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Justices adopt digital-age privacy rules to track cellphones

In this Feb. 13, 2016, file photo, people stand on the steps of the Supreme Court at sunset in Washington. (AP Photo/Jon Elswick, file)

In this Feb. 13, 2016, file photo, people stand on the steps of the Supreme Court at sunset in Washington. (AP Photo/Jon Elswick, file)

Absent an imminent threat, police need search warrants to get cellphone tower records of suspected criminals in trying to track their whereabouts when the crime was committed, a divided U.S. Supreme Court ruled Friday in a decision that bodes well for two convicted Baltimore bank robbers.

In their 5-4 decision, the justices said a modern-day search of people’s whereabouts through tower records impinges to an unprecedented degree on their reasonable expectation of privacy in their physical location and movements. Police surveillance of cellphone tower records constitutes a search under the Constitution’s Fourth Amendment and thus requires a search warrant in the absence of an emergency, the high court held.

“Mapping a cellphone’s location over the course of … days provides an all-encompassing record of the holder’s whereabouts,” Chief Justice John G. Roberts Jr. wrote for the majority. “As with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious and sexual associations. These location records hold for many Americans the privacies of life.”

Aaron Graham and Eric Jordan, who were not parties to the Supreme Court case, were convicted of the Baltimore bank robberies in large part based on tower records that placed them at the scene of robberies but which police retrieved via subpoena and not search warrants based on probable cause.

The men’s appeals of their convictions have been pending at the Supreme Court while the justices’ considered the similar appeal involving robberies in the Midwest that resulted in Timothy Carpenter’s conviction based on cellphone records collected by police without a search warrant. The high court is likely to soon remand – perhaps as early on Monday – Graham’s and Jordan’s cases to federal district court for further review in light of the justices’ decision Friday in Carpenter v. United States, No. 16-402.

The Supreme Court stated in Carpenter that its decision requiring warrants for cellphone tracking records does not apply to “urgent” situations, such as bomb threats, active shootings and child abductions.

“While police must get a warrant when collecting (cellphone-tower records) to assist in the mine-run criminal investigation, the rule we set forth does not limit their ability to respond to an ongoing emergency,” Roberts wrote.

Prosecutors undeterred

Montgomery County State’s Attorney John McCarthy said the high court’s decision might delay but will not destroy criminal investigations in which cell-tower data is used to track a suspect’s location at the time of a crime or to corroborate a witness’s testimony as to the defendant’s location.

“Cell-site information has become absolutely vital to us in the investigation of crimes,” McCarthy said.

For example, investigators used cell-site information in an effort to capture the Beltway snipers, who killed 10 people in Maryland, Virginia and Washington in 2002 before their arrest, McCarthy said. The data was not critical to the eventual arrest and convictions of John Allen Muhammad and Lee Boyd Malvo and the cell-tower records would likely have fallen under the Supreme Court’s imminent-threat exception to the warrant requirement, he added.

Securing a warrant “just means that it is going to take us an additional step” to get the cell-tower tracking information, McCarthy said.

Baltimore County State’s Attorney Scott D. Shellenberger said the high court’s decision will likely have little impact in his jurisdiction because cellphone tower searches by county police have largely been conducted following a probable cause determination.

In instances where searches have not been so conducted, Shellenberger said he hopes courts will uphold them as having been performed in “good faith” by police officers who were following earlier Supreme Court precedent that individuals had no reasonable expectation of privacy in their business records held by third parties, such as phone companies.

The justices have had to grapple with “how these old amendments apply to these new technologies,” Shellenberger said. “We had some hints of this (recent decision) in the privacy rulings that have been coming out of courts concerning  the cellphones that we carry with so much information on them.”

Criminal defense attorney J. Wyndal Gordon said he is “well pleased” with the high court’s decision, which he called a victory for the right to privacy that “has been under attack for a very long time.”

Permitting the police to cell-site location records without a warrant “certainly doesn’t pass the smell test,” said Gordon, a Baltimore solo practitioner. “You’re chronicling someone’s daily activities.”

The court’s warrant requirement is “going to be the talisman for those cases” involving location records, he added. “If you don’t get warrant for it, it’s not going to get in.”

Business records?

Roberts, in writing for the majority, said cellphone tracking records are unlike other personal records voluntarily turned over to third-party companies, such as a phone call log and banking records, which do not enjoy broad Fourth Amendment protection.

“A cellphone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales,” Roberts wrote. “…As a result, in no meaningful sense does the user voluntarily assume the risk of turning over a comprehensive dossier of his physical movements.”

Roberts was joined in the opinion by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Dissenting Justice Anthony M. Kennedy said cellphone tower histories are business records held by the service provider and may be turned over to the police based on a subpoena. In addition, cellphone users have no more reasonable expectation of their location history than motorists traveling on highways, as the high court held in its 1983 decision United States v. Knotts, Kennedy added.

“Customers like petitioner (Carpenter) do not own, possess, control, or use the records, and for that reason have no reasonable expectation that they cannot be disclosed pursuant to lawful compulsory process,” Kennedy wrote in a dissent Justices Clarence Thomas and Samuel A. Alito Jr. joined.

Justice Neil M. Gorsuch dissented separately, saying Carpenter had failed to assert a property interest in his cellphone records.

Baltimore case

Graham and Jordan were convicted by a U.S. District Court jury in Baltimore in May 2012 of committing a series of armed robberies in and around the city in early 2011. They were sentenced to prison terms of 147 and 72 years, respectively.

The evidence against them included records from Sprint/Nextel indicating the location of cellphone towers the men used in placing or receiving calls or text messages at or about the time of the robberies.

Police had obtained the records from Sprint/Nextel via subpoena under the federal Stored Communications Act and not by a warrant.

The 4th U.S. Circuit Court of Appeals, in upholding the convictions, said it was mindful of the privacy concerns raised due to the ubiquitous use of cellphones. However, these concerns must be addressed either by the Supreme Court or Congress, the 4th Circuit held.

Graham’s request for review is docketed at the Supreme Court as Aaron Graham v. United States, No. 16-6308. Jordan’s request is docketed as Eric Jordan v. United States, No. 16-6694.


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