The United States Court of Appeals for the Sixth Circuit has ruled that police may track the signals eminating from wireless devices, such as cell phones, owned by a person. In United States v Skinner, the court found that a drug dealer whose position was being tracked by the DEA as he and his son drove to Abilene, TX in a motor home containing 1,100 pounds of marijuana, two cell phones and two pistols had no claim of violation of their Fourth Amendment rights.
The court’s ruling is clear: “There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay as-you-go cell phone.”
The DEA had tracked the vehicle repeatedly as it drove on public thoroughfares across the country. In one incident, as it made its way from New Mexico by pinging it – sending requests to the device for location information and analyzing the response. Earlier, the police had associated that pay-as-you-go phone with Skinner.
When police arrived at the mobile home, they were denied entry, however a drug-sniffing K-9 at the doorway indicated the presence of drugs inside. Police searched, discovered the dope, the guns and the phones, and Skinner and his son Samuel were arrested.
Skinner was convicted of conspiracy to distribute and possess with intent to distribute in excess of 1,000 kilograms of marijuana, conspiracy to commit money laundering, and related charges. He was sentenced to 235 months’ imprisonment. Skinner appealed, saying that the use of the GPS information in his phone was a warrantless search that bviolated his Fourth Amendment rights.
The court placed the actions of the police in tracking a suspect’s location by pinging his cell phone in stark and specific contrast to US v Jones, in which the Supreme Court ruled that installation by the police of GPS tracking devices was, like, totally uncool.
This case is different from the recent Supreme Court decision in United States
v. Jones, 132 S. Ct. 945 (2012). That case involved the secret placement of a tracking
device on the defendant’s car, id. at 948, and the Court’s opinion explicitly relied on the
trespassory nature of the police action.
By ruling in this way, the court has acknowledged that it is specifically legal to engage in a range of law enforcement activities which until today had lived in a sort of nether-world or gray area of the law.
That the geographical tracking of people who voluntarily equip themselves with communications devices that give off information which can be used to calculate their location is legal opens some clearly useful investigative doors.
There is a range of circumstances in which this ability will be very useful to law enforcement as it seeks to promote public safety, such as use of cellular data to find witnesses to and suspects in gun assaults, to track violent fugitives or even to assure that those barred from certain geographic areas, such as those against whom an Order of Protection has been filed or sex offenders, maintain their distance from barred territory. To be able to track pedophiles, registered sex offenders or violent felons and insure they keep their distance is surely a clearly good use of technology.
Consider also, for example, the case study of use of cellular tower data to determine those present at a specific place at a specific time in which gunshots are fired. In our paid work as consultants to ShotSpotter, the gunshot detection technology vendor, Dave and I have been studying with the help of agencies around the country the problem of finding witnesses to and suspects in gun assaults.
Because ShotSpotter is able to establish a precise time and a location within 25 meters of a gunshot, police agencies are able to write subpoenas or search warrants requesting cellular tower information about the presence of devices at an exact time, without requesting too much data. In our opinion, this limits the intrusiveness upon the privacy of individuals by limiting to a very precise and narrow window the request for information.
The court would seem to agree with this finding. Referring to Skinner, the court said,
…[T]he monitoring of the location of the contraband-carrying vehicle as it crossed the country is no more of a comprehensively invasive search than if instead the car was identified in Arizona and then tracked visually and the search handed off from one local authority to another as the vehicles progressed. That the officers were able to use less expensive and more efficient means to track the vehicles is only to their credit.
Perhaps the most important single statement in the ruling refers to the fact that there is no Fourth Amendment violation in use of these techniques because there is no reasonable expectation of privacy in the voluntary use of a voluntarily bought phone – even one that is pay-as-you-go. Criminals have long believed that the lack of a contract is some magical way of disallowing attribution of a device to a specific person, which is clearly not the case if the device is found upon his person at the time of arrest. And very simply, the court found that
If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.