Volume 59

George Floyd, General Warrants, and Cell-Site Simulators

by Brian L. Owsley

The Fourth Amendment was enacted to prevent the government from utilizing general warrants. Instead, the government must obtain a warrant that is based on the specificity or particularity of the person, place, or thing to be searched. This approach evolved from a property-centric approach to safeguarding Fourth Amendment rights to one that is based on reasonable expectations of privacy. 

Technology has long been a factor in law enforcement and balancing Fourth Amendment rights. As technology embeds itself in more of our lives, its constitutional impact also grows. Law enforcement periodically uses a device called a cell-site simulator to obtain personal information and data from cell phones. Essentially, a cell-site simulator works by mimicking a cell phone tower. All cell phones in a certain radius then attempt to register with the cell-site simulator for purposes of assuring that they can receive and send calls and data. 

In law enforcement’s gathering of data from a large number of cell phones, law enforcement essentially has a general warrant that violates the Fourth Amendment. The history of general warrants in England and in our own country demonstrates the problem of gathering this data. This Article delves into this history, focusing on notable developments in England as well as colonial America. Regardless of whether one applies a property-centric approach or a reasonable expectation of privacy analysis, cell-site simulators present problems resembling those of general warrants. 

There are reports that cell-site simulators have been used to target crowds at protest rallies in Chicago. Similarly, there were reports of such surveillance during the protests over Freddie Gray’s death in Baltimore. Finally, the recent protests in the summer of 2020 over George Floyd’s death have drawn a massive response by law enforcement. This Article seeks to establish that using cell-site simulators constitutes a search based on United States v. Carpenter as well as the handful of decisions that address cell-site simulators in state and federal courts. In addition, this Article calls for solutions to the problem they pose to Fourth Amendment rights. 

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