6th Circuit Decides Cell-Phone Tracking Case

In January, when the United States Supreme Court finally ruled in United States v. Jones, the long-awaited Global Positioning System (GPS) tracking device case, its “decision” created more questions than it answered. It held that the installation of a GPS tracking device on a private vehicle in a public place and the subsequent use of the tracking device to monitor the vehicle’s movements in public areas were “searches” within the meaning of the Fourth Amendment—notwithstanding its earlier decisions that seemed to run to the contrary. 

For example, in United States v. Knotts (1983), the Supreme Court had held that attaching a “beeper”-type tracking device to a vehicle parked in a public area, and subsequently monitoring the public area movements of that vehicle, were not searches—because those actions did not intrude upon “reasonable expectations of privacy,” a term created in Katz v. United States (1967) to define “search.”

The Fourth Amendment in its own terms protects the right of the people to be secure “in their persons, houses, papers, and effects” against unreasonable government searches and seizures.  So, in the simplest and purest historical sense of that language, the Fourth Amendment protects citizens from government intrusions on personal property, as such property existed in the 1700s. 

A succession of search and seizure cases since that time have attempted to explain exactly what are searches, what are seizures, and when are they reasonable. These efforts led to the decision in Katz, which extended Fourth Amendment protections beyond the physical boundaries of “persons, houses, papers and effects” as originally expressed by the founders. 

As electronic technology rapidly advanced, the Court strained to delineate the boundaries of privacy and Fourth Amendment protections. In Jones, the Court reached back to original Fourth Amendment language and addressed the “search” question without relying on the more contemporary “reasonable expectation of privacy” cases. The Jones majority says a vehicle is an “effect” within the meaning of the Fourth Amendment, and, as such, it is constitutionally protected property. 

When police attached the GPS tracking device to the vehicle, they encroached on that protected property, committing a “trespass” against that property. The Jones case emphatically states, “The Government physically occupied private property for the purpose of obtaining information,” and that is a “search” in truest sense of the Fourth Amendment. According to the Court in Jones, the Katz concept of protecting people’s “reasonable expectation of privacy” is an additional protection against unreasonable government searches. 

The Court’s reliance on 1700s terminology to answer a contemporary high-tech search and seizure question, rather than on the modern definition of “search,” certainly muddied the waters in this area. Going forward from Jones, lower courts could analyze GPS tracking cases under this Jones-style physical intrusion theory, or the more expected Katz-style “reasonable expectation of privacy” approach, or both. An August decision of the United States Court of Appeals for the Sixth Circuit in United States v. Skinner provides interesting guidance on how some of this might go.

United States v. Skinner
In the Skinner case, the government used data emanating from Melvin Skinner’s pay-as-you-go cell phone to establish Skinner’s location as he transported drugs along public thoroughfares on a round trip between Arizona and Tennessee. DEA agents were thereby able to locate Skinner and his son at a rest stop near Abilene, Texas, with a motor home containing more than 1,100 pounds of marijuana. The Sixth Circuit Appeals Court explains its decision in this way.

“This case is different from the recent Supreme Court decision in United States v. Jones. That case involved the secret placement of a tracking device on the defendant’s car … and the Court’s opinion explicitly relied on the trespassory nature of the police action … No such physical intrusion occurred in Skinner’s case. Skinner himself obtained the cell phone for the purpose of communication, and that phone included the GPS technology used to track the phone’s whereabouts.” 

“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 Court led off its opinion with these words: “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.” 

It continued, “This conclusion is directly supported by United States v. Knotts, where the Supreme Court stated, ‘A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ … There is no inherent constitutional difference between trailing a defendant and tracking him via such technology. Law enforcement tactics must be allowed to advance with chronological changes, in order to prevent criminals from circumventing the justice system.” 

The Sixth Circuit also notes, “Skinner’s case also does not present the concern raised by Justice Alito’s concurrence in Jones that there may be situations where police, using otherwise legal methods, so comprehensively track a person’s activities that the very comprehensiveness of the tracking is unreasonable for Fourth Amendment purposes. … No such extreme comprehensive tracking is present in this case. … While Jones involved intensive monitoring over a 28-day period, here the DEA agents only tracked Skinner’s cell phone for three days …”

The Sixth Circuit then added that such “relatively short-term monitoring of a person’s movements on public streets” does not offend contemporary notions of reasonable privacy expectations. Stay tuned. As this case demonstrates, it’s going to get interesting.

Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at rbmeans@aol.com.

Published in Law and Order, Nov 2012

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