from the get-a-warrant dept
In 2018, the Supreme Court declared warrantless access to historical cell site location information unconstitutional, given the privacy implications of being able to track someone’s movements over days or weeks without bothering to secure a warrant. Prior to this decision, cell site location info (CSLI) was treated as a third party record, requiring neither a warrant nor probable cause to obtain.
It did not extend this coverage to real-time access to CSLI, tower dumps, or ping requests made to service providers to engage in quasi-real time tracking. However, other courts in the nation have been willing to extend the coverage of the Carpenter decision, applying it to other third party records, including real-time acquisition of cell location info.
One of the courts to do so was the Kentucky state appeals court. In a case dealing with the apprehension of a robbery suspect, the court suppressed real-time location info law enforcement obtained without a warrant from a cell service provider — information that proved instrumental in officers’ location and arrest of the suspect.
This decision said this information was no longer covered by the Third Party Doctrine, but by the Fourth Amendment.
Thus, because pinging a cell phone enables the police almost instantaneously to track individuals far beyond the public thoroughfare into areas where they would have a reasonable, legitimate expectation of privacy, we conclude that a warrant is required to acquire real-time CSLI.
The government appealed the 2020 appellate decision, hoping the state’s top court would reverse the lower court’s decision. This bet has failed to pay off. The Kentucky Supreme Court has affirmed the lower court’s decision, declaring that access to real-time cell site location info requires the use of a warrant. The decision [PDF] also affirms the denial of good faith to the officers who obtained this info. (via FourthAmendment.com)
Like the Court of Appeals, we find that the police acquisition of Reed’s real-time CSLI was a warrantless, unreasonable search, and we find that the good-faith exception to the exclusionary rule does not apply in this case. Accordingly, we affirm the decision of the Court of Appeals to reverse the trial court’s judgment and remand this case to the trial court for further proceedings.
Like the appeals court, the Supreme Court says good faith doesn’t apply because “the officers were not acting in reliance of binding precedent.” Unlike far too many other courts, Kentucky’s top court refuses to grant good faith simply because no precedent exists. It holds cops in the state to a higher standard: a need for affirmative judicial precedent that supports their action, rather than simply allowing cops to abuse legal gray areas until contravening precedent is generated.
Key to the court’s findings here is how this information is obtained. Rather than being a third party record created by someone simply having their phone on while near cell towers, the location data obtained here required the interference of the cell service provider.
Real-time CSLI is not a passive location record but data generated by an affirmative action—a “ping” taken by the cell-service provider at the behest of a law enforcement officer. By “pinging” an individual’s cell phone, the cell service provider is able to determine, instantaneously, the cell phone’s location in relation to the available cell sites and to communicate that location information to law enforcement.
And that’s where the search moves from “reasonable” to “unreasonable,” says the court.
In obtaining an individual’s cell phone’s real-time CSLI, police commandeer the cell phone and its transmissions for the purpose of locating that individual. We find this usurpation of an individual’s private property profoundly invasive, and we liken it to a technological trespass. Such an appropriation of an individual’s cell phone is precisely the sort of invasion that we find the average citizen unwilling to accept.
Historic CSLI is intrusive because it allows law enforcement to track someone’s movements after the fact, providing officers with plenty of information about a person’s life, habits, contacts, and other activities. Prospective (“real-time”) CSLI is intrusive because it forces someone’s phone to, in essence, “answer” to law enforcement by providing its current location.
The government tried to argue that real-time pings were no different than observing a driver on a public road… apparently because law enforcement performed the stop on a public road. The court finds this argument ridiculous.
We do not disagree that an individual has no reasonable expectation of privacy in his movements on a public road and, thus, law enforcement may constitutionally observe those movements. But at issue in this case is not the observation of Reed’s movements on a roadway or the traffic stop performed on Reed’s vehicle but the acquisition of Reed’s CSLI that enabled officers to conduct a dragnet to intercept Reed’s vehicle. At the time police pinged Reed’s cell phone, Reed was not under visual police surveillance. Instead, the only reason police were able to locate and surveil Reed on a roadway was as a result of their acquisition of Reed’s CSLI. It is the constitutionality of the acquisition of Reed’s CSLI, not of his traffic stop, that we consider today. As such, we regard Knotts as inapplicable in this case. We find that a person’s reasonable expectation of privacy in his CSLI is unaffected by his or his cell phone’s physical location at the time the CSLI is generated or acquired by police.
Furthermore, the court says, giving the government’s other argument (that the third party doctrine is engaged just because a cell user has granted permission for third parties to gather data) credence would allow widespread abuse of third parties to bypass the Fourth Amendment.
Permitting application of the third-party doctrine to real-time CSLI would drastically alter the landscape of digital privacy. By the same logic offered by the Commonwealth, law enforcement could contact application developers whose applications are authorized to use the camera and microphone on a cell phone. Law enforcement could then, via those application developers, commandeer the cell phone as a photo, video, and audio surveillance device, simply because the cell phone’s owner granted authorization to those applications.
The government loses its evidence (again) and the case returns to the trial court where prosecutors can try to put the suspect behind bars, but without the benefit of the CSLI info or evidence derived from the traffic stop that followed the warrantless pings. And, again, the Kentucky court system holds officers in the state to a higher “good faith” standard — one that says cops don’t get to play fast and loose with unsettled law unless they like seeing their evidence tossed. More courts should do the same.