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Electronic Surveillance

Cell Phone Surveillance and Searches

Searches of cell phones and other forms of electronic surveillance have increased dramatically in recent years. Law enforcement officers at both the federal and state levels continue to engage in questionable searches and seizures of cell phones and the information contained in the cell phones. The attorneys at Flanary Law Firm, PLLC, based in San Antonio, Bexar County, Texas, are experienced in filing and litigating motions to suppress evidence obtained during illegal searches in state and federal courts throughout the country.

The attorneys at Flanary Law Firm, PLLC, are leaders in this area of the law. Our attorneys are often called upon to speak on these issues to other criminal defense attorneys, prosecutors, and judges. Donald H. Flanary, III, recently presented this material at the State Bar of Texas CLE Seminar Webcast on March 18, 2014, and the State Bar of Texas Sex, Drugs, and Surveillance seminar on January 9-10, 2014, on the maintableics of electronic surveillance and searches of cell phones.

I. Introduction

Imagine yourself driving down a country road. The weather is beautiful. Someone special is by your side. Suddenly, you see red and blue lights behind you. The rental car you are driving has a burned-out tail light. You pull over and smaintable in a rest area. A police officer asks for your license. He is friendly and polite. He asks you to step out of the car and walk to the rear of the vehicle. He asks you to empty out your pockets. You take out your wallet, a few bucks in cash, and your cell phone.

He tells you that because you are in a rental, he is only going to give you a warning. Without you noticing, he slips your cell phone into his pocket. He walks back to his squad car to run your license. While in his car, the officer uses a handheld device to extract all of the information off of your cell phone, including contacts, photos and videos, and most importantly, GPS data, even though you aren’t even a suspect in a crime. This scenario sounds like a sci-fi movie script or some paranoid Orwellian prophecy of a future police state. But it is not.

This scenario is already taking place right here in the U.S. Cnet.com has reported that Michigan State Police have been using these “extraction devices” already. Jonathan M. Seidl, Mich. Cops Can Now Steal Your Cell Phone Data—‘Without the Owner Knowing’, THE BLAZE (April 20, 2011, 9:28 AM).

These handheld devices can work with different phones and even bypass security passwords. In 2011, the Michigan State Police “admitted to owning five of the devices.” This article will examine the current state of electronic surveillance and tracking in the aftermath of the recent Supreme Court decision in United States v. Jones, 132 S. Ct. 645, (2012). Part II will focus on post-Jones cases. Part III will examine how cell phone data is kept and how records are maintained and how the government accesses this information. Part IV will examine case law for cell phone searches incident to arrest. Part V will examine how cell phones work and how the information is collected. Part VI will take a look at the new technologies that the government is using for surveillance today. Part VII will examine Texas law regarding computer security, and private phone tapping and tracking devices, and surveillance techniques.

II. The Electronic Frontier Post-Jones

A. United States v. Jones, 132 S. Ct. 945 (2012).

In U.S. v. Jones, the Supreme Court held that the installation of a GPS tracking device on a suspect’s vehicle, as well as the monitoring of the movements of that vehicle, constituted a search under the Fourth Amendment. United States v. Jones, 132 S. Ct. 945, 949 (2012). The Court held accordingly due to the government’s physical occupation of private property for the purpose of gathering information. Id.

Antoine Jones, a nightclub owner in Washington D.C., had become the focus of an investigation by the FBI and Metropolitan Police Department. Id. at 947. Based on information gathered from a variety of sources, including visual surveillance of the nightclub and a wiretap of Jones’ cell phone, the government obtained a warrant for the use of an electronic tracking device to be installed on the undercarriage of the vehicle registered to Jones’ wife. Id. The warrant authorized the installation of the device in the District of Columbia within 10 days. Id. The GPS tracking device was installed on the 11th day in Maryland. Id.

By use of the device, the government obtained over 2,000 pages of data over a 4-week period. Id. at 948–49. In 2007, after a hung jury the year before, the government used, once again, the data obtained from the use of the GPS device to connect Jones to the location that contained 97 kilograms of cocaine and $850,000 in cash. Id. at 949. Jones was sentenced to life in prison. Id. The U.S. Court of Appeals for the District of Columbia Circuit reversed the conviction of Jones, explaining that the warrantless use of the GPS device was a violation of the Fourth Amendment. United States v. Maynard, 615 F.3d 544, 568 (D.C. Cir. 2010).

The Supreme Court unanimously affirmed the decision of the appeals court. Jones, 132 S. Ct. at 945. The reasoning employed by the Justices, however, differed. Justice Scalia based the majority opinion on the fact that the government had “physically occupied private property for the purpose of obtaining information” without a warrant. Id.

The text of the Fourth Amendment, Justice Scalia explained, demonstrates the close connection to property. Id. The Court explained the “common-law trespassory test” for what could be described as a Fourth Amendment violation per se. Id. at 952. Looking to language previously used by the Court, Justice Scalia explained, “when the government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” Id. at 951 (citing United States v. Knotts, 460 U.S. 276, 286 (1983)).

Essentially, if the government takes up space on private property without a warrant, there is a strong presumption that a violation of the Fourth Amendment has occurred. The Court went on to distinguish the facts in Jones from the previous cases, United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo, 468 U.S. 705 (1984) where the Court upheld government actions in which tracking devices were placed in a defendant’s care by noting that in both Knotts and Karo, the “beeper” used by the government was installed in the container to be tracked before the container came into the possession of the defendant. Id. at 952 (“As in Knotts, at the time the beeper was installed the container belonged to a third party and it did not come into possession of the defendant until later.” (citing United States v. Karo, 468 U.S. 705, 708 (1984))).

Justice Sotomayor noted in her concurrence that in situations involving new forms of electronic surveillance the majority opinion’s trespassory test would not provide the necessary guidance. Id. at 955 (Sotomayor, J., concurring). With Justice Scalia-like wit, Justice Alito began his concurrence by noting the irony of the majority of the Court deciding a case involving 21st- century surveillance techniques by applying 18th-century tort law and pointing out that in Jones, the government might have provided grounds for a 1791 suit for trespass to chattels. Id. at 957 (Alito, J., concurring).

The main point of difference in the Court was the analysis of when and how to apply the two part test developed in Katz v. United States, 389 U.S. 347 (1967). This test was explained by Justice Harlan in his concurrence and has become the strong point of the Katz opinion. The test inquires if a private citizen can meet two requirements in order to establish that a violation has occurred, “first that a person have exhibited an actual (subjective) expectation of privacy and, second that the expectation be one that society is prepared to recognize as ‘reasonable.’” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

The majority opinion in Jones did point out, “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” Jones, 132 S. Ct. at 953. Justice Scalia opined that the Katz test “added to, not substituted for, the common-law trespassory test.” Id. at 952 Justice Alito, on the other hand, stated that Katz “finally did away with the old approach, holding that a trespass was not required for a Fourth Amendment violation.” Id. at 959 (Alito, J., concurring).

The opinion of the Court did establish that in situations in which officers have “physically occupied private property of the purpose of obtaining information,” a “search” within the meaning of the Fourth Amendment has occurred. Id. at 949. The Court, however, did not provide further guidance as to when and how to apply the Katz test to situations involving 21st-century surveillance techniques or as Justice Alito would have framed the issue before the Court, “whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” Id. at 958 (Alito, J., concurring).

The holding in Jones did not, as the media reported, require a search warrant to attach a GPS device; that question was not answered. Both the concurring opinions by Justices Sotomayor and Alito raise several more questions that the majority’s reliance on trespass theory seems inadequate to answer. A decision on factory or owner installed vehicle track devices or GPS enabled smartphones are absent from the opinion of the Supreme Court. Id. at 956 (Sotomayor, J,. concurring). In a companion case Chief Judge Kozinski of the Ninth Circuit dissenting from the denial of rehearing en banc proclaims “1984 may have come a bit later than predicted, but it’s here at last.” United States v. Pineda-Moreno, 617 F.3d 1120 (9th Cir. 2010).

In an almost fatalistic dissent Chief Judge Kozinski lays out the argument that seemed to have great sway over Justice Sotomayor. The facts of Pineda-Moreno are very similar to Jones and yet the Ninth Circuit came to the conclusion that that entering onto Pineda-Moreno’s property and attaching a tracking device to his car required no warrant, probable cause, founded suspicion or by-your-leave from the homeowner. The panel further held that downloading the data from the GPS device, which gave police the precise locus of all of Pineda-Moreno’s movements, also was not a search, and so police can do it to anybody, anytime they feel like it.” Pineda-Moreno, 617 F.3d at 112. Kozinski continues that:

“if you have a cell phone in your pocket, then the government can watch you. At the government’s request, the phone company will send out a signal to any cell phone connected to its network, and give the police its location. Last year, law enforcement agents pinged users of just one service provider-Sprint- over eight million times. The volume requests grew so large that the 110-member electronic surveillance team couldn’t keep up, so Sprint automated the process by developing a web interface that gives agents direct access to users’ location data. ” Id. at 1125 (internal quotations omitted).

The Government has this power but it still must establish and the 5th circuit and the Western District of Texas have their individual case law regarding it.

The Third Circuit held in United States v. Katzin, 732 F.3d 187 (3d Cir. 2013), that there is ”no hesitation in holding that the police must obtain a warrant prior to attaching a GPS device on a vehicle, thereby undertaking a search that the Supreme Court has compared to ’a constable’s concealing himself in the target’s coach in order to track its movements.” United States v. Katzin, 732 F.3d 187, 198 (3d Cir. 2013) (quoting Jones, 132 S. Ct at 950 n.3.).

The Court explained that ”[vc_row][vc_column][vc_column_text][w]hile the interests the police wished to further in this case are certainly important, the same interests arise in every investigation where the police have a potential suspect. We are hard pressed to say, therefore, that the police can—without warrant or probable cause—embark on a lengthy program of remote electronic surveillance that requires almost no law enforcement resources and physically intrudes upon an ordinary citizen’s private property. Consequently, we hold that—absent some highly specific circumstances not present in this case—the police cannot justify a warrantless GPS search with reasonable suspicion alone” and refused to accept the vehicle exception as a way for the government to sanction their search of Defendant’s vehicle through the ”ever-watchful electronic sentinel in order to collect future evidence.” Id. 198-204.

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