In Tracey v. State of Florida (SC11-2254), argued last Monday, the Supreme Court was presented with the issue of whether the 4th amendment prohibits the government from using an individual’s cellphone data given by their service provider to track the location of a phone in real time, absent a court order that specifically authorizes law enforcement to do so.

In Tracey, law enforcement received a tip from an informant that the Petitioner obtained cocaine from a source in Broward County and made contact with the informant by cellphone. Police requested a court order to obtain a pen register and trap and trace device on petitioner’s cellphone (devices designed to obtain call log data from a cellphone) to identify possible co-conspirators. Instead, the authorities used the cellphone data to track the petitioner’s location in real time and arrest him. At trial, Tracey was convicted with possession of more than 400 grams of cocaine and three other counts related to his trying to escape pursuing police. On appeal, the Fourth District Court of Appeal upheld his conviction.

Petitioner argued that law enforcement made the arrest absent any legal authority and their use of his cellphone data to track him was unconstitutional under the fourth amendment of the United States Constitution. Petitioner asserted that the court order obtained by law enforcement only granted the authority to obtain “historical cell-site information,” and is silent as to using the information to conduct real-time tracking of his cellphone. Therefore, the Petitioner asserted the court order was not legal authority to use as a tracking device to locate and arrest him.

The Petitioner argued that there is a clear majority of federal courts that interpreted a federal statute similar to the state one that authorized the challenged order have held that the Fourth Amendment requires the government to obtain a warrant of probable cause prior to using cellphone data to track a cellphone in real time. (In. Br. at 17) Petitioner also relied on United States v. Jones, 132 S.Ct. 945 (2012) (holding that the government’s use of a tracking device on a vehicle is a search within the meaning of the fourth amendment). Petitioner asserted that the tracking device used in Jones is very similar to how law enforcement tracked the petitioner in this case.

The state contended that in this case law enforcement’s use of the cellphone data to track the petitioner in real time was not prohibited by the fourth amendment because there was no subjective or objective expectation of privacy with respect to the data. The state cited the fact that petitioner did not have his cellphone registered in his real name as evidence that he subjectively had no expectation of privacy, as it indicated that he expected that information related to the cellphone would be provided to the government. As to the objective expectation of privacy component, the state argued that it has been traditionally understood that information shared with third parties has no expectation of privacy. The state therefore asserts because petitioner voluntarily shared information with his service provider no expectation of privacy existed. Respondent furthermore distinguishes the present case from Jones by pointing out that here there was no evidence of any long-term tracking and the location obtained was imprecise in nature.