Whether cell phone users have a constitutional right to privacy is a life or death issue before the Missouri Supreme Court.
Prison inmate David Hosier is under a death sentence for murdering a woman with whom he’d been having an affair and her husband in Jefferson City. He was caught in Oklahoma when investigators got court permission to have his cell phone company ping his cell phone to locate him.
His lawyer, Craig Johnston, argues the court order was not based on specific evidence and violates the Fourth Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Johnston says investigators provided no basis for a probable cause warrant–“no facts, no specific facts..there’s nothing that a neutral magistrate can look at the affidavit and make a judgment call, ‘Is this supported by probable cause or not,'” he tells the court.
He maintains the lack of probable cause means the warrant to have the phone company track Hosier’s cell phone invalid and the pinging of Hosier’s cell phone unconstitutional. .
Assistant Attorney General Gregory Barnes maintains Hosier’s cell phone was emitting signals allowing the phone company to track him much as a dog would follow a scent or similar to “driving a purple car that’s visible to people on the road; then you are transmitting to the public information about your location because you’re driving a purple car and people can look for a purple car on the road.”
Previous rulings by other courts are divided on the issue. Judge Laura Denvir Stith notes, “Some courts…say that you’ve given up your reasonable expectation of privacy just by carrying that phone because of our electronic age . Other courts say, ‘No you don’t; we have to look at carrying those devices and what they mean, and apply our reasonable expectations of privacy in light of what the average person would think and they wouldn’t think they give it up.’”
The court has no schedule for issuing its opinion.