GPS tracking and cell phone searches require warrants

By Rebecca K. Smith, CLDC Board Secretary and Cooperating Attorney

There have been a few very disturbing videos of police brutality posted on the internet this past week. A bystander recorded Walter Scott shot multiple times in the back by a South Carolina police officer while Scott ran away after a traffic stop. After Scott died, the officer dropped his Taser next to Scott’s body and wrote in his police report that he shot Scott because Scott took his Taser. The officer thought no one had been watching. In Virginia, a police officer pulled over a car for a broken license plate light and ended up pepper-spraying 17 year-old Brandon Wyne in the eyes and repeatedly shooting him with a Taser while Wyne sat in the back seat of the car and asked to have his mother present before talking to police. The driver recorded the scene with her cell phone camera and the officer tried to delete the video but failed to delete the back-up. Yet another video, caught by police body camera, shows a volunteer police officer shooting and killing Eric Harris in Oklahoma as he lay unarmed and face down on the ground. Harris had run from police and was tackled and lying on the ground. The officers had called for a Taser, and the volunteer officer instead pulled his gun and shot Harris and killed him.

As we have said before, these types of horrific violent incidents remind us of the importance of having bystanders who are capable and willing to record police misconduct on their cellphones and post it online. Hopefully, many of you were able to attend our forum on recording the police last week. In light of the recent Supreme Court case that came out a couple weeks ago that found that GPS tracking constitutes a search under the Fourth Amendment, and therefore requires a warrant, it seems like a good time to discuss this new case, and go back and provide a review of another older but still recent Supreme Court case, which addresses police searches of cell phones.

Grady v. North Carolina

On March 30, 2015, in Grady v North Carolina, the Supreme Court held that a state conducts a search under the Fourth Amendment when it attaches a device, such as an ankle bracelet, to a person’s body without the person’s consent for the purpose of tracking that person’s movements. Previously, in 2012 in U.S. v Jones, the Supreme Court held that when the government puts a GPS tracking device on a vehicle and uses the device to monitor the individual’s movement, that conduct constitutes a search under the Fourth Amendment. What these two cases mean together is that police must have a search warrant, or a lawful warrant exception, before they can place a GPS tracking device on your vehicle or your body.

Riley v. California

Another recent Supreme Court case on what constitutes a search under the Fourth Amendment is Riley v. California, a case decided about 10 months ago. In that case, the Supreme Court held that police may not look at digital information on a cell phone when someone is arrested unless the police have a warrant to do so. In that case, officers had arrested Riley and done a routine search of his body prior to taking him to jail. The officers found Riley’s smartphone and starting looking through messages on the phone. Several hours later at the police station, detectives searched the phone and found videos and pictures on the phone, which they used as evidence against Riley at trial. The Supreme Court found that officers violated Riley’s Fourth Amendment rights by searching his smart phone for evidence without obtaining a warrant first. The court held that the warrant exception called “search incident to arrest” does not apply to smartphones because the privacy interests people have in their smartphone data outweighs any risk of immediate harm to police or destruction of evidence. Smartphone data is not a weapon that will harm officers and officers can avoid remote-wiping of data by simply turning a phone off or removing its battery and then taking it to a place that has no internet or phone service. Additionally, officers can place phones in aluminum bags called Faraday bags, which prevent the phone from accessing internet or phone service.

So what does this case mean for you? It means that if you are one of the unlikely individuals who must record police misconduct on your cellphone, you do have rights that come into play if the police attempt to take your phone and delete the contents. To ensure that these rights are preserved, you may inform the officers that you do not consent to a search of your smartphone. If officers do take your smartphone anyway, you may tell them how to turn the phone off or how to remove the battery so that the officers cannot make any credible claims that they must search your device to avoid remote-wiping. As we all know, in the context of recording police misconduct, the most likely scenario is that you want your data to be safe and stay on your device, and it is the law enforcement officer who wants to delete the evidence. In that case, you could investigate options on your phone for automatic back-up copies, or invest in one of the many apps, such as FiVo Film, that will automatically download your videos onto internet sites to ensure that a copy is protected.