Drug dealers, beware. You’re pay-as-you-go phones probably have GPS. And, according to a federal appeals court in Cincinnati, police can track the signal they emit without a warrant.
Sixth Circuit: No Expectation of Privacy in Cell Phone GPS Data
Aug 14, 2012 12:11 pm ET
Drug dealers, beware. Your pay-as-you-go phones probably have GPS. And, according to a federal appeals court in Cincinnati, police can track the signal they emit without a warrant.
The U.S. Court of Appeals for the Sixth Circuit ruled that the Drug Enforcement Administration committed no Fourth Amendment violation in using a drug runner’s cellphone data to track his whereabouts. The DEA obtained a court order to track Melvin Skinner’s phone, after finding his number in the course of an investigation of a large-scale drug trafficking operation.
The DEA didn’t know much about Mr. Skinner or what he looked like. They knew him as Big Foot, the drug mule, and they suspected he was communicating with the leader of the trafficking operation via a secret phone that had been registered under a false name. Agents used the GPS data from his throw-away phone to track him, and he was arrested in 2006 at a rest stop near Abilene, Texas, with a motorhome filled with more than 1,100 pounds of marijuana.
Mr. Skinner was convicted of drug trafficking and conspiracy to commit money laundering. On appeal, he argued that the data emitted from his cell phone couldn’t be used because the DEA failed to obtain a warrant for it, in violation of the Fourth Amendment.
The question in the case was whether Mr. Skinner had a reasonable expectation of privacy in the data his phone emitted. It’s a question that several courts are wrestling with. Federal law enforcement authorities, as in this case, say that investigators don’t need search warrants to gather such information.
Justice Department lawyers argued in a court brief that “a suspect’s presence in a publicly observable place is not information subject to Fourth Amendment protection.”
Judge John M. Rogers, writing for the majority, agreed:
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. 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. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police.
He was joined by Judge Eric L. Clay. Judge Bernice B. Donald, who concurred but disagreed with the majority’s Fourth Amendment reasoning, said the DEA couldn’t have figured out the identity of Mr. Skinner, the make and model of his vehicle or the route he would be driving without the GPS data from his phone.
“It is not accurate…to say that police in this case acquired only information that they could have otherwise seen with the naked eye,” she wrote. “While it is true that visual observation of Skinner was possible by any member of the public, the public would first have to know that it was Skinner they ought to observe.”
A lawyer for Mr. Skinner didn’t immediately respond to a request for comment.
Correction: An earlier version of this post said Judge Donald dissented. She concurred in part and concurred in the judgment of the court.
gps cell phone tracking