{"id":40581,"date":"2019-11-09T07:21:32","date_gmt":"2019-11-09T12:21:32","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=40581"},"modified":"2019-11-09T07:21:56","modified_gmt":"2019-11-09T12:21:56","slug":"wa-cell-phone-ping-was-a-search-but-here-it-was-reasonable-because-of-exigency","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=40581","title":{"rendered":"WA: Cell phone ping was a search, but here it was reasonable because of exigency"},"content":{"rendered":"

A cell phone ping is a search under the Fourth Amendment and Washington Constitutions requiring a warrant. It was reasonable here, however, because of exigent circumstances because defendant was a suspect, and the police feared he\u2019d fled. State v. Muhammad<\/a>, 2019 Wash. LEXIS 732 (Nov. 7, 2019):
\n<\/p>\n

\u00b642 \u201c[E]ven short-term monitoring\u201d can generate a \u201ccomprehensive record of a person\u2019s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations\u201d that can be stored and mined for the future. Jones, 565 U.S. at 415 (Sotomayor, J., concurring). More concerning is the State\u2019s ability to utilize technology\u2019s substantial monitoring and tracking features at low cost, which may \u201c\u2018alter the relationship between citizen and government in a way that is inimical to democratic society.\u2019\u201d Id. at 416 (quoting United States v. Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. 2011) (Flaum, J., concurring)).<\/p>\n

\u00b643 Courts should take into account the substantial monitoring and tracking capabilities of technology in considering the existence of a reasonable expectation of privacy in public movement. Jones, 565 U.S. at 416 (Sotomayor, J., concurring). In so doing, \u201c[a]ll of these concerns and conclusions about GPS tracking [as set out in Jones] also apply to tracking and monitoring by use of real time cell site location information.\u201d Tracey v. State, 152 So. 3d 504, 519 (Fla. 2014). Accordingly, a cell phone user has a reasonable expectation of privacy in real-time CSLI, and the collection of location data implicates the Fourth Amendment. Id. at 516, 526; see also In re Order Authorizing Disclosure of Location Info., 849 F. Supp. 2d 526, 539 (D. Md. 2011) (finding that a suspect \u201chas a reasonable expectation of privacy \u2026 in his location as revealed by real-time location data\u201d).<\/p>\n

\u00b644 Arguments against Carpenter\u2019s application to real-time CSLI focus on the limited nature of the information provided CSLI and the third-party doctrine. Neither argument is persuasive. <\/p>\n

\u00b645 First, the argument that an isolated cell phone ping offers limited information and therefore does not implicate the Fourth Amendment appears to advance what federal courts have deemed the \u201cmosaic\u201d theory. Under this theory, discrete acts of law enforcement surveillance may be lawful in isolation but may otherwise intrude on reasonable expectations of privacy in the aggregate because they \u201c\u2018paint an \u201cintimate picture\u201d of a defendant\u2019s life.\u2019\u201d Tracey, 152 So. 3d at 520 (quoting United States v. Wilford, 961 F. Supp. 2d 740, 771 (D. Md. 2013)).<\/p>\n

\u00b646 At first glance, the mosaic theory presents an attractive answer to whether a singular cell phone ping constitutes a Fourth Amendment search. But federal courts have recognized the practical problems inherent in this theory when traditional surveillance becomes a search only after some specific period of time elapses. Wilford, 961 F. Supp. 2d at 772 (citing United States v. Graham, 846 F. Supp. 2d 384, 401-03 (D. Md. 2012)). As Graham noted, \u201cdiscrete acts of law enforcement are either constitutional or they are not.\u201d 846 F. Supp. 2d at 401. For instance, to conclude that one cell phone ping is not a search, provided it lasts less than six hours, yet hold multiple or longer pings do qualify as search is not a workable analysis. See Commonwealth v. Estabrook, 472 Mass. 852, 858, 38 N.E.3d 231 (2015) (concluding no warrant is required to obtain historical CSLI relating to a period of six hours or less). There is no rational point to draw the line; it is arbitrary and unrelated to a reasonable expectation of privacy.<\/p>\n

\u00b647 Rather than offering analysis based on a reasonable expectation of privacy, the mosaic theory instead requires a case-by-case, ad hoc determination of whether the length of time of a cell phone ping violated the Fourth Amendment. It offers little guidance to courts or law enforcement and presents the \u201cdanger that constitutional rights will be arbitrarily and inequitably enforced.\u201d Oliver v. United States, 466 U.S. 170, 181-82, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). \u201c\u2018[I]f police are to have workable rules, the balancing of the competing interests \u2026 must in large part be done on a categorical basis\u2014not in an ad hoc, case-by-case fashion by individual police officers.\u2019\u201d Tracey, 152 So. 3d at 521 (alterations in original) (internal quotation marks omitted) (quoting Riley, 573 U.S. at 398).<\/p>\n

\u00b648 Second, the third-party doctrine does not permit a warrantless search of CSLI after the Court\u2019s opinion in Carpenter. Before Carpenter, some federal courts had concluded there was no reasonable expectation of privacy in cell phone location data in possession of third-party service providers. E.g., United States v. Graham, 824 F.3d 421, 427 (4th Cir. 2016). The Carpenter Court explained that the third-party doctrine has failed to keep pace with the \u201cseismic shifts in digital technology.\u201d 138 S. Ct. at 2219. An individual may have a \u201cdiminished\u201d privacy interest in location data revealed to third parties, but that alone does not mean \u201c\u2018the Fourth Amendment falls out of the picture entirely.\u2019\u201d Id. (quoting Riley, 573 U.S. at 392).<\/p>\n

\u00b649 Moreover, voluntary exposure of CSLI \u201cis not truly \u2018shared\u2019\u201d as the term is normally understood. Id. at 2220. Cell phones log cell site records \u201cwithout any affirmative act on the part of the user beyond powering up. Virtually any activity on the phone generates CSLI.\u201d Id. Apart from turning off a cell phone, \u201cthere is no way to avoid leaving behind a trail of location data.\u201d Id. Carpenter therefore declined to extend third-party doctrine to the collection of CSLI. Id. Thus, the third-party rationale no longer controls cases concerning historical CSLI data, and its persuasive authority is significantly undercut regarding real-time CSLI data because, as Carpenter stated, individuals maintain an expectation of privacy in the record of their physical movements obtained from CSLI data. 138 S. Ct. at 2217.<\/p>\n

\u00b650 Overall, similar to our discussion of the Washington State Constitution, Fourth Amendment case law indicates that individuals have a subjective expectation of privacy in the location data transmitted by their cell phone. Riley, 573 U.S. at 385 (cell phones are \u201ca pervasive and insistent part of daily life\u201d). This is an expectation that society recognizes as reasonable. See Katz, 389 U.S. at 361 (Harlan, J., concurring). For these reasons, seven members of the court agree that the ping is a search under both article I, section 7 and the Fourth Amendment. See lead opinion of Wiggins, J.; opinion of Gordon McCloud, J.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

A cell phone ping is a search under the Fourth Amendment and Washington Constitutions requiring a warrant. It was reasonable here, however, because of exigent circumstances because defendant was a suspect, and the police feared he\u2019d fled. State v. Muhammad, … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[84,3],"tags":[],"class_list":["post-40581","post","type-post","status-publish","format-standard","hentry","category-cell-site-location-information","category-emergency-exigency"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/40581","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=40581"}],"version-history":[{"count":2,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/40581\/revisions"}],"predecessor-version":[{"id":40583,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/40581\/revisions\/40583"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=40581"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=40581"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=40581"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}