Do you have an expectation of privacy in your real time cell-site location information?

The Kentucky Supreme Court addressed this issue last year in Commonwealth v. Reed. The Defendant was accused of robbing the victim at gunpoint and then leaving as a passenger in a car. The victim provided the police with the defendant’s cell phone number, which police used to have the cell-service carrier track the defendant’s live pings. This eventually resulted in the defendant being found and arrested for Robbery 1st Degree.

The issue is that the police did not obtain a search warrant before obtaining the defendant’s real-time location. The Court found that you do have an expectation of privacy in your real time cell-site location information (CSLI) and thus police either must have an exception to the warrant requirement or they must obtain a search warrant.

The United States Supreme Court previously addressed historic CSLI in Carpenter v. United States. In that case, law enforcement obtained 127 days of the defendant’s historic CSLI. The U.S. Supreme Court found that a warrant was required for this information, but made it clear their ruling did not apply to real time CSLI. In the current case, the Kentucky Supreme Court held that “individuals have an objectively reasonable expectation that their cell phones will not be used as real-time tracking devices through the direct and active interference of law enforcement.”

The government argued that an individual does not have a reasonable expectation of privacy while driving on a roadway. However, being under visual surveillance by the police, while out in public, is different from police being able to remotely access your exact position continuously. Additionally, the government argued that instead of needing a warrant ahead of time, the trial court could review the data collected and suppress any location data that involved a protected space, such as a person’s home. Thankfully, the Court found this proposal “wholly inadequate”.

With modern technology changing at a rapid pace, our Courts are tasked with balancing our privacy interests against interfering with law enforcement’s ability to investigate crimes. As a society, we are becoming more and more comfortable with sharing private information with third parties. However, we do not expect that the police will be able to access that information at any time. This is why it is important to have an experienced criminal defense attorney work on your case, so that they are up to date on the most recent developments in search and seizure case law.