Another cellphone tracking case has been decided, and it surveys all the cases to date. The case finds that the information is subject to production, as long as triangulation is not sought, in a comprehensive decision that should be read if one gets such a case: In re Application of the United States, 460 F. Supp. 2d 448 (S.D. N.Y. October 23, 2006):<\/p>\n
Accordingly, the Court accepts the government’s argument that the Pen Register Statute and the Stored Communications Act, combined pursuant to CALEA, permit a court to authorize the disclosure of prospective cell site information, at least where, as here, the government does not seek triangulation information or location information other than that transmitted at the beginning and end of particular calls.<\/p>\n
B. Section 3117 and the Fourth Amendment<\/em><\/p>\n
The analysis cannot end here, however. Amicus<\/em> and the magistrate judge opinions raise two additional issues that the Court must address.<\/p>\n
First, some of the magistrate judge opinions suggest that because cell site information renders a cell phone a “tracking device” under 18 U.S.C. \u00a7 3117, cell site information may be disclosed only pursuant to a warrant obtained by a showing of probable cause. Even assuming arguendo that a cell phone is a tracking device under Section 3117, this argument is unavailing.<\/p>\n
First, Section 3117 provides that “[i]f a court is empowered to issue a warrant or other order<\/em> for the installation of a mobile tracking device, such order may authorize the use of that device within the jurisdiction of the court, and outside that jurisdiction if the device is installed in that jurisdiction.” Accordingly, Section 3117 specifically “contemplates that a tracking device may be installed pursuant to an ‘order’ — that is, without a warrant and thus without a probable cause showing.” <\/p>\n
Further, Section 3117 speaks only to the “installation” of a tracking device. Here, the government does not seek to install any sort of tracking device, as cell phones provide location information on their own by transmitting signals to nearby antenna towers.<\/p>\n
Amicus next argues that permitting the disclosure of cell site information under the Pen Register Statute and the Stored Communications Act would violate the Fourth Amendment prohibition on unreasonable searches and seizures. It contends that granting this application would permit the government to track the location of the target cell phone — and its user — without a warrant and a showing of probable cause. This, it says, would run afoul of United States v. Karo,<\/em> which held that the government may not install a tracking device without the knowledge of the person being tracked or a warrant if the device would disclose its location inside a person’s home and that information could not have been observed from public spaces. <\/p>\n
The government argues that there is no Fourth Amendment problem because cell phone users have no legitimate privacy interest in information they voluntarily turn over to third parties. It relies chiefly on Smith v. Maryland,<\/em> in which the Supreme Court held that there is no legitimate privacy interest in telephone numbers dialed because telephone users voluntarily convey those numbers to the telephone company in order to place calls, thereby assuming the risk that the telephone company will pass that information on to law enforcement officials.<\/p>\n
The Court cannot resolve the Fourth Amendment question in the abstract. Although the government is correct that, under Smith,<\/em> there is no legitimate expectation of privacy in the telephone numbers dialed from a particular telephone, it does not necessarily follow that a cell user abandons any legitimate expectation of privacy in his or her location by carrying a cell phone that signals its presence in the network to the service provider. Assuming arguendo that a cell phone user maintains at least some expectation of privacy in location, the government could violate Karo if it used cell site information to surveil a target in a private home that could not be observed from public spaces. At this point, however, the Court has no way of knowing if the government will use any cell site information it obtains in this manner. If it does, and information obtained leads to indictment, the issue can be litigated on a motion to suppress.<\/p><\/blockquote>\n
Whether wrong house was searched under a warrant (2112 vs. 2110) did not need to be resolved. First, the officer testified that he pointed out the correct house to the search team. There is no reason to believe, after the hearing, that the wrong place was searched. Second, photographs of mailboxes taken 9 months after the search raised more questions than answers, and one could conclude that the mailboxes were not as represented at the time of the search. United States v. Smoke, 2006 U.S. Dist. LEXIS 76824 (M.D. Ala. October 10, 2006):<\/p>\n
The United States Supreme Court deems it “enough if the description is such that the officer with a search warrant can, with reasonable effort[,] ascertain and identify the place intended.” Steele v. United States,<\/em> 267 U.S. 408, 503 (1925); Maryland v. Garrison,<\/em> 480 U.S. 79, 83 (1987) (“The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one ‘particularly describing the place to be searched and the persons or things to be seized.”) <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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