By J.R. Labbe
jrlabbe@star-telegram.com
The Fort Worth Police Department and the City Council find themselves at the center of a controversy over a decision to spend $184,319 on a cellphone-tracking system similar to what has been used for years by the FBI and the U.S. Marshals Service.
The KingFish doesn't record conversations; it works as a locating system. But that hasn't prevented some watchdogs' antennae from going up.
At the Feb. 21 council meeting, the purchase agreement to buy the system was on the consent agenda, which means it was voted on without discussion. No council member asked for it to be made a discussion item even after reading the sentence that infuriated privacy and civil rights advocates: "The Police Department will use the KingFish System, a portable cellphone-tracking system, to assist in locating, identifying, developing probable cause and apprehending priority offenders."
Hold the phone, Lucille. "
Developing probable cause"? Isn't that supposed to be done on the front end, when police get a court-ordered warrant to track a suspect?
Yes, it is, police Maj. Paul Henderson said.
"The language in the M&C was misleading as far as saying we'd use [the tracking system] to develop probable cause," Henderson said Monday. "We will obtain a warrant establishing we have probable cause to track a cellphone, and the information gained from that would lead to probable cause for other cases."
Police Chief Jeff Halstead was more direct in a Monday e-mail: "We will always demand a court order to use it ... just like all other PDs."
The police and city staff, which recommended the purchase, should have anticipated possible pushback from the public -- even if the council appeared clueless -- especially after the U.S. Supreme Court ruled in January that law enforcement authorities must have a warrant before affixing a Global Positioning System device to a suspect's vehicle.
That ruling came in a case involving federal authorities covertly placing a GPS device -- without obtaining a warrant -- on a suspected drug dealer's car in the District of Columbia. Antoine Jones was convicted of trafficking charges in part because of evidence that agents obtained from that device.
That scenario is different from law enforcement officers using a tool that captures a signal floating in the public airwaves and emitted by a device the suspect knowingly has in his or her possession. But still, when people hear about officials using tracking devices, they wonder what it means for privacy rights.
Everyone with a smartphone, tablet or other gadget that downloads wireless information should know they are carrying a homing device.
Police use them all the time -- during Amber Alerts, when a fugitive is on the loose or when there's a missing person.
"The first thing reported is that police used a cellphone or credit card purchases to track the individual," Henderson said.
None of that negates the need for public discussion if local police want to use devices for criminal investigations.
"Any tracking device that the government uses will be scrutinized, and rightly so," Henderson said. "Our job is to protect rights of everybody. Even when apprehending criminals, our goal is to protect their civil rights and their Fourth Amendment rights."
The Fourth Amendment protects against "unreasonable search and seizure."
People have a reasonable expectation of privacy for what's inside their home or even in the enclosed trunk of their vehicle. If police want a peek, there had better be a warrant from a judge saying, "Open up." But does walking around with a device that puts out a signal through the public airwaves negate an expectation of privacy?
The high court has yet to confront that question. But it was a reasonable expectation on the part of Fort Worth residents that their council representatives would at least ask it before they consented to spending $184,319.
Jill "J.R." Labbe is editorial director of the Star-Telegram.817-390-7599Twitter: @jrlabbe55
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