Saturday, March 10, 2012

The Location Tracking Mess - 7th Circuit Allows Warrantless Searches of Cell Phones

On February 29, 2012, in USA vs. Abel Flores-Lopez, the U.S. Court of Appeals for the 7th Circuit determined it's OK for a police officer to search a suspect's cell phone in the process of making an arrest. For more on this development,

Comment: If you have been paying attention over the past couple of years, you'll realize this latest ruling is just another one that points to confusion caused by technology leaping ahead of the law.  Even more interesting, a survey of the popular press mirrors the situation in the courts.  Some are claiming this ruling gives police broad new powers, while others are saying nothing has changed.  Truth is, from the perspective of location, the situation is probably far more the former than the latter.  Consider this:

Since Judge Terrence McVerry of the  Western Pennsylvania U.S. District Court ruled in 2008 that police needed a warrant before obtaining a history of location information about a suspect from a cell phone provider, the federal government has been working without success to get the case reversed. Go here, or here

Then, as reported on this blog in late January 2012, the U.S. Supreme Court ruled police must obtain a warrant before attaching a GPS to a suspect's car.  In effect, another case confirming information about personal location is special and deserves unique protection under the law.

Then comes the 7th Court of Appeals ruling mentioned above.  Although the opinion handed down was based on past law giving police access to information discovered on a suspect during an arrest (like a diary), the ruling appears to give police access to the highly detailed "unintentional recording" of a  suspect's travels over an extended period of time without a warrant.  How so?  Although a big flap occurred this past spring when a couple techno-geeks figured out iPhones, iPads and the like were storing location data, few seemed to be aware that more than a few police departments have the ability to use a system like the Cellbrite UFED Ultimate to decode the when's and where's of mobile devices. 

Consequently, for a mind untrained in legal matters like mine, it sure seems like we have a mess on our hands - a warrant must be used to obtain cell phone location tracking records, or track an individual with a GPS, but if that same information is obtained from an individual's cell phone during an arrest, a warrant isn't needed?  Undoubtedly the difference has something to do with information being obtained as the result of an arrest, but I'm not seeing it.  Hopefully, there's a lawyer in the house that can help straighten this one out for me and the readers of EPC Updates.....

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