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Judge Denies Right to Privacy in 'Ping' of Cell Phone Location
New York Law Journal
A cell phone user has no "reasonable" expectation of privacy that the device's built-in global positioning technology will not be used by police to locate the phone, a trial judge has ruled in a case he distinguished from a recent Court of Appeals decision.
Monroe County Court Judge John DeMarco (See Profile) said communications technology and the sophistication of consumers have both progressed to the point where people understand that their cell phones can accurately be tracked by satellite without their knowledge.
The judge wrote in People v. Moorer, 2011-1096, that through a person's "voluntary utilization" of a cell phonewhich he said occurs when the device is powered up"a person necessarily has no reasonable expectation of privacy with respect to the phone's location."
"People are not so oblivious that they are not aware that cell phones purchased today come with GPS technology which can pinpoint the location of the phone at any given time so long as it is turned on and the GPS technology has not been deactivated or disabled," DeMarco said. "That technology also enables a person to be mobile and have constant access to and use of his cell phone."
The judge added that while cell phone users could maintain a reasonable expectation of privacy about the content of their conversations, the same does not apply to the process of physically locating the devices.
The case involved the fatal stabbing of Calvin Reid in Rochester on June 26, 2011, and authorities' efforts to track down suspect Devonte Moorer and collect evidence linking him to the slaying. Reid's fatal stabbing on a Rochester street corner was also captured on a security camera.
After finding Moorer's cell phone number, police filled out an "exigent circumstances request" asking for Sprint to "ping," or locate, his phone.
While the ping did not work the first time because the phone was not on, a second attempt on July 1, 2011, indicated the phone was in a Rochester home. Police received permission to search the residence from the daughter of its occupant and, after dialing the number, discovered the phone in a knapsack underneath a cot on the front porch. Authorities seized the knapsack and its contents, including the phone.
Assistant District Attorney William Gargan in Monroe County said in an interview that the knapsack was crucial to the prosecution's case because it matched a knapsack worn by a man police said was Moorer caught on a surveillance camera at a mini-market near the stabbing scene about 30 minutes before the crime.
The knapsack also contained Moorer's photo ID, Gargan said.
"It allowed us to say that it was abundantly clear that the man in court [Moorer] was the same man wearing the knapsack near the time of the murder," Gargan said.
DeMarco denied Moorer's attempt to suppress the evidence, determining that Moorer had abandoned the knapsack because he did not live in the house or have any connections to people who did live there. Thus, he concluded that authorities could use the contents of the bag as evidence.
On Jan. 31, DeMarco found Moorer guilty of first-degree manslaughter after a non-jury trial. Moorer, 21, faces up to 25 years in prison when he is sentenced on March 13.
DeMarco said in his Feb. 8 written ruling that he felt compelled to explain his 2012 ruling that the knapsack was admissible.
Also, because DeMarco said no New York state court has addressed the "ping" question, he wanted to discuss the legal implications of Moorer's contention that his expectation of privacy had been violated.
DeMarco rejected Moorer's argument that the ping constituted an unreasonable search under the Court of Appeals' interpretation of the state Constitution in People v. Weaver, 12 NY3d 433 (2009).
DeMarco said Moorer differed from Weaver, which concerned the police's warrantless, surreptitious attachment of a GPS device to a suspect's vehicle to track his movements for nearly two months (NYLJ, May 14, 2009). In addition, DeMarco concluded that the element of voluntary use of the phone in Moorer was not a factor in Weaver, where the GPS device was not consciously turned on or off by the suspect.
But DeMarco said Weaver and Moorer were similar in the way they highlighted "issues that advances in technology present for the courts."
Gargan said authorities did not seek to use conversations from Moorer's cell as evidence against him in Reid's killing, just to find his phone as a way of locating Moorer and taking him into custody. Though they did not pan out, police had suspicions that Moorer may have been responsible for other attacks immediately after Reid's slaying, Gargan said.
Moorer was eventually arrested on July 10, 2011, Gargan said.
Gargan said DeMarco's ruling concerned an evolving area of the law.
"This is not a one-shot deal," he said. "We recognize that it is only going to continue. The utilization of cell phone GPS will become a tool that law enforcement will use more and more because it is omnipresent."
Dianne Russell of Rochester represented Moorer.
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