For most searches of private property, police must have a warrant from a judge obtained by showing probable cause. This is true whether they plan to search your office, your files, or even your personal cell phone. What surprises most people, however, is that this same level of evidence is not required to get a disclosure of cell phone location information without a warrant.
Every time you make a call, your carrier stores “cell-site location information,” or CSLI, based on where your cell phone connected with a tower. Under the Electronic Communications Privacy Act, this information can be accessed without a warrant whenever law enforcement has reasonable suspicion that you have committed a crime. This establishes a much lower burden of proof than is required for probable cause, as it only requires specific and articulable facts that may make someone suspect you are guilty of a crime—something that law enforcement can easily get.
This means that cell phone carriers disclose thousands of people’s location information every year with very little oversight. Police then can use this information to build probable cause that a suspect was in the vicinity where a crime took place. Privacy advocates have long criticized this practice as a violation of the Fourth Amendment, since such data provides a shockingly detailed picture of a person’s daily activities, yet its disclosure requires no warrant.
Legality of Cell Phone Location Disclosures No Longer Clear-Cut
This practice has been long held up in U.S. courts, but a surprising decision by a three-judge panel for the Fourth Circuit Appeals Court this past summer may no longer support such a practice. In Graham v. U.S., the Fourth Circuit ruled that such information was not constitutional to obtain without a warrant, going on to say that it violates the “reasonable expectation of privacy” Americans deserve.
The government has already appealed the decision to be put in front of the entire panel of Fourth Circuit judges. If the decision is upheld, the issue will likely appear before the Supreme Court to be decided upon for good. In the meantime, privacy protections for CSLI stored electronically with third party carriers remains up in the air, but a change could be coming that would better ensure the privacy of us all.
If you are arrested for a crime, respect of your Fourth Amendment rights is paramount. Any violations could get evidence excluded from a trial and possibly even get your case dismissed entirely. At Luftman, Heck, and Associates, we are dedicated to fighting for the rights of our clients. If you have been arrested call our experienced Cincinnati criminal defense lawyers at (513) 338-1890 to set up free consultation to find out how we may be able to help you protect your rights.