TRACEY V. STATE: REEVALUATING FOURTH
AMENDMENT PROTECTIONS IN LIGHT OF
MODERN TECHNOLOGY
As “technology has advanced to the point that our whereabouts
can be ascertained easily and at low cost by the government,”1 it is
not surprising that the judiciary is reevaluating Fourth Amendment
protections against unreasonable governmental intrusions. While
some United States Supreme Court justices believe traditional
principles of Fourth Amendment jurisprudence adequately address
search-and-seizure concerns created by modern technology, other
justices believe that the law needs to be revised to reflect societal
changes.2 The Supreme Court of Florida, in Tracey v. State, aligned
itself with the latter group by articulating its concern that if left
unchecked, the government can easily use technology to infringe on
personal liberties. The gravity of the matter was epitomized by the
Tracey court:
[T]he ease with which the government, armed with
current and ever-expanding technology, can now
monitor and track our cell phones, and thus ourselves,
with minimal expenditure of funds and manpower, is
just the type of “gradual and silent encroachment” into
the very details of our lives that we as a society must
be vigilant to prevent.3
To alleviate this concern, the Supreme Court of Florida held that
the government must establish probable cause and procure a search
warrant before using real time cell phone data to track a person’s
location.4 In reaching this conclusion, the court found that (1) people
have a subjective expectation of privacy in location signals
transmitted by their cellular phones and (2) this expectation of
1. Tracey v. State, No. SC11-2254, slip op. at 13 (Fla. Oct. 16, 2014).
2. In United States v. Jones, 132 S. Ct. 945 (2012), the Court’s majority stated
that traditional Fourth Amendment tests could be appropriately applied in cases
involving modern technology, while the concurrences opined that the tests needed
to be reconsidered because modern technology has greatly impacted our reasonable
expectations of privacy.
3. Tracey, No. SC11-2254, slip op. at 37.
4. Id., slip op. at 44–46.
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privacy is one that society recognizes as being objectively
reasonable.5
The petitioner in this case, Shawn Alvin Tracey, was convicted of
possession of more than 400 grams of cocaine, among other charges.6
Several months before Tracey was apprehended, the government
procured an order authorizing the installation of a pen register and a
trap-and-trace device7 on his cell phone.8 The order authorized law
enforcement to collect only the numbers of Tracey’s incoming and
outgoing calls. But, using the information provided by Tracey’s cell
phone service provider under the order, the government also
monitored the location of Tracey’s cell phone. 9 Law enforcement
officers used real time cell site location information (CSLI) from
Tracey’s phone to track him to a particular house and then
apprehended him in his vehicle shortly after he departed. 10 The
officer arrested Tracey and discovered a kilogram of cocaine hidden
in the vehicle.11 He moved to suppress the evidence, arguing that the
government needed a search warrant before accessing his CSLI. 12
The trial court denied Tracey’s motion, and the appellate court
affirmed, finding that Tracey did not harbor a reasonable expectation
of privacy on public streets and, therefore, no warrant was required to
track his movement.13
The Supreme Court of Florida disagreed, holding that Tracey had
a reasonable expectation of privacy in his real time CSLI and that law
enforcement conducted an unlawful search by using Tracey’s CSLI
to track him without first obtaining a warrant.14 The court could have
theoretically reached this conclusion in a number of different ways,
either under the search-and-seizure provision of the Florida
5. Id., slip op. at 45 (citing Katz v. United States, 389 U.S. 347, 361 (1967)
(Harlan, J., concurring).
6. Id., slip op. at 1–2.
7. “A ‘pen register’ records the telephone numbers dialed from the target
telephone and a ‘trap and trace device’ records the telephone numbers from
incoming calls to the target telephone.” Id., slip op. at 2.
8. Id.
9. Id.
10. Id., slip op. at 3.
11. Id.
12. Id., slip op. at 5.
13. Id., slip op. at 5–6.
14. Id., slip op. at 45.
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TRACEY V. STATE
3
Constitution15 or under existing Fourth Amendment precedent from
the Supreme Court of the United States. But instead, the Tracey court
boldly used tidbits of existing Fourth Amendment jurisprudence to
craft a new category of searches subject to its protections. To
appreciate the significance of this approach, it is critical to
understand the specific bases upon which the Tracey court rendered
its decision.
Ostensibly recognizing that “[s]ituations involving merely the
transmission of electronic signals without trespass would remain
subject to Katz analysis,”16 the Tracey court applied the reasonable
expectation of privacy test set forth by Justice Harlan in his
concurring opinion in Katz v. United States. 17 Under this test, a
Fourth Amendment violation occurs when government officers
violate a person’s “actual (subjective) expectation of privacy” that
“society is prepared to recognize as ‘reasonable.’”18 The Tracey court
applied Katz in light of the concerns raised by the concurring justices
in United States v. Jones.19
In Jones, the majority applied a common-law trespassory test
instead of the Katz test, holding that the warrantless placement of a
tracking device on a vehicle to monitor its movements constituted a
Fourth Amendment search. 20 But the concurrences believed the
majority could have reached the same result under Katz. 21 The
Tracey court’s reliance on the Jones concurrences reflect its belief:
“‘If times have changed,’ such as they have now that technology has
provided the government with technological capabilities scarcely
imagined four decades ago, the protections of the Fourth Amendment
are ‘more, not less, important.’” 22 Simply because the government
15. See, e.g., Smallwood v. State, 113 So. 3d 724 (Fla. 2013).
16. United States v. Jones, 132 S. Ct. 945, 953 (2012).
17. Tracey, No. SC11-2254, slip op. at 14.
18. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
19. See Tracey, No. SC11-2254, slip op. at 16.
20. Notably, the Jones Court alluded to, but avoided ruling on, an issue like that
presented in Tracey: “It may be that achieving the same result through electronic
means, without an accompanying trespass, is an unconstitutional invasion of
privacy, but the present case does not require us to answer that question.” Jones,
132 S. Ct. at 954.
21. Id. at 954–957 (Sotomayor, J., concurring); id. at 962–64 (Alito, J.,
concurring).
22. Tracey, No. SC11-2254, slip op. at 13 (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 454–55 (1971)).
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can access personal information in a non-intrusive manner does not
mean that expectations of privacy have diminished.
By deciding Tracey under the Fourth Amendment and using the
concurrences in Jones as justification for defining a new class of
searches, the Supreme Court of Florida seems to be provoking the
Supreme Court of the United States to re-evaluate its Fourth
Amendment jurisprudence in light of modern technology. Again, the
Tracey court’s objective becomes more apparent when considering
that it could have either decided the case under the Florida
Constitution or found direct support for its holding in existing United
States Supreme Court precedent.
Notably, when the Supreme Court of Florida previously decided a
case about government searches and modern-day technology, it
rested its decision solely on provisions of the Florida Constitution.23
In Smallwood v. State, the court determined that the search-incidentto-arrest exception to the Fourth Amendment search-warrant
requirement does not allow law enforcement to conduct warrantless
searches of files on a cell phone that a person is carrying at the time
of arrest.24 While Smallwood can be likened to Tracey in that both
involve warrantless, cell-phone-related searches, these cases were
decided on very different grounds. The Supreme Court of Florida
decided Smallwood under the search-and-seizure provision of the
Florida Constitution: Article I, Section 12.25 This provision contains
a conformity clause that articulates the extent to which Florida courts
are bound by federal interpretations of the Fourth Amendment. 26
Under the conformity clause, only United States Supreme Court
rulings that are both factually and legally aligned with a case take
precedence over Florida law. 27 Because the relevant United States
Supreme Court authority was not precisely on point, the Smallwood
court decided the case under Florida law. In Tracey, the Supreme
Court of Florida acknowledged that the issue has not yet been
resolved by the Supreme Court of the United States.28 Thus, under
23. Smallwood v. State, 113 So. 3d 724 (Fla. 2013).
24. Id. at 740.
25. Id. at 730.
26. Id.
27. Id.; see also State v. Daniel, 665 So. 2d 1040, 1047 n. 10 (Fla. 1995) (“Any
Supreme Court pronouncement factually and legally on point with the present case
[will] automatically modify the law of Florida to the extent of any inconsistency.”).
28. Tracey v. State, No. SC11-2254, slip op. at 19–20 (Fla. Oct. 16, 2014).
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TRACEY V. STATE
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Florida’s conformity clause, the Tracey court had free reign to decide
the case under Florida law, but it apparently made the conscious
decision not to do so.
But even if the Supreme Court of Florida did not want to decide
Tracey under the Florida Constitution, it could have found existing
United States Supreme Court precedent dispositive of the issue
presented. In Kyllo v. United States, the Supreme Court of the United
States applied Katz and determined that when “the Government uses
a device not in general public use, to explore details of the home that
would previously have been unknowable without physical intrusion,
the surveillance is a ‘search’ and presumptively unreasonable without
a warrant.”29 And in Riley v. California, the Court held that a warrant
is generally required before the government can search a cell
phone.30
Tracey is factually dissimilar because it involves location data
emitted by a cell phone, rather than files stored on the phone. But
under Kyllo, it appears as though the holding of Riley applies
nonetheless. Critical to the holding in Kyllo was that Fourth
Amendment protections are strongest when protecting the sanctity of
a home.31 The Riley Court stated:
A cell phone search would typically expose to the
government far more than the most exhaustive search
of a house. A phone not only contains in digital form
many sensitive records previously found in the home;
it also contains a broad array of private information
never found in a home in any form—unless the phone
is.32
Thus, the Tracey court’s determination that cell phones are
effects for purposes of the Fourth Amendment is accurate. 33
Moreover, reading Kyllo and Riley together, it appears that the
government may not conduct a warrantless search of a phone by
29. Kyllo v. United States, 533 U.S. 27, 40(2001).
30. Riley v. California, 134 S. Ct. 2473, 2484 (2014).
31. Kyllo, 533 U.S. at 40 (“We have said that the Fourth Amendment draws a
firm line at the entrance to the house. That line, we think, must be not only firm but
also bright.” (internal quotation marks and citations omitted)).
32. Riley, 134 S. Ct. at 2491.
33. See Tracey, No. SC11-2254, slip op. at 41 (“Finally, and perhaps most
importantly, we conclude that cell phones are “effects” as that term is used in the
Fourth Amendment.”).
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obliging cell-service providers to use specialized technology to
uncover the location signals emitted by a phone without a search
warrant. While this conclusion could easily have been reached by the
Supreme Court of Florida, it instead insisted on construing the
government search in a light not explicitly contemplated by the
Supreme Court of the United States.
The Tracey court did not shy away from asserting why it chose to
rule as it did, as the bulk of its analysis relied on the basis that “the
same technological advances that have made possible nontrespassory
surveillance techniques will affect the Katz ‘reasonable-expectationof-privacy’ test, shaping the evolution of societal privacy
expectations.”34 Citing to Justice Sotomayor’s concurrence in Jones,
the court gave several reasons why societal privacy expectations have
evolved. 35 The Supreme Court of Florida reconsidered the
assumption that individuals have no reasonable expectation of
privacy in information voluntarily disclosed to third parties, echoing
Justice Sotomayor’s “doubt in the premise that disclosure of certain
facts to a company for a limited purpose requires an assumption that
the information may or will be released to other persons for other
purposes.”36
By doing so, the Tracey court took a jab at the third-party
doctrine, under which a person has no legitimate expectation of
privacy in information he or she voluntarily turns over to third
parties.37 Simply because a cell phone user is aware that cell phones
emit signals enabling location detection by the service provider and
other phone applications, the user is not consenting to a third-party’s
use of that information for any other unrelated purposes. 38 This
34. Id., slip op. at 29–30 (citing United States v. Jones, 132 S. Ct. 945, 955
(2012) (Sotomayor, J., concurring)).
35. For example, electronic monitoring of a citizen’s location can generate a
comprehensive record of that person’s public movements, including visits to places
the person may wish to keep private. Furthermore, as a matter of course,
individuals tend to reveal a substantial amount of information about themselves to
third parties using electronic media. Id., slip op. at 30–31.
36. Id., slip op. at 31 (citing Jones, 132 S. Ct. at 957 (Sotomayor, J.,
concurring)).
37. Id., slip op. at 37–40.
38. Id., slip op. at 37–38. Voluntarily disclosing personal information for
personal purposes to a specific entity—which the vast majority of cell phone users
do regularly through online banking, social media, navigation, weather reporting,
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TRACEY V. STATE
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determination is significant in light of Smith v. Maryland, a landmark
case in which the Supreme Court of the United States relied on the
third-party doctrine to determine that, under Katz, the warrantless use
of a pen register did not violate the Fourth Amendment because
individuals harbor no reasonable expectation of privacy in the
numbers they dial. 39 On the other hand, the Tracey dissent found
Smith dispositive:
Given the known realities of how cell phones
operate—realities understood and accepted by all but
the most unaware—under the Katz analysis as applied
in conjunction with the third-party-disclosure doctrine,
cell phone users have neither a subjective expectation
of privacy nor an objectively reasonable expectation
of privacy regarding the cell site information
generated by their cell phones.40
Although recognizing that individuals may want to keep the
information that they provide to third parties private, the dissent
found that this desire is not equivalent to a legitimate expectation of
privacy, and “a strong desire for privacy does not provide a basis for
[the Florida Supreme Court] to abrogate the third-party-disclosure
doctrine.”41
While the majority’s attack on Smith was indirect, the majority
unequivocally explained why it found that other Fourth Amendment
precedent was not controlling. For example, it distinguished the cell
phone in Tracey from the effects in another United States Supreme
Court case where the Fourth Amendment was not implicated. In
United States v. Knotts, the Court held that the warrantless
monitoring of a radio transmitter beeper placed inside a container of
chemicals carried over public roads was not an unreasonable search
because the beeper did not divulge information that could not have
been observed visually.42 The Tracey court distinguished Knotts on
the basis that while the beeper could be categorized as an effect in the
defendant’s possession, he did not “knowingly obtain, consciously
etc.—”cannot reasonably be considered to be disclosure for all purposes to third
parties not involved in that transaction.” Id., slip op. at 38.
39. 442 U.S. 735, 742–44 (1979).
40. Tracey, No. SC11-2254, dissenting slip op. at 50 (Canady, J.).
41. Id.
42. 460 U.S. 276, 282 (1983).
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carry, and purposely use the beeper” to carry out personal and
necessary functions, as was the case with the cell phone in Tracey.43
The brazenness of the Tracey court’s approach is further
illuminated by the fact that a contrary conclusion could have been
reached under the same body of law. To illustrate, the Sixth Circuit—
the only federal court to rule on the precise issue presented in
Tracey—has held that a defendant does “not have a reasonable
expectation of privacy in the location data given off from his cell
phone’s GPS . . . while traveling on public roads.” 44 The Sixth
Circuit’s decision is clearly supported by Knotts, which held, “A
person traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place
to another.”45 But the Supreme Court of Florida expressly refused to
find Knotts controlling because “[i]n the Knotts era, high tech
tracking such as now occurs was not within the purview of public
awareness or general availability.” 46 The Tracey court’s departure
from Knotts emphasizes its unwillingness to blindly defer to
precedent created when modern technology was still in its infancy
and its reluctance to give government officers unbridled access to
private information that the Fourth Amendment was intended to
protect. 47 Because the court endeavored to establish a distinct
measure of reasonableness under the Fourth Amendment, it was
imperative for it to make these factual distinctions to avoid
overstepping the Supreme Court of the United States.
By ruling as it did under the Fourth Amendment, the Tracey court
opened itself up to direct review by the Supreme Court of the United
States. Although it has yet to be determined whether the Court will
examine Tracey, it appears that this is what the Supreme Court of
Florida is hoping occurs. The court went to great lengths to
distinguish this case from seemingly controlling precedent in order to
establish a new category of searches subject to Fourth Amendment
43. Tracey, No. SC11-2254, majority slip op. at 42.
44. Id., slip op. at 26 (citing United States v. Skinner, 690 F.3d 772 (6th Cir.
2012), cert denied, 133 S. Ct. 2851 (2013)).
45. Knotts, 460 U.S. at 281.
46. Tracey, No. SC11-2254, slip op. at 43 (“Thus, we conclude that we are not
bound to apply the holding in Knotts to the current, and different, factual
scenario.”).
47. See id., slip op. at 44 (“Currently, this sole discretion of police, if left
unchecked by the Fourth Amendment, would extend to the more than 300 million
cell phone users in America.”).
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TRACEY V. STATE
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protections. And based on Riley, perhaps the Tracey court believes
the Supreme Court of the United States is prepared to reconsider
Fourth Amendment jurisprudence in light of rapidly evolving
technology. But although the holding in Riley reflects the Court’s
concern that the government is using technology to infringe on
Fourth Amendment rights, the Court resolved the issue using its
existing precedent. 48 Whether or not the Court ultimately reviews
Tracey, it will inevitably have to resolve the CSLI issue presented in
the case. The attitudes expressed in the Jones concurrences, as well
as the Court’s holdings in Kyllo and Riley, indicate that the Court will
reach the same conclusion as the Tracey court. But the approaches
taken in Riley and Jones similarly indicate that the Supreme Court of
Florida’s attempt to prod the Supreme Court of the United States into
redefining Fourth Amendment jurisprudence is not likely to prevail.
SUMAYYA SALEH
CONTRIBUTIONS MADE BY PROFESSOR JEFF SWARTZ
48. See Riley v. California, 134 S. Ct. 2473 (2014) (applying Chimel v.
California, 395 U.S. 752 (1969); United States v. Robison, 414 U.S. 218 (1973);
Arizona v. Gant, 556 U.S. 332 (2009)).