Q: Can police obtain the records of your cellphone location without a warrant to determine where you have been in the past weeks, months, etc. (or likely where you are currently, based on past locations)?
A: No, police are required to obtain a warrant. However, some extreme emergency situations—bomb threats, active shooters, child abductions—might not require police to obtain a warrant to get this information.
Recently, the United States Supreme Court held that acquiring the cell-site location information of a cellphone subscriber is a “search.” Cell-site location information, in short, uses the signal between a cellphone tower and the cellphone to determine the approximate location of the cellphone (“pinging.”) The data generated from “pinging” can include precise longitude and latitude coordinates for the most recent location of a cellphone. Put simply, “pinging” a cellphone tells the government (and police) with great accuracy where your phone is at a point in time—and, resultantly, where you likely are now.
Because “pinging” a cellphone is a “search,” the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution apply. The Fourth Amendment protects you from “unreasonable” searches and seizures, such as searches performed without a warrant.
Therefore, the Government is required to obtain a warrant in order to “ping” your cellphone location and figure out where you are, or where you have been. The Supreme Court left open the idea that some major emergencies—active shooters, child abductions, bomb threats—could potentially exempt the warrant requirement. Currently, there are some cases pending in Texas questioning what emergencies would permit the Government to do away with your Fourth Amendment protection as to cellphone location information.
Why You Should Care
We all carry cellphones, and—even if you have turned off GPS or location services—your cellphone provider is still able to determine the location of your cellphone with alarming accuracy by “pinging” the signal. All the police had to do (before the Supreme Court determined a warrant was required) was to call the cellphone provider and request the information—and in a matter of minutes, the provider would provide the most recent longitude and latitude coordinates for your phone.
But, if I am not doing anything wrong, why should I care?
Because cell-site triangulation (the process by which your phone is located during “pinging”) is imperfect and not entirely precise. In short, your phone records could put you in the same neighborhood, at the same time, as a serious crime occurred—even though you were on the other side of town.