Drug Trafficker (Alleged) Walks on Cocaine Cell Phone Search

An alleged  Florida Drug Trafficker Walked on Cocaine charges. Charges were based upon a Cell Phone Search. The Number You Have Tracked is No Longer in Service – He was charged with ” possession of more than 400 grams of cocaine, as well as fleeing and eluding, driving while his license was revoked as a habitual offender, and resisting arrest without violence.”

The court questioned whether the warrantless use of electronically generated cell site location information to track an individual’s movements in real time both on public roads and, in this case, also into a residence, violates a subjective expectation of privacy in that person’s location . . . .”

The distinguishing factor in this case was the police tracked the suspect in his home.”Officers learned of his location on the public roads, and ultimately inside a residence, only by virtue of tracking his real time cell site location information emanating from his cell phone.” 

Florida Supreme Court rules that “[t]he trial court found that the application for the October 23, 2007, order did not contain a sufficient factual basis on which to issue a search warrant, but denied the motion to suppress, finding that no warrant was required to use Tracey’s real time cell site location data to track him on public streets where the court held he had no expectation of privacy.” The Court found that the court below had erroneously “concluded that the exclusionary rule does not apply to prevent the State from using evidence derived from the statutory violation. . . . This conclusion was the result of reliance in part on federal decisions that have held that the exclusionary rule is not applicable to violation of the federal Stored Communications Act because the Act expressly rules out exclusion as a remedy, by stating that the listed civil and criminal penalties are the only judicial remedies and sanctions for violation of that act.”

Under Florida law, “[w] cannot overlook the inexorable and significant fact that, because cell phones are indispensable to so many people and are normally carried on one’s person, cell phone tracking can easily invade the right to privacy in one’s home or other private areas, a matter that the government cannot always anticipate and one which, when it occurs, is clearly a Fourth Amendment violation.”

“We further hold that under the circumstances of this case in which there was no warrant, court order, or binding appellate precedent authorizing real time cell site location tracking upon which the officers could have reasonably relied, the “good faith” exception to the exclusionary rule for “objectively reasonable law enforcement activity” set forth by the Supreme Court in Davis v. United States, 131 S. Ct. 2419, 2429 (2011), is not applicable. Thus, Tracey’s motion to suppress the evidence should have been granted.” 

“Cell site location information (also referred to as CSLI) refers to location information generated when a cell phone call occurs. Cell service providers maintain a network of radio base stations called “cell sites” in different coverage areas. A cell site will detect a radio signal from a cell phone and connect it to the local network, the internet, or another wireless network. The cell phones identify themselves by an automatic process called “registration,” which occurs continuously while the cell phone is turned on regardless of whether a call is being placed. When a call is placed and the cell phone moves closer to a different cell tower, the cell phone service provider’s switching system switches the call to the nearest cell tower. The location of the cell phone can be pinpointed with varying degrees of accuracy depending on the size of the geographic area served by each cell tower, and is determined by reference to data generated by cell sites pertaining to a specific cell phone. “

“Florida’s counterpart to this federal scheme is contained in chapter 934, Florida Statutes, titled “Security of Communications.” In 2007 when the order in this case was entered for installation of the pen register and trap and trace device as to Tracey’s cell phone, section 934.31, Florida Statutes (2007), similar to federal law, required a court order to “install or use a pen register or a trap and trace device.” § 934.31(1), Fla. Stat. (2007). Section 934.33(1), Florida Statutes (2007), allowed entry of the order if the officer making the application under section 934.32, Florida Statutes (2007), certified that the information likely to be obtained by the installation and use of a pen register or trap and trace device is “relevant to an ongoing criminal investigation” by that agency. § 934.32(2)(b), Fla. Stat. (2007) (emphasis added). “

Complete Opinion is here: