A lot can be done with technology these days. Police can track the movements of anyone with a cell phone. They can, but under what circumstances do they actually do this and are they required to get a warrant ahead of time? The answers to those questions aren’t so clear.
Law enforcement organizations across the country use this technology every day, but the standards under which they use it differ from department to department. Even within the state of Colorado, there is no one single uniform practice.
In Denver, any cell phone access by law enforcement requires a warrant. That isn’t the case in other communities, however. Emergency circumstances, like a kidnapped child, for instance, allows police in Lakewood to access phone location data without a warrant. In Arapahoe County, prosecutors use a court order that requires less than probable cause.
The U.S. Supreme Court ruled just last week that tracking the location of someone via cell phone without a warrant could constitute a violation of their 4th Amendment rights. While this “jolted the legal community,” according to the Denver Post, the ruling shouldn’t be seen as surprising.
Denver Chief Deputy District Attorney Dick Reeve points out that state laws and court precedent require probable cause to get a wiretap or a “trap and trace” device, which show calls but not the content of the conversation. This same standard could easily be applied to cell phones. The technology has changed but the motivation behind the laws is no different—to protect the civil liberties of the people.
It would seem that law enforcement agencies, in the absence of a clear law or practice, would err on the side of precaution, getting a warrant just in case. But, that’s not always the case.
At the federal level, there are two bills in front of Congress that would address this and other similar matters. They would make it abundantly clear to law enforcement agencies across the country that warrants are required for GPS tracking, cell phone tracking, or accessing historical cell phone location data.
For now, in Colorado, however, agencies are left to make their own decisions. If the police used cell phone location data in a criminal case and did not get a warrant ahead of time because the law didn’t explicitly require it, they could face some challenges if that case ever goes to trial. A good argument could be made for the suppression of that evidence because it constituted an unconstitutional search.
If you are facing criminal charges and have questions about the legality of the evidence, contact our offices today. We may be able to help you fight the charges and emerge successful in court.