Tracey v. State
The Florida Supreme Court decision holding that police use of real-time cell-site location information to track a person's phone is a Fourth Amendment search requiring probable cause and properly authorized process.
Executive Summary
During a cocaine-trafficking investigation, officers obtained a court order authorizing a pen register and trap-and-trace device for Shawn Tracey's cell phone. The supporting application sought dialed-number information and did not establish probable cause for location tracking. Nevertheless, officers received and used real-time cell-site location information to follow Tracey's phone across Florida, locate it at a residence, identify his vehicle, and coordinate a traffic stop that led to the discovery of cocaine. The Florida Supreme Court held that Tracey had a reasonable expectation of privacy in location signals generated to enable the private use of his phone, including while traveling on public roads. Using those signals to track him in real time was a Fourth Amendment search requiring probable cause. Because neither the application nor the order properly authorized the location search and no binding authority supported reasonable reliance, the evidence was subject to suppression.
Tracey is a foundational real-time location case. It rejected the idea that movements on public roads are automatically unprotected when police learn those movements only by converting a personal cell phone into an electronic tracking tool.
Key Holdings at a Glance
Cocaine Investigation and Vehicle Stop
A confidential source told investigators that Tracey obtained multiple kilograms of cocaine from Broward County for distribution on Florida's west coast and contacted Tracey through a specified MetroPCS number.
Officers obtained a pen-register and trap-and-trace order and began monitoring telephone activity. During the investigation, they also received real-time location information for Tracey's phone. That information allowed officers to track the phone during a trip across Florida and to a residence connected to a suspected associate.
Investigators identified a GMC Envoy associated with the phone's location, learned that Tracey's driver's license was revoked, and stopped the vehicle. A search produced more than 400 grams of cocaine. Tracey was convicted of cocaine possession and several vehicle and resisting offenses.
What the Application and Order Authorized
The October 2007 application requested a pen register and trap-and-trace device to record incoming and outgoing dialed digits. Its principal factual basis was the source's allegation that Tracey used the identified phone in cocaine trafficking.
The application did not request real-time location tracking, explain the technique, specify a tracking duration, or establish probable cause for a location search. The resulting order authorized telephone-number collection, not ongoing real-time CSLI monitoring.
For unexplained reasons, the provider information supplied to investigators included real-time location data, which the officers used operationally.
Real-Time CSLI Is Not Historical CSLI
The court repeatedly distinguished real-time CSLI from historical records. Historical CSLI reconstructs past network connections stored by a provider. Real-time CSLI enables officers to identify or follow a phone's present or developing location during an investigation.
| Information Type | What It Shows | Typical Legal Question |
|---|---|---|
| Pen register | Outgoing numbers or dialing, routing, addressing, and signaling information | Whether statutory pen-register process authorizes the requested fields |
| Trap and trace | Incoming identifying or signaling information | Whether the acquisition remains within the order's defined scope |
| Historical CSLI | Past cell-site connections maintained in provider records | Duration, aggregation, and the warrant rule under Carpenter and state law |
| Real-time CSLI | Current or developing cell-site location used to follow a phone | Whether prospective tracking requires probable cause and a warrant |
| GPS or precise device ping | Current coordinates generated or reported by the device | Search, particularity, home entry, and exigency analysis |
Why Public-Road Travel Did Not End the Inquiry
The lower appellate court relied on United States v. Knotts, which permitted use of a beeper to augment visual surveillance of a container moving on public roads. The Florida Supreme Court found the analogy incomplete.
Officers did not first observe Tracey's route and merely enhance that observation. They did not know where he was. The phone's electronic signals supplied the location information necessary to find and track him, and the tracking ultimately disclosed presence inside a residence.
A rule turning on where the phone happened to travel would also create an unworkable after-the-fact test. Police and judges cannot know in advance whether live tracking will remain on public roads or enter a home, medical office, hotel room, religious facility, or another protected location.
The Cell Phone as a Fourth Amendment “Effect”
The court concluded that cell phones are personal effects within the text of the Fourth Amendment. Modern phones are normally carried with their users and have become functional extensions of personal and professional life.
That physical and practical relationship matters. Real-time tracking does not merely inspect an abstract provider database; it uses signals associated with the person's own device to follow the device—and ordinarily its user—from place to place.
Necessary Network Transmission Is Not Voluntary Exposure
The State relied on Smith v. Maryland and traditional third-party doctrine. But a phone user does not transmit location signals for the purpose of sharing movements with law enforcement. The signals are generated to make the private and personal use of cellular service possible.
The court therefore found that Tracey did not voluntarily convey his location to the provider in a manner that eliminated all reasonable expectation of privacy. It used a normative privacy inquiry to avoid allowing technological necessity to redefine the Fourth Amendment.
Probable Cause and Particularity
The application contained a broad allegation that Tracey obtained cocaine and used the identified number, but it did not give the court facts sufficient to authorize real-time tracking as a search.
A proper application should establish probable cause to believe an offense occurred or is occurring and that tracking the identified phone during the requested period will yield evidence, locate contraband, or assist in apprehending a person properly connected to the offense.
| Application Element | Tracey Lesson |
|---|---|
| Technique | State expressly whether the provider will supply real-time CSLI, periodic updates, GPS coordinates, or another location service |
| Device attribution | Provide facts connecting the telephone number, device, and account to the target user |
| Crime nexus | Explain why the phone's location will probably produce evidence or locate the subject of lawful process |
| Duration and frequency | Define how long tracking may continue and how often updates may be requested |
| Geographic or event limits | Use feasible stopping conditions and explain anticipated travel or protected locations |
| Return and records | Require preservation of provider responses, timestamps, accuracy information, maps, and the investigative log |
Suppression and Good-Faith Reliance
The Florida Supreme Court held that the location-derived evidence was subject to suppression because the search lacked probable cause and was not authorized by a warrant.
The court also rejected the good-faith exception. Officers did not have a warrant authorizing real-time CSLI, the order they possessed did not authorize that tracking, and no binding appellate precedent permitted objectively reasonable reliance on warrantless real-time tracking under the circumstances.
The Dissents
Justice Canady, joined by Justice Polston, would have applied the third-party doctrine from Smith v. Maryland. In that view, location information conveyed to the service provider was not protected from government acquisition under existing United States Supreme Court precedent.
Justice Polston separately acknowledged reasons the United States Supreme Court might recognize privacy in real-time location but concluded that a state court should not alter federal third-party doctrine before the Supreme Court did so.
The disagreement foreshadowed the Supreme Court's later decision in Carpenter, which limited traditional third-party reasoning for the historical CSLI before it while expressly leaving real-time tracking unresolved.
Tracey and Carpenter
| Issue | Tracey v. State | Carpenter v. United States |
|---|---|---|
| Court and year | Florida Supreme Court, 2014 | United States Supreme Court, 2018 |
| Data | Real-time CSLI used to follow a phone | At least seven days of historical CSLI |
| Constitutional basis | Fourth Amendment | Fourth Amendment |
| Rule | Real-time tracking was a search requiring probable cause | Historical acquisition at issue was a search generally requiring a warrant |
| Public movements | Public-road travel did not defeat the privacy interest | A person retains privacy in the whole of physical movements |
| Express limitation | Did not define exigent circumstances | Did not decide real-time CSLI, tower dumps, or every shorter request |
Current Operational Rule
Florida officers should treat acquisition and use of real-time CSLI to track an identified phone as a search requiring a probable-cause warrant or a valid exception. The application and order should expressly authorize the location technique rather than relying on pen-register language alone.
Later Florida decisions continue to cite Tracey when evaluating real-time CSLI and location data obtained through cell-site simulators. Those technologies may raise additional statutory, disclosure, minimization, particularity, interference, and third-party-collection questions not resolved by Tracey itself.
Practical Guidance for Investigators and Agencies
Real-Time Location Warrant Checklist
- Identify the exact phone number, account, device identifier, and provider.
- Establish facts showing the target uses or controls the device.
- Describe the offense and establish probable cause that location tracking will yield evidence or locate the subject.
- Name the requested technique: real-time CSLI, GPS coordinate, provider ping, periodic update, or another method.
- Define the authorized start, duration, update frequency, and maximum number of requests.
- Specify any geographic, offense, apprehension, device-status, or time-based stopping conditions.
- Address anticipated tracking into homes or other constitutionally sensitive locations.
- Separate pen-register, subscriber, historical-record, and real-time-location requests into clearly identified categories.
- Require provider records sufficient to authenticate and interpret the production.
- Maintain contemporaneous logs showing when tracking began, what was received, how it was used, and why it ended.
Emergency and Exigent-Circumstances Requests
Tracey did not decide what facts would establish exigent circumstances. A recognized exception can apply, but agencies should not treat the mere availability of a provider emergency portal as an independent constitutional authorization.
| Document | Key Question |
|---|---|
| Nature of danger | What specific threat to life, serious bodily injury, escape, or evidence creates the emergency? |
| Immediacy | Why would obtaining ordinary judicial process create an unacceptable risk? |
| Device nexus | Why is the identified phone associated with the endangered person, suspect, or emergency? |
| Scope | Why are the requested precision, updates, and duration no broader than necessary? |
| Timeline | When did officers learn each fact, contact supervisors or prosecutors, request data, and receive it? |
| Transition to warrant | When must emergency tracking stop or continue only under newly obtained judicial process? |
Litigation and Discovery Checklist
- Compare the application, order, provider request, provider return, and actual investigative use field by field.
- Determine whether the data were real-time CSLI, historical CSLI, GPS, a provider ping, simulator-derived, or a hybrid.
- Identify the full tracking duration, number of updates, precision, routes, and protected locations revealed.
- Evaluate probable cause, device attribution, particularity, duration, and the nexus to the offense.
- Reconstruct how the location data led to surveillance, a stop, arrest, search, statements, or physical evidence.
- Analyze every asserted exception and preserve the contemporaneous facts supporting it.
- Assess good-faith reliance using the exact authority and binding precedent available on the search date.
- Preserve raw provider data, maps, portal records, emails, calls, certifications, and analytic work product.
- Check Florida authority, controlling federal law, and any more protective jurisdictional rule.
- Do not describe the data's accuracy more precisely than the provider records and method support.
Frequently Asked Questions
What did Tracey v. State hold?
The Florida Supreme Court held that using real-time CSLI from Tracey's phone to track him was a Fourth Amendment search requiring probable cause.
Did police have a court order?
They had an order authorizing a pen register and trap-and-trace device, but it did not authorize the real-time location tracking they performed.
Why was travel on public roads protected?
Police did not know Tracey's location through ordinary observation. They discovered and followed him only by using his phone's location signals, which also revealed entry into a residence.
Was historical CSLI involved?
No. The court expressly distinguished historical records and decided the use of real-time location information.
Did Tracey decide the emergency exception?
No. The court left exigent circumstances and other recognized exceptions open.
Why did good faith not save the evidence?
No warrant or valid order authorized the location tracking, and no binding appellate precedent permitted reasonable reliance on the technique under the circumstances.
Did Carpenter replace Tracey?
No. Carpenter addressed historical CSLI and expressly did not decide real-time CSLI. Tracey remains important Florida authority for prospective tracking.
Does Tracey automatically govern cell-site simulators?
Not by its specific holding. Simulator use can implicate Tracey's location-privacy reasoning while raising additional questions concerning technology, third-party collection, disclosure, and warrant scope.
Primary Authorities and Current Law
Florida Supreme Court opinion holding that real-time cell-phone location tracking was a Fourth Amendment search requiring probable cause and ordering suppression.
Read Tracey v. State
United States Supreme Court decision recognizing Fourth Amendment protection for the historical CSLI at issue while leaving real-time CSLI unresolved.
Read Carpenter
Supreme Court GPS-tracking decision and separate opinions addressing electronic surveillance, public movements, and expectations of privacy.
Read Jones
Federal CALEA provision distinguishing call-identifying information from information that may disclose a subscriber's physical location.
Review 47 U.S.C. § 1002
Recent Florida appellate opinion applying Tracey's location-search rule in litigation involving a cell-site simulator, while separately analyzing the remedy.
Read the Florida appellate opinion
Final Assessment
Tracey v. State shows why legal-process labels must match technological reality. A pen register records signaling information associated with communications. Real-time location tracking uses a person's phone to find and follow that person. The difference is constitutional, not semantic.
The decision also rejects a false choice between public and private movement. Electronic tracking can cross that boundary silently and repeatedly. Requiring probable cause before tracking begins provides a workable rule for officers, providers, courts, and the public.