T-Mobile Can't Review Warrant, GPS Tracking Happens Anyway

By Tera Brostoff

Feb. 8 — Cellphone GPS tracking information can be provided to law enforcement by a wireless carrier even if the cell phone provider hasn't yet reviewed the warrant requesting the data, the District of Kansas held Feb. 3.

Defendants Nancy Moreno-Magana and Victor Martinez argued that the government failed to actually use a warrant to gain their cellphone's geo-locating information, and that the information gathered should be suppressed. But the court disagreed, finding that though T-Mobile's law enforcement department wasn't available to review the warrant before the data collection began, the warrant itself was valid and law enforcement tried to use it.

The decision highlights at least one court's willingness to apply the ‘exigent circumstances' approach to GPS tracking of cellphones.

“To reach a contrary conclusion, as defendants urge the Court to do, would add a new requirement to the Fourth Amendment and the Kansas statute, i.e., under defendants' theory, law enforcement would have to secure a warrant from a neutral magistrate and convince the wireless carrier to agree with the magistrate's determination,” the court said.

Law Enforcement Pings Cellphones

In February 2015, a confidential informant contacted Kansas Bureau of Investigations special agent Nick Pipkin, alerting him that a transport of methamphetamine was planned between Los Angeles and Topeka, Kansas. The confidential informant forwarded to Pipkin text messages he received from a man named ‘Guerro' detailing the drug run, which indicated that his sister-in-law, Nancy Moreno-Magana, would be driving the vehicle. Moreno-Magana contacted the CI later that day from her cell phone and supplied the CI with her passenger's phone number, which the CI passed on to Pipkin.

Shortly after, Pipkin applied for and was granted two warrants authorizing the KBI to ping the GPS locations for the two cellphones so that the KBI could track the real-time location of the phone carried by the sister-in-law and her passenger.

Approximately 20 minutes after receiving the signed warrants, Pipkin sent a fax titled ‘exigent circumstances' to T-Mobile, requesting T-Mobile GPS location data. Pipkin did not include the signed warrants in that fax, arguing later that T-Mobile informed him that it wouldn't have been able to process the warrants and begin tracking over the weekend, absent exigent circumstances. Pipkin testified that he had faxed the warrants over prior to receiving that communication. GPS location data tracking began shortly after, and the KBI was able to intercept the car and arrest defendants Moreno-Magana and Martinez.

Did Law Enforcement ‘Use' Warrants?

The defendants argue that the court must suppress all evidence derived from the GPS location data search from the defendants' cell phones. They said that the government violated their Fourth Amendment rights because they failed to secure or use warrants or court orders before tracking the phones.

But the court disagreed, finding law enforcement did satisfy the Fourth Amendment's warrant requirement before requesting the information from T-Mobile.

“The government has presented credible evidence showing that Agent Pipkin submitted an application for warrants to [track] Phone 3131 and Phone 8316 … Agent Pipkin testified that he sent copies of those warrants to T-Mobile before a T-Mobile representative volunteered that it could begin tracking the phones immediately because of exigent circumstances,” the court said.

Though Pipkin testified that he faxed his request citing an exigency after he was told that the legal department could not review the warrants over the weekend, Pipkin nonetheless did send the warrants to T-Mobile before requesting the geo-locating information.

Moreno-Magana argued that the government admitted it did not specifically use the warrant to compel the tracking. The court wasn't swayed.

“Defendants' argument thus frames the narrow, and it appears, novel question presented here: Does law enforcement violate Kansas law or an individual's Fourth Amendment rights when it acquires a warrant and provides it to the wireless carrier, but the carrier decides to begin providing the suspect's geo-locating information for a different reason?” the court said.

Novel Issue for Kansas

Lacking controlling or persuasive precedent, the court decided the issue by reviewing the Fourth Amendment's warrant requirement.

The court concluded that Pipkin's behavior “comported with both the purpose and pragmatic requirements of the Fourth Amendment.” Pipkin did submit the warrants to T-Mobile before calling the provider to initiate tracking. When faced with the inability to review the warrants, Pipkin followed T-Mobile's advice and made an alternative request for immediate tracking.

“Once Agent Pipkin had secured the warrants and submitted them to T-Mobile, the wireless provider's capacity to approve them on a weekend and the provider's justification for initiating pings amounted to private administrative concerns beyond the reach of the Fourth Amendment,” the court explained.

The motion to suppress was denied.

District Judge Daniel D. Crabtree wrote the order.

To contact the reporter on this story: Tera Brostoff in Washington at tbrostoff@bna.com.

To contact the editor responsible for this story: Carol Eoannou at ceoannou@bna.com.

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