Privacy advocates and legal experts say efforts by Charlotte-Mecklenburg police to be more transparent about cellphone tracking fall short of needed reforms.
They say the portable equipment violates the Constitution’s prohibition against unreasonable search and seizure and should only be used with a search warrant.
Search warrants force police to show probable cause that a crime was committed and that the search will uncover proof of a crime. Police also must return an inventory of their findings.
No search warrant is required under the state’s pen register statute, which authorizes phone tracking. A judge must only find a lower legal standard, that information police are seeking is relevant to an investigation.
Former Democratic State Sen. Tony Rand was the primary sponsor of the bill that created the state’s pen register statute in 1988.
Rand said he did not imagine that his bill could be used to authorize real-time tracking of suspects through cellphones. Rand said he and other lawmakers at that time wanted to make sure police obtained court permission before conducting wiretaps and other surveillance against suspected drug dealers.
“We did not envision cellphones like they are used (now),” Rand said. “We tried to balance the person’s right to privacy versus the police need for tools to protect society.”
In North Carolina, a bill failed last year that would have required a search warrant to obtain cellphone location information.
CMPD says it already establishes probable cause when officers apply to perform the surveillance. But Mecklenburg County Senior Resident Superior Court Judge Robert Bell and his predecessor, retired Judge Richard Boner, both have said they issued orders based on the lower requirement spelled out in state law.
Thom Goolsby, a former Republican state senator who sponsored the failed cellphone surveillance bill, said he is lobbying North Carolina lawmakers to pass new legislation this year. “We simply need reasonable limitations,” said Goolsby, a Wilmington defense attorney. “These are thoughtful conversations our legislators need to have.”