Sixth Circuit Finds That There is No Reasonable Expectation of Privacy in GPS Data Emanating From a Mobile Phone
Melvin Skinner was a courier in a drug-trafficking operation headed by James Michael West. In an attempt to deliver a shipment of marijuana to West, Skinner was tracked by agents of the Drug Enforcement Administration (DEA) using GPS data warrantlessly collected from his cellular phone. Skinner appealed his conviction on the grounds that it violated the Fourth Amendment, but the United States Court of Appeals for the Sixth Circuit upheld his conviction.
In January 2006, Special Agent Dave Lewis of DEA stopped Christopher Shearer in Flagstaff, Ariz., with $362,000 in cash in his vehicle. Shearer, a participant in a drug-trafficking operation headed by James Michael West, had been stopped on his way to deliver money to one of West’s associates, Phillip Apodaca.
Shearer disclosed details of West’s operation to Special Agent Lewis and his co-worker, Special Agent Davis. Shearer disclosed that between 2001 and 2006, Apodaca would send marijuana from Mexico to West, who was in Tennessee, via couriers. Apodaca would provide couriers with pay-as-you-go mobile phones under false names at fictitious addresses. Apodaca and his associates would occasionally discard their phones and obtain new phones with new numbers under other false names. This was done in order to evade law enforcement. However, Apodaca was unaware that these phones were equipped with Global Positioning System (GPS) technology.
In May and June of 2006, law enforcement officers obtained orders to intercept wire communications from two phones which were not disposable pay-as-you-go phones, but were registered to West. They learned, pursuant to the orders, that a courier referred to only as “Big Foot” had recently delivered between $150,000 and $300,000 to Apodaca to pay debts owed and to purchase additional drugs. They further learned that Big Foot would rendezvous with Apodaca in Arizona on July 11, 2006, in order to pick up a 900 pound shipment of marijuana. Big Foot would be driving a “nice [RV] with a diesel engine,” while Big Foot’s son would drive a Ford F-250 pickup truck, both with “Southern license plates.” Big Foot would then depart for West’s home in Mooresburg, Tenn., on Thursday, July 13, 2006.
While aware that multiple phones were being used by West, Big Foot, and their associates, Special Agent Lewis surmised that Big Foot was using a phone with the number (520) 869-6447 (“6447 phone”). On July 12, 2006, Special Agent Lewis obtained an order from a federal magistrate judge “authorizing the phone company to release subscriber information, cell site information, GPS real-time location, and ‘ping’ data for the 6447 phone in order to learn Big Foot’s location while he was en route to deliver the drugs.”
Special Agent Lewis pinged the 6447 phone and discovered that it was in North Carolina. Special Agent Lewis quickly realized he had misinterpreted a wire intercept and that the correct phone number for Big Foot was a (520) 869-6820 number (“6820 phone”). Authorities obtained authorization from a federal magistrate judge allowing the phone company to release the same information for the 6820 phone.
Law enforcement officers continuously pinged the 6820 phone and learned that Big Foot left Arizona on July 14, 2006, and that he was driving eastbound on Interstate-40 through Texas. No visual surveillance was conducted. At 2 a.m. on July 16, 2006, the GPS data indicated the truck had stopped near Abilene, Texas. Special Agents from the DEA office in Lubbock, Texas, were dispatched immediately and discovered a motorhome and a Truck with a Georgia license plate at a truck stop.
Special Agents knocked on the door of the motorhome and Melvin Skinner, the affiliate known as “Big Foot,” answered the door. The Special Agents requested permission to enter, which Skinner denied. A drug-sniffing dog then performed a perimeter sniff and alerted officers as to the presence of drugs in the motorhome. DEA agents then entered the home and discovered two mobile phones, two semiautomatic firearms, and 1,100 pounds or marijuana. Skinner and his son, Samuel, were placed under arrest.
Prior to trial, Skinner sought to suppress the search of the motorhome, alleging that the agents’ use of GPS location information emitted from his cell phone was a warrantless search that violated the Fourth Amendment. His suppression motion was denied and Skinner was convicted by a jury on two counts related to drug trafficking and one count of conspiracy to commit money laundering in the United States District Court for the Eastern District of Tennessee. Skinner was sentenced to 235 months imprisonment.
Skinner appealed his conviction to the United States Court of Appeals for the Sixth Circuit, in part relying on recent Supreme Court precedent in United States v. Jones, 565 U.S. ____(2012), where the Supreme Court ruled that officers violated the constitution when they physically placed a GPS tracking device on a vehicle without a warrant, thus trespassing, and then monitored the suspect’s movement for 28 days. Skinner again argued that the use of GPS data emitted from his phone amounted to a warrantless search in violation of the fourth Amendment.
The court of appeals held that there was no reasonable expectation of privacy in the GPS data emitted by a pay-as-you-go mobile phone. The court of appeals restated Supreme Court precedent from United States v. Knotts, 460 U.S. 276 (1983), stating that a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”
The court of appeals also relied upon precedent from United States v. Forest, 355 F.3d 942 (6th Cir. 2004), where DEA agents were visually trailing a suspect, lost sight of him, and then pinged his phone to re-establish his location and visual surveillance. Although the DEA agents in Forest “were not able to maintain visual contact with [the defendant’s] car at all times, visual observation was possible by any member of the public. The DEA agents simply used the cell-site data to ‘augment the sensory faculties bestowed upon them at birth,’ which is permissible under Knotts.”
Skinner argued that in his case, officers did not merely use trackers to aid their visual observation as had been the case in Knotts or Forest, but to completely replace visual observation. Further, Skinner argued, his identity, the exact nature of his movements, and the make and model of his vehicle had been unknown to police, and thus they could not have effectively engaged in visual observation. The court of appeals found these distinctions unimportant; Skinner’s movements could have been tracked by any member of the public, and thus there was no violation in monitoring his GPS data. Although agents did not know Skinner’s identity, they knew the identity of his affiliates, and monitoring them would have revealed Skinner’s identity anyhow when he engaged in a pick up or delivery of cash or drugs with either West or Apodaca.
Furthermore, the government’s case was strengthened, the court of appeals reasoned, because even if it did not obtain a warrant, it obtained a court order to release the phone information. Also, the court of appeals held, this case was unlike the Jones precedent because officers did not physically trespass to place a tracking device, nor did they track Skinner for 28 days, which had been the case in Jones.
The court of appeals thus concluded by noting that because “authorities tracked a known number that was voluntarily used while traveling on public thoroughfares, Skinner did not have a reasonable expectation of privacy in the GPS data and location of his cell phone. Therefore, suppression is not warranted and the district court correctly denied Skinner’s motion to suppress.”
You can read the full text of this case, United States vs. Skinner, by clicking here.