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Justices of the Indiana Supreme Court

The justices of the Indiana Supreme Court are, from left, Steven David; Robert Rucker, a Gary native; Chief Justice Loretta Rush; Geoffrey Slaughter, a Crown Point native; and Mark Massa.

INDIANAPOLIS — Hoosiers planning to commit a crime probably should leave their mobile phones at home — unless they want to make it easier for police to nab them.

The Indiana Supreme Court ruled Thursday that individuals have no privacy expectation under the Fourth Amendment in historical location data collected by their telephone company when their wireless phone is in use.

That means police do not need a warrant to request records showing which cellphone towers were used to connect a call or transmit a text message, in effect pinpointing where a person was at a specific moment in time.

Chief Justice Loretta Rush said the "third-party doctrine" adopted by most federal courts, and now Indiana, holds that individuals cannot keep secret any information they voluntarily convey to a third party.

That includes the location data tied to a specific device that's necessary for a telephone company to connect a call, transmit a message, bill appropriately or monitor its network, Rush said.

At the same time, she noted that Hoosiers enjoy a heightened expectation of privacy under the Indiana Constitution, so police cannot simply gather past location data on everyone in the state and use it to solve crimes.

Rather, police must have strong suspicion that a specific person committed a crime, the privacy intrusion must be minimal and the needs of law enforcement have to justify the data request, Rush said.

The state's high court held 3-2 that those conditions were met in this case where police obtained historical location data on an armed robbery suspect who had posted photos of his loot online and was known to call southeastern Indiana liquor stores shortly before holding them up.

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"Police were justified in requesting that (location data) in the heat of this armed-robbery-suspect hunt," the court said. "On different facts, of course, the...scales might well have tipped the other way."

Justices Steven David and Robert Rucker, a Gary native, believed the scales should have tipped the other way in this case and said they would have found that police violated the Indiana Constitution by obtaining the cellular location data.

The justices said in their dissent that there were no exigent circumstances, such as immediate flight following a robbery or a search for a missing and endangered person, that prevented police from taking the steps needed to acquire a judicial search warrant.

Moreover, they said the Indiana Constitution's privacy protections go well beyond the third party doctrine and should be maintained separate and distinct from federal precedent.

"I do not believe that most Hoosiers who use cellphones understand and appreciate that, by contracting with a third party cellphone provider, they are giving up information that may be turned over to police in an effort to locate them without the requirement of a search warrant," David said.

Rush specified that the Supreme Court's ruling was limited to past location data showing where a telephone actually was used.

It did not address whether police can obtain without a warrant past or present GPS "pings" of a passive telephone's location or real-time information to track a criminal suspect using his or her telephone.

"We leave other types of data...for another day," Rush said.

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