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.