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Cellphone tracking raises legal issues

Written by Dylan Segelbaum/York Daily Record | Jan 18, 2016 10:05 AM
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Cellphone tracking raises legal issues (Photo: Sean Heisey, York Daily Record)

Police departments in York County say they get warrants for cell-site location information -- though they're not required to in Pennsylvania. Across the U.S., it's an unsettled legal question.

(Undated) -- When Ian Brenner, a member of New York's 212 gang, stood trial in 2006 for the death of a woman who was killed by a stray bullet while sitting on her porch in York, he had an alibi.

A friend, Tawana Chavis, testified in the York County Court of Common Pleas that Brenner was with her in Red Lion on Oct. 19, 2005 -- the night of the murder. But cellphone records showed that Chavis had made her way from Parkton, Md., to York.

"So," Assistant U.S. Attorney William Behe said, "whoever had that phone and was using it was not inside that apartment when that cell phone was being used?"

"No possible way," replied Vickie Culpepper, who worked in the compliance department of the cellphone company.

Since then, cellphones have gotten more sophisticated.The Electronic Frontier Foundation, a civil liberties organization based in San Francisco, and other groups have noted that phones now send and receive information "even in the absence of any user interaction."

Under Pennsylvania's Wiretapping and Electronic Surveillance Control Act, police departments can obtain the data -- called historical cell-site location information -- if they can show there are "specific and articulable facts" that the records are relevant to an investigation. That's a legal standard lower than probable cause, which is usually needed to search a home, for example.

Several police departments in York County said as a matter of practice, though, they always get a warrant for cell-site location information. But whether police need probable cause to obtain the data -- with the potential privacy issues that can arise -- is a legal question that remains unsettled nationwide.

"Over 25 years of police work, they've always banged the same thing into my head," said Wrightsville Borough Police Chief Ron Hege, who added that the department generally only uses these records in serious cases. '"Get a warrant, get a warrant, get a warrant.'"

How it's used in York County

When a cellphone connects to a tower, it creates a record of where and when that happened. The phone company stores the data, which police can request.

During the first half of 2015, Verizon, for example, received about 21,800 such requests for historical cell-site location information, according to the company's Transparency Report. About one-third came in the form of a warrant.

In 2014, AT&T received 71,160 requests in criminal and civil cases in the United States.

Locally, some lawyers said, it appears these historical records are used mostly in serious cases, such as murders and robberies.

Take the trial of Corey Horne.

Horne, now 48, was convicted in 2012 of robbing four banks in York County. He's serving a 16- to 45-year prison sentence.

During the trial, the prosecution introduced historical cell-site location information. It showed in several cases that Horne's phone would start the day where he lived, in Baltimore, before going up Interstate 83 into York County.

Science, District Attorney Tom Kearney said, has become critical in prosecutions -- and people expect that kind of evidence. That's something commonly referred to as the "CSI Effect," though whether it affects the outcome of cases has been disputed.

"It used to be, 'Where is the fingerprints?' Now, it's, 'Where is the DNA?'"  Kearney said.

"The public hears about this, so the expectations are much greater -- the bar is set much higher in terms of the burden of proof than it was when the science wasn't there, the technology wasn't there."

Some defense attorneys in the area said that they are not opposed to the use of cell-site location information, as long as the records are obtained correctly.

"When used appropriately," said George Margetas, who represented Horne during his trial, "I don't think it's an issue."

Karen Comery, who worked as a prosecutor in the York County District Attorney's Office for 12 years before going into criminal defense, said she's only seen the records used in major cases.

It's time intensive for police to look through this data, she said. If both sides do not agree to the facts during trial, Comery said, the prosecution often has to bring someone in from the phone company to testify -- and they're usually out of state.

The defense can also challenge what prosecutors claim the evidence shows.

"Forensic evidence typically does show one specific thing," said Kevin Hoffman, a defense attorney in York. He used the example of running a test to determine whether a sample is blood. "And that's kind of the reason forensic evidence is considered so good, or so valuable."

But just because someone's cellphone is connecting to a tower, Hoffman said, that "doesn't mean the person is there."

Tracking in real-time

Police are not limited to obtaining records about someone's past location. With stricter court approval, they are allowed to track phones in real time.

In 2012, the state Legislature amended the law to require probable cause in getting real-time cell-site location information.

That tactic was used to help get Destry Arnold, 22, of York Haven. He was captured last fall during a manhunt in Lower Windsor Township.

On Oct. 9, Lower Windsor Township police got a tip that Arnold -- who had a warrant out for his arrest -- was going to be coming into the area. He was considered to be possibly armed and dangerous. K-9 dogs and a helicopter from the Pennsylvania State Police were called in.

Officers got the location of his phone. They found Arnold hiding in an abandoned home, and later charged him with flight to avoid apprehension, trial or punishment and related offenses.

Depending on the circumstances, York County 911 sometimes contacts the phone company for police. That's what happened in the Arnold case.

Eric Bistline, the executive director of the York County Department of Emergency Services, said it gets these requests maybe once every two weeks. He said they're usually only made in lifesaving situations.

One example, Bistline said, would be if someone is threatening to commit suicide.

Lower Windsor Township Police Chief Tim Caldwell recalled one case in which officers were trying to find a woman who had run away from home.

The real-time location information showed that her phone was making its way across the Susquehanna River into Lancaster County. When police there caught up to her, the woman told them that she had been planning to jump in front of the next train.

"So we were able to save her life, and get her the help she needed," Caldwell said.

'A very detailed and sensitive picture of someone's life'

Nathan Freed Wessler, a staff attorney at the ACLU's Speech, Privacy and Technology Project, said that cell-site location information can often show that a person is inside his or her home, which is a constitutionally protected place.

The records can also tell you if someone is dropping by a liquor store -- or going to an Alcohol Anonymous meeting, he said. Those are the kinds of details, he said, that are protected by the Fourth Amendment, which guards people against unreasonable searches and seizures.

"Getting longer-term information," Wessler said, "will paint a very detailed and sensitive picture of someone's life."

In a 2011 case, Baltimore police were able to obtain 221 days of records through a court order based on a lower legal standard for two men who had been implicated in a series of robberies. Sprint turned over more than 29,650 pieces of information about the location of one, and 28,410 for the other.

By analyzing the data, the ACLU said it was able to determine that 29 calls during business hours came from the area of an obstetrician-gynecologist's office. At the time, the wife of one of the men was pregnant.

The organization's position, Wessler said, is that police should need a warrant -- probable cause -- to access that information.

In York County, many police departments said they take the extra step and apply for one.

Sgt. Lisa Layden is with the Southwestern Regional Police Department, which covers Spring Grove as well as Heidelberg, Manheim and North Codorus townships. The department's policy, she said, is "entirely search warrant based."

Some other departments said while not having set policies, they get warrants when requesting cell-site location information. In many cases, they said, the phone company actually requires one.

A spokeswoman for T-Mobile, for example, said in an email that the company will only turn over information to police if it gets a warrant.

"I've never had a cell carrier say, 'OK, yeah, we'll give you that information,'" Hellam Township Police Chief Mark Sowers said. "Never."

In the U.S., court rulings differ

Across the United States, some federal courts have ruled differently as to whether probable cause is needed to get cell-site location information.

With the case in Baltimore, a panel of the U.S. Court of Appeals for the Fourth Circuit eventually ruled 2-1 that police need probable cause to get the records. In late October, the court agreed to rehear the case in front of all the judges.

The U.S. Court of Appeals for the Eleventh Circuit -- which covers cases in Alabama, Florida and Georgia -- ruled that there's no expectation of privacy when it comes to the records.

In November, the U.S. Supreme Court declined to take up the case. As is tradition, the court did not give a reason.

Jennifer Lynch, a senior staff attorney at the Electronic Frontier Foundation, said that the U.S. Supreme Court will generally wait to address issues until they've been "reasonably settled" in the lower court level.

Wessler, the ACLU staff attorney, said that he anticipates the high court will take up the issue in the future.

"Courts have started to split," he said. "There will be ample opportunity for the Supreme Court to work out -- eventually -- a consistent, national standard."

Contact Dylan Segelbaum at 771-2102. 

How it works

Historical cell-site location information:

  • Police department applies for a court order or warrant.

(In York County, police have said they apply for a warrant, which is based on probable cause. However, state law technically allows them to get a court order -- through a lower legal standard -- for the data.)

  • District judge approves or denies the application.
  • If approved, police send the court order or warrant to the cellphone provider.

Real-time cell-site location information:

  • Police department -- unless emergency circumstances exist -- applies for a warrant.

In emergency situations, York County 911 will contact the phone company on behalf of a police department.

  • Common pleas judge approves or denies the application.
  • If approved, police send the court order or warrant to the cellphone provider.

In emergency cases, police must get a written order from the court within 72 hours.

Police departments in York County do not have controversial 'StingRay' technology

The York Daily Record/Sunday News filed Right-to-Know requests with every police department in York County, asking for purchase orders, contracts and other documents with the Harris Corp. The company makes a device called the StingRay, which works by imitating a cell tower, collecting data from every phone in the area.

The Pennsylvania State Police have had the device for several years. But it's unclear if it's been used in York County.

Trooper Rob Hicks, a state police spokesman, sent an excerpt from a document the agency has prepared on the topic in an email.

The response said that many law enforcement agencies "have determined that the public release of the technical details, applications, and operational procedures would create a significant detriment to the protection of their communities by providing criminal elements with the ability to circumvent the devices."

Cell-site location information in the Corey Horne case

Here's a look at what historical cell-site location information was introduced in the trial of Corey Horne, who's serving a 16- to 45-year prison sentence for robbing four banks in 2009. 

Robbery No. 1: April 17, 2009 at 3:58 p.m.: Fulton Bank at 1500 Kenneth Road

  • 8:18 a.m.: Horne's phone "pings" off two cell towers in the Baltimore area.
  • 4:35 p.m.: Phone connects to a tower near the Pennsylvania-Maryland state line.

Robbery No. 2: April 25, 2009 at 12:20 p.m.: Fulton Bank at 1102 Shrewsbury Commons Ave.:

  • 9:40 a.m.: Phone connects to two towers in the Baltimore area.
  • 10:10 a.m.: Horne's phone "pings" off of a tower further north, consistent with driving up Interstate 83.
  • 1:42 p.m.: His phone is back connecting to the same tower as the first call.

Robbery No. 3: April 29, 2009 at 3:49 pm.: Wachovia Bank at 50 Haines Road:

  • 12:15 p.m.: Horne's phone connects to a tower in the York area.
  • 4:26 p.m.: His phone "pings" off a tower on the way back to Baltimore.

Robbery No. 4: May 11, 2009 at 2:27 p.m.: PNC Bank at 2430 E. Market St.:

  • 1:56 p.m.: Phone connects to a tower in the York area.
  • 2:15 p.m., 2:21 p.m.: Horne's cellphone is still connecting to the same tower.
  • 4:32 p.m.: Cellphone is connecting to a tower in the Baltimore area.

 

Cell-site location information in the Tracey Bradley case 

When Northern York County Regional police arrived at the Motel 6 in Manchester Township in May 2010 and found Lee Choppin's body, his van was still in the parking lot.  

Choppin, 72, of Roanoke, Va., had been strangled. He had checked into the motel on May 20 to recover from surgery.

When police obtained cell-site location information and E-Z Pass records, District Attorney Tom Kearney said, they were able to track the movements of Tracey Bradley, who would eventually be convicted in the killing. The records showed that he took the van from York to Newark, N.J., and back.

 

 


This article is part of a content-sharing partnership between WITF and the York Daily Record

 

*This story has been changed to reflect the correct the spelling of George Margetas' last name

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