Could the U.S. Supreme Court’s campaign finance ruling mean that Harvey Whittemore will have to start serving his sentence before his appeal is finished? [RJ]
The Supreme Court of Nevada ruled that using the GPS coordinates of a person’s cell phone is not an illegal search if an arrest warrant has been issued. [RJ]
Richard Boulware’s move out of committee was not without some drama. [RJ]
Judge Carolyn Ellsworth (who is facing a challenger in William Horne this fall), ruled that John Michael Schaefer, a disbarred NV/CA lawyer, cannot be on the ballot for Nevada state controller because he does not meet the residency requirements. [Fox5Vegas]
What impact is Metro’s decision to stop responding to non-injury fender benders having? Have any of you or your clients been affected? [Las Vegas Sun]
The local federal district court has been reversed twice by the Ninth Circuit in the last six months for denying release pending appeal in white collar cases in which the defendant had been on release for years pending trial.
Guest
Anonymous
April 4, 2014 4:47 pm
In United States v. Jones, a majority of the Supreme Court concluded that the government conducts a search under the Fourth Amendment when it attaches a GPS device to a car and tracks its movements. The new Nevada Supreme Court conclusion on GPS location with a cell phone should be no different when the government tracks people through their cell phones. It seems to me like a strong privacy interest arises when a cellphone is carried. The Court wants to treat it like it isn't a wiretap but it is. The government doesn't have a need to know what grocery store that I go to or when I was there. With the GPS information, the police could create a timeline of when you drove to Starbucks, what you ordered, how long you waited, how much you spent and when you got to work. No one needs that information on another person. These are too broad of powers that lead to corruption. Are federal officers who have a cellphone subject to this rule or is that hidden in the Patriot Act? Smells like a 4th amendment problem to me.
Guest
Anonymous
April 4, 2014 5:40 pm
It has been awhile since I read Jones, but my recollection is that there was a 4th Amendment violation there because the action of placing the device on the car without a valid search warrant was a trespass. I do not believe that the majority held that a search warrant was necessary for mere surveillance. If I were a prosecutor (I am not) I would argue that, in the case of cellular phone tracking, no one engages in a trespass: there is no need to engage in trespass by taking the cell phone and placing a tracker on it. Instead, the officers just engage in surveillance, which is not prohibited by the majority opinion in Jones.
You would be wrong. The question before the NV Supremes didn't involve the police requesting the cell provide to give them information that existed in their own systems, which might be classified as surveillance, but rather, information that could only be obtained by "entering" the cellphone and getting information from it. In any case, the Supremes got this one wrong. They claim that because the police could search his home, they can search his personal effects to find his location because the home is bigger invasion of privacy. But the right to commit one serious invasion is not carte blanche to commit every invasion. They can enter his home to arrest him, sure. But if they already know he is not there, they can not enter for the purpose of searching for information. Similarly, they can't search his unattended vehicle (where he is clearly not) without a warrant to find out where he might be, regardless of whether they have an arrest warrant. So why should they be able to enter his cell phone?
NewlyMintedAttorney, I'm pretty sure they didn't get the texts or anything internal off of his phone until they arrested him, and then got a search warrant for the phone. The data that came from the cell provider was his location based on the GPS data, which led the police to him for the arrest. This reads pretty clear to me in the first two paragraphs of the fact section of the opinion. Doing so does not involve "entering" the phone, like you say. It involves pinging signals from towers to the phone and back to determine location. Your cellphone is constantly pinging towers and your carrier could use that to locate you at any time, it is a constant flow of information to your carrier. I think it is much more like surveillance than you would like it to be. That being said, I do agree with your conclusion in that there is a distinction between entering a your home to look for you and being able to locate you with GPS data anywhere.
Cell-site pings and GPS are entirely separate. Pinging occurs constantly, whenever a phone is on. It's necessary for the operation of the phone for both the phone and the cell-tower to be able to identify generally where the phone is so that the appropriate cell tower can handle the information. On the other hand, GPS coordinates are contained solely within the phone itself. GPS coordinates aren't transmitted unless the phone receives an active command telling it to return the GPS coordinates. From the briefs: "Cellular service providers typically do not maintain records of the GPS coordinates of cellular telephones operating on their network, but the providers may generate such location data at any time by sending a signal directing the built-in satellite receiver in a particular cellular telephone to calculate its location and transmit the location data back to the service provider. This process, known as 'pinging', is undetectable to the cellular
telephone user." (In re United States ex rel. an Order Authorizing Disclosure of a
Specified Wireless Telephone, Case No. 10-2188-SKG, 849 F Supp 2d 526, 534
[D Md 2011])."
I'm fairly certain that pinging the cell phone's location and getting its GPS coordinates are the same thing. That quote from the 2011 case out of D.Md is what they did to find the guy right?
Basic information: Cell towers work on line-of-sight, like radar. In order for you to be able to receive an incoming call, the phone has to occasionally send an "I am here" message to a nearby cell tower. This message is a cell-site ping, which the providers keep track of. Your phone identifies the strongest signal, and locks onto that one, but other towers also receive the ping. So, using triangulation, you could get reasonably close to a person's location using that method. But that's not at all the same method as obtaining GPS coordinates. GPS determines your location by identifying where you are in relation to Global Positioning Satellites. It's completely unrelated to the basic function of your phone, and can be shut off, so the cell providers wouldn't have any incentive to develop an infrastructure around your phone's GPS capability . To get the GPS coordinates, the provider deliberately sends a signal to the phone. The signal contains a command to the phone's operating system to access the GPS receiver, obtain the current location coordinates, and transmit those coordinates back to the provider. With my phone (Android), I can use Google's Device Manager to only locate my phone using the same method, but I can also send a command to my phone to turn the GPS receiver on, make the phone ring at max power for 5 minutes, or even lock itself down. If I did that to someone else's phone without permission, I think the general consensus would be that that would be an egregious violation of their privacy.
Guest
Anonymous
April 4, 2014 9:24 pm
I tend to agree with you 10:40 AM, in that I too think Jones is distinguishable, but there is a difference between placing a tracker on a cell phone and using the tower pings to locate it. In Meisler, the subject Nevada case, the government had a valid arrest warrant for the defendant. Because the government could not find him, it asked the defendant’s cell phone provider for the defendant’s GPS ping location data so that he could be arrested. The government then used the data to find him in a parking lot. If the government had been able to physically put a tracker on the defendant’s cell phone, then there would have been no issue because the government would have been able to arrest him at that time.
My recollection of Jones is that the issue arose there because the government's GPS surveillance, which ultimately led to the defendant's conviction, exceeded the scope of the warrant it had secured. Had the surveillance conducted been within the warrant's scope, there would have been no issue. The government attempted to argue that there was no 4th Amendment issue by alleging that the GPS surveillance did not constitute a search, which would make the fact that the surveillance exceeded the scope of the warrant irrelevant since the 4th would not even be implicated. The appeals court said it was a search and SCOTUS affirmed. There was no discussion as to the reasonableness of the surveillance or any of that; the question was simply whether the GPS surveillance was a search under the 4th. It was, and because there was no probable cause due to the surveillance exceeding the scope of the warrant, it was going to be a 4th Amendment violation.
Meisler is distinguishable from Jones since probable cause had already been established when the government obtained a valid arrest warrant for Meisler, which provided for his legal arrest. The other thing about the arrest warrant is that it automatically decreased Meisler’s expectation of privacy. That is really where the NSC hangs its hat. The bottom line for the NSC seems to be the fact that an arrest warrant allows the government to enter your home to make an arrest, which they see as less of an intrusion on your privacy then getting ping location data from your cell carrier. Essentially, the government can get Meiser's GPS location from his cell carrier because his expectation of privacy was highest in his home and the government could have barged into his home to arrest him once they had the warrant.
I understand what the NSC is saying, but I'm not sure I'm buying it. To me, the analogy with entering the home is not great because the government being able to enter your home doesn't equate to it finding and arresting you there. Meisler is saying that once there is an arrest warrant the government can legally attempt to locate you by obtaining the GPS data from your cell phone, meaning once there is a warrant for your arrest you pretty much have no expectation of privacy. I still feel like there is a difference between being able to look for you anywhere and being able to know where you are at any given time though.
Guest
Anonymous
April 4, 2014 11:08 pm
2;24pm excellent analysis and that was some of my concerns with reading the Meisler opinion as well. Certainly an arrest warrant gives law enforcement broad reach in the sense that if they find you, you are going to be arrested irrespective of what you are doing at the time of contact with law enforcement (i.e. sitting in a park, going to the coffee house, running a red light, etc.). Certainly with an arrest warrant we expect or understand that L.E. is going to try and find you at your home, work, or other places you might frequent and they may or might not find you at those places. They happen upon you as it were, you are going to jail.
With that said, I too have some concerns with the ramifications of saying that simply because law enforcement could enter his home to arrest him in executing an arrest warrant means he has no expectation of privacy in his GPS data. I suppose I agree with the above comment that it is not "entering" his phone when the cell provider pings the phone as mentioned above and indicates the position of the phone to the police vs. a police officer looking through the phone at specific texts would clearly be an "entering" but I too agree there is a distinction between being able to look for you anywhere (and arrest you if they find you) and actually being able to pinpoint you through the use of GPS data.
Not really related to my work as a recruiter, but very relevant to my work as a Constable. Interestingly enough, I find myself in agreement with 2:24 PM and 4:08 PM right up to the point where they draw a conclusion. I agree with the position that once there is a warrant for your arrest you have little or no expectation of privacy, in regards to the need to locate and take you into custody. I in no way support the concept that such a warrant allows anything to be searched unrelated to identifying your location, other than what is already covered by the Plain View Doctrine. But an arrest warrant is not an invitation to a game, it is an order of the court, that in a civil society needs to be enforced. What's next, DMV won't be allowed to tell me what make, model and color of car you have when I'm looking for you? I think the bar needs also to be aware of the impact on the opinion of the general public would be; it just doesn't have any common sense to deny the restricted use of GPS to find a fugitive. Imperfect though it may be, I'd rather have this issue settled by a court, than by a legislature responding to an hysterical public outraged by some random and horrible incident involving a fugitive and a kidnapped child.
If an arrest warrant carried with it the implied authority to tap the target's phone calls, intercept their mail, or clone their phone, all in the name of identifying their location, your argument might have some merit. But fortunately, we have not reached that point yet. And your point about a fugitive and a kidnapped child's is a red herring, as statutory authorization for such searches already exists when a life is in danger.
Comment above is why we need to keep newly minting attorneys: Old lawyer just sayin'
Guest
Anonymous
April 7, 2014 5:20 am
Wait until discussions start about Sunday's RJ article about judges. That will be a lively discussion.
Guest
Jordan Ross, Principal, Ross Legal Search
April 7, 2014 5:14 pm
This comment has been removed by the author.
Guest
Jordan Ross, Principal, Ross Legal Search
April 7, 2014 5:16 pm
Minor typo, sorry.
Newly Minted Attorney – May I suggest that the simple use of GPS is far less intrusive than tapping phone calls, intercepting mail and cloning of phones, none of which I implied was authorized under an arrest warrant. It's a simple "Where's Waldo?" inquiry, not a " who is Waldo talking to or what is Waldo talking about" inquiry. As for the red herring analogy – exactly. As a politician, let me assure you that politicians, both elected and bureaucratic, have a long and most undistinguished history of exploiting fear, hysteria and ignorance for their own selfish gains. For a fascinating and at the same time depressing read, may I suggest one of the most notorious liars in American politics, Harry Anslinger.
With all due respect, I stand by my assertions, sir.
The local federal district court has been reversed twice by the Ninth Circuit in the last six months for denying release pending appeal in white collar cases in which the defendant had been on release for years pending trial.
In United States v. Jones, a majority of the Supreme Court concluded that the government conducts a search under the Fourth Amendment when it attaches a GPS device to a car and tracks its movements. The new Nevada Supreme Court conclusion on GPS location with a cell phone should be no different when the government tracks people through their cell phones. It seems to me like a strong privacy interest arises when a cellphone is carried. The Court wants to treat it like it isn't a wiretap but it is. The government doesn't have a need to know what grocery store that I go to or when I was there. With the GPS information, the police could create a timeline of when you drove to Starbucks, what you ordered, how long you waited, how much you spent and when you got to work. No one needs that information on another person. These are too broad of powers that lead to corruption. Are federal officers who have a cellphone subject to this rule or is that hidden in the Patriot Act? Smells like a 4th amendment problem to me.
It has been awhile since I read Jones, but my recollection is that there was a 4th Amendment violation there because the action of placing the device on the car without a valid search warrant was a trespass. I do not believe that the majority held that a search warrant was necessary for mere surveillance. If I were a prosecutor (I am not) I would argue that, in the case of cellular phone tracking, no one engages in a trespass: there is no need to engage in trespass by taking the cell phone and placing a tracker on it. Instead, the officers just engage in surveillance, which is not prohibited by the majority opinion in Jones.
That's how I read Jones too.
You would be wrong. The question before the NV Supremes didn't involve the police requesting the cell provide to give them information that existed in their own systems, which might be classified as surveillance, but rather, information that could only be obtained by "entering" the cellphone and getting information from it. In any case, the Supremes got this one wrong. They claim that because the police could search his home, they can search his personal effects to find his location because the home is bigger invasion of privacy. But the right to commit one serious invasion is not carte blanche to commit every invasion. They can enter his home to arrest him, sure. But if they already know he is not there, they can not enter for the purpose of searching for information. Similarly, they can't search his unattended vehicle (where he is clearly not) without a warrant to find out where he might be, regardless of whether they have an arrest warrant. So why should they be able to enter his cell phone?
NewlyMintedAttorney, I'm pretty sure they didn't get the texts or anything internal off of his phone until they arrested him, and then got a search warrant for the phone. The data that came from the cell provider was his location based on the GPS data, which led the police to him for the arrest. This reads pretty clear to me in the first two paragraphs of the fact section of the opinion. Doing so does not involve "entering" the phone, like you say. It involves pinging signals from towers to the phone and back to determine location. Your cellphone is constantly pinging towers and your carrier could use that to locate you at any time, it is a constant flow of information to your carrier. I think it is much more like surveillance than you would like it to be. That being said, I do agree with your conclusion in that there is a distinction between entering a your home to look for you and being able to locate you with GPS data anywhere.
Cell-site pings and GPS are entirely separate. Pinging occurs constantly, whenever a phone is on. It's necessary for the operation of the phone for both the phone and the cell-tower to be able to identify generally where the phone is so that the appropriate cell tower can handle the information. On the other hand, GPS coordinates are contained solely within the phone itself. GPS coordinates aren't transmitted unless the phone receives an active command telling it to return the GPS coordinates. From the briefs: "Cellular service providers typically do not maintain records of the GPS coordinates of cellular telephones operating on their network, but the providers may generate such location data at any time by sending a signal directing the built-in satellite receiver in a particular cellular telephone to calculate its location and transmit the location data back to the service provider. This process, known as 'pinging', is undetectable to the cellular
telephone user." (In re United States ex rel. an Order Authorizing Disclosure of a
Specified Wireless Telephone, Case No. 10-2188-SKG, 849 F Supp 2d 526, 534
[D Md 2011])."
Couple questions:
Is the carrier's ability to get the GPS coordinates limited by whether the GPS is turned on or off on the phone?
and
Could the government not have done the same thing with the pings that they allegedly did with the GPS coordinates in Meisler?
I'm fairly certain that pinging the cell phone's location and getting its GPS coordinates are the same thing. That quote from the 2011 case out of D.Md is what they did to find the guy right?
Basic information: Cell towers work on line-of-sight, like radar. In order for you to be able to receive an incoming call, the phone has to occasionally send an "I am here" message to a nearby cell tower. This message is a cell-site ping, which the providers keep track of. Your phone identifies the strongest signal, and locks onto that one, but other towers also receive the ping. So, using triangulation, you could get reasonably close to a person's location using that method. But that's not at all the same method as obtaining GPS coordinates. GPS determines your location by identifying where you are in relation to Global Positioning Satellites. It's completely unrelated to the basic function of your phone, and can be shut off, so the cell providers wouldn't have any incentive to develop an infrastructure around your phone's GPS capability . To get the GPS coordinates, the provider deliberately sends a signal to the phone. The signal contains a command to the phone's operating system to access the GPS receiver, obtain the current location coordinates, and transmit those coordinates back to the provider. With my phone (Android), I can use Google's Device Manager to only locate my phone using the same method, but I can also send a command to my phone to turn the GPS receiver on, make the phone ring at max power for 5 minutes, or even lock itself down. If I did that to someone else's phone without permission, I think the general consensus would be that that would be an egregious violation of their privacy.
I tend to agree with you 10:40 AM, in that I too think Jones is distinguishable, but there is a difference between placing a tracker on a cell phone and using the tower pings to locate it. In Meisler, the subject Nevada case, the government had a valid arrest warrant for the defendant. Because the government could not find him, it asked the defendant’s cell phone provider for the defendant’s GPS ping location data so that he could be arrested. The government then used the data to find him in a parking lot. If the government had been able to physically put a tracker on the defendant’s cell phone, then there would have been no issue because the government would have been able to arrest him at that time.
My recollection of Jones is that the issue arose there because the government's GPS surveillance, which ultimately led to the defendant's conviction, exceeded the scope of the warrant it had secured. Had the surveillance conducted been within the warrant's scope, there would have been no issue. The government attempted to argue that there was no 4th Amendment issue by alleging that the GPS surveillance did not constitute a search, which would make the fact that the surveillance exceeded the scope of the warrant irrelevant since the 4th would not even be implicated. The appeals court said it was a search and SCOTUS affirmed. There was no discussion as to the reasonableness of the surveillance or any of that; the question was simply whether the GPS surveillance was a search under the 4th. It was, and because there was no probable cause due to the surveillance exceeding the scope of the warrant, it was going to be a 4th Amendment violation.
Meisler is distinguishable from Jones since probable cause had already been established when the government obtained a valid arrest warrant for Meisler, which provided for his legal arrest. The other thing about the arrest warrant is that it automatically decreased Meisler’s expectation of privacy. That is really where the NSC hangs its hat. The bottom line for the NSC seems to be the fact that an arrest warrant allows the government to enter your home to make an arrest, which they see as less of an intrusion on your privacy then getting ping location data from your cell carrier. Essentially, the government can get Meiser's GPS location from his cell carrier because his expectation of privacy was highest in his home and the government could have barged into his home to arrest him once they had the warrant.
I understand what the NSC is saying, but I'm not sure I'm buying it. To me, the analogy with entering the home is not great because the government being able to enter your home doesn't equate to it finding and arresting you there. Meisler is saying that once there is an arrest warrant the government can legally attempt to locate you by obtaining the GPS data from your cell phone, meaning once there is a warrant for your arrest you pretty much have no expectation of privacy. I still feel like there is a difference between being able to look for you anywhere and being able to know where you are at any given time though.
2;24pm excellent analysis and that was some of my concerns with reading the Meisler opinion as well. Certainly an arrest warrant gives law enforcement broad reach in the sense that if they find you, you are going to be arrested irrespective of what you are doing at the time of contact with law enforcement (i.e. sitting in a park, going to the coffee house, running a red light, etc.). Certainly with an arrest warrant we expect or understand that L.E. is going to try and find you at your home, work, or other places you might frequent and they may or might not find you at those places. They happen upon you as it were, you are going to jail.
With that said, I too have some concerns with the ramifications of saying that simply because law enforcement could enter his home to arrest him in executing an arrest warrant means he has no expectation of privacy in his GPS data. I suppose I agree with the above comment that it is not "entering" his phone when the cell provider pings the phone as mentioned above and indicates the position of the phone to the police vs. a police officer looking through the phone at specific texts would clearly be an "entering" but I too agree there is a distinction between being able to look for you anywhere (and arrest you if they find you) and actually being able to pinpoint you through the use of GPS data.
This blog is truly done.
WHAT?
DOUBLE KICKSTANDS IN TEH BK HOTTIE'S FACE!
Not really related to my work as a recruiter, but very relevant to my work as a Constable. Interestingly enough, I find myself in agreement with 2:24 PM and 4:08 PM right up to the point where they draw a conclusion. I agree with the position that once there is a warrant for your arrest you have little or no expectation of privacy, in regards to the need to locate and take you into custody. I in no way support the concept that such a warrant allows anything to be searched unrelated to identifying your location, other than what is already covered by the Plain View Doctrine. But an arrest warrant is not an invitation to a game, it is an order of the court, that in a civil society needs to be enforced. What's next, DMV won't be allowed to tell me what make, model and color of car you have when I'm looking for you? I think the bar needs also to be aware of the impact on the opinion of the general public would be; it just doesn't have any common sense to deny the restricted use of GPS to find a fugitive. Imperfect though it may be, I'd rather have this issue settled by a court, than by a legislature responding to an hysterical public outraged by some random and horrible incident involving a fugitive and a kidnapped child.
If an arrest warrant carried with it the implied authority to tap the target's phone calls, intercept their mail, or clone their phone, all in the name of identifying their location, your argument might have some merit. But fortunately, we have not reached that point yet. And your point about a fugitive and a kidnapped child's is a red herring, as statutory authorization for such searches already exists when a life is in danger.
Comment above is why we need to keep newly minting attorneys: Old lawyer just sayin'
Wait until discussions start about Sunday's RJ article about judges. That will be a lively discussion.
This comment has been removed by the author.
Minor typo, sorry.
Newly Minted Attorney – May I suggest that the simple use of GPS is far less intrusive than tapping phone calls, intercepting mail and cloning of phones, none of which I implied was authorized under an arrest warrant. It's a simple "Where's Waldo?" inquiry, not a " who is Waldo talking to or what is Waldo talking about" inquiry. As for the red herring analogy – exactly. As a politician, let me assure you that politicians, both elected and bureaucratic, have a long and most undistinguished history of exploiting fear, hysteria and ignorance for their own selfish gains. For a fascinating and at the same time depressing read, may I suggest one of the most notorious liars in American politics, Harry Anslinger.
With all due respect, I stand by my assertions, sir.