A Washington defense lawyer is urging a trial judge here to prevent federal prosecutors from using cell phone location data in a high-profile drug trafficking conspiracy case.
The lawyer, Jeffrey O'Toole, who represents a man named Antoine Jones, said in court papers filed this week that the government violated his client's constitutional rights protected under the Fourth Amendment.
The government, O'Toole said in a motion to suppress the cell data, should have been required to show probable cause to obtain tower data from a service provider.
The prosecution of Jones, a nightclub owner charged with participating in a drug ring in Washington, is back in the trial court from the U.S. Supreme Court. The high court in January upheld the dismissal of Jones' conviction and life sentence, finding the authorities violated his Fourth Amendment rights through the clandestine, warrantless use of a GPS tracking device.
In the trial court, prosecutors, who cannot now use the GPS data, want to use cell phone information—the location of service towers—to link Jones to an alleged drug house in Maryland.
The government obtained the tower data from a service provider via a court order, not a warrant, which would have posed a higher burden for prosecutors.
Prosecutors contend in their court papers that Jones had no privacy interest in the location data his phone transmits to service providers. The location information, according to the government, belongs to a third party—the service provider—and not to the customer.
Tower data, the prosecutors said, is "far too imprecise by any measure to intrude upon a reasonable expectation of privacy." The information gives a rough guide to a person's location, the government said, unlike the greater degree of certainty GPS provides.
"This argument disregards the fact that the government is seeking to introduce expert testimony that uses the cell site data to place him in certain locations such as his home, the homes of others, and the alleged stash house," O'Toole said in his papers. "If the data is too imprecise to violate an individual's privacy, perhaps it is too imprecise to use to pinpoint the defendant to certain locations."
The privacy advocacy group Electronic Frontier Foundation is supporting Jones. EFF filed a friend-of-the-court brief in August. The government, the EFF brief said, should have acquired a search warrant to obtain information about the location of Jones' mobile phone.
Prosecutors contend in the case that cell tower information links Jones to a stash house in which the authorities, in 2005, found cocaine and hundreds of thousands of dollars. Jones remains in custody pending trial.
The government also said that even if Jones has a Fourth Amendment privacy interest in tower information, investigators adhered to a "good-faith reliance upon judicial and statutory authorization" to obtain the data.
The good-faith exception, O'Toole said in response, only goes so far.
"The good-faith exception to the exclusionary rule does not apply when the magistrate judge acts merely as a rubber stamp for law enforcement," O'Toole said. He argued that a magistrate judge in the Jones case "did fail to closely examine and question the prospective data in this case."