Sheriff’s deputies in Colorado tracked down and arrested a man using Apple’s Find My iOS app, claiming that an officer had “lost” his work phone in the bed of the man’s truck after the suspect fled the scene. The unique case could serve as a constitutional test of warrantless location tracking.
The Weld County Sheriff’s Office said in a press release that Deputy Travis Peck pulled over Steven Sandoval at 1:15 a.m. local time, pursuant to a suspicious person report. Peck identified Sandoval, 51, who was wanted for failure to appear in court and flight to avoid prosecution, by pulling up mugshots on a “county-issued” phone. While trying to persuade Sandoval to get out of the car, according to the release, Peck left the phone on the rail of the truck bed in order to retrieve his handcuffs. The phone allegedly fell into the truck as Sandoval sped off.
While the story, which was first reported by Denver NBC affiliate 9News, is reasonably plausible, the release proceeds to go into apologetics about the officer’s motives for finding the phone.
“A short time later,” it reads, “the deputy realized his cellphone was missing. Considering it is county property, the deputy felt it was important to locate the phone as quickly as possible. He used his personal cellphone to call another deputy to have him find it using the ‘Find My iPhone’ app.”
Characterizing the placement of the phone on Sandoval’s truck as an accident may be central to the constitutionality of the case. In 2012, the Supreme Court ruled in United States v. Jones that, under the Fourth Amendment, police must have a warrant in order to attach a GPS tracking device to a vehicle; as a result, the Court reversed a conviction made using that tactic. “It was just kind of a weird happenstance that it fell into the truck bed and not on the ground,” Joseph Moylan, public information officer for Weld County Sheriff’s Office, told Gizmodo in a phone call. “He didn’t throw it in there.”
In any case, the deputies watched the device travel toward Boulder for an hour. When it stopped, the Weld County Sheriff’s Office sent the Boulder County Sheriff’s Office to apprehend it, along with Sandoval, who was later charged with resisting arrest along with a number of felony and misdemeanor charges.
Gizmodo asked the PIO whether the deputies were aware that the phone was in Sandoval’s truck at any point while observing it move along the highway. He didn’t answer the question but responded via email: “The priority was recovering the cellphone, a piece of lost county property. The question of whether this was a lawful arrest is up to the courts to decide and we’re more than confident the actions of our deputies were justified.”
Orin Kerr, a law professor at the University of California, Berkeley, said in an email that if the phone was indeed left by accident, the coincidence may shield the deputies from a Fourth Amendment challenge. “If the facts are as stated, I doubt there was a constitutional violation,” Kerr wrote. “First, if we accept as true that the phone was accidentally dropped in the car, the dropping wouldn’t be a Fourth Amendment search because there was no intent to obtain information, which was required by the Jones case.”
In that case, the Supreme Court ruled that FBI officers’ warrantless placement of a GPS tracker on a person’s car violated Fourth Amendment protections against an illegal search.
Kerr added that the subsequent use of the Find My app might constitute a search, but the answer is “likely no,” since the car was on a public road. “Courts have allowed short-term tracking of cars on public roads without the Fourth Amendment being implicated,” he said.
On the other hand, Kurt Opsahl, deputy executive director of the Electronic Frontier Foundation, believes that the intentional use of the Find My iPhone app should constitute a search point-blank. “The excuse of recovering missing county property is pretty thin, and the officer obviously knew it would also result in tracking the suspect,” Opsahl wrote via email. “It would be a tremendous set back for our fundamental rights if police could evade the Fourth Amendment by ‘accidentally’ dropping iPhones, AirTags or other consumer tracking devices, and then search for the device, all without a warrant.”
Elizabeth Daniel Vasquez, director of the Science & Surveillance Project at Brooklyn Defender Services, seconded the idea that the deputy’s excuse needs legal inspection. “[I]f you take the baffling serendipity of the circumstances away, the basic facts are fundamentally similar to those in United States v. Jones,” she wrote in an email. But she added that a court would likely need to reassess intention in the case against Sandoval.
“Does the claim of ‘accident’ sidestep the Jones Court’s reasoning?” she wrote. “These will be questions for Mr. Sandoval’s lawyers to work through, investigate, and challenge.”
Update 5:45 p.m. ET: Added comment from Orin Kerr.
Update 8/27/2021 10:15 a.m. ET: Added comment from Kurt Opsahl.