A federal appeals court has further muddied the waters regarding cellphone tracking, ruling that it's permissible for police to use data emitted by cellphones to track suspects without a warrant.
On the face of it, Tuesday's (Aug. 14) ruling seems to go against a Supreme Court ruling in January that threw out a conviction based on warrantless GPS tracking. But the Supreme Court decision was so narrowly written that it covered only the physical placement of stand-alone GPS tracking devices — not the wireless data emitted by cellphones.
In a partly unanimous ruling, the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, upheld a lower court's refusal of Melvin Skinner's motion to suppress evidence in his conviction for drug trafficking and money laundering.
Two judges ruled that the cellphone tracking data was entirely admissible.
"When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them," wrote Judge John M. Rogers for the majority.
The third, Judge Bernice B. Donald, dissented. She wrote she thought there should have been a search warrant, but upheld Skinner's conviction anyway on grounds that authorities thought the court order to obtain cell-tower and GPS records from the cellular-service provider was enough.
"Officers relied in good faith on a court order, issued by a neutral and detached magistrate, which they reasonably believed authorized them to collect GPS-location information," wrote Donald.
Skinner, a drug courier who regularly hauled large shipments of marijuana from Arizona to Tennessee, was busted in July 2006 along Interstate 20 near Abilene, Texas, at the wheel of a recreational vehicle containing half a ton of pot.
Authorities only had a vague idea of the vehicle Skinner was driving, and, before the bust, didn't even know his name. Instead, they tracked Skinner's prepaid "burner" cellphone, which they knew the Arizona marijuana distributor had given him, from Arizona to Texas using cell-tower "pings" and GPS signals.
The authorities had obtained a court order for the cellular service provider to hand over the cell-tower and GPS data, but they did not seek a search warrant. According to Skinner's lawyers, the failure to obtain a search warrant made the tracking of the phone a violation of the Fourth Amendment prohibiting unreasonable searches and seizures.
Rogers' majority opinion disagreed.
"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," Rogers wrote. "If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal."
"The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent," Rogers added.
"The recent nature of cellphone-location technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car's paint."
Donald's dissent hinged on the distinction that the GPS and cell-tower data did not augment what law-enforcement personnel could see and hear with their own eyes and ears, but rather substituted for the officers' "natural-born" senses — an important point in citing previous rulings regarding search and surveillance.
"Authorities did not know the identity of their suspect, the specific make and model of the vehicle he would be driving or the particular route by which he would be traveling. Moreover, officers could not have divined any of this information without the GPS data emitted from Skinner's phone," Donald wrote. "Therefore, they cannot be said to have merely 'augmented the sensory faculties bestowed upon them at birth.'"
Sidestepping the Supreme Court— for now
The Skinner ruling does not contradict the Supreme Court's unanimous ruling in U.S. v. Jones, which threw out the conviction of a Washington, D.C.-area drug dealer on the grounds that the physical placement of a GPS tracking device on a private car without a warrant was unconstitutional.
The Jones case hinged on a physical act, and the majority opinion did not address nonphysical searches. (Four of the nine justices wrote a separate opinion that, ideally, nonphysical searches should be covered by the Fourth Amendment as well.)
Rogers' majority opinion in Skinner separated his ruling from Jones.
"This is not a case in which the government secretly placed a tracking device in someone's car," he wrote. "The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cellphones to communicate during the crosscountry shipment of drugs. Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected."
Nevertheless, Supreme Court Justice Sonia Sotomayor in January anticipated a case such as Skinner in her concurring opinion in Jones.
"With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones," Sotomayor wrote. "It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age."
"I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year," Sotomayor added.
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