Federal Appeals Court: Tracking Suspect Via GPS Data From Cell Phone Is Like Using Dogs To Follow a Scent

Marijuana seized by the Thai narcotic police department

Photo by NICOLAS ASFOURI/AFP/Getty Images

Today, the 6th Circuit Court of Appeals ruled that a suspect in a drug ring had no reasonable expectation of privacy when using a pay-as-you-go cell phone.

In 2006, the DEA was investigating an operation that smuggled marijuana out of Mexico. They uncovered the fact that a courier known as “Big Foot” used a specific non-contract mobile phone, but it had been registered under a fake name. So they received a judge’s order—not a warrant—to use the GPS data emitted from the phone to hunt down Big Foot. The data trail took them to a Texas rest stop and the door of Melvin Skinner’s motorhome, which was found to contain more than 1,100 pounds of marijuana. Skinner and his son were both arrested.

After he was convicted, Skinner appealed, arguing that tracking him via GPS data violated his Fourth Amendment rights.

In today’s ruling (PDF), the 6th Circuit held 2-1 that the DEA was within its rights to electronically tail Skinner. Writing for the majority, Judge John M. Rogers likened the use of GPS data in this case to having a dog track a suspect’s scent or following his car. “There is no inherent constitutional difference between trailing a defendant and tracking him via such technology,” Rogers writes.

The Supreme Court recently ruled that law enforcement may not place a GPS device on a suspect’s car. However, the 6th Circuit majority said that the violation in that case occurred in physically trespassing on the suspect’s property. But in using information emitted by a cell phone, no such transgression occurs: “[T]he Government never had physical contact with Skinner’s cell phone; he obtained it, GPS technology and all, and could not object to its presence.”

The ruling paid special attention to the fact that Skinner was using a no-contract, pay-as-you-go phone—presumably, it said, because he thought it would be more difficult to track. If criminals can take advantage of that technology, said the opinion, so too should police.

As David Kravets notes on Danger Room, the majority opinion contradicts that of a 2010 3rd Circuit ruling, while the 5th Circuit is currently facing a similar case. That makes it seem likely that the Supreme Court will have to settle this in the future.

A footnote in the majority opinion will be particularly worrying to civil liberties activists:

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.

A third judge, Bernice B. Donald, dissented in part. Though she agreed with the decision to uphold Skinner’s conviction on separate grounds, she disputed the argument that GPS data should be fair game. She writes:

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. Rather, in keeping with the principle that the law affords the same constitutional protections to criminals and law-abiding citizens alike, the question is simply whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from any cell phone.

Until there is a clear decision here, if you want to keep your whereabouts to yourself, turn off the GPS function.