Judges grap­ple with pri­vacy lim­its in phone track­ing case.

The Washington Times Daily - - FRONT PAGE - BY AN­DREA NO­BLE

A three-judge panel of the D.C. Court of Ap­peals grap­pled Tues­day with the lim­its of pri­vacy ex­pec­ta­tions in a case in­volv­ing the city po­lice’s war­rant­less use of cell­phone sur­veil­lance tech­nol­ogy.

Met­ro­pol­i­tan Po­lice had used the tech­nol­ogy to dis­cover the lo­ca­tion of a rob­bery and sexual as­sault sus­pect, and the judges are to de­cide whether the man’s pri­vacy rights were less con­se­quen­tial be­cause he was car­ry­ing stolen cell­phones and was found on a pub­lic street.

Civil lib­er­ties ad­vo­cates are sup­port­ing the ap­peal of the de­fen­dant, Prince Jones, ar­gu­ing that po­lice vi­o­lated his Fourth Amend­ment rights by us­ing a cell-site sim­u­la­tor to pin­point his ex­act lo­ca­tion with­out first ob­tain­ing a war­rant.

Us­ing a cell­phone track­ing de­vice known as a St­ingray, po­lice lo­cated Jones’ phone and even­tu­ally found him sit­ting in a car on a pub­lic street in Oc­to­ber 2013. They also found in his pos­ses­sion sev­eral cell­phones stolen from rob­bery and sexual as­sault vic­tims.

Au­thor­i­ties in­ves­ti­gat­ing the sexual as­saults could have tried to use the St­ingray to track one of the stolen cell­phones, and were pre­pared to do so, if they had not lo­cated Jones by track­ing his own phone, As­sis­tant U.S. At­tor­ney Lau­ren Bates said Tues­day.

Judge Phyl­lis D. Thomp­son asked Jones’ de­fense at­tor­ney why he should have any ex­pec­ta­tion of pri­vacy, given the fact that he was car­ry­ing stolen cell­phones whose own­ers could have had GPS track­ing en­abled and who con­sented to po­lice search­ing for their phones.

“Car­ry­ing stolen prop­erty does not waive pri­vacy rights,” said Ste­fanie Sch­nei­der of the D.C. Pub­lic De­fender Ser­vice. “If a per­son was car­ry­ing a stolen phone in their bag or purse, the gov­ern­ment would still have to get a war­rant to search their bag.”

The po­lice can track a stolen phone, but Jones still had a right to pri­vacy re­gard­ing his move­ments, Ms. Sch­nei­der said.

Jones was sen­tenced to 66 years in prison af­ter he was con­victed in 2014 of sex­u­ally as­sault­ing two women who were con­tacted for es­cort ser­vices through Back­page.com. In each of the at­tacks, which oc­curred within days of one an­other, the women re­sponded to the ads and met a man who forced them at knife­point to per­form oral sex and then robbed them.

At trial in D.C. Su­pe­rior Court, Jones’ at­tor­neys had sought to sup­press ev­i­dence based on the war­rant­less use of a St­ingray to track and iden­tify him as the sus­pect.

The ap­pel­late judges asked pros­e­cu­tors Tues­day to de­fend their ar­gu­ment that po­lice in­evitably would have dis­cov­ered Jones in pos­ses­sion of the stolen cell­phones if they had traced one of those phones rather than his per­sonal phone.

Judge Michael Wil­liam Far­rell said in­evitable dis­cov­ery ar­gu­ments of­ten are raised in cases in which po­lice have iden­ti­fied a sus­pect or have the per­son in cus­tody. In this case, he noted that po­lice had no idea of the sus­pect’s iden­tity and that all in­ves­ti­ga­tors had to go on was a phone num­ber that had been used to call the women who were as­saulted.

Ms. Bates said that so­ci­ety at large rec­og­nizes the fact that cell­phones work by emit­ting elec­tronic sig­nals that can trans­mit in­for­ma­tion about a phone’s lo­ca­tion. In Jones’ case, of­fi­cers found him sit­ting in a car on a pub­lic street near a busy Metro sta­tion with his phone and stolen phones in his pos­ses­sion, she said.

“He is not try­ing to hide him­self,” the pros­e­cu­tor said.

Judge Far­rell ques­tioned whether it was re­ally a for­gone con­clu­sion that po­lice would have found Jones had they searched for a vic­tim’s cell­phone, pos­ing the hy­po­thet­i­cal that Jones could have dumped the vic­tim’s phone in the sewer in the 40 min­utes it took po­lice to zero-in on his lo­ca­tion us­ing the St­ingray.

Ms. Bates said all in­di­ca­tions were that Jones had no in­ten­tion of get­ting rid of the phone, had kept it for sev­eral days and was us­ing it.

“There is a lot of un­cer­tainly there that it would work,” Judge Corinne Beck­with said of the plan to track a vic­tim’s phone had a trace of Jones’ phone not worked.

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