Armed Fugitive Can’t Suppress Phone Location Evidence

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By Jordan S. Rubin

A gang member in Texas can’t suppress evidence of his mobile phone’s location, the U.S. Court of Appeals for the Fifth Circuit held May 22 ( United States v. Wallace , 2017 BL 170530, 5th Cir., No. 16-40701, 5/22/17 ).

The court had to decide an open question in the Fifth Circuit: whether obtaining prospective cell site data constitutes a search under the Fourth Amendment, which protects against unreasonable searches and seizures.

Courts nationwide have been examining the issue of applying the Fourth Amendment to mobile phone location data.

It’s not a search, the court held, affirming the lower court’s denial of William Wallace’s motion to suppress.

The Fifth Circuit previously held obtaining historical location information from a service provider isn’t a search. There’s little difference between historical and prospective cell site data, the court said.

That’s because mobile phone users voluntarily disclose their locations to service providers, so they have no reasonable expectation of privacy in that information such that it would trigger the Fourth Amendment, the court said.

The Sixth Circuit, the only other circuit to rule on the issue so far, also held obtaining prospective cell site data isn’t a search, the court said.

“When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them,” the court said, quoting the Sixth Circuit case.

Judge Edith Brown Clement wrote the unanimous opinion for the three judge panel. Judges Edith H. Jones and Stephen A. Higginson were also on the panel.

The Hatley Law Firm, Victoria, Texas, represented Wallace. The U.S. Attorney’s Office, Southern District of Texas, Houston, represented the government.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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