Cellular Location Tracing and the 4th Amendment – Staff Editor Submission


The CLR opened up the floor to our Staff Editors for insightful and engaging submissions for the blog.  Several editors stepped up to the task and we greatly appreciate their hard work and submissions.  Stay tuned for more great blog submissions!

The first of what trust will be a very compelling series of submissions, was written by Michael LaGarde.  Below is a discussion of the recent case decided in Florida that discusses the 4th Amendment implications of obtaining individual’s locations using cellular phone tracing:

Tracey v. State  – 69 So.3d 992 (2011).

Based on a tip, law enforcement requested to trace incoming and outgoing calls for a cell phone belonging to Shawn Tracey, which he had registered under a false name. The court went beyond the request and also allowed tracking of the phone’s Cell Site Location Information. Tracey was later convicted of possession of more than 400 grams of cocaine as well as other charges. Tracey appealed, claiming the trial court erred in denying his motion to suppress evidence derived from real-time or prospective CSLI under the Fourth Amendment. On appeal, the court upheld his conviction finding there was no Fourth Amendment violation. The Supreme Court of Florida granted review on January 28, 2013 and the decision is forthcoming.

Issue: Does the use of real time CSLI constitute a search under the Fourth Amendment?

A) Is there an expectation of privacy on public roads where Tracey was tracked?

The Supreme Court has held that there is no Fourth Amendment violation in such circumstances because the electronic tracking has “revealed no information that could not have been obtained through visual surveillance” United States v. Karo, 468 U.S. 705, 707(1984) (explaining United States v. Knotts, 460 U.S. 276 (1983)).

Since the appellate court’s decision, the Supreme Court has called into question the exact scope of the ruling in Knotts. In United States v. Jones, U.S., 132 S.Ct. 945 (2012) the Supreme Court found that installing a GPS device on a car constituted a search under the Fourth Amendment. While the majority relied on an analysis of the physical trespass in installing the GPS, two concurring opinions went further in analyzing reasonable expectation of privacy in the context of modern electronic surveillance. Here, Tracey argues that the concurring opinions joined by five justices support the proposition that the appellate court applied too restrictive an interpretation of the Fourth Amendment. The Government argues that the surveillance in Jones is distinguishable because law enforcement physically installed a GPS device for weeks, whereas no such physical intrusions occurred in Tracy’s case.

B) Is there a legitimate expectation of privacy for CSLI?

Tracey’s argument relies on the Fourth Amendment’s requirement to show probable cause to use other forms of electronic tracking. Most individuals take their cell phones with them everywhere, meaning CSLI can reveal sensitive information such as mental health treatment, sexual encounters, religious observance, political activity and more. Could the mere use of cell phones oblige individuals to give up their expectation of privacy to all of this sensitive information?

The Government’s argument points out that there is no legitimate expectation of privacy when someone speaks or shares with a third party over the phone. Is the fact that the cellular providers already track the call information to be used in billing enough to eliminate the expectation of privacy? Perhaps the Court should find the opposite, basing its decision on the government’s position that Tracey was not tracked, but was triangulated using the standard cell tower technology essential to the operation of cellular phones – something that inherently carries no expectation of privacy.

Likely Outcome and Further Questions:

As suggested by five U.S. Supreme Court justices, the sheer volume of private information available to law enforcement through CSLI seems to merit strict restraints as well as a reassessment of Four Amendment precedent. While it is possible the case will be decided on narrower grounds due to procedural or statutory considerations, the Supreme Court of Florida is unlikely to actually uphold the use of CSLI in this case.

Important questions that may or may not be addressed by the impending decision in this case include:

  • Is there a legally significant distinction between prospective CSLI (specifically real-time) and historical CSLI for Fourth Amendment purposes?
  • Does providing a false identity when purchasing a phone really imply no legal expectation of privacy?
  • Does the Knotts precedent regarding the Fourth Amendment on public roads still apply where there has been no trespass AND no significant accumulation of information?
    • E.g., where CSLI is used to track a suspect in a car over a short period of time?

 

 

JonBenet Controversy and the Grand Jury


Procedural rules mandate that the deliberations of a grand jury and related documents should normally be withheld from the general public.  It has long been the view that the prosecutor retains discretion to charge or not to charge a defendant based on the grand jury’s decision to indict.

This has recently been challenged in the case of the Jonbenet Ramsey with respect to the then prosecutor’s decision to not pursue charges even though the grand jury voted to indict the victim’s parents.  There are a few issues that readily come to mind including: 1) the death of Jonbenet’s mother, Patricia Ramsey, and 2) nearly 18 years passed since the tragic death, leaving much of the evidence difficult to find or non-existent.

Many local and national news media outlets have extensively covered this story recently.  One article found on the CNN website discusses the probability and possibility of the prosecution to file new charges, given the inherent issues surrounding the evidence in the case.

Should grand jury deliberations be more or less transparent? Do you think it is proper to publicly release grand jury documents?  If so, how do you think this case should be resolved? How much discretion should the prosecution have if a grand jury makes their indictment decision?

We would like to hear your opinions.

Local Death Penalty


The District Attorney (“DA”) in the 2nd Judicial District of Colorado (Denver) decided to seek the death penalty after a gruesome crime scene at a Denver area bar.  Dexter Lewis and several accomplices are accused of stabbing five people to death and setting the bar ablaze.  Dexter Lewis now faces death row if convicted.  Interestingly, the Denver DA has not sought the death penalty in another case since 1999.  An article discussing the crime and the DA’s decision to seek the death penalty can be found here.

This case marks the first death penalty case brought in Denver in well over a decade and now joins the Aurora Movie Theater Shooting case for #2 Colorado death penalty case of the year. Do these cases suggest that it is somewhat unusual to adjudicate a death penalty case locally, or do we preserve the death penalty for the worst cases that come along every once in a while?

What is going on in Denver?

So why have there been so few death penalty cases in Denver?  Some question whether a jury will go for the death penalty in Denver.  Perhaps that is part of the reason why death penalty cases are far and few between.  Of course, some jurisdictions in Colorado seek the death penalty more often than Denver.  Surely, demographics play some part in these decisions.  Not only the jury makes the decisions; the prosecution has a difficult determination to make.  In a typical death penalty case, the prosecutor would weigh aggravating factors against mitigating factors in determining whether to pursue the death penalty.  Anyone interested can review the statutory aggravating and mitigating factors by reviewing C.R.S. 18-1.3-1201 (2012).

Here is a quick look at some death penalty statistics for Colorado:

According to the folks at www.deathpenltyinfo.org, Colorado is home to a total of four death row inmates, including Nathan Dunlap.  Governor John Hickenlooper granted Mr. Dunlap temporary stay for execution proceedings originally scheduled for the end of this month.  Before this case, Gary White was the last individual to be executed in Colorado in 1997.  The last time a Denver jury sentenced a person to death was in 1986.  Lately, Colorado has gone years without seeking the death penalty and other years with no more than one or two death penalty cases.

Many factors Could Be at Play

Is it possible that the death penalty light is flickering out?  Is the status quo just fine? Perhaps prosecutors cannot justify many cases to be punishable by death sentence because of the aggravating/mitigating factors.  Maybe juries are less likely to sentence a person to death so prosecutors do not ask for it often?  Maybe death penalty cases are too expensive and complex to adjudicate?

Let us know what you think: