2. Location tracking

Drug Induced Homicide Defense Toolkit

connection records” through an administrative subpoena,236 and other non-content

information through a court order. 237 However, some states have implemented stricter

protections for certain types of communications metadata.238

There is also the issue of encryption. Where information on a phone is encrypted in

such a way that law enforcement cannot access it, even a court order will not make the

information available. For this reason, the NDAA, the FBI, and others in law

enforcement have been advocating for years in the hope Congress will amend the

Communications Assistance for Law Enforcement Act of 1994 to require encryption

technology to include backdoor access for law enforcement.239

2. Location tracking

Second, data from an individual’s cell phone can be used to track their location over a

(potentially long) period of time by way of commercial records indicating which cell

236 18 U.S.C. § 2703 (c).An administrative subpoena can also be used to obtain a range of basic subscriber information, including address and payment mechanism.

237 18 U.S.C. § 2703 (d).

238 See, e.g., People v. Sporleder, 666 P.2d 135 (Co. 1983). For a general discussion of state deviation from federal standards for law enforcement access to metadata, see Stephen E. Henderson, Learning from All Fifty States: How to Apply the Fourth Amendment and Its State Analogs to Protect Third Party Information from Unreasonable Search, 55 Cath. U. L. Rev. 374 (2006).

239 NDAA, The Opioid Epidemic: A State and Local Prosecutor Response at 7-9 (“Address the Obstacle of Smartphone Encryption”).

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Drug Induced Homicide Defense Toolkit

towers were connected to their phone at what times.240 Also known as cell site location

information (CSLI), this information can be used to track an individual in the past by

leveraging previously stored cell site location records (also known as historical CSLI), or

in real time by leveraging prospective CSLI. In the DIH context, law enforcement may

241

seek to use location information from both the suspect and victim as evidence that they

were in the same location--and thus presumably may have interacted--shortly prior to the

fatal overdose.

The Supreme Court recently clarified the legal protections that apply to cell phone

location information in Carpenter v. United States, holding that law enforcement

generally must obtain a warrant supported by probable cause prior to acquiring cell phone

location information. Because an individual has a reasonable expectation of privacy in

242

the detailed, continuous location information that can be obtained through cell site

records, law enforcement use of these records constitutes a search regulated by the Fourth

Amendment.243 However, the Supreme Court explicitly and narrowly limited the

240 Marc McAllister, GPS and Cell Phone Tracking: A Constitutional and Empirical Analysis, 82 U. Cin. L. Rev. 207, 225 (2013).

241 Electronic Frontier Foundation, Cell Phone Location Tracking or CSLI: A Guide for Criminal Defense Attorneys (2017), https://www.eff.org/files/2017/10/30/cell _phone _ location _ information _ one _pager _ 0.pdf.

242 United States v. Carpenter, 585 U.S. ____ , No. 16-402 (Jun. 22, 2018).

243 Carpenter, 585 U.S.at 12.

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Drug Induced Homicide Defense Toolkit

technology covered by their opinion in Carpenter, declining to “express a view

on…real-time CLSI or ‘tower dumps’ (a download of information on all devices that

connected to a particular cell site during a particular interval).”244

Defenders seeking to challenge law enforcement use of location information not

covered by Carpenter should determine whether stronger privacy protections may be

provided by state statute or jurisprudence. For example, although the Supreme Court

excluded real-time CLSI from their opinion in Carpenter, the Florida Supreme Court has

previously held that use of real-time CLSI to track a criminal suspect violated the Fourth

Amendment because “a subjective expectation of privacy of location as signaled by one’s

cell phone--even on public roads--is an expectation of privacy that society is now

prepared to recognize as objectively reasonable.”245 Additionally, as lower courts have

already begun to explore whether this opinion may be extended to other technologies,246

the protections available for other forms of location information may shift in the future.

244 Carpenter, 585 U.S.at 17.

245 Tracey v. State, 152 So. 3d 504, 526 (Fla. 2014).

246 See, e.g., Naperville Smart Meter Awareness v. City of Naperville, No. 16-3755 (7th Cir. 2018) (holding that city-mandated smart energy meters that regularly collect and transmit energy-use data constitute a FourthAmendment search, although this search is reasonable due to the governmental interest in modernizing the electrical grid), and Florida v. Quinton Redell Sylvestre, No. 4D17-2166 (Fla. 15th Cir. 2018) (holding that use of a cell-site simulator constitutes a FourthAmendment search).

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