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Gary Zerola
Aggressive Criminal Defense - Never Stand Alone


Cell phone towers and the Fourth Amendment

Each man’s home is his castle. The Fourth Amendment to our Constitution states  “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” So how does this fly in the face of location tracking on our cellular phones?

In this age of social media, your mobile app of Twitter, Facebook, Instagram or Foursquare shows the world your exact physical location, where you got a burger, or with which friends you took a selfie. By using these services you essentially choose to reveal this information about yourself. But should you expect your location to be available to the government simply by carrying a cellular phone? Not according to the US and Massachusetts Courts. Cell phones are so indelibly a part of our lives – tracking them allows law enforcement intrusion into our lives. It’s not ok to track someone’s whereabouts using cell tower intel without probable cause. It’s a privacy infringement, which amounts to an “illegal search an seizure” of the cell phone owner.

These are very important questions, ones raised by Boston Defense Attorney Gary Zerola, in Commonwealth v Rodriguez. In 2013, Attorney Zerola argued to the Massachusetts Superior Court Justice Peter Lauria that if you track someone’s phone, you are essentially tracking them, which is infringes a citizen’s privacy, and violates their Fourth Amendment rights. He argued that his clients’ rights were violated through the cell tower “pings.”

In order to track a suspect’s whereabouts through their cell phone, law enforcement can get the suspect’s phone service provider to reveal their own customer’s confidential information, such a the location of the cell phone. In Commonwealth v. Rodriguez,  (Massachusetts Middlesex Superior Court 2012), police feigned fear of “officer safety” to necessitate T-Mobile to reveal real time tracking of a subscriber to Saugus Police, and DEA, revealing the location of a suspect, leading to a search warrant, which led to discovery of 2 kilograms of heroin and massive amounts of cash.

Attorney Gary Zerola argued that the electronic monitoring of cell phone location “pings” from his client’s cell phone was unconstitutional. Judge Lauriat agreed. This happened after the suspect’s phone carrier, T-Mobile provided real-time location information using GPS features installed on the suspect’s cell phone. According to the Middlesex Superior Court ruling, “The Fourth Amendment intrusion stems from the use of electronic means to find out information that the police would not have been able to obtain using visual surveillance.”

When police asked a cell phone service provider to “ping” a suspect’s cell phone without a search warrant, the cell phone company (T-Mobile) complied with the police request.

Middlesex Superior Court Judge Peter Lauriat ruled that “evidence obtained through execution of a search warrant that is based upon a violation of the defendant’s Fourth Amendment rights must be suppressed….” and, “ the use of real-time monitoring to track the location of a cell phone to a private residence, unsupported by a search warrant or probable cause order, violated the Fourth Amendment.”  With all evidence of the crime suppressed and thrown out of the case, the criminal indictment was soon after dismissed by the Middlesex County DA, after declining to appeal the judge’s decision.

“When I first agreed to accept representation in this case,” said Zerola, “I knew the constitutional challenges in this case would be difficult, and an issue of first impression in Massachusetts trial court, because technology has clearly outpaced the development of the governing law.”

One year after Attorney Zerola successfully established brand new legal concept in the Superior Court, another case, Commonwealth v. Augustine raised the exact same issue in the Supreme Judicial Court of Massachusetts, the highest State court. The justices of the Supreme Court agreed with Judge Lauriat and Zerola that obtaining  such information without a search warrant violates a Defendant’s rights. Cell tower information tracks a citizen. Law enforcement must establish probable cause and apply for a search warrant to access your private cell location information.

Criminal Defense Attorney Gary Zerola maintains offices in Boston and the North Shore. He can be reached a 617-654-9300 24/7
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