The Tension between Modern Technology, Constitution and the Courts

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


What is cellphone “pinging?”


Pinging is part of the technology that makes a cell phone work.  In very simple terms, it allows the cell phone company, and anyone with access to the company’s computers, to determine the location of a cell phone using the phone’s GPS capabilities by sending a “ping” to the phone.  Pinging has also been called “GPS in reverse” because it allows wireless cellphone carriers like AT&T or Sprint to locate and track a particular cellphone. It can be a great technology when used in the right hands. For example, it allows emergency 911 systems to automatically transfer a caller’s location and other information in order to provide assistance to a distressed person.


But, like any technology, it is subject to abuse, especially by law enforcement officials who have increasingly used it to track and gather information about persons suspected of being involved in drug trafficking, terrorism etc. Last July the New York Times reported that in 2011 law enforcement officials made 1.3 million demands (usually prosecution-issued subpoenas) on cellphone carriers for “text messages, caller locations and other information in the course of investigations.” The Times article came after the carriers submitted a report to a Congressional inquiry revealing an “explosion” of cellphone surveillance requests by law enforcement over the previous five years—sometimes thousands a day. AT&T alone reported to the Bipartisan Congressional Privacy Caucus that it responds to an average of 700 requests each day bringing the cellphone carrier $8.3 million from billings to law enforcement agencies in 2011.


The benefit to law enforcement in cellphone tracking can be measured by the fact that the time-consuming requests for wiretapping warrants decreased by 14 percent in 2011—reduced to a total of 2,732 requests, according to the Administrative Office of the United States Courts.  Compare that to the 42,500 law enforcement requests made to one of the smaller wireless carriers, Cricket, who, according to the Times, received a daily average of 116 requests and who was “’frequently not paid on the invoices it submit[ted]’” in return.


But the issue of cellphone tracking has become increasingly mired in legal controversy. The Times reported that the ACLU has gathered “anecdotal evidence” many local and state law enforcement agencies believe they have the “broad discretion to obtain cell records without court orders, and that some departments specifically warned officers about past misuse of cellphone surveillance in nonemergency situations.”


The legal concerns are real. ACLU attorney Chris Calabrese told the Times that its constitutional advocacy group is not only concerned “about officials gathering phone data on people with no real connection to crimes, but also about the agencies then keeping those records indefinitely in internal databases.”


The courts seem to be all over the map on this privacy issue, especially as it relates to “pinging.” They generally agree that warrants are required before law enforcement can place a wiretap or track cellphones in real time; that there must be probable cause the cellphone is being used for criminal activity before the surveillance can be undertaken. But there is little judicial accord about pinging. While many courts have held that law enforcement need only show that data to be gathered from pinging would contain “specific and articulable facts” about a crime, only one Federal circuit, the Sixth Circuit in United States v. Skinner, has held that there is no expectation of privacy in a cellphone. We posted a piece about the Skinner case last September in which we said:


On appeal, the Sixth Circuit agreed with the trial court, saying that “Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go phone.” The appeals court added any device used in the transportation of contraband which gives off a tracking signal, the police have every right to track that signal. The appeals court based its opinion on the U.S. Supreme Court decision in United States v. Knotts in which the court rejected a Fourth Amendment challenge to the police using a “beeper” concealed in a five-gallon drum to track the defendant and to learn the location of a drug laboratory. The Supreme Court said the use of the beeper did not violate the Fourth Amendment because the “government surveillance conducted by means of the beeper in this case amounted to the following of an automobile on public streets and highways … A person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”


Utilizing Knotts, the Sixth Circuit in Skinner found no inherent constitutional difference between trailing a defendant and using technology to track him. The appeals court then cut to the chase, saying its decision was based on the notion that law enforcement officials should be allowed to use technological advances to prevent crime. The first two paragraphs of the court’s opinion succinctly expressed this position:


“When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them. This is not a case in which the government secretly placed a tracking device in someone’s car. The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross-country shipments of drugs. Unfortunately for the drug runners, the phones were trackable in a way they may not have expected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.

Last month the Tenth Circuit, in United States v. Barajas, refused to directly take on the pinging issue. In that case, whose background facts need not be rehashed here, the appeals court observed:


“However, even if the affidavit is not ‘devoid of facts,’ the good-faith exception will not apply when an officer ‘knows or should have known that a search warrant is invalid’ … We presume that law enforcement officials have a reasonable knowledge of the law. Mr. Barajas suggests the agents knew or should have known the order was invalid because they knew (1) that GPS data is not typically intercepted pursuant to a wiretap order; and (2) that the affidavit did not request GPS data. We disagree.


“First, we have no reason to believe the government cannot obtain GPS data through a wiretap order. Assuming pinging is a search, the burden to obtain GPS data would be no greater than a wiretap—probable cause. But even if Mr. Barajas is correct, he cannot show the agents were on notice of this fact because the law on electronic surveillance is very much unsettled … The agents’ knowledge of the gap between the affidavit and the order gives us more pause, but we cannot say this gap was intentional.


“Finally, in his reply brief, Mr. Barajas offers two additional reasons why the good-faith exception does not apply: (1) pinging turns cell phones into tracking devices, but the agents were not authorized to intercept transmissions from tracking devices; and (2) the search exceeded the scope of the warrant because the warrant permitted pinging during the progress of the cell, but the agents pinged the cell phones at all times. We will not address either argument, however, because Mr. Barajas did not raise either in his original brief …”


It is little wonder why Hanni Fakhoury, a criminal lawyer for the San Francisco-based Electronic Frontier Foundation, told the Times last November: “The courts are all over the place. They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”


In January 2012 the Supreme Court, in United States v. Jones, offered some guidance on the issue of electronic tracking. The ruling triggered substantial discussion in both the legal and civil rights communities, including our own. The Jones decision essentially held that law enforcement attaching a GPS device to a criminal suspect’s car is a search triggering constitutional protections, especially the need for probable cause.


Antoine Jones owned and operated a nightclub in the Washington, D.C. In 2004, a joint task force of the FBI and D.C. police department targeted Jones for an investigation into suspected drug trafficking. Law enforcement techniques utilized against Jones were comprehensive: visual surveillance of his nightclub, a surveillance camera focused on the front door of the club, and a wiretap on Jones’ cell phone. The results of these surveillance measures produced enough evidence for the authorities to apply for, and secure, a warrant to install a Global Positioning System (“GPS”) on a Jeep Grand Cherokee owned by Jones’ wife. The warrant provided that the GPS be installed in D.C. and within ten days of its issuance.


Apparently the task force did not like the restrictions imposed by the warrant, so they decided to ignore them. The GPS device was installed on the undercarriage of the vehicle on the 11th day after the warrant was issued and in Maryland, not D.C., while the vehicle was parked in a public parking lot. The task force tracked the vehicle over the next four weeks with the GPS which was capable of establishing its location at any time within 50 to 100 feet. At one point during these four weeks, agents had to replace the GPS’s battery. This was also done in yet another public lot in Maryland. The electronic tracking device generated some 2,000 pages of data during that four-week period.


As a result of all these surveillance efforts, the task force collected enough evidence for the Government to secure a multiple count indictment charging Jones and a number of co-conspirators with conspiracy to distribute and possess five kilograms or more of cocaine and 50 or more grams of cocaine base. Subsequent to Jones’s arrest, his attorney filed a motion to suppress all the evidence obtained through the GPS. The trial court granted part of the motion, suppressing all the GPS data gathered while the Grand Cherokee was parked in a garage adjacent to Jones’s residence. The trial court held the rest of GPS data admissible because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”


That was the essential constitutional dilemma faced by the Supreme Court: if a person does not enjoy a reasonable expectation of privacy while traveling on public thoroughfares, does he enjoy that expectation in his home or on his property? Utilizing 18th century tort law, the Court held that GPS tracking data obtained from a vehicle parked at someone’s residence violates the Fourth Amendment when that data is obtained without a probable cause supported search warrant. The same reasoning should apply to collecting data through pinging when the person is using the cellphone within the home or on personal property.


The Jones decision notwithstanding, the Obama administration insists that law enforcement does not need a warrant to attach GPS devices to vehicles to track their movements. In legal papers filed in the Third Circuit Court of Appeals last month, the Government argued that “requiring a warrant and probable cause before officers may attach A GPS device to a vehicle, which is inherently mobile and may no longer be at the location observed when the warrant is obtained, would seriously impede the government’s ability to investigate drug trafficking, terrorism, and other crimes. Law enforcement officers could not use GPS devices to gather information to establish probable cause, which is often the most productive use of such devices. Thus, the balancing of law enforcement interests with the minimally intrusive nature of GPS installation and monitoring makes clear that a showing of reasonable suspicion suffices to permit use of a ‘slap-on’ device like that used in this case.”


But a decision issued by the Supreme Court this term, Florida v. Jardines, could pose serious problems for the Obama administration’s position. The court on March 26, 2013 held that the “use of trained police dogs to investigate [a] home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” The facts of the Jardines case are remarkably similar to most drug cases involving the use of “scent dogs”:


“In 2006, Detective William Pedraja of the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of Joelis Jardines. One month later, the Department and the Drug Enforcement Administration sent a joint surveillance team to Jardines’ home. Detective Pedraja was part of that team. He watched the home for fifteen minutes and saw no vehicles in the driveway or activity around the home, and could not see inside because the blinds were drawn. Detective Pedraja then approached Jardines’ home accompanied by Detective Douglas Bartelt, a trained canine handler who had just arrived at the scene with his drug sniffing dog. The dog was trained to detect the scent of marijuana, cocaine, heroin, and several other drugs, indicating the presence of any of these substances through particular behavioral changes recognizable by his handler.


“Detective Bartelt had the dog on a six-foot leash, owing in part to the dog’s ‘wild’ nature, … tendency to dart around erratically while searching. As the dog approached Jardines’ front porch, he apparently sensed one of the odors he had been trained to detect, and began energetically exploring the area for the strongest point source of that odor. As Detective Bartelt explained, the dog ‘began tracking that airborne odor by … tracking back and forth,’ engaging in what is called ‘bracketing,’ ‘back and forth, back and forth.’ … Detective Bartelt gave the dog ‘the full six feet of leash plus whatever safe distance [he could] give him’ to do this—he testified that he needed to give the dog ‘as much distance as I can.’ … And Detective Pedraja stood back while this was occurring, so that he would not ‘get knocked over’ when the dog was ‘spinning around trying to find’ the source …


“After sniffing the base of the front door, the dog sat, which is the trained behavior upon discovering the odor’s strongest point. Detective Bartelt then pulled the dog away from the door and returned to his vehicle. He left the scene after informing Detective Pedraja that there had been a positive alert for narcotics.


“On the basis of what he learned at the home, Detective Pedraja applied for and received a warrant to search the residence. When the warrant was executed later that day, Jardines attempted to flee and was arrested; the search revealed marijuana plants, and he was charged with trafficking in cannabis.”


The Court held that the use of the drug detection dog is a “search” requiring probable cause before the canine can be used. No longer can law enforcement use an “alert” of the drug detection dog during an “open air” sniff on someone’s residential property as probable cause for obtaining a warrant to search a residence. Jardines makes probable cause a prerequisite before the dog can even be introduced into an investigation involving a person’s residence.


The same reasoning should apply to pinging of a cellphone when the phone is being used in a residence: that law enforcement must have probable cause that criminal activity is taking place in the residence before officers resort to pinging.

Likewise, a GPS tracking device should not be employed to obtain probable cause either; it should be used only after law enforcement has sufficient probable cause to obtain a warrant. And if certain lawmakers have their way, that will be the law. A bipartisan group of U.S. lawmakers last month introduced the Geolocation Privacy and Surveillance Act (known as the GPS Act) which would require law enforcement officials to obtain probable cause supported search warrants instead of “prosecution-issued subpoenas” before tracking a person’s cellphone or collecting GPS data. Currently 86 members of the Texas legislature have joined the legal fray by proposing legislation that would require law enforcement officials to obtain a warrant before engaging in cellphone tracking, as reported by Grits for Breakfast (here and here).


We don’t know where the constitutional dust will settle. We simply hope that the time-honored constitutional guarantee of individual privacy, especially in the sanctity of the home, will survive law enforcement’s increased use (and abuse) of technology in its wars on crime and terrorism.


By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair