Late one night in April 2017, Versailles police discovered that armed robbery suspect Dovontia Reed was driving along the Bluegrass Parkway by calling AT&T and asking the company to “ping” Reed’s cell phone, identifying the satellite towers nearest to him, for 90 minutes.
That information let police catch Reed as he re-entered town. He ended up with a seven year prison sentence.
On Wednesday, the Kentucky Supreme Court was asked to decide if police should be allowed to track people by pinging their cell phones without a court-issued search warrant, as Versailles police did to Reed four years ago.
The Fourth Amendment to the U.S. Constitution protects citizens from unreasonable search and seizure, which is why police usually have to justify their searches to judges in advance in order to obtain a warrant, Reed’s attorney, Adam Meyer, told the high court during oral arguments.
Most Kentuckians carry their cell phones around with them, so allowing police without oversight to track cell phone locations is essentially the same as letting police secretly monitor Kentuckians’ daily routines, Meyer said.
“You have a reasonable expectation of privacy in your movements,” Meyer said. He added: “They didn’t know where Mr. Reed was at the time they pinged his cell phone. He could have been in his home, he could have been at his girlfriend’s house, he could have been at his mother’s house, he could have been anywhere.”
The office of Attorney General Daniel Cameron, arguing for the police, said a warrant was not necessary in this case because Reed was driving on a state highway, where he did not have a reasonable expectation of privacy.
And unlike a traditional phone search, where police look for texts or photos stored in the device, the Versailles police did not examine Reed’s phone, said Brett Nolan, arguing for the attorney general. They asked a third-party phone carrier to share information from its satellite towers, which the carrier agreed to do, Nolan said.
“This case is about using technology to do something that the police have always been able to do, which is public surveillance on a public road while an individual takes a discrete journey in a car,” Nolan told the court. “Because the police only used Mr. Reed’s phone and location data in this case to do just that, this was not a Fourth Amendment search.”
Reed was accused of taking $500 in cash from an acquaintance at gunpoint outside a Versailles gas station and driving away in a Nissan Altima. He agreed to plead guilty on various charges, including robbery and receiving stolen property, but only if his motion to suppress the evidence from the search of his car could be heard on appeal.
The Kentucky Court of Appeals sided with Reed. In an opinion last year, that court said Kentucky police trigger “the protections of the Fourth Amendment” when they seek real-time cell phone location data on individuals.
In 2018, in a case involving the investigation of a series of store robberies in Ohio and Michigan, the U.S. Supreme Court ruled that police must obtain warrants before they can get historic cell tower data showing roughly where and when phones have been in the past. But the decision did not address questions about real-time data that could let police track people’s current movements.
The ACLU of Kentucky filed a friend-of-the-court brief in Reed’s case, arguing that the high court must protect Kentuckians’ privacy rights.
“The power to track and locate any person’s cell phone affects virtually all Kentuckians,” ACLU attorney Corey Shapiro wrote in the brief.
“Ninety-six percent of Americans now own cell phones, and most carry them everywhere they go,” Shapiro wrote. “Without constitutional regulation, this power will give the government an unfettered ability to achieve near-perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”
On Wednesday, several of the state Supreme Court justices sounded skeptical about the attorney general’s argument that police don’t need warrants to track cell phone owners on public roadways.
Justice Michelle Keller of Covington asked how police would know that people are on a public roadway until they have pinged the phones — at which point, officers already have acted without a warrant.
“You say you want a narrow holding that only applies to on-the-road surveillance,” Keller told Nolan. “I’m confused, because whatever holding we render about this cell phone pinging kind of information, it seems to me like it will apply in other settings.”
“What if I’m in my home with my cell phone? Does the government have the right to access my location using my cell phone and determine whether I’m in my bedroom or in my basement, or in my basement or in my kitchen? Do you understand where I’m going with this?” Keller asked.
Chief Justice John Minton Jr. of Bowling Green said a lot of private information about people is available through their cell phones and cell service providers. Under Section 10 of the Kentucky Constitution, Kentuckians expect that a search must be justified to a court before that privacy can be invaded, Minton said.
“Why isn’t it a search for the police to pick up the phone and call the phone company and get all that information about me?” Minton asked. “Is that not a search? Why don’t I have an expectation of some sort of privacy in all that information?”
The Supreme Court is expected to issue a decision in the case in coming months.
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