A district judge in Maryland recently refused to issue a warrant sought by federal authorities to locate a suspect with his cell phone’s GPS data, adding another wrinkle to the debate about technology, privacy and law enforcement.
In the case before U.S. District Judge Susan K. Gauvey, federal agents who were searching for a suspect had one solid lead: his cell phone number. As this suspect’s phone was equipped with a GPS device, the police wanted the phone company to divulge his location information so they could track down his phone even if he wasn’t using it.
The defense attorney argued against granting the warrant, saying that in Maryland a necessary component for issuance of a search warrant is proving “a fair probability that contraband or evidence of a crime will be found in a particular place.”
The attorney concluded that in this case, the government didn’t claim the cellular information it sought would produce evidence of a crime. It would, however, most likely produce the suspect, but that isn’t the same, the defense argued.
During a hearing in U.S. District Court in Baltimore, Nathan S. Judish, a senior counsel in the computer crimes and intellectual property division within the U.S. Department of Justice, said a suspect wanted on a warrant enjoys less privacy than others, but Judge Gauvey disagreed, citing an absence of precedent.
In explaining the decision not to grant the warrant in Baltimore’s federal court, Judge Gauvey agreed with the defense, saying the authorities were seeking information, “not to collect evidence of a crime, but solely to locate a charged defendant.”
Gauvey pointed out that, to some, the warrant request “would appear reasonable, even commendable and efficient.” However, to others “this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants,” the judge concluded.
Judge Gauvey wrote that the decision not to grant the warrant wouldn’t necessarily impede law enforcement’s efforts to locate the suspect, “but rather places them within the Constitutional and statutory framework which balances citizens’ rights of privacy against government’s protection of society,” and “out of the government’s casual reach.”
State prosecution is likely not to appeal the judge’s decision. Maryland U.S. Attorney Rod J. Rosenstein described the circumstances of this particular case as unique, saying, “We have never needed such an order in any case before or since, as far as I know, so there is little reason to appeal the moot opinion.”
Rosenstein added the Justice Department is not looking to use GPS to track random citizens. In this case, the authorities were concerned the suspect, whom the judge determined was unaware of the warrant for his arrest and would flee if authorities called to ask him to turn himself in.
The Maryland ruling comes as other courts arrive at different and often conflicting conclusions concerning GPS use to track and apprehend suspects. A federal appeals court overturned a conviction of a Washington man based on a warrantless GPS search, while appellate courts in California and Oregon upheld convictions.
The U.S Supreme Court is scheduled to take up the issue of GPS tracking in its next term, determining whether police can place GPS devices on cars to track suspects without obtaining warrants.
The nation’s highest court is expected to review the case of Antoine Jones, a Washington D.C. nightclub owner who was convicted for distributing drugs. A lower court overturned his conviction because it was based on data collected from a GPS tracker on his vehicle that police installed without a warrant.
The Obama administration is reportedly appealing that decision to maintain the legality of warrantless GPS tracking, which it argues is essential for effective law enforcement.
If the Supreme Court rules against the suspect, it may set the stage for government arguments that real-time cell phone tracking doesn’t need a warrant, either, or at the very least that laws governing such practices need to be cleared from vagueness that often surrounds them.