No Expectation of Privacy When Using a Cell Phone - Aaron Delgado & Associates

No Expectation of Privacy When Using a Cell Phone

by Aaron Delgado
02/09/17 (Updated: 09/14/21)

The Fourth Amendment protects Americans from unlawful searches and seizures. Among other things, this means that if law enforcement suspects someone of a crime, they need a probable cause warrant before they can search a person's home, car or otherwise invade their privacy.

But this does not seem to be the case for tracking cellphone GPS activity. A recent 6th U.S. Circuit Court of Appeals decision held that law enforcement does not need a warrant to track a person through cellphone GPS signals. In the case, the DEA suspected a man of drug trafficking. They learned the suspect used a pay-as-you-go cellphone that was registered under a fake name. Without obtaining a warrant, the DEA obtained GPS data emitted from the cellphone and used it to track the suspects movements until finally apprehending him.

The suspect was convicted of drug trafficking and sentenced to 20 years in prison. He appealed his conviction, arguing that the DEA had violated his Fourth Amendment rights by not first obtaining a warrant.

The Sixth Circuit's Opinion

The 6th Circuit disagreed. In the court's view, using cellphone GPS data to track down a person believed to be in possession of illegal drugs is no different than using that person's scent and a hound dog to track him down. The court also stated that if criminals were able to use new technology, like pay-as-you-go cellphones, to help them commit crimes, law enforcement has the same right to use that technology to catch them. The court opined that deciding otherwise would mean that "technology would help criminals but not the police."

The U.S. Supreme Court recently held that police cannot attach GPS tracking devices on suspects' cars without a showing probable cause and obtaining a warrant. But the 6th Circuit distinguished the physical act of installing a GPS device on a suspect's car from merely accessing the cellphone data, concluding that the act of affixing a GPS tracker to a suspect's car is a search, for which a warrant is required, but obtaining cellphone GPS data from a third party is not.

The 6th Circuit decision means that cellphone users have no expectation of privacy when it comes to GPS data and their locations can be tracked without a warrant. However, in 2010, the 3rd U.S. Circuit Court of Appeals reached the opposite conclusion ruling that warrants were necessary before law enforcement could obtain cellphone GPS data. The differing opinions in the 3rd and 6th Circuits will likely mean that the U.S. Supreme Court will have to resolve the conflict.

If you or a loved one has been subjected to a warrantless search by law enforcement and believe your Fourth Amendment rights may have been violated, speak with an experienced Florida criminal defense attorney to discuss your situation.

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