Nebraska case law summary by Attorney Richard Clem: TOPIC.

State of Nebraska v. Erica A. Jenkins. Nebraska Criminal Law, Cell phone records

Defendant did not have privacy interest in cell phone provider's records showing defendant's approximate location during use of phone.

The U.S. Supreme Court has repeatedly said there is no reasonable expectation of privacy in personal information a defendant knowingly exposes to third parties.22 And this is true even when the information is revealed to the third party on the assumption that it will be used only for a limited purpose and the confidence in the third party will not be betrayed.

It is true that the technology used to route cell phone communications may act in some respects like a tracking device, but it is one which cellular customers knowingly and voluntarily carry and use, not one placed secretly on their person or property by the government. And the routing information from which general location information can later be gleaned is information recorded and kept by the service provider in the ordinary course of business, not at the behest of the government. These distinctions are significant.

Therefore, records obtained by police under 18 U.S.C. § 2703(d) were not subject to exclusion under the federal or Nebraska constitution.

No. S-14-1087, 294 Neb. 684 (Sept. 9, 2016)

Please see the original opinion for the court's exact language.

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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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