Earlier this week, the U.S. Court of Appeals for the Sixth Circuit held that police can track cell phone signals in order to monitor criminal activity without first obtaining a search warrant.

The court determined that the Drug Enforcement Administration (DEA) did not violate the Fourth Amendment when it used cellphone data to track a drug runner’s whereabouts, according to the Wall Street Journal.

The DEA obtained a court order to track Melvin Skinner’s phone, after discovering his phone number over the course of a large-scale drug trafficking operation investigation.

Skinner was convicted of drug trafficking and conspiracy to commit money laundering after DEA agents used the GPS data from his throw-away phone to track him.  He was originally arrested in 2006 at a rest stop near Abilene, Texas, with a motor home filled with more than 1,100 pounds of marijuana.

On appeal, Skinner argued that the DEA violated his right Fourth Amendment right to be free from unreasonable searches and seizures because agents failed to obtain a warrant before they tracked his cell phone.

Reasonable Expectation to Privacy in Cell Phone Data?

The question presented 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. And a question that the 6th Circuit answered in the negative, as demonstrated by the following excerpt from the majority opinion authored by Judge John M. Rogers:

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.

Rogers' opinion was joined by Judge Eric L. Clay.

Judge Bernice B. Donald, who concurred but disagreed with the majority’s reasoning, said that the DEA couldn't have figured out the identity of Mr. Skinner, his vehicle or the route he would be driving without the GPS data from his phone.

Judge Rogers' reasoning in part relied upon the ever present concern that criminals are constantly searching for ways to be one step ahead of law enforcement officials, especially through new innovative technological advancements. Notwithstanding the courts reasoning, this decision is  a victory for law enforcement officials throughout the United States.

We will have to watch and see whether the Supreme Court will step in and grant cert in this case.

What do you think?

 

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