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July 29, 2021

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Nevada police routinely track cellphone users without warrants

Driver on phone

Charles Krupa / AP Photo

A driver talks on a cell phone while driving through the Financial District of Boston.

Nevada law enforcement agencies have tracked the movements of citizens through their cellphones, sometimes without obtaining proper court approval, according to court records and documents obtained by the American Civil Liberties Union of Nevada.

A judge last year ruled North Las Vegas police had improperly obtained the location of a murder suspect from his cellphone carrier but allowed evidence gathered from the illegal tracking to be used in court, citing in part the absence of a state law regulating such tracking.

The Reno Police Department admitted in an internal document that cellphone tracking had been “misused” to locate stolen phones.

“Some cell carriers have been complying with such requests, but they cannot be expected to continue to do so as it is outside the scope of the law,” the document said. “Continued misuse by law enforcement agencies will undoubtedly backfire.”

Such actions on the part of law enforcement, first reported Sunday by The New York Times, have raised concerns among civil liberty advocates and some Nevada lawmakers.

Indeed, warrantless cellphone tracking is a key civil liberty issue and constitutional concern of our time, said Dan Silverstein, a deputy in the Clark County Public Defender’s Office and a past president of the Nevada Attorneys for Criminal Justice, a group of defense attorneys that has approached judges with concerns about cellphone tracking without warrants.

Agencies like the North Las Vegas Police Department and Las Vegas Metropolitan Police Department “routinely” use cellphone records to track people involved in investigations.

“It has become almost standard in the cases I see,” Silverstein said. “Sometimes they obtain a warrant; sometimes they don’t.”

Metro Police and the Clark County District Attorney’s Office did not respond to a request for comment Tuesday.

However, in documents provided to the ACLU of Nevada in response to a public records request, the agency said, “It is the policy of this department to provide a controlled system for ensuring legal compliance to existing state and federal laws.”

Metro said requests for cellphone carriers to track a suspect are “based on a probable cause standard.”

Metro requested 800 cellphone records, called “pen registers,” between the summer of 2007 and the summer of 2011, according to documents the department provided to the ACLU. It is unclear how many of those requests were for tracking the location of cellphones rather than just a log of phone calls placed.

The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches by government. To obtain a search warrant, authorities have been required to show a judge enough evidence to establish “probable cause.”

But Silverstein said in requesting cellphone locations and records, law enforcement sometimes uses a much lower standard — “relevance.”

Rebecca Gasca, legislative and policy director with the ACLU of Nevada, said the use of cellphone surveillance without court oversight is a concern.

“We are talking to several legislators who view this as problematic,” she said.

Assemblyman Tick Segerblom, D-Las Vegas, said he believes law enforcement should have a search warrant before it accesses cellphone records.

The New York Times, using 5,500 pages of law enforcement documents obtained by ACLU affiliates, reported that law enforcement agencies across the country are using cellphone tracking as part of criminal investigations, but many have tried to keep it secret, fearing a public and legal backlash.

Silverstein said he first noticed this issue in 2005, when, in discovery for a case he was working on, he noticed a record of his client’s locations along with a log of calls he had made from a cellphone.

That is now the norm in cases, he said.

In 2011, Clark County District Court Judge Valerie Adair found a North Las Vegas police detective did not provide justification for tracking Billy Ray James, a handyman who was convicted of murder.

“The police were entitled to the call records pursuant to (federal law), but they were not entitled to the cell tower location records,” she wrote. But, she said, federal law did not allow the cellphone evidence to be thrown out.

The U.S. Supreme Court ruled in January that a Global Positioning System device law enforcement placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches. That case did not directly address cellphones, though many now come equipped with GPS devices.

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