Is the Government’s use of GPS information coming from a cell phone to track your real-time position without a warrant a violation of the Fourth Amendment to the Constitution?

By Nicholas M Nighswander

The United States Court of Appeals for the Sixth Circuit, which covers Michigan, Ohio, Kentucky, and Tennessee considered this issue in the recent case of United States of America v. Melvin Skinner, decided and filed on August 14, 2012.

Mr. Skinner was involved with a man named James West who was running a large scale interstate drug-trafficking operation. The operation would use various pay-as-you-go cell phones that would be purchased with a fake name, assigned a call number, given to couriers to communicate with on a drup trip, and eventually discarded.

In 2006, DEA agents got wind of West’s use of such telephones on a particular occasion. They obtained a search warrant to track the location of the use of certain numbered telephones by cell tower pings. The DEA also had a search warrant for a wire tap of West’s regular telephones. It was through the wire tap of West’s telephones that the DEA learned of a courier by the name of Big Foot and that he would be using a certain cell phone number on a trip starting from Tennessee to Arizona and back to Tennessee to bring marijuana to West’s home in the Knoxville area. Big Foot was later identified as Mr. Skinner and the pay-as-you-go cell telephone was not assigned to him by name or telephone number. It was just a telephone given to him to use for this trip.

By continuously pinging the cell phone number in Big Foot’s possession, the DEA was able to track his location without visual surveillance. They knew when he left Arizona and that he was travelling east on Interstate 40 through New Mexico and into Texas. At around 2:00 a.m. on July 16, 2006, the pings indicated Big Foot had stopped at a rest stop near Abilene, Texas. At the rest stop, the DEA agents located a motor home associated with the pings. An agent approached the vehicle, knocked on the door and identified himself. He then asked the person who opened the door to the vehicle to allow him to search it. The person, later identified as Mr. Skinner, refused. The agents then used a drug sniffing dog to verify the presence of drugs for probable cause to search the vehicle without a warrant. In the search, cash and 1,100 pounds of baled marijuana was found and Mr. Skinner and his son, who accompanied him, were arrested.

Mr. Skinner was charged with conspiracy to distribute and intent to possess to distribute in excess of 1,000 kilograms of marijuana; conspiracy to commit money laundering; and aiding and abetting the attempt to distribute more than 100 kilograms of marijuana.

Prior to trial, Mr. Skinner moved to suppress the evidence against him on the basis that the GPS tracking of the cell phone he was using was a warrantless search that violated the Fourth Amendment. The trial court denied his motion on the basis that he lacked standing to challenge the use of the pinging to track him as the phone he was using was not assigned to him or in his name. The phone and the motorhome were purchased by West as part of the drug-trafficking operation and not in Mr. Skinner’s name and therefore he did not have a reasonable expectation of privacy in using the phone or the motor home that was used on the public roadways.

After a ten-day trial, Mr. Skinner was convicted on all counts. His motions for a directed verdict of acquittal and for a new trial were denied and he appealed to the Sixth Circuit.

The Sixth Circuit affirmed the trial court’s denial of the motion to suppress and the conviction of Mr. Skinner. In doing so, the Sixth Circuit opined that cell phone pinging by law enforcement is a proxy for the Defendant’s visually observable location by the public and does not create the need for a warrant under the Fourth Amendment.

Tip: The Fourth Amendment may come into effect and give you standing to challenge a search of your cell phone if the phone is in your name and the number is assigned to you personally. The use of electronic mail and text messages on cell phones or smart phones means that the search of such devices by law enforcement will continue with more cases to be decided by the courts.

A full text of the United States Sixth Circuit Court of Appeals Opinion can be found at:

http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf

This case is not yet final and cannot be cited as authority until then.

Know your rights and stay within the law.

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