Tracey v. State

Decision Date16 October 2014
Docket NumberNo. SC11–2254.,SC11–2254.
Citation152 So.3d 504
PartiesShawn Alvin TRACEY, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Carol Stafford Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Consiglia Terenzio, Bureau Chief, and Melynda Layne Melear, Assistant Attorney General, West Palm Beach, FL, for Respondent.



This case is before the Court for review of the decision of the Fourth District Court of Appeal in Tracey v. State, 69 So.3d 992 (Fla. 4th DCA 2011). Because the district court expressly construed a provision of the United States Constitution, this Court has jurisdiction to review the decision. See art. V, § 3(b)(3), Fla. Const. For the reasons set forth below, we quash the decision of the district court in Tracey and remand for further proceedings in accordance with this opinion.


Shawn Alvin Tracey was convicted by a jury of possession of more than 400 grams of cocaine, as well as fleeing and eluding, driving while his license was revoked as a habitual offender, and resisting arrest without violence. Law enforcement learned from a confidential informant that Tracey “obtains multiple kilograms of cocaine from Broward County, for distribution on the West Coast of Florida” and that “the CS [confidential source] contacts Shawn Tracey on the listed Metro PCS telephone number.” Based on these sole factual allegations, on October 23, 2007, officers obtained an order authorizing the installation of a “pen register” and “trap and trace device” as to Tracey's cell phone. 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. Over a month after issuance of the October 23, 2007, order, officers learned from the confidential informant that Tracey would likely be coming to Broward County to pick up drugs for transport back to the Cape Coral area where he resided. Without obtaining an additional order or providing additional factual allegations, officers used information provided by the cell phone service provider under the October 23 order, which also included real time cell site location information given off by cell phones when calls are placed, to monitor the location of cell phones used by Tracey and an individual named Guipson Vilbon.1 This information enabled law enforcement to track Tracey's trip eastward on December 5, 2007, noting ten cell phone calls with Vilbon before Tracey arrived in Broward County.

Officers originally set up surveillance at two of Vilbon's known “stash” houses where officers believed drugs were being stored. However, after officers traced Vilbon's cell phone to a different house, surveillance was moved to that area. Officers tracked Tracey's cell phone to that same house by use of real time CSLI from his cell phone, and “were able to see that both phones were inside that location.” A GMC Envoy vehicle was seen parked outside and was later seen at a nearby intersection. The Envoy was subsequently stopped and Tracey, who was driving, was arrested. A search of the Envoy uncovered a kilogram brick of cocaine hidden in the spare tire well of the vehicle. Vilbon, who was driving a vehicle in front of the Envoy, was also stopped and a search of his car turned up $23,000 in cash.

Officers obtained and used the real time cell site location information pertaining to Tracey's cell phone under the original October 23, 2007, order even though the order issued by the court concerning his cell phone authorized only a “pen register” and “trap and trace device.” In the application for the order, the officers sought only to “record inbound and outbound dialed digits” based on the allegation that “attachment of a Pen Register/Trap & Trace Device would be an important investigative tool to record the inbound and outbound dialed digits from telephone facility [number], helping identify possible co-conspirators in the violation of the herein above referenced Florida State Statute.” The application stated that the information to be obtained is “relevant to a Broward Sheriff's Office ongoing investigation.” The application did not seek authority—or provide facts establishing probable cause—to track the location of Tracey's cell phone in either historical or real time; and the order did not ask for access to real time cell site location information. For some unexplained reason, the cell phone information given to officers did include real time cell site location information on Tracey's cell phone, which the officers then used to track him.2

Tracey moved to suppress the evidence, which he alleged was derived from the real time cell site location information obtained from his cell phone, and contended that real time cell site location information, as distinguished from historical location information derived from cell phone records, required a warrant. Tracey contended that probable cause is required to obtain such real time location information and that the affidavit filed to support the order obtained by officers did not contain factual allegations establishing probable cause. He further contended that the officers exceeded the scope of the order they did obtain, which authorized them only to record incoming and outgoing telephone numbers. The trial court found that the application for the October 23, 2007, order did not contain a sufficient factual basis on which to issue a search warrant, but denied the motion to suppress, finding that no warrant was required to use Tracey's real time cell site location data to track him on public streets where the court held he had no expectation of privacy.

On appeal, the Fourth District Court of Appeal affirmed, agreeing that the affidavit provided by law enforcement for issuance of the October 23, 2007, order did not provide a factual basis sufficient to support probable cause, Tracey, 69 So.3d at 999, but held that the monitoring of Tracey's cell site location information occurred only when his vehicle was on public roads where it ‘could have been observed by the naked eye,’ so no Fourth Amendment violation occurred during Tracey's journey across Florida to Fort Lauderdale.” Id. at 996 (quoting United States v. Karo, 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) ). While “acknowledg[ing] that a compelling argument can be made that CSLI falls within a legitimate expectation of privacy,” Tracey, 69 So.3d at 996, the district court concluded that “on search and seizure issues, we are bound to follow United States Supreme Court precedent in interpreting the Fourth Amendment and [u]nder the current state of the law expressed in [United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) ] and Karo, a person's location on a public road is not subject to Fourth Amendment protection.” Tracey, 69 So.3d at 996–97.

The district court also addressed the question of violation of statutes governing electronic surveillance, stating that [b]ecause much non-content based electronic surveillance falls outside the Fourth Amendment, most regulation of it has been by statute.”Id. at 997. The district court noted that although Florida has its own electronic surveillance law, the federal electronic surveillance law preempts the field, as recognized by this Court in State v. Otte, 887 So.2d 1186, 1187–88 (Fla.2004) (stating that the federal wiretap statute preempts the field of wiretapping and electronic surveillance and limits the state's authority to legislate in this area; although states are free to adopt more restrictive statutes, they cannot adopt less restrictive ones).

The Federal Wiretap Act, as amended by the Electronic Communications Privacy Act of 1986 (“ECPA”), is codified at 18 U.S.C. § 2510 et seq. Title I of the federal act3 amended the 1968 federal wiretap statute and included provisions concerning mobile tracking devices. Title II of the federal act,4 codified at 18 U.S.C. § 2701 et seq., created a new chapter of the federal criminal code dealing with access to stored communications and transaction records. This portion of the federal statute, known as the Stored Communications Act,” authorizes government access to stored communications in the hands of third-party providers, categorizes the different types of stored information, and sets forth what the government must do to access those different types of information. Title III of the federal act,5 codified at 18 U.S.C. §§ 3121 –27, covers “pen registers” and “trap and trace” devices.

Florida's counterpart to this federal scheme is contained in chapter 934, Florida Statutes, titled “Security of Communications.” In 2007 when the order in this case was entered for installation of the pen register and trap and trace device as to Tracey's cell phone, section 934.31, Florida Statutes (2007), similar to federal law, required a court order to “install or use a pen register or a trap and trace device.”6 § 934.31(1), Fla. Stat. (2007). Section 934.33(1), Florida Statutes (2007), allowed entry of the order if the officer making the application under section 934.32, Florida Statutes (2007), certified that the information likely to be obtained by the installation and use of a pen register or trap and trace device is relevant to an ongoing criminal investigation by that agency. § 934.32(2)(b), Fla. Stat. (2007) (emphasis added).

Under Florida's version of the Stored Communications Act, section 934.23(4)(a), Florida Statutes (2007), allowed a law enforcement officer to require a provider of electronic communication service to disclose “a record or other information pertaining to a subscriber ... not including the contents of a communication,” when the officer, inter alia, obtains a warrant or obtains a court order for such disclosure by offering specific and...

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