No Right to Privacy When it Comes to Stolen Property

Word to the wise: In the field of Fourth Amendmentprotections, individuals have no expectation of privacy when it comes to stolen property.

A cell phone thief in San Francisco saw his defense strategy shot down by an appeals court when he tried to argue that police violated his rights by remotely tracking down the phone and arresting him.

Lorenzo Barnes robbed a couple at gunpoint near the marina at Fort Mason in 2009 and ran away, according to a local news report. The woman immediately contacted police and gave them permission to have her provider ping the phone’s location.

Within an hour, police found Barnes driving a car in the Mission District and arrested him. He was sentenced to 13 years in prison, but tried to win his freedom on appeal based on an unlikely and ultimately unsuccessful argument.

Expectations of Privacy

The defense wanted to get the evidence tossed by claiming the phone pinging was a warrantless search in violation of the Fourth Amendment.

Barnes’ lawyer cited last year’s Supreme Court decision in United States v. Jones, in which the court ruled that police could not attach a GPS tracking device to a car without first obtaining a warrant.“We gauge whether or not the Fourth Amendment applies by whether that person has a reasonable expectation of privacy in the information in which the intrusion reveals,” explains Arthur B. Leavens, a professor at the Western New England University School of Law. “The intrusion here is tracking the phone.”

However, the appeals court didn’t even have to go so far as considering the Jones case, because the defendant didn’t have any kind of claim to privacy in regard to a stolen phone, especially one whose owner had authorized the tracking.

“It’s not his phone, so he doesn’t have any reasonable expectation of privacy in what its contents reveal,” Leavens says.

There are some open questions about what expectation of privacy people can claim when it comes to traceable goods they don’t know are stolen, which has come up in cases involving laptop computers. However, the original thief isn’t going to be able to make a very strong claim of ignorance.

A Live Issue

Further hurting his case, even if the police had tracked a phone owned by Barnes, it’s not clear cut that they would have needed a warrant.

The Jones decision only applied to GPS trackers attached by police, not cell phone location data. “It was a very narrow ruling that requires the cops to actually attach the GPS,” says Leavens. “It was trespassory, and it violated his rights.”

The justices left open the question of warrantless phone tracking, still an unsettled point of law, anddifferent courts have come to different conclusions regarding its constitutionality. Due to the split in circuit court decisions, the Supreme Court will probably have occasion to rule on cell phone tracking and the Fourth Amendment at some point in the next few years.

Whatever they decide, it’s unlikely to help Barnes and his stolen cell phone. “It’s very much a live issue as to whether it would violate someone’s expectation of privacy to track one’s own phone,” Leavens says. “But at a minimum it has to be his phone.”

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