IPSWICH — As Jun Lin allegedly drove north toward Ipswich and then south, toward casinos in Connecticut, the credit card machine in the back of his cab was leaving what investigators called “electronic breadcrumbs” — GPS data that was being sent back to the company that had installed the device.
Investigators and a grand jury, by subpoenaing the company, later followed that trail to Lin and, ultimately, to his passengers, Sifa Lee and Cheng Sun. All three are charged in the September 2011 attempted robbery and murder of Shui Keung “Tony” Woo, 62, of Quincy, inside the Majestic Dragon restaurant on Route 1 in Ipswich.
But yesterday, attorneys for two of the men argued that the government had no right to the GPS data without first obtaining a search warrant.
“I believe that the defendant has a reasonable expectation of privacy in a taxicab,” said Lawrence McGuire, one of Lee’s attorneys, yesterday.
“Nothing tells him that his comings and goings in that cab are being monitored by a private company,” McGuire said. The machine takes credit card information and sometimes displays an ad. “None of that would alert you to the fact that the same machine would track you from place to place,” he argued.
“I don’t even think most people would think about it,” McGuire said. “Certainly, as of the date Mr. Lee took this cab, he was certainly not aware, and he was certainly not aware that the company would give those records over to the government. I believe Mr. Lee had a reasonable expectation of privacy that no one was tracking his moves.”
And because of that, prosecutors should have been required to show probable cause for a warrant to collect that data, McGuire and Lin’s attorney, Frank Santisi argue.
Because prosecutors didn’t, they should be barred from using any evidence that stemmed from the use of that data when the case goes to trial next month, they said.
But prosecutor Kristen Buxton compared getting into a cab to taking a flight, during which passengers would expect that the plane’s location is being tracked.
In a cab, neither the driver nor passengers ought to have an expectation of privacy, Buxton argued. A dispatcher knows the cab’s location, there’s a meter running, and the cab travels, for the most part, on public roadways, she said.
“I understand Mr. McGuire’s argument that society expects more sophisticated tracking on a commercial airline, but as of 2012, we were well into the cellular phone age, and we’re well aware of the personal technology we carry,” Buxton said.
Most people know by now that even the phones they carry can be used to identify their location, the prosecutor argued.
“As a society, we are now publicly disseminating our information on social media,” Buxton said, suggesting that the public’s expectation of privacy has shifted. “You can Google almost everyone, and people are voluntarily putting themselves on social media and voluntarily using cellphones.”
GPS is ubiquitous, Buxton said. “At this point, GPS tracking isn’t even considered a sophisticated device,” she said, pointing to the sale of GPS tracking devices at Wal-Mart and CVS. Most new cars now have GPS navigation systems, Buxton said.
“This is not the police installing a GPS tracker; this is not the police putting a device on a piece of private property where Mr. Lee or Mr. Lin had an expectation of privacy,” Buxton argued.
That makes it different from being inside one’s home, she argued.
Santisi is also arguing that his client, Lin, essentially “owned” the cab and that he had a greater expectation of privacy than his passengers.
Buxton argued that to the contrary, the cab driver would have a lower expectation of privacy, given that drivers are required to display their license and often are speaking on a phone or by radio to dispatchers during a trip.
Judge David Lowy acknowledged that the public’s view of what is considered private is evolving.
“The expectation of privacy is a fluid concept, more fluid probably than it’s ever been,” Lowy said.
The judge is also mulling a request from the defense to bar the use of cell tower data collected by investigators pursuant to a judge’s order.
Lowy said he expects to take the matter under advisement and issue a ruling later.
Lin, 32, of Malden; Lee, 36, of Quincy; and Sun, 49, of New York, are scheduled to stand trial March 10.
Courts reporter Julie Manganis can be reached at 978-338-2521, via email at email@example.com or on Twitter @SNJulieManganis.