Law enforcement agencies must have probable cause before using real-time data to track a suspect's cell phone, a Pennsylvania judge says.
Superior Court Judge Mary Jane Bowes believes her opinion on the matter is an issue of first impression, meaning there's no binding precedent on the matter.
Judge Bowes' colleagues on the three-judge panel -- President Judge Correale F. Stevens and Senior Judge Eugene B. Strassburger III -- did not join her reasoning on the issue, but did agree in affirming a murder conviction that resulted in three consecutive life sentences.
Lackawanna County District Attorney Andrew J. Jarbola III, whose office prosecuted the murder case and plans on appealing the most recent holding to the state Supreme Court, said Judge Bowes' ruling, if adopted as case law, would add a "half-step" for law enforcement seeking to track a suspect by "pinging" his or her cellphone.
Under the probable-cause standard, police or a local prosecutor must file an affidavit along with a petition for a court order authorizing cellphone tracking, the district attorney said.
Randal Rushing, who was convicted in 2011 of murdering three people by stabbing them and beating them with hammers, had challenged the police's interception of his cellphone signal in order to track him and search his home.
He argued on appeal the tactic violated unlawful search-and-seizure provisions in the state and federal constitutions and the Pennsylvania Wiretap Act. Rushing also argued the state was required to obtain a warrant after establishing probable cause, instead of the court order officers secured based on "specific and articulable" facts under the old Wiretap Act.
While the court disagreed with the state on the standard under which law enforcement must secure a cell phone tracking order, the court ultimately concluded that law enforcement had probable cause and exigent circumstances to track Rushing's phone and, even if they had not, any evidence admitted as a result would have been harmless error.
Judge Bowes, who wrote the lead opinion in the case, analyzed the case through a constitutional lens rather than a statutory one.
She said the "critical inquiry" of the case was whether law enforcement officials had probable cause, setting the standard for a strategy law enforcement will rely more and more upon as cell phones with GPS trackers become increasingly commonplace.
"Thus, law enforcement officials are able to determine, with increasing accuracy, the location of a person via the individual's cellphone," Judge Bowes said. "Tracking a person without any visual contact or physically attaching some type of tracking device to the individual is no longer mere science fiction but modern reality."
That is, if the ruling is left to stand.
Mr. Jarbola said his office plans to appeal the case on the cell phone tracking standard and on the panel's decision to reverse Rushing's kidnapping convictions, which did not disturb his three life sentences for the murders, only the dozens of years of prison time tacked on top of those sentences.
The opinions were handed down June 28, days before Judge Stevens was confirmed to serve on the state Supreme Court.