Can police track you through your cell phone? Question raised in Derby Day murder case
“The average citizen would not like the idea that the government can know where I am at all times unless I take the battery out of my phone,” Judge Charles Cunningham said. “You can’t suggest to me that the average citizen thinks, ‘OK, I’m cool with that.’”
LOUISVILLE, Ky. (WDRB) -- Prosecutors and police say the people charged with murdering a Canadian tourist as he returned to his hotel on Kentucky Derby Day 2015 were in the middle of a violent crime spree involving Tasers and guns while cruising around in a luxury car.
Desperate to find the suspects as quickly as possible, police tracked down the phone numbers for two of the suspects and located the group through GPS coordinates from the cell provider.
Now, however, attorneys for the suspects -- Tyrone Thomas, Fatima Abu-Diab and her brother, Fahed Abu-Diab -- say the Louisville Metro Police Department failed to properly obtain a warrant from a judge prior to seeking the phone “ping” information, violating the group’s Fourth Amendment right to privacy.
At issue is whether cell phone data is constitutionally protected. While Indiana courts have ruled that police must get a warrant before obtaining such information, the Louisville case is the first of its kind in Kentucky.
“When the police have the ability to coerce our private cell providers to turn our cellphones into tracking devices, then every citizen with a cell phone is subject to monitoring,” attorney Carlos Wood and Angela Elleman argued in a motion to Jefferson Circuit Court Judge Charles Cunningham.
Cunningham called it a “convoluted modern-day question” in a court hearing.
“It’s an interesting question,” added Cunningham, who has not yet ruled.
Wood and Elleman have asked the judge to throw out evidence in the murder case against Fahed Abu-Diab after the warrantless search of his phone. That evidence would include Abu-Diab’s statement to police and evidence found on him and in a hotel room where he was staying. Attorneys for the other defendants have joined in the motion.
Cunningham’s ruling in the Derby murder case, Elleman said in a court hearing in April, will be a “message to LMPD about whether they have to get a search warrant to search our phones, to track you and I 24/7 without a warrant …
“It will change police behavior … and I think it’s necessary and important.”
The Jefferson Commonwealth’s Attorney’s office is arguing police did not need a warrant, that there is an exception to the requirement for “exigent circumstances,” meaning, in this instance, the defendants were in the middle of a crime spree in which someone had been killed.
“We acted on that information to prevent any further incidents like what happened on Derby night,” Det. Jason Vance testified last year.
Obtaining a warrant and then gathering the information from the cell phone provider would take between 24-48 hours, prosecutors argued, time police could not spare in “the face of what appeared to be a continuing dangerous crime scene,” according to Assistant Commonwealth’s Attorney Shelly Alvey.
Instead, it took 20 to 40 minutes to track the group down at a hotel through a “ping” from Fahed Abu-Diab’s cellphone.
Elleman and Wood argue that the necessary exigent circumstances did not exist, because when police tracked Abu-Diab’s phone, it had been 18 hours since 49-year-old Scott Hunter had been killed. The attorneys claim police based their warrantless search on a “vague and unspecified danger based on no specific threats to harm anyone or destroy any evidence.”
“…There were no hostages, no threat to an individual, no kidnapping victim, no specific threat,” the defense attorneys argued in a motion. “If exigent circumstances existed after every violent crime had occurred, that would eclipse the meaning and the purpose of the Fourth Amendment in the first place.”
And in a court hearing on April 10, Cunningham seemed to agree that police could abuse “exigent circumstances” in any situation where there is a murder or serious assault.
“You could say that about half the crimes in town, basically,” he said. “A lot of it, in theory, is gang-related or turf-related. Why wouldn’t you expect it to continue?”
Assistant Commonwealth’s Attorney Dorislee Gilbert told Cunningham, however, that in this case, police believed there was an ongoing pattern of violence “happening at a rapid pace,” escalating from robbery to murder and continuing on Derby weekend.
“They were primarily targeting people who were at hotels, who were out of town guests,” she said.
And Gilbert argued that police did not take control of Abu-Diab’s phone or get in his personal information, but simply use the device to find his location.
Cunningham responded, however, that most citizens would believe that a violation of privacy.
“The average citizen would not like the idea that the government can know where I am at all times unless I take the battery out of my phone,” he said. “You can’t suggest to me that the average citizen thinks, ‘OK, I’m cool with that.’”
Whether it would be popular with citizens is not the argument, Gilbert said, according to a video of the court hearing.
“That the public doesn’t like it doesn’t make it unconstitutional,” she argued.
Cunningham also pointed out that the “trend line” is moving toward less privacy, and police almost certainly believed they needed to act quickly to prevent further crimes.
The U.S. Supreme Court recently agreed to examine whether the Constitution requires police to get a warrant before obtaining cellphone location data.
The Louisville defendants are accused in a total of 15 violent robberies on May 1 and 2, 2015. Court documents show the suspects charged with murdering Hunter were driving around in a Jaguar, preying on hotel guests mostly staying near the fairgrounds.
Police say the defendants would go up to victims, shock them with a Taser, or at least threaten to shock them, hold the victim at gunpoint, assault them and then rob them.
One victim told police "He heard a buzz and felt a shock in his abdomen," then the suspects took cash right out of his pockets. Another victim said he was on his way up to his hotel room when Fatima Abu-Diab asked for his phone number and followed him to his room. When he opened his door, he said the other suspects forced their way inside then robbed him and two friends punching them when they resisted.
The ninth robbery victim was Hunter, who was in town from Canada to see the Derby.
Court documents show Fatima Abu-Diab and Fahed Abu-Diab attempted to rob Hunter, but he put up a fight before Tyrone Thomas shot and killed him.
“Police were acting in the face of what appeared … to be an ongoing emergency where there was a real threat to public safety,” Gilbert told Cunningham. And even if the court finds that LMPD violated the Fourth Amendment, “there has to be no question police were acting in good faith.”
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