If you own a cell phone with a GPS, cops may use that data to track your location in real-time anywhere outside your home, and they don’t need a warrant to do so.
That’s the ruling of the 6th Circuit U.S. Court of Appeals in a case affirming the arrest of Montai Riley in Memphis, Tennessee.
In June 2015, a Michigan state court had issued a warrant for Riley’s arrest, believing him to be the suspect in the armed robbery of a Check’N’Go location the day before.
Two days later, Riley had purchased a “burner phone” (a cell phone with a no-contract, pay-as-you-go plan) to stay in contact with his girlfriend. She, in turn, narced on her boyfriend Riley by giving the number to the U.S. Marshal Service.
The officer then applied with a county court for an order compelling AT&T to provide inbound and outbound call metadata and to ping his phone regularly for “[p]recision location of [the] mobile device,” meaning its exact latitude and longitude to the sixth decimal point (within a few feet).
This tracking of Riley was authorized to last “potentially for two months,” though the police found Riley on the first day they began tracking his movements by GPS.
The GPS data indicated that Riley was holed up at the Airport Inn in Memphis, Tennessee. When police arrived, they showed a picture of Riley to the front desk clerk, who identified him as being in room #314. Police knocked on his door, Riley answered it, then shut it, then the police barged in and arrested him, finding a handgun in the process that added a “felon in possession” charge to his rap sheet.
Riley’s lawyers fought to suppress that handgun evidence, arguing “[t]here was no known legal way that Mr. Riley’s location could have been located absent the use of illegal cell tracking technology.”
The government opposed the motion, arguing that pinging Riley’s cell phone every 13 minutes on average for five days on 454 separate occasions wasn’t an unreasonable violation of Riley’s privacy and did not rise to the level of warrantless electronic snooping that is forbidden by our 4th Amendment.
The district court and, now, the appeals court agree with the government.
“[U]sing seven hours of GPS location data to determine an individual’s location (or a cell phone’s location),” wrote the majority, “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.”
They base their decision on numerous 4th Amendment precedents set previously in numerous cases from the War on Drugs.
The Kyllo case determined that thermal imaging used by police from outside the home to detect the heat signature of marijuana grow houses was a 4th Amendment violation, thus rendering unconstitutional electronic collection of data about your home’s interior.
But the police weren’t tracking any data about Riley’s home, the government argues, but merely a device he happened to be carrying.
The Karo case determined that placing a tracking device on precursor chemicals for meth and then tracking them to locations within a suspect’s home was also unconstitutional.
But the Knotts case determined that as long as the government only tracks the location of that tracking device to locations that aren’t inside the suspect’s home, there’s no 4th Amendment violation.
The Allen case further extends the 4th Amendment expectation of privacy to an individual’s hotel room.
But the government argued that they did not track Riley to his exact hotel room, but merely to the hotel itself, so it wasn’t a 4th Amendment violation.
“[T]he tracking revealed only that Riley had traveled to the Airport Inn, not which room (if any) the phone was in at the time of the tracking,” the court explained.
However, the GPS coordinates the government listed in its tracking don’t merely point to the hotel or its lobby (Google Map it yourself at 35.060307, -90.016747). To me, it appears as if it points to a very specific location within the hotel.
But since the hotel has three floors, that GPS location doesn’t tell us if it was room #114, #214 or #314.
The government states that with the 454 records of GPS data “the government learned no more about Riley’s whereabouts … than what Riley exposed to public view by traveling to the motel lobby … even if Riley meant to keep his location a secret, one cannot expect privacy in one’s public movements.”
But isn’t there a meaningful difference between what we “expose to public view” and “allowing the government to collect what is exposed to a private company with the power to catalog our every public movement?”
Sure, if government collected eyewitnesses saying they saw Riley drive and park at the Airport Inn, there’s no expectation of privacy there. If the cops collected traffic cam photos of Riley driving there and the hotel lobby’s security footage showing him checking in, that’s all public view, too.
But my personal cell phone is that not part of the “persons, papers, houses, and effects” part of the 4th Amendment?
When I contract with a private company to provide me access to GPS satellites on my personal device, why shouldn’t I reasonably expect that data to remain private, absent a warrant? No member of the public can ping my cell phone for its precise location at any time they wish! Only my carrier—a private company—has that power.
Are we to believe that the location data our cell phones generate is public?
The court explains that “had Riley truly wished to avoid detection, he could have chosen not to carry a cell phone at all, or to turn it off.” Or, perhaps, he could have chosen a more trustworthy girlfriend.
There you have it.
According to our courts, if you own a cell phone with GPS, the government may issue orders (not warrants signed by a judge) to track your precise location in real-time everywhere except within your home. That’s kind of a meaningless distinction, though, since if they can know where you are in every place but home, and you’re not in any of those places, you must be home, right?
These are your choices in America today: carry with you a device that organizes your life, handles your communications, navigates you out of being lost, helps make and track purchases and provides a way to summon first responders and document photographic or video evidence of crimes or emergencies in progress; or do without it and enjoy your constitutional rights to free travel and privacy.