By Ken Wallentine
Jones v. United States, 2017 WL 4211499 (D.C. Ct. App. 2017)
Prince Jones, not a real prince of a guy, called two escorts. When they showed up, he forced them to perform sex acts at knifepoint and then robbed them.
A detective obtained the victims’ cell phone records and identified the number from which Jones’ call for service originated. The detective used a cell site simulator to find Jones’ phone. They found the phone on Jones as he sat in a car with his girlfriend.
Jones argued that he was located as the result of an illegal search of his cell phone’s location signal. The trial court denied Jones’ pretrial motion to suppress based on the inevitable-discovery doctrine, but did not rule on whether his Fourth Amendment rights had been violated.
The appeals court reversed the convictions, stating that the cell phone is essentially a “dumb device” that latches on to the strongest cell site signal available. The court interpreted this as an “exploitation of a security flaw in a device that most people now feel obligated to carry with them at all times.”
The dissenting judge observed that the use of the cell site simulator did not involve tracking inside a home, a long-term surveillance that revealed the cell phone owner’s habits, or a physical trespass or disclosure of any private information. Thus, the dissent opined, there was no Fourth Amendment violation.
When the United States Supreme Court opens its October term, high on the docket is the case of Carpenter v. United States, a 6th Circuit case that we’ve discussed in prior issues of Xiphos. The Court will decide whether the warrantless seizure and search of historical cell phone records revealing cell site location information violates the Fourth Amendment. This case may well be the platform on which the Court builds a revision of the traditional third-party doctrine. Prior cases have held that information disclosed to a third party, such as the mobile phone service provider (historical cell site location records), a bank (checking account records), or landline telephone company (pen registers), may be shared with the government without the necessity of obtaining a search warrant. In the 2012 Supreme Court decision in United States v. Jones, addressing GPS tracking, Justice Sotomayor signaled her concerns with the third-party doctrine and suggested it is time for an overhaul. Stay tuned.
CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.