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Home My Public Portal AboutNovember 2014 Legal Eagle IPM.Note November 2014 Legal Eagle Barry Krischer SMTP bkrischer@sa15.org November 2014 Legal Eagle X-Vipre-Scanned: 0FF9822F01363C0FF9837C Received: from GSEXCH-1.GulfstreamTH.local (10.0.0.22) by GSEXCH-1.GulfstreamTH.local (10.0.0.22) with Microsoft SMTP Server (TLS) id 15.0.847.32 via Mailbox Transport; Tue, 28 Oct 2014 15:43:57 -0400 Received: from GSEXCH-1.GulfstreamTH.local (10.0.0.22) by GSEXCH-1.GulfstreamTH.local (10.0.0.22) with Microsoft SMTP Server (TLS) id 15.0.847.32; Tue, 28 Oct 2014 15:43:56 -0400 Received: from proofa3v-gcc.co.palm-beach.fl.us (151.132.50.246) by GSEXCH-1.GulfstreamTH.local (10.0.0.22) with Microsoft SMTP Server (TLS) id 15.0.847.32 via Frontend Transport; Tue, 28 Oct 2014 15:43:14 -0400 Received: from pps.reinject (proofa3v-gcc.co.palm-beach.fl.us [127.0.0.1]) by proofa3v-gcc.co.palm-beach.fl.us (8.14.7/8.14.7) with ESMTP id s9SJgn2w026989 (version=TLSv1/SSLv3 cipher=DHE-RSA-AES256-GCM-SHA384 bits=256 verify=NOT); Tue, 28 Oct 2014 15:42:49 -0400 Received: from proofa3v-gcc.co.palm-beach.fl.us (proofa3v-gcc.co.palm-beach.fl.us [127.0.0.1]) by pps.reinject (8.14.7/8.14.7) with SMTP id s9SJgmPZ026974; Tue, 28 Oct 2014 15:42:48 -0400 Received: from mail-1.sa15.state.fl.us ([151.132.207.4]) by proofa3v-gcc.co.palm-beach.fl.us with ESMTP id s9SJgjD0026970 (version=TLSv1/SSLv3 cipher=AES128-SHA bits=128 verify=NOT); Tue, 28 Oct 2014 15:42:48 -0400 Received: from MAIL-2.sa15.state.fl.us ([172.19.100.42]) by MAIL-1 ([172.19.100.43]) with mapi id 14.03.0123.003; Tue, 28 Oct 2014 15:42:46 -0400 From: Barry Krischer <bkrischer@sa15.org> To: Attorneys <Attorneys@sa15.state.fl.us> Subject: November 2014 Legal Eagle Thread-Topic: November 2014 Legal Eagle Thread-Index: Ac/y5UtgqNqpTOWQRwWisVRTjUbMsA== Date: Tue, 28 Oct 2014 19:42:45 +0000 Message-ID: <104357FAE6191640806F918C9E9253224A79BAD5@Mail-2.sa15.state.fl.us> Accept-Language: en-US Content-Language: en-US X-MS-Has-Attach: yes X-MS-TNEF-Correlator: x-originating-ip: [151.132.207.26] Content-Type: multipart/mixed; boundary="_004_104357FAE6191640806F918C9E9253224A79BAD5Mail2sa15statef_" X-Proofpoint-Virus-Version: vendor=fsecure engine=2.50.10432:5.12.52,1.0.28,0.0.0000 definitions=2014-10-28_08:2014-10-28,2014-10-28,1970-01-01 signatures=0 X-Proofpoint-Virus-Details: default_rule Return-Path: prvs=337827a639=bkrischer@sa15.org X-MS-Exchange-Organization-PRD: sa15.org X-MS-Exchange-Organization-SenderIdResult: None Received-SPF: None (GSEXCH-1.GulfstreamTH.local: bkrischer@sa15.org does not designate permitted sender hosts) X-MS-Exchange-Organization-Network-Message-Id: 26dc0edb-c591-4913-cea6-08d1c0fea578 X-MS-Exchange-Organization-SCL: 0 X-MS-Exchange-Organization-PCL: 2 X-MS-Exchange-Organization-Antispam-Report: DV:3.3.14213.475;SID:SenderIDStatus None;OrigIP:151.132.50.246 X-MS-Exchange-Organization-AVStamp-Enterprise: 1.0 X-MS-Exchange-Organization-AuthSource: GSEXCH-1.GulfstreamTH.local X-MS-Exchange-Organization-AuthAs: Anonymous MIME-Version: 1.0 Barry Krischer SMTP bkrischer@sa15.org Attorneys Email from outside November 2014 Legal Eagle Good afternoon; Once again this month's issue of the Eagle is early to bring you the latest Florida Supreme Court ruling regarding the use of active cell tower location information to track the personal cell phone of a suspect without a warrant. Also included is an analysis of hotel room searches, LEO as a trespasser when the suspect has taken steps to keep persons off his property, and in a case of first impression, the 4th Amendment rights of a a person using a rental car with permission of the renter but contrary to the lease agreement. Also included is an interesting use of force case resulting from US Marshalls attempt to make an arrest of a barricaded individual. He fires on them. The officers respond with automatic weapon fire. Surprisingly the court gives a good result for law enforcement. ________________________________ Please note: Florida has a very broad public records law. Most written communications to or from state officials regarding state business are public records available to the public and media upon request. Your e-mail communications may therefore be subject to public disclosure. FD833F8F147F664FA89CC31852E15A20@namprd09.prod.outlook.com <104357FAE6191640806F918C9E9253224A79BAD5@Mail-2.sa15.state.fl.us> Good afternoon; Once again this month's issue of the Eagle is early to bring you the latest Florida Supreme Court ruling regarding the use of active cell tower location information to track the personal cell phone of a suspect without a warrant. Als Edward Allen Edward Allen EX /O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=CAD5B837DE1E49D48EA9BB5B6008829E-EALLEN EX /O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=CAD5B837DE1E49D48EA9BB5B6008829E-EALLEN Barry Krischer Barry Krischer Edward Allen Edward Allen sa15.org bkrischer@sa15.org bkrischer@sa15.org eallen@gulf-stream.org eallen@gulf-stream.org II=[CID=4ca9daa8-90e5-0547-a2b1-54538d46ccb0;IDXHEAD=CFF2E54B60;IDXCOUNT=1];TFR=NotForking;Version=Version 15.20 (Build 2157.0), Stage=H4;UP=10;DP=1C5 en None (GSEXCH-1.GulfstreamTH.local: bkrischer@sa15.org does not designate permitted sender hosts) GSEXCH-1.GulfstreamTH.local en-US FC3DAAD6DE24D7B5 Anonymous 0FF9822F01363C0FF9837C Attorneys SMTP Attorneys@sa15.state.fl.us Attorneys@sa15.state.fl.us Attorneys November2014.pdfNovember2014 1 L LL Legal Eagle egal Eagle egal Eagle egal Eagle November 2014 ce, as well as a pen register were applied for through authorizing court orders. A “pen register” records the telephone numbers dialed from the target telephone and a “trap and trace device” records the telephone numbers from incoming calls to the target telephone. Without obtaining an additional order or providing additional factual allegations, officers used information provided by the cell phone service provider under the prior orders, which also included real time cell site location information given off by cell phones when calls are placed, to monitor the location of cell phones used by Tracey. The cocaine’s supplier was identified by cell phone data, and both individuals were tracked utilizing real time cell tower information, which ultimately established that both of their cell phones were at and inside the same location. Based upon the cell tower information police effected automobile stops of both individual which disclosed a kilo brick of cocaine in Tracey’s vehicle, and $23,000.00 USC in the supplier’s vehicle. Shawn Tracey was convicted by a jury of possession of more than 400 grams of cocaine, and other charges. He appealed arguing that the use of real time cell site location without first applying for a warrant violated his Fourth Amendment rights. The Florida Supreme Court agreed. Regardless of any authorizing statutes—is accessing real time cell site location information by the government in order to track a person using his personal cell phone a Fourth Amendment search for which a warrant based on probable cause is required? Yes. !! In reaching its decision in the instant case the Florida Supreme Court went back to constitutional law basics. The touchstone case when discussing citizens’ expectation of privacy is Katz v. United States, (S.Ct.1967), in which the Court laid the groundwork for the “reasonable expectation of privacy” test. The Court in Katz held that “the Fourth Amendment protects people, not places,” and concluded that attachment of an eavesdropping device to a public telephone booth violated the Fourth Amendment. Later Supreme Court cases applied the analysis that a Fourth Amendment violation occurs when govern