Can Police Track Your Phone?

January 8, 2021

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

The short answer is yes – but there are ever increasing legal hurdles in law enforcement’s way.  The issue is highly complex, evolving and will continue to evolve as technology changes society.  No page-long blog will do the topic justice but I hope to give you at least a basic legal primer.

The 4th Amendment to the US Constitution is your right to be free from “unreasonable” searches and seizures from your government.  Tracking a person’s phone either in real-time or after the fact has been the subject of intense legal scrutiny for some time now.

Is Tracking Your Phone a Search Within the Meaning of the 4th Amendment?

Courts agree inspecting the contents of your phone, wiretapping a phone call, or affixing a GPS monitor to a persons vehicle are “searches” within the meaning of the 4th amendment.  It’s taken some time for courts establish these norms but they have all one by one been accepted.

Much of what constitutes a “search” hinges on what we consider our own “expectation of privacy.”  We all have a much higher expectation of privacy in our night stand drawer than in our bag we’re bringing on a plane.  So the courts have had to answer the question of where does the smart-phone and the information rank between the two extremes?

The answer is different today than it was in 2005 because of the advances in technology and because of our reliance on smart device technology… and because of both of those things we have different expectations of what is or isn’t private about our phones.

Courts now recognize the contents of our phones today contain work information, banking information, medical information, information about the books we read, the historical figures we admire, who we’re angry with in our family, where we’ve been, where we plan on going in three months or in an hour…  In short we have developed an intense dependency and sense of privacy about our phones and the courts know this to be true.

Is Tracking a Phone an “Unreasonable” Search?

Again – what is reasonable changes.  A “reasonable” search at an airport on September 12, 2001 might not have been considered as such on September 10, 2001.  Our more intense reliance and privacy with the phones make them harder and harder for police to justify tracking or searching.

But understand an “unreasonable” search becomes reasonable if law enforcement can legally and procedurally justify attaining whatever it is they’re looking for.  The legal question is just how much justification do they need and whether it requires attaining a warrant?

What Information Can Police Attain About Your Phone & How They Get It

I’m not a technology expert so I don’t know what and how the police can track.  I’m sure if they’re not tracking phones in real time already then at some point I’m sure there will be the capability for them to do that.  Probation departments and supervision departments can require either software or hardware downloads which allows them to track usage – but that’s not the same thing because in those instances the individual knows – and has often agreed – to being tracked.

Phone Dumps and Downloads

The law is more clear in this area – police need a warrant to get into your phone if you don’t consent to it being searched.  What they can get once they get in your phone is a technology question which I don’t have the qualifications to answer… but I’m sure this is an evolving cat and mouse game like everything else in the law/ technology realm.


Police can and often do obtain records from data providers and other third parties such as apps from their private offices.  The mechanisms may vary from State to State but the providers may be able to voluntarily provide records to law enforcement based on the terms and conditions of the usage – or as is more often the case – law enforcement can subpoena the records.  In some instances the federal government requires third parties to report certain activity to the National Center for Missing and Exploited Children.

Also, third parties who may have records the police want such as Facebook or Twitter or some of your other tech giants can be extraordinarily difficult to deal with for both law enforcement and the defense due to nothing more than their sheer size, amount of data they mine, and amount of users they have.  They have legal compliance departments but even Court Orders have the ability to sit in someone’s pile or in-box for who knows how long.

Courts are moving in the direction of requiring warrants to accompany the requests but this is an intensely complex and evolving area of the law.  Many of the third-party companies host apps and aren’t in the United States.  This adds yet another layer of complexity.

Bottom Line

For the police or law enforcement to track your phone after the fact or in real time is currently and will be one of the great battle-lines in courtrooms for the 21st century going forward.  This question is truly the convergence and intersection between radically evolving civil liberties and radically evolving technological capabilities.

Stay tuned.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.






When do I Have to Plead Guilty or Not Guilty in a Criminal Case?

August 17, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

In Dallas and Collin County criminal defendants are typically not required to enter into a plea on initial court settings and typically only do so either immediately prior to trial (in the case of a not guilty plea), or obviously if and when they make a plea bargain with the State. Most initial and second settings are merely to make sure the defendant is keeping up with requirements of bond as well as giving the prosecutor and defense lawyer an opportunity to make progress towards the resolution of the case… Be that a dismissal, a trial, or a plea bargain. Visiting directly with the judge is rare at these court dates.

Chapter 26 of the Texas Code of Criminal Procedure governs arraignments (the formal process where a court informs the accused of the charges against them as well as advising the accused of other rights). The arraignment is typically where a defendant will enter a plea, but the code is relatively silent on exactly when that must occur. Tex.Code.Crim.P. 26.03 only says arraignment is improper if it’s done within two days of indictment and the accused is still in jail.

Most Texas Courts have their own policies in place for when they do arraignments requiring a defendant to plead guilty or not guilty. In General, Dallas and Collin Counties only require the plea to be made at a guilty plea or before trial begins.

Some courts may seek to arraign defendants at their initial court setting for other reasons. This doesn’t necessarily mean you can’t change your plea but you should obviously consult your lawyer first.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered as legal advice. For legal advice you should directly consult an attorney.

Is Intoxication a Defense to Criminal Charges in Texas?

June 11, 2010

Texas Penal Code 8.04 covers voluntary intoxication.  That provision says, “Voluntary intoxication does not constitute a defense to the commission of a crime.”

Temporary insanity may be caused by intoxication and may be admissible in the punishment phase of a trial to attempt to mitigate.  What this means, in layman’s terms, is that you can only utilize voluntary intoxication to the extent that it can help you in the punishment phase of trial — i.e. after the judge or jury has already decided that you are guilty.

Intoxication in this section of the Penal Code means “disturbance of mental or physical capacity resulting from the introduction of any substances into the body.”

Involuntary intoxication (where perhaps someone was drugged without their knowledge — and then committed a crime) is far more complex.  The law used to be well settled in Texas that involuntary intoxication was an affirmative defense to some crimes, however, in 2002 the Texas Court of Criminal Appeals held that the defense was encompassed in other defenses — such as not having the proper mens rea in Mendenhall v. State, 77 S.W.3d 815 (Tex.Crim.App.– 2002).

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific matter you should consult an attorney.


Top 5 Mistakes When Hiring A Criminal Defense Attorney Countdown — #1

February 17, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

This week I’m counting down the top 5 mistakes people make in hiring a criminal defense attorney.

#1.  Hiring a lawyer that pleads everyone guilty.

I approach every case looking for a way to win – not why we should lose.  Sometimes the paths to victory are many, sometimes they are wide, and sometimes there is just a sliver of hope.  But the slivers are there if you look hard enough. I consider pleading guilty a last-option in most instances in Texas state courts in Collin and Dallas counties.

This means I set a decent percentage of them for trials or motions to suppress.  But there are lawyers who advise their clients to plead guilty virtually every time.

I rarely question another lawyer’s professional judgment.  And let’s be straight – pleading guilty or not guilty is exclusively the client’s decision.  But a lawyer’s advice typically plays a very heavy part.

I struggle to think of reasons why a particular lawyer simply never puts the State of Texas to task.  Maybe they’re intimidated.  Maybe they lack confidence.  Maybe they’ve made the immature mistake of sitting in judgment on their client if the client used poor judgment or made a mistake.

Whatever the case may be – trial is an important option and a constitutional right.  It should at least be discussed and considered.  Not having that option severely restricts your chances for success.

The cure for this is simple.  When interviewing your lawyer you should ask them how often they take cases to trial?  When was the last time they tried a case?  How many cases like yours have they tried in the past couple of years?

The answers will be revealing.  I’m not suggesting the “tougher” lawyers are better – but you should consider hiring someone that doesn’t take options off the table and who isn’t afraid to pull the trigger and take the state to trial.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice consult an attorney.