- The Washington Times - Thursday, September 21, 2017

The D.C. Court of Appeals found that District police violated a man’s constitutional rights by using cellphone surveillance technology to track his location without a warrant, reversing his robbery and sexual-assault convictions.

The 2-1 decision puts Washington in line with a growing number of jurisdictions where courts have taken a dim view of the cell-site tracking technology, which police departments have turned to as a forceful investigative tool.

In Thursday’s ruling, judges said the use of cell-site simulators to locate Prince Jones’ phone amounted to a search under the Fourth Amendment and “invaded a reasonable expectation of privacy.”

“The simulator’s operation involved exploitation of a security flaw in a device that most people now feel obligated to carry with them at all times,” wrote Judge Corinne Beckwith in the majority opinion for the court. “Allowing the government to deploy such a powerful tool without judicial oversight would surely ‘shrink the realm of guaranteed privacy’ far below that which ‘existed when the Fourth Amendment was adopted.’”

She wrote that it would also “place an individual in the difficult position either of accepting the risk that at any moment his or her cellphone could be converted into tracking device or of forgoing ‘necessary use of’ the cell phone.”

Mr. Jones had been sentenced to 66 years in prison after he was convicted of sexually assaulting two women who were contacted for escort services through Backpage.com. In each of the attacks, which occurred within days of one another in 2013, the women responded to the ads and met a man who forced them at knifepoint to perform oral sex and then robbed them.

Police used a cellphone tracking device known as a Stingray to track the phone used to contact the women and found Mr. Jones sitting with his girlfriend in a car parked on a public street. In his girlfriend’s purse, officers found several cellphones linked to the sexual assault victims and the robbery.

At his original trial in D.C. Superior Court, Mr. Jones’ attorneys sought unsuccessfully to suppress evidence based on the fact that police failed to obtain a warrant to use the Stingray device, and then appealed his eventual conviction.

Thursday’s ruling means that evidence — including Mr. Jones’ initial statement to police — could not be used and his conviction has been overturned, sending the case back to the lower court.

Before the appellate court, prosecutors argued that Mr. Jones had no right to privacy because he was carrying phones stolen from his victims and was found in plain sight on a public street when he was stopped by officers. They also said that cellphone owners should generally be aware that the devices continuously broadcast their location information, and thus that information cannot be regarded as private.

Since the challenge was brought, the Metropolitan Police Department now follows Justice Department policy guidance that advises a warrant should be obtained before deployment of cell-site simulators.

Judge Phyllis D. Thompson dissented from Thursday’s majority opinion, writing that even though police used the Stingray to track Mr. Jones’s phone, he shouldn’t have had any illusion that the stolen cellphones couldn’t have been tracked through other means, like the Find my iPhone app.

“Even if appellant generally had a subjective expectation that information about his cell phone’s location would be private, he could not have had a reasonable expectation that the location of his cell phone would remain private while he was traveling on the public roads with a powered-on, stolen cell phone,” Judge Thompson wrote.

Privacy advocates said Thursday’s ruling establishes strong protections against government snooping in the digital age.

“This opinion joins the growing chorus of courts holding that the Fourth Amendment protects against warrantless use of invasive, covert technology to track people’s phones,” said ACLU attorney Nathan Freed Wessler, who argued the case.

The Supreme Court is slated to hear an appeal this fall from Timothy Carpenter, who was convicted in a string of robberies after police obtained his cell location data from a third-party service provider. The high court ruled in 2012 that GPS trackers counted as searches under the Fourth Amendment, and two years later said police can’t browse through a suspect’s cellphone without getting a warrant.

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