No offenses reported in tracking cell data

State’s police said to follow the law

While a recent national survey found many law enforcement agencies do not seek warrants before using cell phones to locate individuals during investigations, civil liberties advocates say Arkansas law enforcement agencies typically follow the law when using the services.

A recent nationwide survey by the American Civil Liberties Union found that of the more than 200 agencies that responded to the group’s inquiry, most did not regularly obtain warrants for the information. The Arkansas affiliate of the ACLU did not send out requests for information to Arkansas law enforcement agencies.

But Holly Dickson, a staff attorney at the Arkansas ACLU, said no criminal defense attorneys have contacted her office to report unconstitutional attempts by law enforcement to obtain location information from cell phones. She said the ACLU has found the majority of law enforcement agencies in Arkansas are “adhering to the constitution” when seeking location-based information.

Spokesmen from the Little Rock Police Department, the Pulaski County sheriff’s office and the Arkansas State Police said their agencies use services of some kind to locate cell phones, but none maintained records of when investigators used the services.

The North Little Rock Police Department does not use cell phones to locate

individuals during investigations, a spokesman said.

The Arkansas DemocratGazette used the state Freedom of Information Act to obtain the existing records and documents regarding cell- phone location maintained by the three agencies based in central Arkansas.

The two technologies used by law enforcement agencies in central Arkansas are pinging, which uses cell-phone towers to locate a phone by its signal, and pen registries, which follow the movements of a phone over several weeks. Other technologies exist, including finding all the cell phones in a specific area, but no central Arkansas law enforcement agency reported using such services.

Both pinging and pen registries require a law enforcement agency to obtain a warrant for the information. A request is filed with the cell-phone company, which then provides the location information to the law enforcement agency.

Bill Sadler, a spokesman for the Arkansas State Police, said the agency uses both services to monitor location during some investigations.

Although the agency does not keep a record of the number of times investigators use pinging or pen registries, Sadler was able to identify seven instances when the agency used pen registries since June 2009. While pinging a phone is free, a 30-day pen registry costs the agency $435, Sadler said.

The state police does not have written policies outlining when agents can seek location data, aside from the state’s rules of criminal procedure, Sadler said. The agency has used pinging and pen registries in homicide and drug cases in recent years, he said.

The technology also has been used in cases with exigent circumstances, including kidnappings.

“It has opened the door to probably saving some lives,” Sadler said.

Pulaski County prosecutor Larry Jegley said a law enforcement agency seeking location data must present “articulable facts and evidence” to a judge in order to obtain a court order to access that information. Even when officers are attempting to locate a suspect to prevent another crime, the same steps must be taken to obtain a court order, he said.

“It may be fast and furious in the middle of the night, but you can’t forgo the elements of the constitution,” Jegley said.

In some cases, judges may provide permission over the phone for a law enforcement agency to obtain location information, but the agency must always follow up with paperwork afterward, he said.

Lt. Carl Minden, a spokesman for the Pulaski County sheriff’s office, said the agency uses templates provided by the cell-phone companies to quickly get the necessary paperwork to a judge.

He said the agency does not use the more sophisticated location-tracking programs, but frequently uses pinging.

“We ping people’s cell phones all the time, whether it’s a homicide, missing person or trying to find someone with a warrant,” Minden said.

Little Rock police spokesman Sgt. Cassandra Davis said detectives working a case will consider using pinging during an investigation if the need arises. She said location services can be used to locate a suspect or verify where a person was when a crime was committed.

“It’s just a resource that [the detectives] use if they have the ability to,” Davis said.

Dickson said it’s in the best interests of law enforcement to closely follow the law, since obtaining location information without a warrant could affect a prosecution if it is considered an illegal search under the 4th Amendment.

“If you have a Fourth Amendment violation [which covers searches and seizures], you may blow your case,” Dickson said.