The Court of Appeals of North Carolina recently decided a case about police obtaining real-time location information from a suspect’s cellular service provider. The case does not address the principal controversy concerning such information. Nonetheless, it provides a good refresher on the issue and marks a good time for an update on the national controversy about this issue.
The case is State v. Forte, __ N.C. App. __ (Jan. 16, 2018). It began when Greenville officers arrested a heroin dealer who agreed to set up his supplier. The informant provided his supplier’s cellular telephone number to the officers, who obtained from a superior court judge an order entitled “Order Authorizing Pen Register/Trap and Trace and Disclosure of Records and Other Information Pursuant to 18 USC § 3123 and 2703(d).” The order is part of the record on appeal, which is available here.
The Greenville officers enlisted the SBI, and SBI agents were able to use the order to track the location of the supplier’s phone in real time. Based in part on the tracking data, the Greenville officers were able to intercept the supplier as he arrived in town from New York. The officers obtained consent to search the vehicle in which the supplier was travelling. They found heroin in the vehicle, and he was charged with trafficking.
The supplier-defendant moved to suppress “any seizures, arrest, detentions, and wire taps . . . based on information provided by [the informant].” When the court heard the motion, defense counsel argued that the officers “didn’t put [enough information] in the four corners of [the application]” to support the issuance of what counsel variously described as a “search warrant,” a “wire tap,” and a “trap.” The trial judges seems to have viewed the issue as whether the statutory reasonable suspicion standard for the issuance of a pen register or trap and trace order was satisfied. (The standard is set forth at G.S. 15A-263.) The judge found that it was, ruling that “pursuant to [G.S.] 15A-263, the Order authorizing the pen register was properly issued.” The defendant was convicted of trafficking and appealed.
On appeal, the defendant sought to argue that the Fourth Amendment requires a showing of probable cause before a court may order disclosure of real-time location information. Whether that is the case is the $64,000 question in this area of law. Some view real-time location information as inherently private such that when law enforcement accesses that information, it conducts a Fourth Amendment search. Others view that information as data that cellular telephone users voluntarily convey to service providers, and therefore not private. The issue has divided the state and federal courts. And while North Carolina’s appellate courts have ruled that a showing of probable cause is not necessary when law enforcement is seeking historical location information, State v. Perry, 243 N.C. App. 156 (2015), discussed here, the issue concerning real-time location information is unresolved.
Unfortunately for those of us waiting for an answer, the court of appeals determined that the issue had not been properly preserved. It viewed trial counsel’s argument as directed at whether the state had satisfied the statutory reasonable suspicion standard, not whether the Constitution requires a greater showing: “Defendant’s only argument before the trial court was that law enforcement did not have sufficient evidence to support issuance of the pen register order. The trial court ruled on this issue only, and this is the only argument we may consider on appeal.”
The court easily concluded that reasonable suspicion was present, noting that the Greenville officers had multiple face-to-face contacts with the informant, who made “substantial admissions against his penal interest” in describing his relationship with the defendant.
If Forte doesn’t resolve the $64,000 question, why post about it? A few reasons:
- It’s a good reminder that the issue remains open and that defense counsel should be raising it vigorously and specifically.
- The case also highlights what I view as a smart law enforcement practice. Even though the standard under G.S. 15A-263 – and under 18 U.S.C § 2703(d), the federal statute governing the disclosure of non-content information by telecommunications service providers – is reasonable suspicion, the officers in this case used the higher probable cause standard in their motion and order. Had the trial judge or the appellate court decided that the probable cause standard applied, that maneuver could have paid big dividends.
- Finally, it’s a good time to mention two pertinent developments in the law. One is a relatively recent case on point from a federal circuit court. In United States v. Riley, 858 F.3d 1012 (6th 2017), the Sixth Circuit ruled that “tracking [a defendant’s] real-time GPS location data for approximately seven hours preceding his arrest . . . did not amount to a Fourth Amendment search” and therefore did not require probable cause. The other is that oral argument has taken place in Carpenter v. United States, the Supreme Court case considering the status of historical cell phone tracking under the Fourth Amendment. According to one Court-watcher, the Justices seemed sympathetic to the idea that location information is private, but uncertain about where or how to draw the line. We also don’t know whether the Court will address real-time location tracking in the course of resolving the case. Stay tuned.