Is a warrant required for law enforcement to access a suspect’s location information generated by the suspect’s cell phone? Would obtaining such data violate a person’s Fourth Amendment rights? In this blog, we will be discussing whether a warrant is required for law enforcement to access a user’s location information from cell phone service providers. As geolocation information is almost continually updated when users interact with apps and send and receive messages, such location information is almost always available. But also, as constantly available are Fourth Amendment rights, namely the right to be free from unreasonable searches and seizures.
In Carpenter v. United States, the Supreme Court analyzed this Fourth Amendment issue. In order to obtain a search warrant, police typically must submit a warrant application to an independent judge or magistrate. In the application, the police must outline facts leading the judicial officer to believe there is probable cause that the suspect is engaging in criminal behavior. This showing of likely criminal behavior is known as “probable cause” and is required for police to conduct a search of a place or person.
There is an applicable federal law. Section 2703(d) of the Stored Communications Act, which protects privacy information and the stored content of electronics, allows an exemption to the typical warrant required for a search. Orders made under 2703(d) can compel the production of certain stored communications or non-content information if “specific and articulable facts show that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” This is closer to what is known as the “reasonable suspicion” standard than “probable cause.” Reasonable suspicion comes into play when police pull over a vehicle, for example, or conduct a stop and frisk of a suspicious person who they believe may be concealing a weapon. Reasonable suspicion is a much lower bar to meet than probable cause.