The Lawletter Vol 39 No 10
The Florida Supreme Court recently held that the warrantless tracking of an individual through the use of real-time cell site location information was a violation of that individual's rights under the Fourth Amendment. In Tracey v. State, No. SC11-2254, 2014 WL 5285929 (Fla. Oct. 16, 2014), the defendant had been convicted of possession of cocaine and other offenses after police officers apprehended him while he was transporting the cocaine by automobile. The evidence showed that the officers had been able to monitor the movements of the defendant and his accomplice, who was located in another city, by following the cell site location information given off by their cell phones as the defendant placed calls to the accomplice. By using the information showing the location of the accomplice, the officers were able to establish where to set up surveillance for the moment that the defendant would meet the accomplice and exchange the cocaine.
The court determined that even though the officers had secured a warrant authorizing the installation of a "pen register" and "trap and trace device" as to the defendant's cell phone, such a warrant allowed only the recovery of information regarding the numbers of the phones that the defendant had previously called and received calls from and did not extend to tracking the defendant's location in real time. The court further found that the defendant had a reasonable expectation of privacy in the real-time cell site location information provided by his cell phone and that he had not voluntarily conveyed that information to his service provider for any purpose other than to enable the use of his cell phone for its intended purpose. Accordingly, the court held that the failure of the officers to seek a search warrant for the specific purpose of using that location information was a violation of the Fourth Amendment.