Constitutional Law

6th Circuit OKs Warrantless Tracking of Cellphones

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Tracking a user’s cellphone location without a warrant using GPS technology is different than putting a GPS tracking device on a motorist’s vehicle without a warrant, a federal appeals court says.

Hence, the Cincinnati-based 6th U.S. Circuit Court of Appeals has upheld the drug conviction of a man found with his son near a Texas rest stop with over 1,000 pounds of marijuana in their motor home. Because he had no reasonable expectation of privacy concerning the location of the device, the court ruled, there was no Fourth Amendment violation.

“This is not a case in which the government secretly placed a tracking device in someone’s car,” says the court in a Tuesday opinion (PDF).

“The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross-country shipment of drugs. Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.”

Why are the two different types of electronic tracking distinguishable?

In denying a motion to suppress earlier in the case, a magistrate judge focused on the fact that the phone was not subscribed in the name of the defendant, Melvin Skinner, as well as its location on a public roadway as the motor home was driven toward the rest stop. The judge also noted that the phone was purchased as part of a criminal enterprise, and said a good-faith exception would have applied even if a Fourth Amendment violation had been found.

However, the appeals court seemed to be thinking along somewhat different lines, as it compared the cellphone being “pinged” in this case to a suspect being pursued by a bloodhound, based on his scent, or by police, based on his license plate number or a custom paint job on his vehicle.

Regardless of whether the individual knew he could be identified in this manner, the situations all have in common that the person being tracked was visible to the naked eye, or at least could have been pursued in essentially the same way both physically and electronically, according to the opinion.

“Skinner counters that … the DEA agents in his case had never established visual surveillance of his movements, did not know his identity, and did not know the make or model of the vehicle he was driving (although they did know it was a motor home that was accompanied by a pickup truck),” the appeals court wrote.

However, even if the the “sensory faculties” of the agents alone would not have been sufficient to keep Skinner in the DEA’s sights, the court continued, “the defendant’s movements could have been observed by any member of the public … . As for not knowing his identity, this is irrelevant because the agents knew the identity of Skinner’s co-conspirators and could have simply monitored their whereabouts to discover Skinner’s identity. Using a more efficient means of discovering this information does not amount to a Fourth Amendment violation. In any event, we determine whether a defendant’s reasonable expectation of privacy has been violated by looking at what the defendant is disclosing to the public, and not what information is known to the police.”

Hat tip: CNET News

Related coverage: “Supreme Court Rules Attaching GPS Device to Car Is a Search; Case Is ‘Big Loss’ for U.S.” “Appeals Court OKs Detective’s Warrantless Use of Suspect’s Seized Cellphone to Text His Contacts” “It Isn’t Necessarily Big Brother, But Somebody Is Potentially Watching, Virtually All the Time”

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