“I Know Where You Were”… How Police Use of Data Gathering Clashes With Privacy Concerns

One of the great conveniences of life is the ability to pull a cell phone from your pocket and be able to connect with other people and have access to a world of information from wherever you are. The use of cellphone technology in policing has become a significant aspect of any thorough investigation of serious crime. Social media, internet searches, driving directions, text, calls, photos and videos are the obvious breadcrumbs left in cell phones that could be used by law enforcement. Advancing cell phone technology and advancing ability of cell phone carriers to gather data on their users, however, have given law enforcement agencies new and powerful tools for digital evidence gathering. Although having access to a suspect’s phone device is certainly the best evidence, there is much police can do to gather data from cell phone carriers and the vast data banks of Apple and Google. Such investigative techniques, while powerful, raise legitimate concerns about individual rights to privacy.

How does the investigation proceed?

If the suspect is unknown, the initial police investigation focuses on identifying the perpetrator or perpetrators. Since everyone carries a cell phone in their pocket, police focus on identifying what phones may have been present at the time of the crime. If they can establish what phones were there, the prevailing theory is that the owner of that phone is highly likely to be the one who possessed it at the time of the crime. 

A geofence warrant is an increasingly popular way for police to identify suspects who were in the area of a crime at the time it occurred. If the perpetrator was carrying a phone, his or her phone was in almost constant communication with the cell phone carrier and the networks of Apple or Google, tracking every interaction with their networks. Data collected can include such things as GPS locations, Bluetooth activity, connections to WiFi networks, connections to cell towers and other data. This vast combination of data points results in a large amount of valuable data for the carrier and for Apple or Google. This data is what allows them to deliver marketing and other services targeted to their users. Upon a showing of need and with approval of a judge, police can obtain a geofence warrant for these data points. Such warrants define a particular area at a particular time and ask for all devices in the area at the time of the commission of the crime. Obtaining such a warrant only requires law enforcement to demonstrate probable cause that a crime was committed and that the warrant has been narrowly drafted to capture only the likely devices relevant to the investigation. Once provided, law enforcement can then sort through the data and focus their investigation on the particular phones that may have been involved in the crime.

If the geofence warrant identifies a suspect (or if police already have a suspect’s phone information), police can take the next step and seize data from the cell phone carrier. Each cell phone carrier maintains precise data on the location of each user. This is done for both billing purposes and to analyze the strength of their network and service. The network constantly interacts with the user’s phone. The result is a massive amount of data which tracks the location of the phone almost every minute. Law enforcement can seek a search warrant for this data as well. If done timely, police can obtain a search warrant to receive location data for the phone and then map out the minute-by-minute movements of the phone with precision. This is extremely valuable in identifying, tracking, and proving who the perpetrator might be.   

What’s the Defense Strategy?

Oftentimes evidence such as this is powerful and persuasive for a jury. Imagine being able to see the specific movements of a phone over the course of the evening a crime is alleged to have occurred. Due to the powerful effect this type of evidence can have, defense attorneys must account for it and devise strategies to either get it thrown out in court or incorporated into their defense strategy. 

Individuals’ Fourth Amendment rights against unreasonable searches extends to this type of private location data seized by law enforcement. Privacy concerns exist any time the government collects private information of the citizens. Unwarranted surveillance extending beyond the scope of the needs of the investigation harms individuals. Due to these concerns, geofence warrants must show probable cause that a crime was committed and be narrowly tailored to gather only that data that is reasonably necessary to collect. Warrants for individual cell phone location data must show not only probable cause that a crime occurred but the basis to believe the individual subscriber identified participated in the crimes. As such, the general defense strategies surrounding these types of search warrants should focus on whether the police established probable cause to obtain these warrants and whether they were overly broad in scope. Appropriate motions to suppress can be pursued to challenge the legitimacy of these investigative techniques. If such warrants cannot be successfully challenged, the defense strategy must take the information into account in mounting any defense to the charges at hand. 

If you or your family member is charged with any major felony, there’s a high likelihood that cell phone evidence and related search warrants are a part of the investigation. It’s critically important that you talk with an experienced attorney who can mount a comprehensive defense for you or your family member. The attorneys at Wosnik Law are experienced in handling these and other complexities of any major felony case. Give us a call to schedule a free consultation to discuss your case.