Federal Corner: Pinging: The Newest Sport for Law Enforcement Officers - By F. R. Buck Files Jr.

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Wednesday, October 3rd, 2012

On August 14, 2012, The United States Court of Appeals for the Sixth Circuit affirmed the conviction of Melvin Skinner, a drug defendant whom law enforcement officers had tracked—by using data from Skinner’s cell phone—from Tucson, Arizona, to near Abilene, Texas, where they arrested him. United States v. Skinner, ___ F.3d ___, 2012 WL 3289801 (6th Cir. 2012)

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The August 27, 2012 edition of Time included an article entitled “The Phone Knows All—How Companies and Cops Snoop on Your Digital Life, Whether You Realize It or Not” by Massimo Calabresi.

If you will take the time to read each of these, you will realize how the cellular telephone has become law enforcement’s new best friend.

James Michael West was the kingpin in a drug trafficking operation that reached from North Carolina to Arizona. Federal law enforcement officers obtained court orders permitting them to intercept calls made to and from two telephones that were subscribed in West’s name. As the result of their monitoring these telephone calls, the officers learned that West used Skinner as a driver to deliver money to a drug dealer in Arizona and then transport hundreds of pounds of marijuana back to North Carolina.

West furnished pay-as-you-go cell phones to Skinner and others. West himself used one of these phones that had the number (520)869-6447, and Skinner used a phone with a (520)869-6820 number. During their investigation, officers obtained two orders from a United States Magistrate Judge authorizing the telephone company to release subscriber information, cell site information, CPS real-time location, and “ping” data for the phones in order to monitor Skinner’s location while he was en route back to North Carolina.

The officers were able to continuously “ping” the 6820 phone and to track Skinner from Tucson, Arizona, to a location near Abilene, Texas, without ever following Skinner’s vehicle or conducting visual surveillance. There, they arrested him and seized 1100 pounds of marijuana and several firearms.

Skinner was indicted for violations of 21 U.S.C. §§ 846, 841 (a)(1), 841 (b)(1)(A), 18 U.S.C. § 1956(h), 841 (a)(1), 841 (b)(1)(B) and 18 U.S.C. § 2. Prior to trial, Skinner’s lawyer filed a motion to suppress the evidence obtained by the officers who had searched Skinner’s motor home at the time of his arrest. Skinner’s lawyer alleged that the officers’ use of GPS location information emitting from Skinner’s cell phone was a warrantless search that violated the Fourth Amendment. The United States District Judge Thomas W. Phillips of the Eastern District of Tennessee denied the motion. After a 10-day trail, Skinner was convicted of three counts in the indictment and sentenced to 235 months’ imprisonment. Skinner gave notice of appeal.

A panel of the Sixth Circuit (Circuit Judges Clay, Rogers, and Donald) affirmed Skinner’s conviction. Judge Rogers delivered the opinion of the Court in which Judge Clay joined. Judge Donald delivered a separate opinion, concurring in part and concurring in the judgment. Judge Rogers’ opinion reads as follows:

[There Is No Fourth Amendment Violation]

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. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

[There Is Supreme Court Authority]

This conclusion is directly supported by United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In Knotts, the police, with the consent of a chemical company, placed a beeper in a five-gallon drum of chloroform in order to track the movements of a defendant and discover the location of a clandestine drug laboratory. Using visual surveillance, as well as the signal emitted from the beeper when police lost visual contact, law enforcement officials traced the car to a secluded cabin, where the defendant and others had been manufacturing illicit drugs. The Supreme Court held that this monitoring did not violate the Constitution because “[t]he governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways. . . . A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281. The Court noted that, in Knott’s case, “[a] police car following [a defendant] at a distance throughout his journey could have observed him leaving the public highway and arriving at the cabin. . . . [T]here is no indication that the beeper was used in any way to reveal information . . . that would not have been visible to the naked eye.” Id. at 285. Similar to the circumstances in Knotts, Skinner was traveling on a public road before he stopped at a public rest stop. While the cell site information aided the police in determining Skinner’s location, that same information could have been obtained through visual surveillance.

[Law Enforcement Officers May Take
Advantage of New Technology]

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 technological changes, in order to prevent criminals from circumventing the justice system. The Supreme Court said as much in Knotts, noting that, “[i]nsofar as respondent’s complaint appears to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality, and we decline to do so now.” Id. at 284. In drawing this conclusion, the Court discussed Smith v. Maryland, 442 U.S. 735, 744–45, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), where a defendant was found to have no reasonable expectation of privacy in the numbers he dialed on his phone, even after that information was automated by the phone company. The Court compared this technology to giving the numbers to a telephone operator, where they would not be confidential: “We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.” Knotts, 460 U.S. at 283. Similar reasoning compels the conclusion here that Skinner did not have a reasonable expectation of privacy in the location of his cell phone while traveling on public thoroughfares.

 [The Officers Obtained Court Orders]

Although not necessary to find that there was no Fourth Amendment violation in this case, the Government’s argument is strengthened by the fact that the officers sought court orders to obtain information on Skinner’s location from the GPS capabilities of his cell phone. The government received authorization from the magistrate judge to receive location information from the cell phone company so that officers could locate and track Skinner’s vehicle that was carrying the load of marijuana. When the first cell phone number turned out to be with West in North Carolina, officers then sought and obtained a second order from the magistrate judge to “ping” the second cell phone number and locate the drugs while they were still en route.

[Conclusion]

Because officers 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.

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Mr. Calabresi’s article reads, in part, as follows:

If someone wanted to create a global system for tracking human beings and collecting information about them, it would look a lot like the digital mobile-device network. It knows where you are, and—the more you text, tweet, shop, take pictures, and navigate your surroundings using a smart phone—it knows an awful lot about what you’re doing. [Emphasis added.]

        Which is one reason federal officials turned to Sprint, Verizon, AT&T, and T-Mobile in early 2009 when they needed to solved the robbery of a Berlin, Conn., branch of Webster Bank. Using a loophole in a 1986 law that allows warrantless searches of stored communications, the feds ordered the carriers to provide records of phones that used a nearby cell tower on the day of the crime. The carriers turned over to the prosecutors the identities, call records, and other personal information of 169 cell-phone users—including two men who were eventually sentenced to prison for the robbery. With a simple request, the feds cracked a case that might have otherwise taken years to solve. In the process, they collected information on 167 people who they had no reason to believe had committed a crime, including details like numbers dialed and times of calls that would have been protected as private on a landline.

        Such cases are common. In response to a request from Representative Ed Markey, major cell carriers revealed in July that they had received more than 1.3 million requests for cell-phone tracking data from federal, state, and local law-enforcement officials in 2011. By comparison, there were 3,000 wiretap warrants issued nationwide in 2010. That revelation has added to a growing debate over how to balance the convenience and security consumers now expect from their smart phones with the privacy they traditionally have wanted to protect. Every second we enjoy their convenience, smart phones are collecting information, recording literally millions of data points every day. [Emphasis added.]

My Thoughts

  • Skinner is going to be the tip of the iceberg. We can only anticipate that we will have more and more cases involving the GPS tracking of defendants by the use of cellular phone data. It is absolutely remarkable that law enforcement had received more than 1.3 million requests for such data during 2011.
  • Before long, we will all have a standard paragraph in our motion for discovery that will request all of the data that the government obtained from the telephone company in Skinner.
  • The humor is that many criminals went to cell phones to avoid court-ordered wiretaps. Now, they may want to go back to landline telephones.