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Nevada police routinely track cellphone users without warrants

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Charles Krupa / AP Photo

A driver talks on a cell phone while driving through the Financial District of Boston.

Wed, Apr 4, 2012 (2 a.m.)

Nevada law enforcement agencies have tracked the movements of citizens through their cellphones, sometimes without obtaining proper court approval, according to court records and documents obtained by the American Civil Liberties Union of Nevada.

A judge last year ruled North Las Vegas police had improperly obtained the location of a murder suspect from his cellphone carrier but allowed evidence gathered from the illegal tracking to be used in court, citing in part the absence of a state law regulating such tracking.

The Reno Police Department admitted in an internal document that cellphone tracking had been “misused” to locate stolen phones.

“Some cell carriers have been complying with such requests, but they cannot be expected to continue to do so as it is outside the scope of the law,” the document said. “Continued misuse by law enforcement agencies will undoubtedly backfire.”

Such actions on the part of law enforcement, first reported Sunday by The New York Times, have raised concerns among civil liberty advocates and some Nevada lawmakers.

Indeed, warrantless cellphone tracking is a key civil liberty issue and constitutional concern of our time, said Dan Silverstein, a deputy in the Clark County Public Defender’s Office and a past president of the Nevada Attorneys for Criminal Justice, a group of defense attorneys that has approached judges with concerns about cellphone tracking without warrants.

Agencies like the North Las Vegas Police Department and Las Vegas Metropolitan Police Department “routinely” use cellphone records to track people involved in investigations.

“It has become almost standard in the cases I see,” Silverstein said. “Sometimes they obtain a warrant; sometimes they don’t.”

Metro Police and the Clark County District Attorney’s Office did not respond to a request for comment Tuesday.

However, in documents provided to the ACLU of Nevada in response to a public records request, the agency said, “It is the policy of this department to provide a controlled system for ensuring legal compliance to existing state and federal laws.”

Metro said requests for cellphone carriers to track a suspect are “based on a probable cause standard.”

Metro requested 800 cellphone records, called “pen registers,” between the summer of 2007 and the summer of 2011, according to documents the department provided to the ACLU. It is unclear how many of those requests were for tracking the location of cellphones rather than just a log of phone calls placed.

The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches by government. To obtain a search warrant, authorities have been required to show a judge enough evidence to establish “probable cause.”

But Silverstein said in requesting cellphone locations and records, law enforcement sometimes uses a much lower standard — “relevance.”

Rebecca Gasca, legislative and policy director with the ACLU of Nevada, said the use of cellphone surveillance without court oversight is a concern.

“We are talking to several legislators who view this as problematic,” she said.

Assemblyman Tick Segerblom, D-Las Vegas, said he believes law enforcement should have a search warrant before it accesses cellphone records.

The New York Times, using 5,500 pages of law enforcement documents obtained by ACLU affiliates, reported that law enforcement agencies across the country are using cellphone tracking as part of criminal investigations, but many have tried to keep it secret, fearing a public and legal backlash.

Silverstein said he first noticed this issue in 2005, when, in discovery for a case he was working on, he noticed a record of his client’s locations along with a log of calls he had made from a cellphone.

That is now the norm in cases, he said.

In 2011, Clark County District Court Judge Valerie Adair found a North Las Vegas police detective did not provide justification for tracking Billy Ray James, a handyman who was convicted of murder.

“The police were entitled to the call records pursuant to (federal law), but they were not entitled to the cell tower location records,” she wrote. But, she said, federal law did not allow the cellphone evidence to be thrown out.

The U.S. Supreme Court ruled in January that a Global Positioning System device law enforcement placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches. That case did not directly address cellphones, though many now come equipped with GPS devices.

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Discussion: 35 comments so far…

  1. And Now the Supreme Court gave Police unlimited ability to do Strip Searches - for Anything from Jaywalking to a Traffic Stop. All Privacy is being eliminated under the mantra of Security, while Progressives and Conservatives argue about eliminating Birth Control Pills from the U.S. Market.

  2. Good......keep our city safe. We have such a diverse group of people coming and going in this town, I think whatever the police need to do to keep the citizens and visitors safe. But not just at the state level but even more so with the intelligence communities directives at the federal level. Do they need a warrant to listen in on these conversations yes, do they need a warrant to track a phone using available technology...I say NO. If you were using a private bandwidth then I would say maybe is a violation, but using what amounts to a public utility system in cell phone towers and repeaters, not owned by your cell phone provider (as most are), then whatever you do amounts to adding to the public record. How do you think that repeaters and parabolic disks are added to cell phone towers, they analyze usage data (same thing the police are doing), and make a determination on peak loads. Why is their tracking of calls and phones moving from cell zone to cell zone ok, but when the police do it is not ok......a double standard I would say. For those that scream it is a violation of their rights as US citizens, there is one other side to having those rights, and that is we as citizens are expected to be responsible individuals and obey the laws established under those same guiding doctrines. If you are planning on doing something bad bad......and the police track you and catch you....then I say that is EXACTLY what I expect my public servants to do....protect me.
    Kudos for embracing the technology that allows us to be safe in our own homes. Tracking down and prosecuting criminals has become problematic with the evolution of the criminal justice system. The problem being that most of the time the criminals have more rights than the victims. I say this is just one more way to level the playing field.

  3. The problem we have going on here, is that government is trying to change the Constitution to give itself the rights to INTRUDE OUR PRIVACY, in every way, shape, and form, under the guise of Homeland Security. That is being done daily by backroom deals going on in Washington, D.C. with our representatives crafting and passing such laws giving the government MORE power, and the American Citizen LESS power. This IS criminal on their parts, an abuse of power and trust.

    And what makes matters worse, is the complete and utter apathy Americans have regarding any politics anymore, as manifested by low voter turnouts. They have given up thinking that their vote matters, that they can make a difference.

    The Big Government wheels are turning towards a POLICE STATE right under our noses, and the People are pretty powerless to do much of anything.

    Eventually, Big Government will go too far, cross one line too many, and there will be an outcry, a revolution to overthrow it by the People. Many are preparing for that showdown, as has the federal government (by securing massive quantities of quick coffins & storing them, building secure FEMA Camps for rounded up protesters, possessing techology purposed as weapons for crowd control, legislating the FDA approval and use of RFID Veri-chips for human implantation to control any and all consumption of goods and services, etc.).

    At this point, a search warrant is just a piece of paper, a courtesy. YES, they should have probable cause. But already, the big government has enacted laws to circumvent just about any Constitutional protection Americans possess. Our rights and freedom are an illusion...make no mistake, they are simply "allowing" us to live our lives as we see fit for now. Good luck.

    Blessings and Peace,
    Star

  4. The fact that they ever get warrants tells me they know warrantless tracking is wrong. Imagine that, police being arrogant and feeling like they're above the law.

  5. What? The American Criminal Liberties Union is aghast at a procedure being done by law enforcement? Gee, what a surprise. Let's all pass the hat for the poor murderer whose "rights" might have been "violated" because the ACLU and its motley crew says so. As for me, if the ACLU is against it, I'm all for it!

  6. Security vs. Freedom. I was always taught that freedom is worth dying for. I'm all for protecting our rights of privacy and the constitution, but there is a price I have to pay and that is I might not be as secure. I'm willing to pay that price. I am convinced though, local police should not be able to waive the national laws when it is convenient to do so.

    But then again there is the "slippery slope" theory.

  7. "A judge last year ruled North Las Vegas police had improperly obtained the location of a murder suspect from his cellphone carrier but allowed evidence gathered from the illegal tracking to be used in court, citing in part the absence of a state law regulating such tracking."

    Schwartz -- if this "judge" was sitting in the North Las Vegas Justice Court, he wasn't a judge. He's a justice of the peace. Big difference.

    Very, very troubling how he bypassed the Bill of Rights and Declaration of Rights and filled in what he thought the legislature neglected to make law. But from what I've seen for a long time judges and their wannabes violate their oaths to support, protect and defend separate powers everywhere, every day, with their pens.

    "And Now the Supreme Court gave Police unlimited ability to do Strip Searches - for Anything from Jaywalking to a Traffic Stop."

    newnvres -- no, only jailers

    "Good......keep our city safe."

    Xtlman -- exactly which part of "The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches shall not be violated" do you need explained to you?

    "The problem we have going on here, is that government is trying to change the Constitution..."

    star -- no, they're not trying to change it, they ignore it. After all who's going to do anything about it? They have the lawyers, guns and money. You know, the things we used to have before they took them.

    "As for me, if the ACLU is against it, I'm all for it!"

    lvfacts101 -- love to see what you have to post after they come for you

    "I am convinced though, local police should not be able to waive the national laws when it is convenient to do so."

    NVConcernedCitizen -- that Nevada police like to do unwarranted searches I've experienced firsthand. Never know when someone might have the remains of a joint in their pocket, you know.

    "Indifference to personal liberty is but the precursor of the State's hostility to it." -- United States v. Penn, 647 F.2d 876 (9th Circuit, 1980), Judge Kennedy dissenting

  8. What is the point of not tracking a criminal suspect by cell phone? Is it to protect the criminal from apprehension. We may not want innocent parties to be routinely tracked by this method, but what is the harm, if it happens in error?

  9. Should be legal to track and use cell phone activity. Users have NO EXPECTATION OF PRIVACY when using a cell phone or the internet. If you have no clue about the availability of "hacking" programs so that any and every email and phone conversation can be "overheard" give it another year or two. Legal, legitimate and useful information to root out illegal activity is what we're all after.

  10. Public airwaves are being used for cell service and anyone with a radio can tune into your call, there should be no expectation of privacy, like leaving your trash in the can on the sidewalk, anyone can go thru it. Why would you assume different?

  11. For all of those in favor of police tracking us, it is folks just like you that ALLOWED Nazi Germany to come to power. It is not the calls or contents that are at issue here. It is the TRACKING of a persons movements that is terrifying. To want police to be able to monitor a persons every move is unamerican at best. Freedom, and that includes freedom from illegal searches, is what our forefathers fought and died for. But, they also died for idiots like you. Idiots that want to live in a police state. Ironic.

  12. I think that is okay to follow and listen to cell phone calls. if your not doing anything wrong you have nothing to fear. Keep up the great work metro !

  13. Sorry, BChap, I'm neither a Christian nor even very religious, but you do tend to generalize in your rants. Yes, I am for smaller government but not when it comes to handing over my life, liberty & property to thugs and thieves. You not only tend to generalize, you tend to bloviate. I couldn't care less if you get assaulted, robbed, mangled by a drunk driver or otherwise are a victim of crime and, instead of dialing 911, call the ACLU for help. I'm sure they will do you and your ivory-tower, bleeding-heart leftist agenda a lot of good.

  14. "I think that is okay to follow and listen to cell phone calls. if your not doing anything wrong you have nothing to fear."

    juansanchez -- your post shows you to be completely clueless about how this republic works. The Fourth Amendment and Nevada's equivalent I posted above are something all those officers swore an oath under penalty of perjury to support, protect and defend. That alone should trouble you immensely.

    Unwarranted searches are just fishing expeditions to look for something to use against you. If you want to live in a police state you're free to. I will not.

    "In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means - to declare that the government may commit crimes in order to secure the conviction of a private criminal - would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face." -- Olmstead v. United States, 277 U.S. 438 (1928), Justice Brandeis dissenting

  15. The advent radio has had a profound impact on "expectation of privacy" arguments, which this is all about.

    Based on what I have read and some of the arguments relating to addresses on envelopes being "public" but the content not, I can see where cell tower information might be seen as the same.

    But GPS information is an entirely different matter in mind, especially when there is no option to stop it being transmitted. St the very least, a user would have to have a complete guarantee that the phone they buy has no means of transmitting GPS data before I think the current arguments that might allow cell tower data could be reasonably applied.

    This boils down to one of the basic tests to establish an expectation of privacy: a person must evidence taking action to ensure such expectation.

    But if there is no means to disable GPS data, or even be aware that it is being sent, how does one take such steps? I think in that case it is incumbent upon the courts to give the user the benefit of the doubt.

  16. By the way, does anyone remember the days of mobile car phones that were based on business band radio?

    I worked for a company that provided that service in the late 70s. My boss would routinely monitor those conversations and drop the connection if they violated FCC rules such as those covering obscenity. The FCC not only allowed that, but arguably required it.

    I am curious to know if those regulations have changed at all with regard to cell phones. Is it illegal to say certain words on a cell phone?

  17. After 911 they'll all do whatever they damn well please and they will do it in the name of "homeland security," and "anti-terrorism."

  18. It's wrong. Some folks like that the police got the murderer that way. I fully support it with a court order. Judges provide the checks and balances. But otherwise it's cops with high school educations tracking the sons of their daughters. It's cops tracking the guy who might be talking to their wives. It's a cop who doesn't like the Jerry Finks of the world for whatever reason (maybe he forgot to invite him to the neighborhood barbeque?) and all of a sudden he's tracking his every movement. Wake up, people. A judge will grant an order to track a suspected murderer. But without that court order your daughter's ex-husband or your the father of your son's ex-girlfriend will not only be illegally tracking you but may be framing you by putting someting in your car as well when he sees the car parked in that parking gargage. And if you think I'm paranoid then I think you are out of touch with reality. And, no, I've never been framed or had a criminal issue or arrest. Sorry for using your name, Jerry, I'm usually in agreement with much of what you say and i think you're a fine character. I'm hoping that a rogue cop doesn't really target you.

  19. And the phone companies are charging a pretty penny for this 'service' too.

  20. Who cares? I have nothing to be afraid of. If big brother wants to track me, I'm flattered for the attention. Besides, it's not anything hacking can't fix.