CA6: No REP in cell phone location data coming from phone

Real time capturing data to trace a “pay-as-you-go cell phone” was not a Fourth Amendment violation because there no reasonable expectation of privacy in that data coming from the phone to the provider. This is no different that just tailing the defendant. United States v. Skinner, 690 F.3d 772, 2012 FED App. 0864P (6th Cir. 2012):

When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them. This is not a case in which the government secretly placed a tracking device in someone’s car. The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross country shipment of drugs. Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.

The government used data emanating from Melvin Skinner’s pay-as-you-go cell phone to determine its real-time location. This information was used to establish Skinner’s location as he transported drugs along public thoroughfares between Arizona and Tennessee. As a result of tracking the cell phone, DEA agents located Skinner and his son at a rest stop near Abilene, Texas, with a motorhome filled with over 1,100 pounds of marijuana. The district court denied Skinner’s motion to suppress all evidence obtained as a result of the search of his vehicle, and Skinner was later convicted of two counts related to drug trafficking and one count of conspiracy to commit money laundering. The convictions must be upheld as there was no Fourth Amendment violation, and Skinner’s other arguments on appeal lack merit. In short, Skinner did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location.

. . .

No such extreme comprehensive tracking is present in this case. Justice Alito’s concurrence and the majority in Jones both recognized that there is little precedent for what constitutes a level of comprehensive tracking that would violate the Fourth Amendment. Id. at 954, 964. Skinner’s case, however, comes nowhere near that line. While Jones involved intensive monitoring over a 28-day period, here the DEA agents only tracked Skinner’s cell phone for three days. Such “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.” Id. at 964 (Alito, J., concurring) (citing Knotts, 460 U.S. at 281–82). Here, the monitoring of the location of the contraband-carrying vehicle as it crossed the country is no more of a comprehensively invasive search than if instead the car was identified in Arizona and then tracked visually and the search handed off from one local authority to another as the vehicles progressed. That the officers were able to use less expensive and more efficient means to track the vehicles is only to their credit.

WSJ: Sixth Circuit: No Expectation of Privacy in Cell Phone GPS Data; Skinning the Fourth Amendment: The Sixth Circuit’s Awful GPS Tracking Decision by Julian Sanchez, Volokh Conspiracy: Sixth Circuit Rules That Pinging a Cell Phone to Determine Its Location is Not a Fourth Amendment “Search” by Orin Kerr.