Tracey v. State
69 So. 3d 992
Fla. Dist. Ct. App.2011Background
- Tracey was convicted after a jury trial of cocaine possession, fleeing and eluding, driving while license revoked as habitual offender, and resisting arrest without violence.
- Tracey moved to suppress evidence derived from real time prospective CSLI obtained from his cell phone, arguing the pen register order exceeded its scope, CSLI was not authorized by the pen register statute, and probable cause was required for CSLI.
- In 2007, investigators obtained a pen register and trap-and-trace order concerning Tracey's phone, which was used to request historical CSLI; the order did not expressly address CSLI.
- Investigators later used real time CSLI to track Tracey’s location on public roads across Florida, leading to his arrest and the recovery of cocaine and cash in related searches.
- The trial court held Tracey had standing to challenge his own surveillance but not Vilbon’s, found insufficient factual basis for a CSLI order, and allowed evidence obtained via tracking, relying on public-road surveillance.
- The Fourth District embraced Knotts and Karo to hold that tracking on public roads does not implicate Fourth Amendment privacy interests, and addressed ECPA/Chapter 934 regulatory remedies rather than suppression.
- It concluded that although there was a statutory violation of Chapter 934 regarding CSLI, the exclusionary rule is not a remedy for such violations, and affirmed Tracey’s convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether real time CSLI tracking on public roads violated the Fourth Amendment | Tracey argues real time CSLI constitutes a search. | State contends tracking on public roads yields no Fourth Amendment violation under Knotts/Karo. | No Fourth Amendment violation on public-road tracking. |
| Whether the pen register/trap-trace order authorized CSLI collection | Order did not authorize CSLI; exceeded scope by tracking location. | Pen register order could be read to include CSLI or at least authorized by statute/regulatory framework. | Application failed to seek CSLI; CSLI collection not authorized under pen register order, but suppression not required for other reasons. |
| Whether prospective CSLI requires probable cause or a higher showing under Florida law | Real time/prospective CSLI requires probable cause; insufficient facts in the application. | Lower standard applies (specific and articulable facts) and historical CSLI could be obtained with such showing. | Court did not need to decide the prospective-CSP standard; relied on insufficient facts under 934.23. |
| Whether the exclusionary rule applies to violations of Chapter 934 CSLI procedures | Violation should trigger suppression under the exclusionary rule. | Exclusion is not an available remedy for 934.23 violations. | Exclusionary rule not available; conviction affirmed. |
Key Cases Cited
- United States v. Knotts, 460 U.S. 276 (1983) (tracking beeper on public streets not a search)
- United States v. Karo, 468 U.S. 705 (1984) (public location tracking via beeper; limits of tracking information)
- Smith v. Maryland, 442 U.S. 735 (1979) (pen register does not violate Fourth Amendment)
- Mitchell v. State, 25 So. 3d 632 (Fla. 4th DCA 2009) (historical CSLI not implicating Fourth Amendment; specific standard under Florida law)
- In re the Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304 (3d Cir. 2010) (Third Circuit held historical CSLI obtainable with specific and articulable facts; probable cause not required)