State attorneys arguing that police don’t need a search warrant to track a person’s location in real-time through their cell phone were met with skepticism from the Kentucky Supreme Court on Wednesday.
The state’s highest court heard arguments in a case that stems from a Woodford County robbery, in which police tracked a suspect’s location by “pinging” his cell phone without a search warrant.
The Kentucky Attorney General’s office argued that police don’t need a search warrant to track someone driving on a public road, even if that tracking is conducted through technology.
“This is not a case about police accessing data stored on cell phones. It is not about whether the police can use dragnet surveillance techniques to monitor an individual's movement,” said Brett Nolan, a deputy solicitor general for the Office of the Kentucky Attorney General. “This is about using technology to do something that police have always been able to do, which they’ve always done: public surveillance on a public road.”
Chief Justice John D. Minton Jr. pushed back, questioning why real-time cell phone tracking wouldn’t require a search warrant, pointing to the detailed data collected by cell companies.
“Don’t I have an expectation of some sort of privacy in that information?” Minton said. “Do we give it up by owning a cell phone?”
(Related: To solve murders, Louisville police turn to ‘geofence’ warrants — but net few arrests)
This case decision is of national interest as tech-based police investigations become more commonplace, said Nathan Freed Wessler, the deputy projects director for the American Civil Liberties Union.
“Since the founding of this country we have set limits on what police can do without judicial oversight,” he said. “Without protections from the courts, people are really vulnerable to having their entire lives become an open book for the government.”
The U.S. Supreme Court in 2018 ruled police must obtain a warrant to access historical cell location data. High courts in several other states have ruled that police do need search warrants for real-time cell data, Wessler said. In many states, however, the question is not yet settled.
“The court has an opportunity to make Kentucky a leader in securing people’s privacy rights,” Wessler said.
Cell phones collect the most intimate details about a person’s life, said Brad Clark, president of the Kentucky Association of Criminal Defense Lawyers. To access that data, he believes police need a warrant, and he said the state Attorney General’s position on the matter is worrisome.
I think everyone should be concerned about this approach the government wants to adopt that they can search anyone without any judicial oversight,” he said. “We need a bright line rule that requires a warrant.”
Instantaneous tracking raises concerns
In this case, Dovontia Reed was suspected of pulling out a gun and robbing a man of $500 at a gas station in Versailles, Kentucky in April 2017. The victim provided police with Reed’s cell phone number, and police dispatch contacted the cell phone company — which “pinged” the phone to determine its location, according to court documents.
The Versailles Police Department did not know Reed’s exact location when they tracked him through his cell phone and it was by happenstance he was on a public roadway when located by police.
Reed’s public defender at the time argued the real-time tracking of his cell phone was unlawful, to no avail. Reed pleaded guilty in October 2018 and was sentenced to seven years in prison.
He appealed his conviction to the Kentucky Court of Appeals, which ruled that obtaining real time cell data requires a search warrant.
“Pinging a cell phone enables the police almost instantaneously to track individuals far beyond the public thoroughfare into areas where they would have a reasonable, legitimate expectation of privacy,” wrote Chief Judge Denise Clayton.
Attorney Adam Meyer, who argued on behalf of Reed, said real-time tracking is an invasion of privacy, and he implored the court to set the precedent that such a warrant is needed.
On Wednesday, Kentucky Supreme Court Justice Michelle M. Keller focused on privacy when questioning Nolan of the attorney general’s office, who presented the state’s argument that no warrant is necessary.
Keller noted that the man could have been at home, or another private location where the police wouldn’t have had the right to search without a warrant.
“Does the government have a right to access my location using my cell phone and determine if I'm in my bedroom or my basement?” she asked. “I’m really concerned about the actual accessing of the person’s location by virtue of having their cell phone on them.”
Nolan conceded that a warrant is best practice if an officer was unsure of a suspect’s location.
“How will that become best practice,” Keller responded, “if this court doesn’t make it so?”
Contact Jacob Ryan at jryan@kycir.org.
