On 12/1/16, the Second Circuit (Newman, Winter & Cabranes) handed down a decision finding that exigent circumstances justified the warrantless GPS tracking of a suspected sex trafficker. In United States v. Gilliam, the defendant, who was suspected of prostituting an underage girl, was located thanks to GPS coordinates on his cellphone provided to the police by Sprint. The girl had been reported missing and her involvement in prostitution was confirmed through credible sources. During the course of the investigation, the police obtained the GPS location for the defendant’s cellphone from Sprint by informing them that there were “exigent circumstances” and a “missing child.” GPS tracking led police to the defendant and the girl on a street in the Bronx.
The defendant challenged the use of the GPS information that lead to his location and arrest. The Second Circuit affirmed the district court’s decision that the Stored Communications Act (18 U.S.C. 2702(c)(4)) allowed law enforcement to obtain the location of a defendant using GPS tracking technology under exigent circumstances and that Fourth Amendment did not require suppression of the evidence.
The Court addressed the specific wording of the statute, which allows a cellphone provider to divulge “a record or other information pertaining to a subscriber…to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.” The Court considered whether the term “other information” covered information about the customer’s use of service. It concluded that “other information” includes “the location of the subscriber’s cell phone.” The Court also ruled that the facts presented – of a 16-year-old girl who was missing and suspected of being prostituted by a pimp – met the test for an “emergency.”
The Court also turned to the issue of whether the use of emergency GPS location tracking by the police in furtherance of a warrantless arrest violated the defendant’s Fourth Amendment rights. The Court determined that the police acted reasonably in not obtaining a warrant because there was a significant risk that a child would be injured, even if that child was found on the street, rather than being held somewhere: “Locating on the streets a victim of sexual exploitation might seem to present a less immediate need for police action than entering premises where such a victim is being held, but it is nonetheless sufficient to constitute exigent circumstances.” The Court rejected the defendant’s argument that it would not have taken the officer’s significantly more time to obtain a warrant.
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