Please note that this is not intended to be — nor should it be — considered as legal advice. This is my humble opinion based on the current state of the law and technology today.
Legal disclaimer duly stated, here are the four things I think cops need to consider before tracking a suspect’s cell phone.
1. Get a Warrant
If you’ve got probable cause, why wouldn’t you get a warrant except perhaps in the case of exigent circumstances, abandoned property or some other applicable recognized exception to the warrant requirement? If you don’t have probable cause, before you surreptitiously track cell phone locations without a warrant, procede to item two in this list.
2. Be Judicious
In its recent decisions involving the search of a cell phone incident to arrest and GPS tracking, the Supreme Court expressed concern about the Government over-reaching into personal lives and information with technology simply because it could – that is, there wasn’t a court decision or statute that prohibited the government’s use of the technology to spy on its citizens.
Police are part of the Government and therefore privacy advocates often will put law enforcement in the same category as the NSA and CIA (irrespective of the accuracy of doing this).
Justice Sotomayor might have been talking about the book 1984 and Big Brother when she wrote in U.S. v. Jones (2012),
“Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects is susceptible to abuse.”
Don’t abuse the technology.
3. Be Selective
Pick your cases carefully. I first heard a saying in law school that I heard repeated in my years as a prosecutor – “Bad facts make bad law.” If surreptitiously tracking a cell phone’s location hasn’t been decided in your jurisdiction, you don’t want your courts deciding it in a relatively minor or run-of-the-mill criminal case.
Reserve the use of the technology for a serious case of harm that might otherwise not have been prevented or stopped without the intrusion. Limiting the technology’s use to serious criminals reassures the Courts and law abiding citizens they needn’t be concerned they might be subject “willy-nilly” to such intrusions.
4. Be Informed
Consult with your local prosecutor about the trial and appellate level judges, the case law and any possibly applicable local, state, or federal regulations or laws.
