Legal Blog

Track Your Cell Phone? Search Warrant Needed

16 November 2016 | Criminal Defense,  Legal Blog,  

Attorney Sean Hessler

Written by
Sean Hessler

16 November 2016

Criminal Defense,  Legal Blog,  

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According to a recent ruling by Indiana’s Court of Appeals, the police need to obtain a search warrant before tracking your movements through your cell phone. While this is an important step towards protecting the people’s right to privacy, the issue has yet to be decided on a national level. Until the Supreme Court takes on the question of whether cell phone tracking is a fourth amendment issue, everyone’s right to privacy may be at stake.

Does Tracking a Cell Phone Constitute a Search

The Indiana Court of Appeals concluded in Zanders v. Indiana that when the police track your movements through your cell phone, they are effectively conducting a search within the meaning of the fourth amendment. This means that they can only do so if they have a warrant or are reacting to emergency circumstances. But there is no telling how the United States Supreme Court would decide this very same issue.

Whether the fourth amendment applies to cell phone tracking depends on whether:

  • People have a reasonable expectation of privacy when it comes to cell phone location history data
  • This location data is given up voluntarily to the cell phone carrier, thus canceling the expectation of privacy
  • The authorities commit a trespass when they obtain the data

The Indiana Appeals Court reasoned that people have a reasonable expectation of privacy when it comes to their cell phone location data because allowing the authorities to access it would be extremely invasive. Any instance where the authorities obtain such private information from an individual ought to be considered a search within the fourth amendment.

The Court also pointed out that cell phone location data is not given up voluntarily, so people can still have an expectation of privacy in relation to it. Indeed, a cell phone user in no way actively gives or allows the cell phone carrier (such as Verizon or AT&T) to obtain his or her location data. Quite the opposite, this data is collected automatically, and often times without the user’s knowledge–much less his or her consent.

How Will the Supreme Court Decide the Issue?

Oddly, the Indiana Appeals Court did not cite an earlier Supreme Court case that favors the position that tracking cell phone locations is a search under the fourth amendment. In United States v. Jones, the Court ruled that putting a GPS tracker on a vehicle consisted in a violation of the driver’s reasonable expectation of privacy even though the vehicle was driven in public places. More importantly, the court considered the placement of the GPS tracker to be a search even though the police didn’t commit a trespass in putting it there.

Since placing a GPS on a tracker on a vehicle is in many respects similar to tracking a person by spying on his or her cell phone GPS data, it is likely that the Supreme Court will rule that both practices are searches under the fourth amendment, and should only be performed with a warrant. It is possible, however, that the court will rule otherwise.

The outcome of the case–when and if it arises–will depend on the arguments put forward by the lawyers and the circumstances under which the case arises. Furthermore, the composition of the Supreme Court at the time of the decision is difficult to predict because several liberal justices are up for retirement, and they may be replaced with more conservative justices.

Contact Hessler Law Today

At Hessler Law, we are passionate about defending the constitutional rights of our clients. The government can and should enforce the laws of the land, but it must never be allowed to overstep its authority in doing so. If you are facing a criminal prosecution or investigation, you owe it to yourself to retain the services of an experienced Indianapolis criminal defense lawyer who can fight for your rights.

For more information on how we can help, call Hessler Law today at (317) 886-8800 for a free and confidential consultation of your case.