Florida Supreme Court Finds Expectation of Privacy for Third Party Disclosures

Spring 2015

By Caroline Johnson Levine

In Tracey v. Florida, the Florida Supreme Court recently determined that the Fourth Amendment requires police officers to establish probable cause and obtain a warrant in order to track the real-time location information of cellular telephone users.1  This result extended the holding in United States v. Jones, “that the warrantless placement of a Global-Positioning-System (GPS) tracking device on [a] defendant’s vehicle and use of it to monitor the vehicle’s movements on public streets constituted a ‘search’ under the Fourth Amendment.”2

I.  The Trial Court

Shawn Alvin Tracey was a convicted felon who was suspected by Broward County Sheriff Deputies of trafficking in large quantities of cocaine.3  The deputies had been contacted by a Drug Enforcement Administration (DEA) agent, who had received information from a confidential source that “he had made trips to pick up drugs for Tracey in the past.”4

A Sheriff’s detective “filed an application for an order authorizing the installation and use of a pen register and trap and trace device regarding Tracey’s cell phone.”5  The application sought to utilize “pen registers”6and “trap and trace devices,”7 in order to monitor the incoming and outgoing telephone calls of Tracey and his co-conspirator, Guipson Vilbon.8  “Basically, a pen register is a device or process which records the telephone numbers of outgoing calls; the trap and trace device captures the telephone numbers of incoming calls,”9 however, the contents of the telephone conversation are not recorded.

Importantly, the application only contained one factual allegation: a “DEA Confidential Source (CS) indicated that Shawn Alvin Tracey obtains multiple kilograms of cocaine from Broward County, for distribution on the West Coast of Florida.  Furthermore, the CS contacts Shawn Tracey on the listed Metro PCS telephone number.”10  The application did not request authorization for “cell site location information” (CSLI), however, the judicial order granting the application “directed the cell phone company to provide the sheriff’s office ‘[i]n accordance’ with 18 U.S.C. § 2703(d), ‘historical Cell Site Information indicating the physical location of cell sites, along with cell site sectors, utilized for the calls. . .’”11  Shortly thereafter, law enforcement officers monitored “the location of the cell phones of Tracey and Vilbon using real time CSLI, [and] tracked Tracey’s eastward trip across Florida.”12  Because Tracey’s driver’s license was suspended, a traffic stop justified a “search uncover[ing] a kilogram brick of cocaine” in his car.13

In a motion to suppress the cocaine evidence collected in his car, Tracey raised a claim that officers violated his Fourth Amendment right to be free from unreasonable searches and seizures by tracking Tracey through CSLI data collection.  Tracey argued “that real time cell site information is a subset of prospective cell site information, which, he contended, requires a warrant.”14  The trial court found that law enforcement’s application did not establish probable cause for the issuance of a warrant, nevertheless, the court denied Tracey’s motion to suppress and determined that there was no Fourth Amendment violation “because Tracey had been seen committing an independent crime[, driving on a suspended license,] on a public street where he had no reasonable expectation of privacy.”15

II. The Appellate Court

Florida’s Fourth District Court of Appeal affirmed the trial court’s ruling, noting that “[t]echnology evolves faster than the law can keep up, extending the search capabilities of law enforcement and transforming our concept of privacy.”16  The appellate court held that because the facts of this case concerned “the government’s tracking of an individual’s location on public roads, this case does not involve a Fourth Amendment violation.”17  The court acknowledged that the deputies’ application did not establish “probable cause” or offer “‘specific and articulable facts’ to show that CSLI was ‘relevant and material to an ongoing criminal investigation,’” nor did it request CSLI information as required by Florida’s Security of Communications Act.18  However, that court found that although “there was a violation of a provision of Chapter 934, the exclusionary rule is not an authorized remedy to address the violation.”19

The appellate court relied upon United States Supreme Court precedent in Smith v. Maryland, which held that monitoring a telephone pen register “did not violate the Fourth Amendment because a phone user has no reasonable expectation of privacy in the information provided to a third party by his voluntary use of a phone.”20  Importantly, the court explained how real-time tracking technology associated with CSLI may be updated every 7 seconds to determine GPS location information within 50 feet of a cell phone user21 as cell “phones are ubiquitous, and some consumers embrace them as personal tracking devices.”22

The appellate court was “bound to follow United States Supreme Court precedent interpreting the Fourth Amendment”23 per the Florida Constitution’s conformity clause in Article 1, § 12.  Accordingly, the court relied upon prior rulings by the United States Supreme Court in United States v. Knotts24 and United States v. Karo,25 which held that tracking activity through the “monitoring of beeper signals ‘did not invade any legitimate expectation of privacy,’ so that ‘there was neither a ‘search’ nor a ‘seizure’ within the contemplation of the Fourth Amendment.’”26  Significantly, the District Court of Appeal previously held that “historical cell site information ‘does not implicate Fourth Amendment protections.’”27

III. The Florida Supreme Court

Tracey appealed the Fourth District Court of Appeal’s ruling to the Florida Supreme Court,28 which began its analysis “with one of the bedrock principles of our federal constitution, the Fourth Amendment to the United States Constitution, which states: 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.”29  Further, the court explained that there are federal and state statutes at issue under these circumstances, which “authorize government access to stored communications in the hands of third-party providers, categorizes the different types of stored information, and sets forth what the government must do to access those different types of information.”30

The court recognized that the “United States Supreme Court has not yet ruled on whether probable cause and a warrant are required, either under the statutory scheme or based on the Fourth Amendment, for an order requiring disclosure of real time cell site location information to be used by law enforcement to track a subscriber’s cell phone.”31  However, the Florida Supreme Court found that the ability to track individuals through inexpensive and ubiquitous technology, could lead to an encroachment on the privacy rights that the Fourth Amendment intended to prevent.  “James Madison, the principal author of the Bill of Rights, is reported to have observed, ‘Since the general civilization of mankind, I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.’”32

Importantly, the Florida Supreme Court overruled the trial and appellate courts and suppressed the evidence of Tracey’s guilt, concluding “that cell phones are ‘effects’ as that term is used in the Fourth Amendment”33 and “regardless of Tracey’s location on public roads, the use of his cell site location information emanating from his cell phone in order to track him in real time was a search within the purview of the Fourth Amendment for which probable cause was required.  Because probable cause did not support the search in this case, and no warrant based on probable cause authorized the use of Tracey’s real time cell site location information to track him, the evidence obtained as a result of that search was subject to suppression.”34 The seminal finding of this decision resulted in the court’s view that a cellular telephone continues to expand every citizen’s and the government’s technological capabilities and that the tracking feature can be used by law enforcement only upon a determination of probable cause that a crime has been or will be committed, necessitating a search warrant.

IV. Dissent

The Florida Supreme Court’s decision in Tracey revealed strong opposition between the majority opinion and two dissenting justices.

Justice Canady wrote that “cell site location information obtained by the police for Mr. Tracey’s cell phone is subject to the third-party-disclosure doctrine under Smith v. Maryland.”35  Justice Canady noted that in Smith, the United States Supreme Court concluded that a pen register did not encroach upon the protections provided by the Fourth Amendment, “rest[ing] its conclusion on what is known as the third-party-disclosure doctrine [and] pointed out that it ‘consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’”36

Justice Canady noted that the United States Supreme Court has held that a telephone user assumes a risk that the third-party “telephone company would reveal to police the numbers he dialed.”37  Further, Justice Canady wrote that “a strong desire for privacy does not provide a basis for this Court to abrogate the third-party-disclosure doctrine.”38  Justice Canady asserted that the third-party-disclosure doctrine may need to be revisited, however, a reexamination belongs “properly within the province of the [United States] Supreme Court.  The Supreme Court gave us the third-party-disclosure doctrine, and if that doctrine is to be judicially altered, it should only be altered by the Supreme Court.”39


*Caroline Johnson Levine is a former prosecutor and currently practices civil litigation defense in Tampa, Florida.



1 Tracey v. Florida, 152 So. 3d 504 (Fla. 2014).

Id. at 514-15 (quoting United States v. Jones, 565 U.S. —, 132 S.Ct. 945, 949-52, 181 L.Ed.2d 911 (2012)).

3 Tracey v. Florida, 69 So. 3d 992 (Fla. 4th DCA 2011).

Id. at 993.


Id. at 993 n.1; see also § 934.02(20), Fla. Stat. (2009).

Id. at 993 n.2; see also § 934.02(21), Fla. Stat. (2009).

8 Tracey v. Florida, 69 So. 3d at 993 n.3.

9 Application for Pen Register and Trap/Trace Device with Cell Site Location Auth. (Smith), 396 F.Supp.2d 747, 749 (S.D. Tex. 2005) (citations omitted).

10 Id.

11 Id. at 994.

12 Id.

13 Id. at 995.

14 Tracey v. Florida, 69 So. 3d at 995.

15 Id.

16 Id. at 996.

17 Id. at 995 (emphasis added).

18 Id. at 999 (quoting § 943.23(5), Fla. Stat. (2009)).

19 Id. at 993.

20 Id. at 995 (citing Smith v. Maryland, 442 U.S. 735 (1979)).

21 Id. at 994 (citing Application of the United States (Lenihan), 534 F.Supp.2d 585, 589–90 (W.D. Pa. 2008) (internal citations omitted), vacated Application of the United States, 620 F.3d 304 (3d Cir. 2010)).

22 Id. at 996.

23 Id. at 996-97; see also Fla. Const. art. I, § 12.

24 United States v. Knotts, 460 U.S. 276 (1983).

25 United States v. Karo, 468 U.S. 705, 707 (1984).

26 Tracey v. Florida, 69 So. 3d at 995 (quoting Knotts, 460 U.S. at 285).

27 Tracey v. Florida, 69 So. 3d at 996 (quoting Mitchell v. State, 25 So. 3d 632, 635 (Fla. 4th DCA 2009)).

28 Tracey v. Florida, 152 So. 3d at 506; see also Fla. Const. art. V, § 3(b)(3).

29 Tracey v. Florida, 152 So. 3d at 511.

30 See 18 U.S.C. § 2510 et seq., 18 U.S.C. § 2701 et seq., and 18 U.S.C. § 3121-27 (titled the Federal Wiretap Act, as amended by the Electronic Communications Privacy Act of 1986); see also Chapter 934, Florida Statutes (2009).

31 Tracey v. Florida, 152 So. 3d at 512.

32 Id. at 522 (quoting Klayman v. Obama, 957 F.Supp.2d 1, 42 & n.67 (D.D.C. 2013) (citing James Madison, Speech in the Virginia Ratifying Convention on Control of the Military (June 16, 1788), in The History Of The Virginia Federal Convention Of 1788, With Some Account Of Eminent Virginians Of That Era Who Were Members Of The Body (Vol. 1) 130 (Hugh Blair Grigsby et al. eds., 1890))).

33 Id. at 524.

34 Id. at 526.

35 Id. (citing Smith v. Maryland, 442 U.S. 735 (1979).

36 Smith v. Maryland, 442 U.S. at 743-44.

37 Id. at 744.

38 Tracey v. Florida, 152 So. 3d at 528.

39 Id.


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