Cellphone locational data and the Fourth Amendment

Approximately 18 months ago, the Supreme Court ruled that law enforcement agents need warrants, rooted with probable cause, to fix GPS devices to criminal suspects' vehicles. Since then, federal law enforcement personnel have been using cellphone towers to track suspects — without a warrant.

The law is quite ambiguous on cellphone locational tracking. There is confusion over whether warrants are required for such monitoring. Several courts have ruled on the issue; however, only two appellate courts have chimed in on the topic. This means that some suspects are being convicted based on this tracking information, and others are not. It all depends on the warrant requirement.

All of this comes at a time when mobile phones are in regular, daily use. In fact, Wireless Association reports that as of December 2012, 326.4 million wireless subscriber accounts were in motion. Everyone has a cellphone these days.

Until the Supreme Court ruled on the GPS issue last year, the lower courts were undecided on whether the police could inconspicuously affix a GPS device on a suspect's vehicle without a warrant. However, as cellphones become the replacement tracking strategy, legal scholars question the way courts will handle this privacy issue.

In the most recent case, the Supreme Court affirmed a decision from the 6th U.S. Circuit Court of Appeals, which covers Michigan, Ohio, Kentucky and Tennessee. The appeals court ruled that warrants with probable cause were not necessary to obtain cellphone locational data.

In that particular case, the appeals court distinguished the cellphone issue from the GPS case, which was previously decided by the Supreme Court. Specifically, the physical act of installing a GPS device on a suspect's car was considered a search within the ambit of the Fourth Amendment. Such invasive action, unlike cellphone tracking, requires a probable-cause warrant.

At the same time, privacy advocates are waiting to hear how the 5th U.S. Circuit Court of Appeals assesses the issue. A ruling from the lower court has found that "compelled warrantless disclosure of cell site data violates the Fourth Amendment." The 5th Circuit sets the law in Louisiana, Texas and Mississippi.

Some rulings on the topic have taken a different approach to the issue, focusing more on the business records element of such matters. That is the case in the 4th U.S. Circuit Court of Appeals. On the other hand, the 3rd U.S. Circuit Court of Appeals contemplated the issue in 2010, noting that that the lower courts have the option to demand a warrant for cellphone data. This law is applicable in Delaware, Pennsylvania and New Jersey.

As one can see, the law is always evolving. These varied decisions have significant impact on the way the Fourth Amendment is applied in criminal cases. If you have been charged with a serious crime, it is important to understand your rights and responsibilities. Depending on your jurisdiction, the outcome of your case could differ. To learn more, speak with a qualified criminal law attorney who has knowledge about search and seizure rights.