By Christopher Zoukis
A District of Columbia Court of Appeals panel ruled by a 2-1 margin on Sept. 21 that a search warrant is required before police can use cell phone tracking devices. The decision marked the fourth time a state or federal court has come to that conclusion, echoing similar rulings by Maryland’s top court and by federal district courts in San Francisco and New York.
The case arose from the 2013 arrest of a D.C. resident, Prince Jones, for two separate incidents of assaulting and robbing women at knifepoint. He had contacted the victims through a website called Backpage to arrange for sexual rendezvous. In each case, the assailant stole the victim’s cell phone. When police compared the phone records for each victim, they found the assailant had called from the same phone number to arrange each meeting. Police then obtained the identification numbers for that phone from the cell providers, and for the victims’ phones, and were able to get a general location from which the man made most of his calls.
Going to the location, police then used a portable electronic device, made under various brand names but best known as the StingRay, which imitates cell tower signals and thus tricks a cell phone for which the identification number is known into signaling its location. The American Civil Liberties Union says such devices are used by police in at least 24 states and the District of Columbia, as well as by federal agencies. Punching in the identification number for the man’s phone, police tracked the phone to a car parked on a major street, where they found not only Jones but also both of the victims’ stolen phones. A search of the car turned up a knife resembling the one the attacker had used.
Jones was convicted after the trial court refused to suppress evidence obtained through the StingRay search, but the appeals court reversed, finding warrantless use of the device an unconstitutional invasion of privacy. The fatal error police made was searching for the male caller’s phone, rather than for a victim’s phone, since they had the victims’ permission to do so. Because of the impermissible search, the evidence was suppressed and Jones’ conviction overturned. It remains to be seen whether the government will appeal the case to D.C.’s highest local court or seek review by the U.S. Supreme Court.
Another cell phone privacy issue is already headed for the Supreme Court’s new term starting in October. Over the objections of the Department of Justice, in Carpenter v. United States, the Court will consider a 2016 Sixth Circuit decision that law enforcers do not need search warrants to access phone companies’ routinely kept historical data showing which cell towers wireless phones have used, which can reveal whether a suspect was near a crime scene when a crime occurred.
The lower courts relied on the Stored Communications Act, a federal law which — unlike the probable cause standard for obtaining a search warrant, ordinarily be needed for data on the content of private communications — only requires law enforcement agencies seeking business records on how communications are transmitted to show they have “reasonable grounds” to believe such data “relevant and material to an ongoing investigation.”
About Christopher Zoukis
Christopher Zoukis is an outspoken prisoner rights and correctional education advocate who is incarcerated at FCI Petersburg Medium in Virginia. He is an award-winning writer whose work has been published widely in major publications such as The Huffington Post, Prison Legal News, New York Daily News and various other print and online publications. Learn more about Christopher Zoukis at christopherzoukis.com and prisoneducation.com.