Consistent with the police fascination with all the latest “gear,” like military-type personal equipment and armored vehicles, the cops are “all in” when it comes to using technology to assist in drug investigations.  Yet, the warrant requirement of the Fourth Amendment was written in the late 1700s.  So, courts are often faced with a difficult challenge when applying centuries-old constitutional rules to the latest technology, like thermal scanners and cell phones.  wiretap

A. Beepers

A beeper, in the context of police surveillance, is a radio transmitter that the police can track at any location.  In short, it is a mobile tracking device.  When the cops put a beeper on your car, it is like they have just installed a GPS system that will track the car wherever it goes.

So, does the installation of a beeper trigger the Fourth Amendment?  Not always.  Let’s take a look at some different scenarios:

  • On Your Car – Warrant required.  For many years, courts held that a beeper or GPS device that tracks a car does not implicate the Fourth Amendment because one cannot expect privacy in his or her movements in public.  However, in 2012, the U.S. Supreme Court decided United States v. Jones, holding that a warrant is required to use a tracking device on someone’s car because it is a “search” under the Fourth Amendment. 
  • In Your Home – Warrant required.  As we have discussed before, your “home is your castle.”  That means that if the cops tried to place a beeper inside your home, then they would have to get a warrant.  Unlike tracking your car, an officer would not normally be able to see what is going on inside your home with the naked eye, so a beeper inside your home requires a warrant.
  • Inside a Package of Narcotics – No warrant needed.  Because courts have ruled that a person does not have any expectation of privacy in illegal items (like drugs or stolen goods), the police do not need a warrant to place a beeper into those illegal items.     

B. Pen Registers, and Trap-and-Trace Devices 

A pen register allows the police to find out a phone’s outgoing calls.  Conversely, a trap-and-trace device allows the police to see a phone’s incoming calls.  Neither device, however, is meant to pick up any information beyond incoming and outgoing phone numbers.  And, according to the U.S. Supreme Court, people do not have a legitimate expectation of privacy in phone numbers.  That means that no warrant is needed if the police choose to use those devices. 

It is, however, possible for pen registers to become listening devices.  If the police try to use a pen register to actually listen to a phone conversation, then a warrant is required.  We will get into more detail about those issues in the upcoming section on wiretapping

C. Thermal Infrared Image Scanners 

Growing marijuana requires a lot of heat, and marijuana for recreational use is still illegal in a good part of the country, including Ohio (although at the time of this publication Ohio does have a pending bill in the Legislature).  Because of this need for heat lamps to grow marijuana indoors, police have used scanners that detect thermal emissions to determine whether high-intensity lights are being used inside a house or other structure.  Notably, a thermal scanner can detect heat inside a home without the police physically invading any part of someone’s private property. 

Is a warrant required to use a thermal scanner?  Yes.  In Kyllo v. United States, the U.S. Supreme Court found that a warrant is required if police want to use a thermal scanner.  The reason is because the police are using a device to explore details of a home that would otherwise be unknowable without a physical intrusion into the home.

D. Cell-Phone Records 

A discussion about electronic surveillance would not be complete without a discussion of the use of cell phone records, cell phone GPS capabilities, and cell phone signal towers.  Relatively speaking, the use of information in connection with cell phones is still a new area of technology, and law enforcement agencies are still understanding its parameters.  Thus, a lot of the law about the intersection between cell phone information and the Fourth Amendment has yet to be written.

That said, in 2018, the U.S. Supreme Court handed down a very significant decision related to the use of cell phone information in drug investigations.  It is the case of Carpenter v. United States.

Case Study:  Using cell-site information as evidence to place a defendant at the crime scene

The Facts:

In Carpenter v. United States, the police arrested four men involved in a series of armed robberies in Ohio and Michigan.  One of the four confessed to the crimes and gave the cell phone numbers of the other robbery participants.  With those numbers, the FBI agents investigating the case obtained cell phone records without a warrant. 

The records showed the approximate location of each suspect based on the specific cell towers to which the cell phone was connected at given points in time.  The location information, in turn, put the other suspects at the crime scene of each armed robbery.

Timothy Carpenter, one of the suspects, moved to suppress the cell-site evidence, claiming that the FBI agents needed to get a warrant based on probable cause to obtain those cell phone records.  The U.S. Supreme Court agreed.

The Holding:

The U.S. Supreme Court held that the warrantless search and seizure of cell phone records, which show the location and movements of cell phone users, violated the Fourth Amendment.

The Court’s Reasoning:

The Court reasoned that the Fourth Amendment protects a person’s reasonable expectation of privacy.  The Court recognized as reasonable the expectation that every single movement over an extended period of time should remain private.  In this digital age, the Court recognized that tracking a person’s movements through cell phone records is “detailed, encyclopedic, and effortlessly compiled.”  Such an intrusion into someone’s life, therefore, must be permitted only by a warrant based on probable cause.    

No doubt, more court decisions will come related to further advances in cell phone technology, as police forces try ever more innovative ways to investigate crime using cell phone and cell tower information.  It is significant that the U.S. Supreme Court, at least so far, has taken a careful look at the effect the technology has on the ability for others to view all aspects of our private lives. 

As the Court said in the Carpenter case: “time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations. . . . These location records hold for many Americans the privacies of life.

With regard to your own life, you should remain aware that your cell phone is essentially a personal tracking device that make it easier for law enforcement to track you.  Yet, the Fourth Amendment is still there to protect your reasonable expectations of privacy.

5. Warrants for Wiretap - A Permit to Eavesdrop

During this discussion it hopefully has become clear that the Fourth Amendment is enforced based upon a person’s reasonable expectation of privacy in the place or thing being searched.  It should come as no surprise, then, that we all have an expectation of privacy in our phone conversations.  Accordingly, the Fourth Amendment is implicated whenever the police want to listen in on phone conversations. 

So, when talking about wiretapping someone’s phone line in a drug case, the first question is:  why would the cops want to hear a suspect’s phone conversations?  The answer, as you might expect, is rather straightforward.  Dealers will often conduct drug transactions, make buys, negotiate price, and select hand-off locations by phone.  Thus, even if those involved in a drug transaction are speaking in code, the cops will want to listen in if they have a tip that someone is dealing. 

As with other “searches,” listening in on someone’s phone conversation is considered a “search” under the Fourth Amendment, and cops need to get a warrant before they can tap someone’s phone. 

Like with other types of warrants, the police must prove to a judge that they have probable cause to think that drug trafficking is being committed, and that tapping a suspect’s phone will provide evidence to prove the illegal trafficking. 

In fact, wiretapping someone’s phone is so intrusive, and so dramatically interferes with someone’s private life, that police are held to an even higher standard for a wiretap warrant compared to other types of warrants. 

Those higher standards include an expectation by judges that there are strong, clear facts supporting the police officers’ probable cause, and strict limitations on the manner in which the wiretap is conducted.  Specifically, judges approve wiretap warrants only when they:

  • Limit the length of time the officers are permitted to listen in on a suspect’s conversations.  The length of time could go as long as 30 days, but wiretaps will not be approved if the cops ask for very long periods of time to tap someone’s phone.
  • Limit the conversations they can listen toEven if the police are given permission to listen to private phone conversations, they must block out any conversations that are unrelated to any criminal activity.  So, for example, if the cops are listening in on a suspect’s phone, and the suspect is talking to his mother about something personal, the officers are obligated to stop listening to that particular call. 
  • Limit how the information gathered can be used.  Finally, judges will often put limits on the ways in which a police officer can use the information gathered from a wiretap.  For example, the cops cannot publicly publish the conversations.  Rather, only those conversations that are evidence of crime and have been subjected to an open hearing before a judge will be used in court at trial.

While wiretapping is a huge area of criminal investigations, the above is a good summary of what goes into a warrant for the police to be allowed to tap someone’s phone.  That said, there are three specific things to keep in mind with regard to wiretaps in the State of Ohio:

  1. Prisoners do not have an expectation of privacy in calls from jail or prison. 

The rules we just discussed with regard to wiretapping a suspect’s phone do not apply to someone who makes a phone call from jail.  Courts have concluded that prisoners have little expectation of privacy in anything they do in a jail setting, including phone calls. 

So, if you are incarcerated, know that someone is likely listening to your phone conversations.  That is why in-person meetings with your attorney are preferable.

  1. Tapping cell phones. 

Land lines are largely a thing of the past.  Accordingly, gone are the days when police officers could install a physical wiretap on a phone line.  Yet, police officers can wiretap cell phone conversations easily.  What the cops do is contact a cell phone provider (like T-Mobile), have the company isolate a targeted call and transmit the call to the police during the conversation.  To prove that the wiretap was appropriately done, a representative from the cell phone provider would testify as to how the interception process works.  For legal purposes, it is important to know that under Ohio law, the “point of interception” of the cell phone conversation can be both at the place where agents are listening and at the place where the phone is used.

  1. Ohio is a “one-party” state. 

In addition to placing a tapping device on a phone or having a cell-phone carrier intercept a phone conversation, simply recording a telephone conversation with recording device can also be considered “wiretapping.”  Indeed, police officers often persuade informants to make phone calls to their dealers, and the police will simply record the conversation as they listen in while the informant conducts the call. 

In a “one-party” state, like Ohio, it only takes the consent of one person who is a party to the phone conversation to legally record that phone call.  Thus, in a case in which the police are listening while an informant is making a call to a dealer, no wiretap warrant is required because the informant is the “one-party” that is consenting to recording the conversation.

In a “two-party” state, by contrast, both parties to the phone call must consent to a recording of the call.  Otherwise, the recording will be considered a violation of the jurisdiction’s wiretap law. 

Wrapping Up on Warrants

To sum up all the basics on warrants, it is important to remember that the Fourth Amendment generally requires a warrant when the police want to search and seize something or someone.  A warrant is not needed only when an exception to the warrant requirement applies.  Even then, the police must defend the fact that they did not get a warrant whenever a defendant asks the court to suppress evidence before trial.

Also, warrants, regardless of whether they are to arrest someone or tap someone’s phone, require probable cause.  If the police have no probable cause to search, then the judge looking at a warrant application will deny the warrant request. 

Finally, the warrant requirement is a way in which courts protect people’s reasonable expectation of privacy from overzealous police officers.  So, when it comes to your home, your backpack, your pants pockets, or the information on your cell phone, if you believe that most people would agree that something should remain private, then the police most likely have an obligation to get a warrant before searching it.  

 

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Tad Brittingham
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Criminal defense attorney Tad Brittingham is dedicated to serving his clients throughout the Cincinnati area
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