Should the police track suspects by cell phone?

A federal magistrate in Baltimore holds up agents in their use of 'location technology' to make arrests

August 14, 2011|By Dan Rodricks

On its face, this strikes me as a pretty good idea: Allow police or federal agents to use the "ping" signal or GPS in a suspect's cell phone to track him down and execute a warrant for his arrest. This seems like a reasonable and even wise use of "location technology." It would likely save time and money, and give cops and marshals another tool in their efforts to bring the accused to the bar presto, pronto, post-haste.

But not so fast.

Magistrate Judge Susan K. Gauvey, of the U.S. District Court in Baltimore, just issued an exhaustive, 139-page opinion on this matter, saying it is no small matter — and raising the large matter of the Fourth Amendment.

Law enforcement might be eager to use cellular and satellite technology for locating suspects, but Judge Gauvey said the Constitution protects all but the fugitive from this kind of police action.

Her detailed opinion came out Aug. 3, an effort to explain her denial of requests by federal agents to use cellular and global positioning technology in a new way — not for the collection of evidence of a crime, but for the location of a suspect.

In June 2010, the feds asked for a "ping." They wanted Sprint to send a signal to a suspect's cell phone in order to determine the phone's (and presumably the suspect's) whereabouts. "Pinging" is undetectable to the cell phone user.

In their second request, the feds noted that the suspect's cell phone had a GPS-enabled chip. They wanted the judge to order the cellular company to provide them with the phone's GPS coordinates for 30 days.

In denying the requests, Judge Gauvey noted that the government had not presented evidence of a crime. (Apparently, it's not against the law to be unavailable for apprehension, especially if you don't know the feds have a warrant for your arrest.) The government had made no other effort to locate the suspect. It had not presented facts to support that their man was a fugitive. The feds could not prove that the suspect — and not someone else — was using the phone they wanted to locate.

Judge Gauvey's opinion was written at what she called the "intersection of law on arrests and searches," based on the Fourth Amendment.

Police or FBI agents go to court for warrants to conduct searches when they're looking for evidence of crime; they must convince a judge they have probable cause for such a search. Or, they might be looking for a fugitive, someone who is trying to escape apprehension, and they must present "evidence of flight."

Absent those factors, law enforcement should not have permission to use a suspect's cell phone against him, Judge Gauvey ruled. It certainly shouldn't be allowed to use the technology to simply locate him.

Even defendants have a right to an expectation of privacy, she said. (The defendant in this case subsequently was apprehended without the use of location technology.)

"There is no precedent for what the government seeks: the right to obtain location data without any demonstration of the subject's knowledge of, and attempt to avoid, an arrest warrant," Judge Gauvey wrote. "No court under any rubric has approved a warrant or order for location data on the simple showing of an outstanding arrest warrant and the possession of a cell phone by the subject of the arrest warrant."

She declined to expand the government's use of location technology, saying this is a matter for Congress — and, ultimately, the Supreme Court — to resolve.

"Some might say that this is an appropriate use of a new technology in the service of more efficient and effective law enforcement," Judge Gauvey wrote. "Others might say it is an unnecessary use of a new technology in a society already subjected to pervasive surveillance. The Court understands the tension. Regardless of individual views, the law does not currently sanction the requested acquisition of location data in these circumstances."

It's a rich feast, nuanced and layered, that Judge Gauvey presents in this opinion. It holds up a hand against the full advance of Big Brother.

But, given the power of technology — and our embrace of it — I can see such fine a distinction of law being crushed in time. Technology makes possible peaceful revolution; it can foment riotous anarchy. It can make the world a smaller place; it can make Big Brother bigger. In the tension is the test for a free society.

Dan Rodricks' column appears Tuesdays, Thursdays and Sundays. He is the host of Midday on WYPR 88.1 FM. Email: Facebook:

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