Privacy advocates aren’t going to like this one, but a 2-1 ruling in the U.S. Circuit Court of Appeals for the Sixth Circuit has given law enforcement officials the legal right to track suspects by cell phone in real-time without first obtaining a warrant.
This is how the Fourth Amendment is undermined: ignore what it says, set up a straw man argument, and then argue against that straw man.
The straw man the court used was an analogy of hounds chasing a fox. The fox cannot be protected under the Fourth Amendment just because the Fox didn’t know he was providing the hounds with his scent.
Here is what the court wrote:
This is not a case in which the government secretly placed a tracking device in someone’s car. The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross country shipment of drugs.
Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.
Let’s look at what the Fourth Amendment to the Constitution actually says:
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.
Let’s be picky. “No Warrants shall issue, but upon probable cause…” Where does it say, “except when tracking by cell phones?” “Supported by Oath or affirmation.” By a judge, having looked at the evidence, and deciding that there is “probable cause.” Where is that in the court’s decision? Oops, missing.
And what about “particularly describing” the place to be searched, and the persons or things to be seized?” Did the officers know in advance that they would find 1,100 pounds of marijuana in his motor home? Or was that just luck?
Here’s the outrage, from the court:
The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.
What is that?