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Friday, August 05, 2016

Ind. Decisions - "Police must get warrant for cell phone location data"

Yesterday's 2-1 Court of Appeals decision in Marcus Zanders v. State of Indiana (ILB summary here) is the subject of a good story today in the NWI Times, reported by Dan Carden. Some quotes:

INDIANAPOLIS — Police must obtain a judicial warrant to access the cellular phone location records of a suspected criminal, the Indiana Court of Appeals ruled Thursday.

In a 2-1 decision, involving a first-of-its-kind issue for Indiana, the appellate court determined Hoosiers have an expectation of privacy in their location data maintained by cellphone providers, and police do not have automatic authority to access and use those records as a tracking device.

Appeals Judge Patricia Riley, a Rensselaer native writing for the court, distinguished cellphone location data from similar records individuals voluntarily convey to businesses, or other third parties, which those entities are free to provide to police or the government, upon request.

She said cell tower tracking information is neither tangible nor visible to a user, is gathered quietly and constantly without notice and cannot be effectively disabled without rendering the device, which "has become essential for full cultural and economic participation," all but useless.

"A cellphone user cannot be said to voluntarily convey to her service provider information that she never held but was instead generated by the service provider itself without the user's involvement. Accordingly, the third-party doctrine does not (apply)," Riley said.

As a result, the appeals court held that cellphone location records are similar to data, photographs and other personal information stored in a phone, which the U.S. Supreme Court ruled in 2014 generally cannot be searched by police without a warrant — even if the device belongs to a person under arrest.

Likewise, a different three-judge panel of the Indiana Court of Appeals found in 2015 that Hoosiers have an expectation of privacy for historical location data stored in a vehicle's GPS device, and barred police from accessing that information without a warrant. [link to earlier NWI Times story on GPS ruling]

"So here. too," Riley said. "We require police officers to do what they have done for decades when seeking to intrude upon a reasonable expectation of privacy: get a warrant."

"Cell-site data is not the type of information which spoils or perishes during the short time it takes to get a warrant and, as such, imposing the requirements for a warrant under these circumstances would hardly shackle law enforcement from conducting effective investigations."

The story also notes that:
... the Republican-controlled General Assembly this year enacted a statute specifically addressing police access of cellular geolocation data.

House Enrolled Act 1013, signed by Republican Gov. Mike Pence on March 21, requires police obtain a warrant every time an officer requests location data from a cellular provider, except if needed to respond to a call for emergency services or in an emergency situation involving the risk of death or serious bodily injury.

Under those circumstances, the law provides police a 72-hour window after receiving the data to get a warrant.

Posted by Marcia Oddi on August 5, 2016 09:20 AM
Posted to Ind. App.Ct. Decisions