Press

With cellphones becoming a necessary accessory of daily life, questions are growing regarding how much leeway police should have when it comes to tracking suspects through their geolocation data.

On Tuesday, the Pennsylvania Supreme Court grappled with two novel questions getting at these issues—one dealing with warrants for tracking real-time cell data, and the other focusing on the police’s ability to obtain records for Wi-Fi users on a college campus.

In both cases, Commonwealth v. Pacheco and Commonwealth v. Dunkins, defense attorneys warned about potentially “unfettered access” by law enforcement to search and obtain geolocation data from suspects.

“There needs to be some mechanism, some limit,” Brooks Thompson of McMahon, Lentz & Thompson, who is representing David Pacheco, told the justices. “When Pacheco’s clearly going about his business in Norristown, there’s nothing to stop the location monitoring at that time. They could know he’s not engaged in criminal activity at that time and [could still monitor].”

Pacheco deals with the different standards between obtaining a court order to track geolocation data under the Wiretap Act versus the need to obtain a warrant to access the information.

In Pacheco, the Montgomery County District Attorney’s Office came to believe that Pacheco, a Norristown resident, was part of a Mexican drug cartel, smuggling heroin into the United States. Over their nearly year-long investigation, prosecutors obtained several orders under the Wiretap Act, including “ping” requests that authorized the phone company to send signals to Pacheco’s phone as directed by law enforcement. The signals gave real-time indications of Pacheco’s location.

Thompson, however, argued that the court orders, which allowed law enforcement to obtain data for 60 days at a time, were far too broad and allowed police to monitor his client’s every movement regardless of whether there was probable cause to believe those particular activities were related to a crime. Although prosecutors had argued that obtaining the wiretap order was the functional equivalent of obtaining a warrant, Thompson said that was not the case, especially since the order allowed police to search for anything that could be relevant to their investigation.

Attorney Michael Diamondstein, who argued on behalf of Alkiohn Dunkins, said his client similarly faced “unbridled” intrusion by law enforcement when police obtained his location information through Wi-Fi, and argued that granting police access to large amounts of Wi-Fi data could have a “chilling effect.”

“With the flip of a switch they were able to search every one of his movements,” Diamondstein said.

Dunkins hinges on whether law enforcement needed a warrant to obtain location data when Dunkins’ cellphone had been logged on to Moravian College’s wireless network at the time an assault and robbery took place in a nearby dorm.

According to court papers, campus police had Moravian’s director of systems engineering compile a list of all the users who logged on to the campus’ wireless access point near the dorm where the incident occurred. They discovered that, at the time of the robbery, there were only three individuals logged onto the campus Wi-Fi at that location that did not live in that building⁠—two were female and the third was Dunkins, whose cellphone was set to automatically connect to the network whenever it was within range.

Diamondstein likened the situation to the U.S. Supreme Court case Carpenter v. United States, in which the justices held that law enforcement invaded a defendant’s privacy by compelling wireless carriers to provide a record his historical cell site location information (CSLI) for a four-month period.

However, Justice David Wecht said the situation seemed more akin to police looking over security camera footage. Diamondstein disagreed with that, noting that surveillance is the primary purpose for security cameras, but surveillance is not the purpose for cellphones.

Katharine Kurnas of the Northampton County District Attorney’s Office, which is prosecuting Dunkins, argued that the search should be allowed because police had looked through a large dump of data and had not targeted a single individual. She also said Dunkins had signed away his privacy rights under the college’s handbook.

Justice Christine Donohue questioned how Dunkins could have waived his geolocation privacy rights under the handbook, but Kurnas replied that the trial court had found that geolocation data, while not specifically mentioned, would be included in the Wi-Fi data that the handbook mentioned.

Further, Kurnas argued the case was not akin to Carpenter.

“He chose to connect to the Wi-Fi when he committed an armed robbery. He could have turned Wi-Fi off, and it still would have maintained the function of the cellphone, making it different than Carpenter,” she said.

In Pacheco, some justices indicated that the language in the Wiretap Act allowing officers to obtain information any information “relevant” to an investigation could be problematic, with Wecht saying it was a “very, very wide door to drive a Mack truck through,” and Justice Kevin Dougherty saying it seemed to “water down” the probable cause requirements and could have a “chilling” effect.

However, Montgomery County Assistant District Attorney Robert Falin noted the amount of documentation the court was given to approve the order and said the Wiretap Act gives more protections to defendants than the procedures for obtaining a warrant did.

He also added that in many circumstances obtaining a warrant would render geolocating investigative tools useless for officers, specifically arguing that the requirement to serve warrants would have given Pacheco notice his cell data was being tracked.

“This is not unfettered. It’s supervised,” Falin said. “Supervised at a level a warrant would not be.”