Can the Police Track My Phone in Virginia?

Cell phone

Cell-Site Location Data & Real-Time GPS Location Tracking Data in Criminal Investigations

Under certain circumstances, yes, the police can track you phone in Virginia.  Cell phones are extremely prevalent in our society.  Most people don’t go anywhere without their cell phone.  Because our cell phones are usually in close proximity to us, cell phone location data is used in criminal investigations to locate where a person is or has been.

What Type of Phone Tracking is Used by the Police?

Cell-site location data and real-time location tracking are different types of information that can be provided to the police by your network carrier (AT&T, Verizon, etc.) pursuant to a court order, search warrant or pursuant to an exception to the warrant requirement.

One of the main differences between cell-site location data and real-time GPS location tracking is that cell-site location data is a historical record of where your phone has been and real-time GPS location tracking provides the GPS coordinates of where your phone actually is in real-time.

How is the Cell Phone Located?

The second major difference is how the two mechanisms locate the phone.  Cell-site location data is gathered by finding out to which cell tower a phone connected.  Many phone operations cause a phone to connect to a cell tower.  When deciding with which cell tower to connect, your cell phone is trying to make the strongest connection, which usually means the closest cell tower.

How Exact is Location Data?

Cell-site location data shows a general radius of where a phone may be located based off what cell phone tower a phone connect to when in use.  Whether a person is moving and in what direction is ascertained by identifying to which cell towers the phone connects over time.  However, cell-site location date is premised on the assumption that the closest tower is the strongest tower and will be the one to which the phone connects.  Sometimes, for a variety of reasons, a cell phone does not connect to the closest tower.  A cell phone that is off is not connected to a cell tower to send or receive data or communications.

Real-Time GPS Cell Phone Data Limitations

Real-time GPS location tracking does not look at historical data.  Rather, it involves your cell phone provider sending a signal to your phone at regular intervals to determine where the phone is located at that moment.  Often, this time period is every 15 minutes.  At each interval, the phone provider receives the specific longitudinal and latitudinal coordinates of the phone.  The phone needs to be powered on in order to gather the information.  The coordinates are usually automatically sent to law enforcement to be reviewed in real-time.

 Under what circumstances are the police permitted to collect cell-site location data and real-time GPS location tracking data?

“‘[A]n individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through cell-site location information’.”  Moreno v. Commonwealth, 73 Va. App. 267, 275 (2021) (quoting Carpenter v. United States, 138 S.Ct. 2206, 2217 (2018)).  Location data is protected by the Fourth Amendment.  Therefore, “the Government must generally obtain warrant supported by probable cause before acquiring such records.”  Carpenter, 138 S.Ct. at 2221.  If a warrant is not obtained, some exception to the warrant requirement must apply for the search to be deemed lawful.  Id.

Can the Police Track My Phone in Virginia?

In Virginia, there is a specific code section that outlines the permissible circumstances of obtaining real-time GPS location tracking data.  Va. Code § 19.2-70.3.  When obtaining a warrant pursuant to that code section, there has to be evidence that “probable cause has been established that the real-time location data sought is relevant to a crime that is being committed or has been committed or that an arrest warrant exists for the person whose real-time location data is sought.”  Va. Code § 19.2-70.3(C).

The code section also lists a number of exceptions when no warrant is required to obtain the records unless otherwise prohibited by law.  These exceptions are as follows:

  1. To respond to the user’s call for emergency services;
  2. With the informed, affirmative consent of the owner or user of the electronic device concerned if (i) the device is in his possession; (ii) the owner or user      knows or believes that the device is in the possession of an employee or agent of    the owner or user with the owner’s or user’s consent; or (iii) the owner or user knows or believes that the device has been taken by a third party without the consent of the owner or user;
  3. With the informed, affirmative consent of the legal guardian or next of kin of the owner or user, if reasonably available, if the owner or user is reasonably                              believed to be deceased, is reported missing, or is unable to be contacted;
  4. To locate a child who is reasonably believed to have been abducted or to be missing and endangered; or
  5. If the investigative or law-enforcement officer reasonably believes that an emergency involving the immediate danger to a person requires the disclosure, without delay, of real-time location data concerning a specific person and that a warrant cannot be obtained in time to prevent the identified danger.

Police Must File in Virginia Court a Written Statement

No later than three business days after seeking disclosure of real-time location data pursuant to this subsection, the investigative or law-enforcement officer seeking the information shall file with the appropriate court a written statement setting forth the facts giving rise to the emergency and the facts as to why the person whose real-time location data was sought is believed to be important in addressing the emergency.  Va. Code § 19.2-70.3(E).

Consult a Criminal Lawyer in Alexandria, VA

Whether cell phone location data was acquired lawfully or not requires the analysis of trained criminal defense lawyers.  The trial lawyers in Leesburg VA and Alexandria VA of King, Campbell, Poretz & Mitchell, PLLC can assist you in evaluating your case.

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