Monday, May 11, 2015
Bryan S Sandford has posted Comment: A Castle in the Sky: GPS Tracking of a Defendant's Cell Phone Post-Riley v. California (Wisconsin Law Review, Forthcoming) on SSRN. Here is the abstract:
For most Americans, smart cell phones are omnipresent and a fact of modern life. The technological capabilities of these devices have had a transformative effect on the way we do business, communicate and socialize with one another. One capability in particular, the ability to track and broadcast a user’s location in real time, presents a danger in the context of the Fourth Amendment: that privacy in one’s location will become a relic of the past. Though the judicial role as to this issue is still being fleshed out, courts should hesitate before discarding privacy in favor of law enforcement efficiency and carefully scrutinize searches that tip the scales too far in either direction.
So far, courts are struggling with how to address law enforcement efforts to access cellular location and real time GPS information. Though the Supreme Court has provided some guidance, it appears reluctant to clarify the role that the Fourth Amendment plays in limiting access to GPS data. In the recent decision of Riley v. California, a unanimous Court discussed the enormous privacy implications attendant to unrestricted law enforcement access to the digital contents of one’s cell phone.
This Comment discusses the implications that Riley has on the Fourth Amendment analysis of GPS tracking by law enforcement. It argues that the Court implicitly created a per-se rule requiring a warrant before accessing any content within a cell phone — which necessarily includes GPS data. This conclusion is supported by the methodology employed by the Court in recent decisions and by a comparison to other types of searches where the Court has created per-se rules. In light of this, this Comment posits that lower courts should determine on a case-by-case basis whether the policy and reasoning of Riley support applying various warrant exceptions to GPS tracking. It discusses which warrant exceptions should apply, using three lower court approaches — from Wisconsin, Florida, and the Fifth Circuit — as templates. Finally it suggests that the Court should clarify GPS tracking, while legislatures and lower courts scramble to determine the constitutional requirements.