Ride the Lightning

Virginia Police Regularly Use Secret GPS Pings to Track Peoples’ Cell Phone

April 7, 2022

I don’t know how common this is elsewhere, but I am sure not happy about it taking place in Virginia.

Virginia Mercury reported on April 6 that Scott Durvin says he faced aggressive questioning from a Chesterfield County Police detective after his friend died of a drug overdose at the end of 2019. What he didn’t know at the time was that police had also begun secretly tracking his whereabouts by ordering Verizon Wireless to regularly ping his phone’s GPS and report his location back to detectives in real time.

“That’s kind of shocking, really,” Durvin said. “The detective would call me all the time and try to get me to give them information and he would threaten to lock me up. But I didn’t have anything to do with it and he finally left me alone.”

Police never described Durvin as a suspect in the search warrant application they submitted seeking permission to track him and court records show he has not been charged with any crimes in Virginia since police took out the warrant.

The officers wrote that they had found voicemails from Durvin on the overdose victim’s phone and thought tracking his location might help them figure out who provided the deadly dose of heroin, noting that Durvin had been with the man during what appeared to be a prior overdose in Richmond.

People really don’t know how much cell phone location tracking goes on – but it is now commonplace to find it used by the police.

Public records requests submitted to a sampling of 18 police departments around the state found officers used the technique to conduct more than 7,000 days’ worth of surveillance in 2020. Court records show the tracking efforts spanned cases ranging from high-profile murders to minor larcenies.

How did this come about?

A state law passed (with little notice) in 2015 which authorizes the surveillance as long as police first obtain a search warrant from a magistrate or judge. In practice, the bar for judicial approval isn’t particularly high. Officers simply must attest in an affidavit that they have probable cause that the tracking data is “relevant to a crime that is being committed or has been committed.”

The warrants are limited by law to 30 days but can be — and often are — renewed monthly by a judge.

“I don’t think people know that their cell phones can be converted to tracking devices by police with no notice,” said Steve Benjamin, a criminal defense lawyer in Richmond who said he’s recently noticed an uptick in cases in which officers employed the technique. “And the reality of modern life is everyone has their phone on them during the day and on their nightstand at night. … It’s as if the police tagged them with a chip under their skin, and people have no idea how easily this is accomplished.”

In Durvin’s case, the justification police gave for tracking him was a single paragraph in the search warrant application asserting officers believed it might aid in their case.

“It is in your affiant’s experience that users of narcotics will associate with other users and suppliers of narcotics in the drug trade,” wrote Det. G. Hopkins. “Your affiant believes the real time location data … will assist in the on-going investigation into the supplier of narcotics.”

Records reviewed by the Mercury suggest Chesterfield police are among the more prolific users of the technology in Virginia.

The department is unapologetic for its use of phone tracking. “We exist to preserve human life and protect the vulnerable, and we will use all lawful tools at our disposal to do so,” Chesterfield County Police Spokeswoman Elizabeth Caroon said in a statement.

To assess how widely police in Virginia employ cellphone tracking, the Mercury submitted Freedom of Information Act requests to police departments around the state seeking billing records from telephone companies, which charge police departments daily or monthly fees to report their customers’ location to officers.

The findings?

• At least nine of the 18 police departments sampled track cell phones, but how frequently varied considerably by department. At the high end, Chesterfield accounted for 4,500 days of tracking and 346 warrants, while Norfolk Police, at the low end, reported 63 days of tracking across six warrants.
• Two departments indicated they had relevant invoices but requested hundreds of dollars to provide the records to the Mercury: Loudoun County estimated it would cost $361 to fulfill the request. Alexandria requested $1,360 and ignored emails seeking an explanation for the high price tag.
• The remaining seven departments responded that they did not have any relevant billing records, indicating they don’t use the technique.
• Only one of the departments surveyed, Alexandria, indicated it had an internal policy governing how their officers use cellphone tracking, but a copy of the document provided by the city was entirely redacted.

Entirely redacted? Good grief.

To understand what kinds of cases police are using the technology to investigate, the Mercury reviewed all unsealed search warrant applications filed in 2020 in the city of Richmond and Chesterfield County. The documents, which are presented to magistrates or circuit court judges to justify and obtain permission to conduct the surveillance, describe the crimes under investigation and the basic facts of the individual cases.

Drug investigations accounted for more than 60 percent of the search warrants taken out in the two jurisdictions. Larcenies were the second most frequent category. Major crimes like murders, rapes and abductions made up a small part of the tracking requests, accounting for just under 25 of the nearly 400 warrants filed in the jurisdictions that year.

Real-time location warrants in Virginia are addressed to telephone companies, ordering them to regularly ping a customers’ phone for its GPS location and share the results with police. All four major telecoms charge varying rates to surveil their customers on behalf of law enforcement.

T-Mobile charged $30 per day, which comes to $900 per month of tracking.

AT&T charged a monthly service fee of $100 and an additional $25 per day the service is utilized, which comes to $850 per 30 days of tracking, according to bills reviewed by the Mercury.

Verizon calls the service “periodic location updates,” charging $5 per day on top of a monthly service fee of $100, which comes to $200 per 30 days of tracking.

Sprint offered the cheapest prices to report locations back to law enforcement, charging a flat fee of $100 per month.

Sometimes, police sought the warrants even in cases where officers weren’t sure who exactly they were tracking.

In one Chesterfield search warrant application, an officer wrote in their affidavit that an unnamed person he described as “a reliable confidential source” had given him the phone number for an alleged drug dealer named “Weedy” who his source had heard was coming to the Richmond area to sell heroin. A magistrate approved the warrant based on the officer’s justification that “real time location data collected during this investigation will assist in identifying ‘Weedy,’ potential co-conspirators and locations utilized for conducting drug transactions.”

The U.S. Supreme Court ruled that warrantless cellphone tracking is unconstitutional in 2012. Since then, there’s been limited public discussion or awareness of the kinds of tracking warrants the judiciary is approving.

When Virginia passed a law three years later setting out the warrant requirement in state code, it drew almost no notice in the General Assembly, passing unanimously on every vote. The bill’s patron, then-Del. Manoli Loupassi, a Richmond lawyer, said he had little recollection of the legislation and was surprised to hear how often police now use the statute to enable cell phone tracking.

“I think the original intent was to capture and ferret out extremely serious criminality,” Loupassi said. “Not just nothing cases. And this is one of the millions of examples of how the road to hell can be paved with good intentions.”

Police officials, meanwhile, argue it only makes sense to take advantage of technological advances. Dana Schrad, the executive director of the Virginia Association of Chiefs of Police, said departments often don’t have the resources to conduct physical surveillance. And even if they did, she said cell phone tracking is safer.

“It may be considered an intrusive way of gathering data on someone, but it’s certainly less dangerous than physical tracking,” she said.

Back in Chesterfield, police officials described their use of cell phone tracking as part of an effort to proactively investigate drug crimes, suggesting the effort had helped keep the number of fatal overdoses from rising in the county.

Meanwhile, Durvin, who Chesterfield police tracked in the 2020 overdose investigation, counts himself among those who considers the technique intrusive. “It’s kind of f**ked up,” he said. “I feel like my privacy was violated. And who’s to say they ain’t still doing it?”

They clearly are still doing it. And I agree with Delegate Loupassi. This is how the road to hell can be paved with good intentions.

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225, Fairfax, VA 22030
Email:   Phone: 703-359-0700
Digital Forensics/Cybersecurity/Information Technology
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