(CN) – Using GPS data to track the owner of a pay-as-you-go cell phone is constitutional and akin to using dogs to hunt a fugitive, the 6th Circuit ruled.
“The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools,” Judge John Rogers wrote for the federal appeals panel in Cincinnati. “Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent.”
The court on Tuesday upheld the conviction of Melvin Skinner, a drug runner whose cell phone led police to a rest stop near Abilene, Texas, where they found Skinner and a motor home filled with more than 1,100 pounds of marijuana.
Rogers noted that criminals often use pay-as-you-go phones, presumably because they are more difficult to trace.
“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,” Rogers wrote. “This is not a case in which the government secretly placed a tracking device in someone’s car.”
According to the ruling, Skinner was a runner in a large-scale drug-trafficking operation led by James Michael West. West had a supplier in Tucson, Ariz., who would send marijuana obtained in Mexico to West in Tennessee via couriers like Skinner.
West and his conspirators bought and used pay-as-you-go phones that they programmed with contact information and then threw away.
In May and June 2006, authorities obtained court orders allowing them to intercept calls from two of West’s regular phones, not the pay-as-you-go kind. Through these, they learned that West used a truck driver nicknamed “Big Foot” as a runner.
“Big Foot” turned out to be Skinner, who was arrested and charged with various drug-related crimes, including possession with the intent to distribute and conspiracy to commit money laundering. He was convicted on all counts and sentenced to more than 19 years in prison.
Skinner appealed, claiming law enforcement’s use of GPS data from his cell phone was a warrantless search in violation of the Fourth Amendment.
The 6th Circuit 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.
In a footnote, he added: “We do not mean to suggest that there was no reasonable expectation of privacy because Skinner’s phone was used in the commission of a crime, or that the cell phone was illegally possessed. On the contrary, an innocent actor would similarly lack a reasonable expectation of privacy in the inherent external locatability of a tool that he or she bought.” (Original emphasis.)
Judge Bernice Donald agreed that there was enough evidence to convict Skinner, but departed from the majority’s view that the truck driver lacked a reasonable expectation of privacy in the GPS tracking data.
“In my view, acquisition of this information constitutes a search within the meaning of the Fourth Amendment, and, consequently, the officers were required to either obtain a warrant supported by probable cause or establish the applicability of an exception to the warrant requirement,” Donald wrote.
She said her colleagues’ opinion implies that Skinner lacked this expectation of privacy merely because he used the phone to commit a crime.
“I would not characterize the question before us as whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from a cell phone used to effectuate drug trafficking,” Donald wrote. “Rather … the question is simply whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from any cell phone.”
Saying she “would answer this question in the affirmative,” Donald dissented from that part of the majority’s decision.