Mr/Madame Chief Justice and May it please the Court.

My name is Megan Horst and together with my co-counsel, Blake Gibney, we represent the Respondent in this case, the United States. I will be addressing the first issue of whether the warrantless tracking of Mr. Comerfords smartphone violated 4th Amendment protections, and Mr. Gibney will be covering the second question of whether or not the presidents indefinite detention of Comerford exceeded the presidents Article II authority. The lower court correctly found that Chester Comerford did not have reasonable expectation of privacy in the data emitted by his cell phone. The FBI did not violate the 4th Amendment by tracking Petitioners cell phone for the following 2 reasons: Comerford did not have a reasonable expectation of privacy and The search that occurred fell within the warrantless exceptions this court has identified. Comerford did not have reasonable expectation of privacy demonstrated by a combination of inaction and what he already knew about his device. o As established by Katz v. US and again reinforced by Smith v. Maryland, the application of the 4th Amend depends on whether the individual invoking its protection can claim that his/her conduct exhibited expectation of privacy and whether or not this expectation is one that society is prepared to recognize as reasonable. o Comerford does not satisfy the subjective element of the test originated in Katz. He knew of additional ways to avoid detection that he did not take. If Comerford was serious about remaining undetected, he would have switched numbers and sim cards or would not have used a cell phone at all. Instead he voluntarily carried it while traveling on public highways and kept it on his person. o He could not legitimately believe that disabling GPS-tracking prevents all location information from being collected. o Society would be unwilling to recognize his expectation of privacy as reasonable due to the nature of the technology this is a device that could never be considered completely private. Like the pen register used in Smith V. Maryland, cellphone information is easily attainable as it is provided through a third party. Just as an individual has no legitimate expectation that open fields will remain free from plain sight, the average person is aware that some sort of signal emits from a cell phone allowing for possible interception. A cell phone is able to receive messages, make calls, or alert its user when roaming, even if the GPStracking is disabled. o By purchasing a smartphone, Comerford agreed to the technology and its tracking capabilities. He made the choice to expose himself in this way. o Unlike in Kyllo v. United States, the technology used to capture the IMSI is a device that is referenced in films and other media. It is readily available technology, and the law enforcement does not need a warrant to make use of it. The cell phone sends out a signal and the state was simply listening to that signal in order find probable cause to obtain a warrant. In the same way that the government did not need to shield their eyes from the open field in California v.

Ciraolo, the law enforcement does not need to ignore the location data emitting from Comerfords cell phone. Comerfords ignorance of the visibility of his cell phone does not make the governments tracking unlawful. It is not our contention that is a trespass case. The lower court did not apply Jones and Jardines because in order to do so, this court would have to be convinced that the government made physical contact with Comerfords cell phone or invaded his curtilage aside from its traditional purpose. While trespass case law cannot be applied, the subjective/objective test established under Katz is what we can use to determine whether or not Comerford has a reasonable expectation of privacy.

Furthermore, Comerfords case is consistent with the warrantless exceptions this court has identified. o Similar to U.S. v. Knotts, where the beeper made observing more convienant, the chum provided the cell phones location more efficiently. The balance between allowing the law enforcement to provide security while also abiding by 4th amendment protections is not disrupted here. Visual surveillance could have been used to get the information that was obtained. The chum only provided efficiency in tracking his location. Just like any individual could have seen Knotts transporting the chloroform, anyone could have seen the cell phones whereabouts- and in this case, the cell phone was not directly part of the investigation. o The chum produced limited information. It was not tracking Comerfords person, but his cell phone, which could have been left at home, in his car, or powered off all together. o The government did not access conversations, documents, or other information within the phone, nor did the governments tactic proceed onto private property, like what occurred in U.S. v Karo the ether was tracked through different residences and storage lockers. In Comerfords case, the government was simply tracking the location on public spaces, and reading the data that emits from every phone and using this information to obtain a warrant. Comerfords expectation of privacy was diminished by his public travels. Just as the governmental surveillance in Knotts amounted to law enforcement following the car on a highway, the law enforcements tracking did reveal any more information than if Comerford had been visually surveyed. Comerford voluntarily carried this device with him. In Smith v. Maryland, the petitioner in that case had no reasonable expectation of privacy in the numbers dialed on his phone. Likewise, Comerford could not believe his cell phone reception was unable to be tracked or documented by a third party. Even though he did not receive bills and records of his cellular geographic location, it is common knowledge that in order for his phone to function, he must have a signal that connects to a working cellar tower. o Comerford did not have a reasonable expectation of privacy because he did not take the necessary and sufficient actions to prevent detection, and furthermore, his case is consistent with the warrantless exceptions this court has identified.

Time/Duration issue: It is not the governments position that surveillance and tracking should remain without limits, however we havent reached the threshold where we have to make that decision in this case. Lower court did not concentrate on the issue of time. The central question presented to the Court is not directly related to duration. (whether the warrantless tracking of Cs smartphone violated the 4th amend) It is for these and the aforementioned reasons that the Respondent respectfully requests this court uphold the decision of the lower court.