installation and use of a pen register and a trap and trace device to enable law enforcement to see who Tracey was calling and who was calling him. (A “pen register” is a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but such information does not include the contents of any communication. A “trap and trace device” is a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but such information does not include the contents of any communication.) See § 934.02, Fla. Stat. However, neither the application nor the Order granting the use of the pen register and trap and trace device mentioned the collection of and use of CSLI.

CSLI works as follows: “Cell phones whenever on, now automatically communicate with cell towers, constantly relaying their location information to the
towers that serve their network and scanning for the one that provides the strongest signal/best reception. This process, called Ëœregistration, occurs approximately every seven seconds.” See Tracey v. Florida, No. 4D09-3565, at 3 (Fla. 4th DCA September 7, 2011). As a customer location changes, their cell phone will search for and communicate with multiple towers. Cell phone companies track which cell phone towers are serving a phone. CSLI can accurately place the location of a cell phone within 200 feet in urban areas. Accuracy improves to within 50 feet when via the built in GPS feature of most phones. As a result, the real time location of any cell phone can be traced.

In this case, law enforcement used the CSLI of Traceys phone to track his movements from the west coast of Florida to several known and suspected drug stash houses. Upon observing Traceys movements the officers stopped and arrested Tracey for driving with a suspended license. The subsequent search uncovered a kilogram brick of cocaine in his car. Prior to trial Tracey moved to suppress any evidence obtained as a result of law enforcement using CSLI arguing that: 1) law enforcement exceeded the scope of the Courts surveillance order; 2) electronic surveillance statutes do not authorize the surveillance of CSLI; and 3) probable cause is required in order for law enforcement to use CSLI.

In finding that the lower court properly allowed the evidence into trial, the Court noted that it was bound to follow U.S. Supreme Court precedent in interpreting the Fourth Amendment. In United States v. Knotts, 460 U.S.276 (1983), the U.S. Supreme Court held: “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” As such, the Court found that because the case “concerns the governments tracking of an individuals location on public roads, this case does not involve a Fourth Amendment violation.”

The Court noted that “a compelling argument can be made that CSLI falls within a legitimate expectation of privacy. . . . Location information can be extraordinarily personal and potentially sensitive, revealing Ëœprecisely the kind of information that an individual wants and reasonably expects to be private.” However, while people “may maintain an expectation of privacy with respect to their location in private areas,” because the location tracked was that of a person on a public road, no such expectation of privacy existed.

Additionally, the Court found that although law enforcement failed to meet the burden necessary to allow for electronic monitoring, “under Florida law the exclusionary rule is not a remedy” for such violations. Rather, the criminal and civil penalties found in Chapter 934 of the Florida Statutes provide the exclusive remedy for such violations. See §§ 934.21, Fla. Stat., 934.27, Fla. Stat.

While the decision was based on historical US Supreme Court precedent, the case provides an illustrative example of how the Court must balance expectations of privacy against enhanced search capabilities of law enforcement because of technological advances. This principle is applicable in a variety of proceedings, including the white collar criminal cases in which Fuerst Ittleman attorneys regularly appear. For more information regarding Fuerst Ittlemans white collar criminal defense practice, contact an attorney today at contact@fidjlaw.com.