Police cannot track people by pinging their cell phones without first obtaining a court-issued search warrant, the Kentucky Supreme Court ruled Thursday.
Citizens have a right to privacy under the US and Kentucky constitutions that should protect their real-time cell-site location information, or CSLI, the high court said in a 4-to-3 opinion.
“In obtaining an individual’s cell phone’s real-time CSLI, police commandeer the cell phone and its transmissions for the purpose of locating that individual,” Chief Justice John Minton Jr. of Bowling Green wrote for the court’s majority.
“We find this usurpation of an individual’s private property profoundly invasive, and we like it to a technological trespass,” Minton wrote. “Such an appropriation of an individual’s cell phone is precisely the sort of invasion that we find the average citizen unwilling to accept.”
In April 2017, Versailles police discovered that armed robbery suspect Dovontia Reed was driving along the Bluegrass Parkway by calling AT&T and asking the company to “ping” Reed’s cell phone, identifying the satellite towers nearest to him, for 90 minutes.
That information let police catch Reed as he re-entered town. He ended up with a seven year prison sentence.
Reed’s attorneys appealed the use of that search and evidence obtained as a result of it, including a weapon found in his vehicle. They argued that his privacy rights protected him from unreasonable search and seizure, which is why police usually must justify their searches to judges in order to obtain a warrant.
The office of Attorney General Daniel Cameron, arguing for the police, said a warrant was not necessary in this case because Reed was driving on a state highway, where he did not have a reasonable expectation of privacy.
And unlike a traditional phone search, where police look for texts or photos stored in the device, the Versailles police did not examine Reed’s phone, the attorney general’s office said. They asked a third-party phone carrier to share information from its satellite towers, which the carrier agreed to do.
In a dissenting opinion Thursday, Justice Laurance VanMeter of Lexington said his colleagues improperly relied on a 2018 US Supreme Court decision, Carpenter v. United States, that required police to get a warrant before they searched historical cell tower data. That decision did not address real-time cell tower data.
Unlike the police in carpenterwho were trying to use cell tower data to solve past robberies, the Versailles police tracking Reed had a specific suspect on the loose whom they believed to be dangerous, VanMeter said.
“Officers were attempting to apprehend an armed man who had just completed a brazen robbery in a public space before entering a vehicle and fleeing the scene,” VanMeter wrote in his dissent.
Reed’s case will return to Woodford Circuit Court for further action.