Is a Cell Phone a Tracking Device? More Carpenter v. United States Fallout

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United States v. Ackies, 2019 (1st Cir. 2019)

This case is all about one of those “technicalities” the media sometimes glosses over when reporting on a criminal prosecution. Carey Ackies lived in New York and operated a heroin and cocaine distribution business in Maine. In a classic case of working up the distribution chain, officers used cooperating witnesses (as in persons arrested who turned on their supplier, Ackies) to obtain information about Ackies’ phones. They also listened to conversations between Ackies and his customers, who were then working as informants.

Based on the information gathered, officers obtained warrants and served them on Ackies’ cell phone provider. The warrants required real-time cell site location, or present location information (PLI), of Ackies’ phones. The warrants were issued under the Stored Communications Act, 18 U.S.C. §§ 2701 et seq.; the PLI was used to support probable cause for Ackies’ arrest.

Ackies claimed the warrants were invalid because they were improperly issued. He asserted his mobile phones were actually tracking devices and asked the court to rule that a technicality invalidated the warrants.

A warrant for a tracking device is governed by 18 U.S.C. § 3117 and Federal Rule of Criminal Procedure 41(b), not by the Stored Communications Act. The technicality becomes important because Rule 41(b) imposes a geographic limitation on the area for which a federal judge may issue a warrant to monitor a tracking device.

A warrant for a tracking device is governed by 18 U.S.C. § 3117 and Federal Rule of Criminal Procedure 41(b), not by the Stored Communications Act. The technicality becomes important because Rule 41(b) imposes a geographic limitation on the area for which a federal judge may issue a warrant to monitor a tracking device. So, if the cell phones are “tracking devices,” the federal judge in Maine should not have issued a warrant allowing PLI outside of the federal judicial district.

Ackies argued the Supreme Court decision in Carpenter v. United States (138 S.Ct. 2206 (2018)) stands for the proposition that a cell phone constitutes a “tracking device” if it is used to obtain real-time cell site location. The court disagreed. First, the tracking device statute speaks of installations of mobile tracking devices. Ackies was carrying his own device; there was no installation. Second, the court held Ackies’ argument would also fail under the good-faith exception articulated in United States v. Leon (468 U.S. 897 (1984)). Several other federal appellate courts have reached similar holdings on this very issue.

For officers, the takeaway is to pay attention to the nuances of search warrant for electronic data. In nearly all cases, there is time to consult with a prosecutor skilled in federal criminal procedure. Don’t rely on the good faith exception. Ackies wasn’t successful, but the next defendant with a similar claim and varying facts could be.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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