Federal law enforcement officials have been tracking the movements of criminal suspects since before technology would allow. The original form of government tracking was simply to follow suspects, either on foot or by vehicle. Next, law enforcement agencies, such as the FBI, would install their own tracking equipment on or inside a vehicle, plane, boat, or other object to monitor and track a suspect’s location. Today, the cell phone has provided law enforcement officials a priceless investigative tool for monitoring the movement of individuals.
Can You Find Me Now?: The Federal Government’s Attempt to Track Criminal Suspects Using Their Cell Phones discusses the timely, relevant, and hotly debated topic of whether the government should be able to track cell phones upon a showing of anything less than probable cause. This article is especially timely because of the disagreement among district courts as to how to resolve this controversial issue. Some judges have allowed the government to obtain cell phone location information upon a showing of “specific and articulable facts,” others have required a warrant founded upon probable cause, and still others have limited the type of information the government can obtain. In addition, appellate resolution of this issue is unlikely because the federal government has never sought appellate court review when it has been denied in its requests for cell phone location information, and because when the federal government is granted access to the information it seeks, there is no other party in court to appeal the judgment. Consequently, this issue will continue to be fiercely debated as the government requests cell phone location information from other district courts across the country.
The article is unique in that it takes a contrary position to most of the scholarly literature available on the topic. Most articles argue that the government should not be able to obtain cell phone location information unless it obtains a warrant founded upon probable cause. They generally rely upon fundamental Fourth Amendment privacy concerns as the basis for their conclusions. This article argues that the government can actually rely on the Fourth Amendment as a basis for obtaining cell phone location information without a showing of probable cause, and even without a court order. In the alternative, this article argues that the government can obtain the same information through a court order without showing probable cause.