Cellphone tracking outpacing law - Sandusky Register
WILLARD — About an hour was all the time it took for law enforcement to locate and track the man who was suspected of murdering a woman in Willard.
His cellphone was what gave him away.
Javier E. Lopez, 44, had fled the scene of a fatal stabbing on Sept. 12 in Willard. Margarita Roblero-Perez, 45, had been killed, and the suspect was missing.
Huron County sheriff's deputies tracked Lopez's location to an area near Fremont, using a "ping" from his cellphone. After a high-speed chase and ensuing dangerous crash, Lopez was in the hospital and in police custody.
Lopez had gotten the jump on police, and without his cellphone ping, he could have potentially evaded law enforcement that night.
Lopez's apprehension, while impressive, raises the question: Don't police need a warrant to track a person's phone?
"Not necessarily," Erie County prosecutor Kevin Baxter said. "It's actually done quite often in those scenarios."
On July 16, Curtis J. Thomas and Shakill O. Fenderson were arrested in connection to a fatal shooting on South Larchmont Street in Sandusky. The men were found in Seneca County after police tracked their phones.
Baxter explained that a warrant for most cellphone searches is required. But in a circumstance that is as emergent and substantiated as a fleeing murder suspect, some cellular data isn't conditional to a court order.
"If there is an emergency circumstance, like a murder, the law will allow it without a warrant," Baxter said. "Police are not required to provide a cause that would rise to the level that a warrant or a subpoena would require."
The legalities
The complexity of the relationship between smartphone data and privacy laws emanates from the Fourth Amendment, which provides people with protection against unlawful searches and seizures.
The amendment has been in conflict with technology advancements that unintentionally provide law enforcement with a quick and precise way to conduct investigations and searches.
Courts at both the state and federal levels have reviewed the use of warrantless phone searches in criminal investigations.
Conclusions on its legality are varied.
In 2009, a Columbus man who was convicted on drug trafficking charges won his appeal in Ohio Supreme Court after judges ruled that the evidence police pulled from his phone without consent or a warrant was inadmissible.
The major difference between this case and cases such as the aforementioned one in Willard is the type of data that is accessed.
In the 2009 case, police pulled content such as call records and phone numbers from Smith's phone. Baxter explained that the only cellular information police are allowed to access without a warrant is location data.
"What they are doing is actually pinging the phone," Baxter said. "They are able to ping the location of the phone. In some circumstances, police can actually see the history of where someone has been."
The only info police gain from pinging a phone is an approximate location of where a cellphone pings off a cell tower. All other information — call logs, voice messages, texts or contacts — remains private and is undisclosed without consent to search or a warrant.
Looking at a precedent
A ruling from 2014 in the Taylor v. Ohio case states that "When a person voluntarily uses a cellphone, he has no expectation of privacy to the data voluntarily transferred to the service provider, such as a ping."
As a result, police do not need a warrant to request ping data.
Erie County Sheriff Paul Sigsworth said when an emergency situation arises, police request the data straight from the phone company.
"We have a contact for all the phone companies," Sigsworth said. "When something happens, we call those contacts and make a request for the information needed to locate that person."
"Phone providers provide different forms that law enforcement fill out and submit," Sigsworth added. "The phone company is then able to provide them with the information used to find where the phone is pinging."
Sigsworth said phone companies do require some degree of probable cause to release the pinging information, for example, the event of a person's safety being at risk.
"It's called exigent circumstances," Sigsworth said. "If someone is a threat to themselves or others the phone company will grant us that information."
The situation is circumstantial on several factors. Sigsworth said it's not a blanket policy for every request.
"Each cellphone company is different with what they require to provide the information," Sigsworth said. "Its case- and situation-specific and based on the carrier. "
Baxter said the ping is usually available to law enforcement within hours. In the Willard case, it was just under an hour.
As advancing technology provides new opportunities for police investigation it can create obstacles for long-standing legislation. Baxter said, in his opinion, over time things even out.
"The law is always behind technology, Baxter said. "But, eventually, it will catch up."
source: https://sanduskyregister.com/news/346001/cellphone-tracking-outpacing-law/
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