Sixth Circuit Approves Warrantless Tracking of Cell Phone Location
By Michael Hoven – Edited by Andrew Crocker
United States v. Skinner, No. 09-6497 (6th Cir. Aug. 14, 2012)
The Court of Appeals for the Sixth Circuit upheld a jury’s conviction of Melvin Skinner on two counts related to drug trafficking and one count of conspiracy to commit money laundering, rejecting Skinner’s argument on appeal that the district court had wrongly denied his motion to suppress evidence on the grounds that it was obtained through an unlawful search.
The Sixth Circuit held that law enforcement did not need a warrant to track Skinner through cell-site information, GPS location, and “ping” data. Because Skinner had “no reasonable expectation of privacy in the data given off” by his phone, the police were free to collect and use that data, and there was no violation of the Fourth Amendment. Skinner, No. 09-6497, slip op. at 6. In so holding, the court distinguished its case from United States v. Jones, 132 S. Ct. 945 (2012) (previously covered by the Digest), in which the Supreme Court held that placing a GPS tracking device on a car violated the Fourth Amendment. Unlike Jones, in which police trespassed onto private property, Skinner purchased the phone himself and the phone freely emitted signals that revealed his location, which eliminated any reasonable expectation of privacy on Skinner’s part.
Bloomberg Businessweek provides an overview of the case. Several commentators, including Orin Kerr at the Volokh Conspiracy, Jennifer Granick at the Center for Internet and Society, and Julian Sanchez at Cato @ Liberty, criticize the court’s discussion of cell phone technology, noting that pinging a cell phone is a request for the cell phone to return a signal, and therefore ping data is not “given off” in the way the court appears to conceive.
In 2006, the Drug Enforcement Administration (“DEA”) learned that Skinner planned to pick up a large shipment of marijuana in Tucson, Arizona and got a court order (but not a warrant) that authorized Skinner’s phone company “to release subscriber information, cell site information, GPS real-time location, and ‘ping’ data” for his phone. Skinner, No. 09-6497, slip op. at 4. As Skinner left Tucson, the DEA tracked him “[b]y continuously ‘pinging’” his phone. Id. Two days later, the DEA used GPS data to determine that Skinner had stopped in Abilene, Texas, and a search of his motor home (after a police dog detected drugs) uncovered 1,100 pounds of marijuana. Skinner sought to suppress all evidence from the search of his motor home, but his motion was denied. In holding as it did, the Sixth Circuit reasoned that Skinner’s voluntary use of a phone that emitted data regarding his location deprived him of any reasonable expectation of privacy. The court analogized Skinner’s cell phone signals to the paint on a getaway car or the scent of a fugitive being tracked by dogs; police are not barred from taking advantage of those facts, so they cannot be barred from taking advantage of the “inherent external locatability” of a cell phone. Id. at 7 n. 1.
Judge Donald concurred, but disagreed with the majority’s analysis of the Fourth Amendment. The concurrence would have held that acquiring “GPS data emitted from [Skinner’s] cellular phone” was a search under the Fourth Amendment, and therefore required a warrant. Id. at 17. Judge Donald argued that Skinner had a reasonable expectation of privacy because Skinner (erroneously) believed his location was private and “society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from any cell phone.” Id. at 20 (Donald, J., concurring). However, Judge Donald concurred in the judgment, concluding that the good faith exception to the exclusionary rule covered the search, and on those grounds Skinner’s motion to suppress was properly denied.
After Jones, law enforcement has made greater use of cell phone data to track suspects, as Wired notes, and there is an open question as to whether the collection of real-time or historical cell phone location data requires a warrant. Skinner settles the question for real-time tracking in the Sixth Circuit, and interprets Jones as largely inapplicable to tracking suspects through cell phone data. Whether other circuits will follow is uncertain; the Fifth Circuit is currently considering whether warrants are needed to get historical cell-site data, and its decision could be the first step toward stability in Fourth Amendment case law or create a split that the Supreme Court may need to resolve.