M.D.Fla.: Probation condition doesn’t permit warrantless tracking of defendant’s cell phone as a matter of course. If he’s a fugitive, yes, by court order

Probation condition doesn’t permit warrantless tracking of defendant’s cell phone as a matter of course. When he’s a fugitive, however, it can be. United States v. Ponce, 2017 U.S. Dist. LEXIS 119550 (M.D. Fla. July 31, 2017):

This victory for Ponce is illusory. The Government still prevails because Ponce’s fugitive status — not his probation status — is determinative. On this point, the Court finds illustrative the concurrence in United States v. Riley, 858 F.3d 1012 (6th Cir. 2017) (Boggs J., concurring) (per curiam). In Riley, the court was called upon “to clarify the rules by which police may seek to find miscreants: When a fugitive subject to an arrest warrant for armed robbery hides in a motel, may the government track his cell phone’s GPS coordinates to locate and arrest him?” Id. at 1013.

Riley is factually similar to this case. There, a state court issued an arrest warrant for defendant. Two days later, he bought a cell phone serviced by AT&T. Id. at 1014. Defendant’s girlfriend disclosed the number to a special deputy marshal, who applied for and received an order compelling AT&T to produce records of defendant’s phone under federal electronic surveillance laws. Id. (citing 18 U.S.C. §§ 2703, 3123, 3124). The order compelled AT&T to disclose, among other things, real-time tracking of the latitude and longitude coordinates of defendant’s phone. Id.

Hours later, the USMS received real-time GPS data that defendant’s phone was at a specific motel. Id. Officers went to the motel, showed the front-desk clerk defendant’s picture, and learned his room number. Id. at 1014-15. The officers knocked on the room door and arrested defendant when he answered. They found a pistol in plain view, which lead to defendant’s indictment for possessing a firearm as a convicted felon. Id. at 1015. He moved to suppress the pistol as the fruit of an unconstitutional search, arguing that the GPS tracking intruded on his reasonable expectation of privacy and thus required a search warrant. Id. (footnote omitted).

The majority found that “the government did not conduct a search under the Fourth Amendment when it tracked the real-time GPS coordinates of [defendant’s] cell phone on the date of [his] arrest.” Id. at 1018. It explained, “using seven hours of GPS location data to determine an individual’s location (or a cell phone’s location), so long as the tracking does not reveal movements within the home (or hotel room), does not cross the sacred threshold of the home, and thus cannot amount to a Fourth Amendment search.” Id. (emphasis original).

The concurrence offered defendant’s fugitive status as an additional reason for no Fourth Amendment violation. Id. at 1020. The government had tracked defendant’s cell phone only after a judge issued a valid arrest warrant. This meant defendant was a fugitive subject to an arrest warrant and not merely a suspect in a criminal investigation. This fact distinguished defendant’s situation from other Supreme Court cases. Id.

The concurrence turned to Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) for support that “individuals on the run from arrest warrants have a diminished expectation of privacy.” Id. A quick review of Payton is needed. In that case, the Supreme Court held that law enforcement officers could enter the home of an individual subject to an arrest warrant without first obtaining a search warrant if the officers reasonably suspected the individual to be inside. Payton, 445 U.S. at 592-96. Based on Payton, the concurrence reasoned,

if the issuance of a valid arrest warrant may reasonably require an individual to open the doors of his home, which stands at the ‘very core’ of Fourth Amendment protection … , then it may reasonably require the same individual to open the doors of his phone — at least so far as to disclose the longitude and latitude coordinates emitted by a phone that the individual choose to carry and turn on.

Riley, 858 F.3d at 1020 (internal quotation and citation omitted) (emphasis original). In the end, the concurrence concluded, “so long as a valid arrest warrant has been issued, law enforcement officers who reasonably suspect that a cell phone is in the possession of the subject of the warrant may track that cell phone’s location in order to facilitate the execution of the warrant, without implicating the Fourth Amendment.” Id.

Neither Riley’s majority nor concurrence opinions are binding precedent here. Their logic is nevertheless sound. Ponce was subject to a valid arrest warrant for violating probation. (Gov’t Ex. 6). He absconded and disappeared for over two weeks. USMS entered the picture to find and arrest Ponce. It is against this backdrop they tracked Ponce’s phone using GPS. TFO Fordham had, at a minimum, reasonable suspicion that Ponce was using the cell phone number he provided to his probation officer during that time. TFO Fordham also talked to Ponce’s mother who confirmed that her son used the number on the arrest warrant, that she programmed that number on her phone under his name, and that she recently talked to him. The USMS used the GPS location tracking to facilitate Ponce’s arrest. Armed with the arrest warrant and reasonable suspicion that Ponce used the cell phone number, law enforcement did not need a search warrant to use GPS location tracking on Ponce’s phone. Ponce presents no arguments or case law to find otherwise. Under the facts of this case, the GPS location tracking did not contravene Ponce’s Fourth Amendment rights.