Question: Do you need a search warrant to request a suspect’s cell phone pings from the service provider?
Quick Answer: No. When a person voluntarily uses a cell phone, he has no expectation of privacy to the data voluntarily transferred to the service provider, such as a ping. As a result, you do not need a warrant to request this kind of information.
State of Ohio v. Taylor, Second Appellate District, Montgomery County, June 13, 2014
Facts: Darren Taylor, along with two others, murdered the owner of a pawn shop during an attempted robbery. A customer followed Taylor and his accomplices as they fled in a van. He called the police and gave the license plate number, which was registered to Taylor in Detroit. Based on the registration and a database search, police were able to locate Taylor’s cell phone number, his brother’s number, and their service provider. Police requested the ping history of both phones from Sprint. Although Taylor had turned his phone off, his brother’s phone was active and pinging. During the surveillance, the pings placed the phone in Detroit, at the pawnshop, back to Detroit, and then to the location where an accomplice’s dead body was found. The last ping occurred at the police station, where Taylor was detained. Taylor allowed police to search the two cell phones and police obtained an administrative subpoena for additional phone records from Sprint. Taylor filed a motion to suppress, claiming tracking the cell phone pings constituted a warrantless search under the Fourth Amendment.
Importance: When a person uses a cell phone, he voluntarily transmits information to the cell service provider about the phone’s physical location. The user has no reasonable expectation of privacy to this information. When there is no reasonable expectation of privacy, a search warrant is not necessary. In addition to location, information such as the name and street of the subscriber, the subscriber’s phone number, the telephone numbers of calls placed or received, and the duration of the calls can also be obtained without a search warrant.
Keep In Mind: Cell phone data is different from placement of a tracking device on a suspect’s car. Although both use pings to determine location, the difference is that the suspect voluntarily uses a phone. It is this voluntary use that overcomes the expectation of privacy. For the tracking device, because of the trespassory nature of secretly placing the tracker on the car, you must obtain a warrant. If, however, the suspect voluntarily takes possession of a tracking device, say within a package they picked up believing it to be drugs, tracking the suspect’s movement does not require a warrant because he voluntarily took possession of the device.
Another Look: Consider the case of
United States v. Skinner, Sixth Circuit Court of Appeals, Tennessee, Aug. 14, 2012, in which federal agents tracked cell phone pings to find Melvin Skinner, who was in possession of drugs. The court determined that when authorities tracked a known number voluntarily used by the suspect while traveling on public roads, the suspect did not have a reasonable expectation to the privacy of the data and physical location of the cell phone.
More on Search Warrants
More Time to Execute Tracking Device Warrants: Starting July 1, 2014, Ohio Criminal Rule of Procedure 41 will be amended to give law enforcement more time to place tracking devices after the issuance of a warrant. Currently, law enforcement is given three days to complete a search, no matter the type of warrant. The ability to install a tracking device within three days can be difficult, especially if no opportunity arises for law enforcement to safely and secretly install the device. The amendment allows law enforcement greater flexibility by not mandating a specific time period for placement of a tracking device. Instead, law enforcement will write the date of installation and period the device was used on the warrant, and then return it to the court promptly after the tracking period has ended. Within 10 days after use of the tracking device began, law enforcement must serve a copy of the warrant on the person who was tracked, unless the court authorizes reasonable delay of service. Click
here to read the entire Amendment Package and to learn more.
What Address? Who Lives There? You write an affidavit to obtain a search warrant for electronic devices at the home of a man sending sexually explicit photos and content to a minor. You state the address in the affidavit, but fail to say that the address is the home of your suspect. The home is searched and evidence is recovered to charge the suspect with importuning, illegal use of a minor in nudity-oriented material, and disseminating matter harmful to a juvenile. Was the search valid even though you didn’t say the location to be searched was the home of the suspect? The court in
Penny said yes. Although the affidavit did not explicitly connect the suspect to the address, there was enough detail that the link was common sense. If the officer had just said that the suspect resides at the address to be searched, this case doesn’t go forward. Although affidavits are routine, you should double check that all the required “links” are clearly written. Even though this court made a “common sense” link, it could have easily said the warrant was invalid.
State v. Penny, Fifth Appellate District, Stark County, May 27, 2014
- Special Case Note: The above rule is only applicable to the Fifth District of Ohio and its counties. When dealing with federal courts or agencies, remember the rule from U.S. v. Rose (Sixth Circuit of the United States Court of Appeals) holding there is no probable cause for a warrant when the supporting affidavit did not explicitly link the suspect or crime with the address to be searched. To read more about Rose, see the May 2013 Law Enforcement Bulletin.