Las Vegas Criminal Defense Attorney: Warrantless Cellphone Tracking by Nevada Police Could Have Profound Effect on Civil Liberties

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Documents obtained by the American Civil Liberties Union of Nevada show that some law enforcement agencies in Nevada, including in the Las Vegas area, have tracked suspects' movements through the suspects' cellphone use. A Court of Appeals decision ruled that such tracking without a warrant is constitutional. Las Vegas criminal defense attorney Joel Mann weighs in on the current lack of legal standards that apply to this practice.

If you ask most people if they think their cellphone conversations and usage are private, they'll tell you they think it is.

The freedom from unreasonable searches and seizures, enshrined in the Bill of Rights, has been tested in recent times by technology. Courts and the law have had a difficult time keeping up with the abilities of police agencies to delve into places where a suspect might have a reasonable expectation of privacy. One of those areas has been the data and information emitted and received by cellphones. Police have the technology to track that data and information and determine where it is coming from, giving them the ability to track the location of suspects.

In United States v. Skinner, the Sixth Circuit Court of Appeals, which has jurisdiction over Ohio, Tennessee, Kentucky and Michigan, recently ruled that such tracking does not require a warrant (No. 09-6497 (6th Cir. August 14, 2012)). Civil liberties groups have vowed to fight the case, with the ACLU asking for an en banc hearing. If denied, the next stop could be the U.S. Supreme Court.

An ACLU report found that Las Vegas-area police have been engaged in cellphone tracking. The report found that Nevada police departments, including the Las Vegas Metropolitan Police Department and the North Las Vegas Police Department, use cellphone records to track people who are suspects or otherwise involved in police investigations. The police agencies often work in collusion with wireless providers, who the agencies pay for records and surveillance. In those instances, the providers track signals to determine which cellphone tower the callers are using, and give that information to law enforcement agencies .

"The law has not kept up with technology in this regard, and it's allowed for police to have access to information about a suspect that the Supreme Court may eventually find is within that suspect's reasonable expectation of privacy," said Joel Mann, a Las Vegas criminal defense attorney. "However, until that ruling comes down, the police are acting in constitutionally questionable territory."

When investigating a suspect, police are free to use anything within the public sphere, and may do a "stop and frisk" when they have reasonable suspicion. However, unless certain circumstances exist, they must have probable cause and obtain a warrant before invading a person's "reasonable expectation of privacy." The reasonable expectation is a loosely defined and sometimes changing constitutional boundary, within which a person would believe that they are in a private setting.

Earlier this year, the U.S. Supreme Court ruled in United States v. Jones that police putting a global positioning system (GPS) tracker on a car constitutes a "search" requiring probable cause (132 S.Ct. 945 (2012)). The majority opinion, written by Justice Antonin Scalia, held that placing the device, which was used to track a suspect's movements, was a search because the police invaded a suspect's property (his car) to obtain information (place the tracker). The opinion declined to say whether the tracking itself requires a warrant. A minority opinion, written by Justice Samuel Alito, went further in saying that the tracking itself would require a warrant.

Cellphone tracking is similar to GPS tracking. It is use of technology to track people's whereabouts without their consent. However, it is different in that, unlike using a GPS tracker, when officers had to physically attach the device to the suspect's car, police do not have to even get near the suspect in order to begin cellphone tracking — a difference cited by the Court of Appeals in the Skinner case. Civil liberties groups say people have a reasonable expectation of privacy for the data emitted from cell phones. Law enforcement agencies say people should know that the data their cell phones emit can be tracked.

"The Skinner case may give the Supreme Court the opportunity to determine whether this kind of tracking requires a warrant, and their decision could affect Las Vegas-area law enforcement agencies' ability to continue with the practice," Mann said. "If the Court hears the case, they may decide that all such tracking requires a warrant all the time, or that such tracking never requires a warrant, or something else entirely."

The current inability of courts to find a bright line for a reasonable expectation of privacy standard for emerging technology has left for uncertainty in the criminal justice system, said the criminal defense lawyer.

"If you ask most people if they think their cellphone conversations and usage are private, they'll tell you they think it is," Mann said. "The legislature and Congress could easily clear up this uncertainty by passing a law confirming that people have a reasonable expectation of privacy when it comes to their cellphone usage."

Joel Mann is a Las Vegas criminal defense attorney who is dedicated to ensuring that his clients' rights are protected throughout the process of a criminal court case. Joel and his office provide residents of Las Vegas and Clark County with criminal defense representation for a wide variety of criminal charges, including marijuana and drug offenses, DUI charges, domestic violence, theft crimes, sex crimes and traffic violations.

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