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Police Using Cell Phones to Track Callers Without Consent, Judge Napolitano Says It’s Violating 4th Amendment Unless Warrant Was Issued

There have been alarming new findings that hundreds of law enforcement agencies are tracking Americans through their phones without consent. Is the government violating Fourth Amendment rights with this illegal action?

Judge Andrew Napolitano discussed the legal ramifications on Happening Now, saying the action is indeed violating our Fourth Amendment rights if the government didn’t first issue a search warrant. He continued, saying that we wouldn’t know if they were tracking us because each phone has a GPS device in which government software can allow them access.

“Government admits that it is doing this,” he said. “But, it’s reluctant to use evidence obtained from this in a courtroom because that will place the constitutionality of its practice in front of a judge.” He went on to say that he believes the Supreme Court will ultimately rule that they can’t do it.

He questions, “Do we really want to live in a society that the government knows everywhere we’ve been and can almost anticipate where we’re going to go?”

Hear and read more of Judge Napolitano’s analysis below:

The use by law enforcement of the GPS chip in our cell phones to monitor the location of the phone is a clear violation of the Fourth Amendment, and law enforcement officials know this. They know it because the Supreme Court just ruled in the past year that planting a GPS device in a car without a search warrant or using sophisticated devices outside a home to learn what folks are doing inside the home without a search warrant is unconstitutional. Nevertheless, the police have been using cell phones to tell them where the phone--and hence its user--is located, and they have been using the phone to listen in on in-person conversations that the possessor of the phone is having with another person. (The latter are not conversations on the phone, but in-person conversations in the presence of the phone.)

Did you know that the government can use your cell phone as a listening device, so long as the battery is in the phone; even if it is turned off?

Since the police know that their use of people’s cell phones for any purpose without a search warrant is unconstitutional, they often will not use evidence obtained from the illegal use of the cell phone in court. By deciding not to introduce evidence obtained illegally, the police can continue to engage in their illegal surveillance, unmolested by the courts.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is "It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom." To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit

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