In the brief, Frosh argued that in not turning off his cellphone, Andrews had consented to warrantless government surveillance, because phones' locations can be derived by an examination of phone company records.
"The government has indeed repeatedly argued that there is no [reasonable expectation of privacy] in cell phone location information, in court and out," Nathan Wessler, a staff attorney with the ACLU's speech, privacy and technology project, told Motherboard in an email. "In cases involving historical cell site location information, the government has danced around this argument, arguing that phone users give up their expectation of privacy in their location information merely by making and receiving calls."
Now the state of Maryland is saying that simply having a cell phone switched on is enough to nullify that protection, something which police, prosecutors and courts have hinted at before.
"Andrews … was quite aware that he was bringing his own cell phone into the house. And he was quite capable of turning it off," the state wrote. "The issue is whether Andrews can claim an objectively reasonable expectation of privacy in information which he was voluntarily broadcasting to third parties at all times."
Maryland Attorney General: If You Don't Want To Be Tracked, Turn Off Your Phone