A lot of times on my first jail visit I’m told that the police (federal, state) have done something that my client thinks is wrong. Nothing was more interesting than when I got told that forcefully by Randall Melton. He was adamant, the police had tracked his cell phone across the state of New Mexico. I said, sure, they do it regularly with a warrant. He said, no- without one.
I thought, no ones that dumb (referring to police tracking without a warrant, think Jones) and we continued to talk. Eventually I learned that Randall was right, the Sheriff’s office had contacted his cell phone provider and filled out a form. (Yes there's a form to track your cell phone). The form asked- “is this an emergency” and had a yes or no box. Nothing else. So the sheriff dutifully checked yes and began receiving 15 minute interval locations on my clients cell phone. NO PC-probable cause determination or judicial intervention. Simply a form.
We filed a motion to suppress, the government fought it hard, we had a hearing and the Court determined that the tracking violated Randall’s rights. This is exactly what a suppression is- Judge they’re not allowed to do that because it violates the law. A rule called the exclusionary rule kicks in and all evidence that comes from the illegal conduct is excluded. In this case the Sheriff had violated my clients rights by tracking him after there was no emergency or exigent circumstances. Because they did that without a warrant, it violated my clients rights. A very well reasoned opinion in an area of the law that does not have a lot of opinions. Essentially every emergency is not enough to get a cell phone tracked for 3 hours!
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