Privacy Act

[ducman]

What is the name of your state (only U.S. law)? CA
8 months ago I received a citation for the CA Cell Phone Law (not using a hands free device). During my court trial, the officer presented a printout of my cell records. A PA circuit court in Feb ruled subpoening cell phone records for criminal investigation was a breach of the fourth amendment. My question is, was it...?

 

[justalayman]

What is the name of your state (only U.S. law)? CA
8 months ago I received a citation for the CA Cell Phone Law (not using a hands free device). During my court trial, the officer presented a printout of my cell records. A PA circuit court in Feb ruled subpoening cell phone records for criminal investigation was a breach of the fourth amendment. My question is, was it...?

first, what happens in PA has nothing to do with what happens in CA. A courts decision in PA has no bearing on a CA ruling.

Second, mind posting that ruling? I do not see how subpoenaing the records would be a violation of the 4th as long as there was justification for the demand.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Just not seeing a violation.

 

[ducman]

http://www.eff.org/files/filenode/celltracking/criminalapplicationorder_finalopinion.pdf
Is the link to the article I found...Its vague and it doesn't have to do with a cell phone violation law but it's along the same principles... Paragraph 6 reads : Location information may reveal, for example, an extra-marital liaison or other information regarding sexual orientation/activity; physical or mental health treatment/condistions (including, e.g., drug or alcohol treatment and/or recovery programs/associations) etc...and goes on to state...and many other matters of a potentially sensitive and extremely personal nature. It is likely to reveal preciseley the kind of information that an individual wants and reasonably expects to be private. Cf. State v. Jackson, 76 P.3d 217, 223,24 (Wash. 2003) (noting the "intrusion into private affairs" from a device producing a record of our travels is 'quite extensive')

thanks for the feedback...

 

[CdwJava]

Different companies have different policies. In CA we can get cell records from some companies with a request on letterhead, sometimes with a subpoena, and always with a search warrant. However, by law, we cannot issue a search warrant for infractions and misdemeanors related to phone records, so we have to go with asking nice or a subpoena.

To reiterate what justalayman said, what happens in a court far, far away has no direct bearing on a CA case. Only CA case law, a ruling of the US 9th Circuit Court of Appeals, and the USSC have any direct bearing here.

 

[justalayman]

http://www.eff.org/files/filenode/celltracking/criminalapplicationorder_finalopinion.pdf
...

did you actually read that link?

The Court writes to express its concerns regarding the Government’s ex parte
applications for cellular telephone (“cell phone”) subscriber information from which it may
identify an individual’s past or present physical/geographic movements/locations not on a
showing of probable cause to believe that the information will provide evidence in an
investigation premised on a reasonable suspicion of criminal activity, as under the Fourth
Amendment,1 but rather on an articulable, reasonable belief that such information is “relevant to
a . . . criminal investigation” under the Stored Wire and Electronic Communications and

The Court emphasizes that the issue is not whether the Government can obtain
movement/location information, but only the standard it must meet to obtain a Court Order for
such disclosure and the basis of authority. It emphasizes that the Fourth Amendment standard is
not a difficult one, requiring only that the Government support its belief of criminal activity and
the probable materiality of the information to be obtained.5

they specifically said it IS legal. It is merely what is required for it to be a legal request or demand.

On top of that, what the provider agrees to is very relevant. The cops can ask for anything. The question is: can they compel the release of the information.

 

[ducman]

Actually, Yes, I did read...What makes me wonder is down on page 7, where it states: This court finds that (1) the SCA expressly sets movement/location information outside its scope by defining "electronic comminications" to exclude "any communication from a tracking device (as defined in 3117)" ; (2) the SCA does not establish an entitlement to information in abrogation of any other legal requirements that would otherwise apply due to the nature of that information; (3) the CALEA also expressly exempts information from a tracking device and, in legislating what information CSPs must compile/retain for disclosure to law enforement on "Court Order or other lawful authorization", also retains the Fourth Amendment or other requirements implicated by the nature of the information sought; (4) the relevant legislative history further indicates that Congress DID NOT intend its electronic communications legislation to be read to require diesclosure of an individual's location information; to the contrary, in enacting the legislation it relied on express representations by law enforcement that it was not seeking to amend the background standards governing disclosure; and (5) as reading the statutes as authorizing ex parte disclosure of movement/location information with no judicial review of the probable cause could biolate citizens' reasonable expectation of privacy, such reading would be disfavored. THIS COURT THERFORE CONCLUDES, AS MORE FULLY SET FORTH BELOW, THAT IT MUST DENY THE GOVERNMENTS'S REQUEST FOR CELLULAR-TELEPHONE-DERIVED LOCATION INFORMATION...

Seems pretty clear to me...but, I'm not a lawyer, that's why I asked here...

 

[swalsh411]

You keep forgetting that there is a difference between "ask" and "demand". Police ASK for information from people they think might know something helpful all the time in the course of an investigation. Sometimes the witness will be helpful, other times they won't be. In this case, your cell phone company was helpful.

 

[justalayman]

Actually, Yes, I did read....

you are talking about two different things. They are speaking about using the GPS systems to track a person which would lead to showing a person was in some area that a crime was committed. With your situation, you being on the phone at all is the crime. In the location, it is supporting evidence. In your situation, it is proof of the crime. A warrant would likely be issued, if needed, in your situation as it does actually prove the crime.

and you seemed to miss the last sentence of that statement:

absent a showing of probably cause.

PC gives them the right to seek a warrant which compels the information be given. Prior to that point, a request is a request and a subpoena is a courts demand but can be refused or contested prior to the disclosure. A warrant simply demands the disclosure.

The police can always ask. Your cell provider can refuse. If the DA believes there is PC to obtain a warrant, they can try that route but the provider giving it willingly is what it is.

 

[StevenJ_420Law]

I must admit I've not seen that done by an officer for a cell phone ticket.

I have seen it produced by a few defendants.

I've seen convictions just based on officers observations.

 

[CdwJava]

I can't imagine going through that kind of effort for a cell phone citation. And since it would be unlawful to obtain a search warrant for the records, and no officer or DA I know of is going to take the time to issue a subpoena for such things, I doubt it will be an issue.

It usually comes down to the officer seeing the person yapping on the cell phone while driving and that is enough to make the case. This officer clearly had an inside line to the cell phone company and knew how to get the info quickly and easily, or he had far too much time on his hands. Maybe both.

 

[justalayman]

I can't imagine going through that kind of effort for a cell phone citation. And since it would be unlawful to obtain a search warrant for the records, and no officer or DA I know of is going to take the time to issue a subpoena for such things, I doubt it will be an issue.
h.

OP is stating the prosecution did in fact have a copy of his cell phone records when he went to court.

During my court trial, the officer presented a printout of my cell records.

apparently somebody was bored and felt it would make the case to they did what it took to obtain them.

 

[CdwJava]

OP is stating the prosecution did in fact have a copy of his cell phone records when he went to court.

apparently somebody was bored and felt it would make the case to they did what it took to obtain them.

As I said ...