The Florida Supreme Court just addressed an issue with national implications. This week’s decision in Tracey v. Florida, addresses the issue of:
“[W]hether accessing real time cell site location information by the government in order to track a person using his cell phone is a Fourth Amendment search for which a warrant based on probable cause is required…”
In particular, regardless of a person’s location on a public road, can the government use of cell site (location) information emanating from their mobile phone for the purpose of tracking them in real time? Moreover, is such government conduct a search protected by the 4th Amendment requiring probable cause?
For the State of Florida, the answer is now yes. The court reasoned that the accused had a “subjective expectation of privacy in the location signals transmitted solely to enable the private and personal use of his cell phone, even on public roads,” and that he “did not voluntarily convey that information to the service provider for any purpose other than to enable use of his cell phone for its intended purpose.”
The decision further stated that “such 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…”
The Court reasoned that because probable cause did not support the search in this case, and no warrant (based on probable cause) authorized the use of Tracey’s real time cell site information to track him, the evidence obtained as a result of that search was subject to suppression.
A significant take aways from this decision is the Court’s distinction between prior records of similar types of data compared using the technology that gathered this data for purpose of tracking someone in real time. The Arizona Supreme Court has not yet directly addressed this issue.