6th Circuit Allows Police GPS Tracking on Prepaid “Burner” Phones — United States v. Skinner

[Post by Jake McGowan]

United States v. Skinner, 09-6497 (6th Cir. August 14, 2012)

If the name Stringer Bell means anything to you, you probably know what a “burner” is. The third season of The Wire saw aspiring drug runner Bernard tasked with purchasing unregistered pre-paid cellphones from various corner stores in Baltimore. The Barksdale crime organization would use and then discard these burners about every two weeks, avoiding any potential wiretaps and making detective Lester Freamon’s life much more difficult.

But even police forces outside HBO’s jurisdiction struggled with these “burner” issues, at around the same time season three hit the airwaves. Without IDs tied to the mobile phones, agents had a hard time obtaining proper search warrants and had to come up with new ways to track down the bad guys.

But how far could they go before running afoul of the Fourth Amendment? Could they “ping” the phone’s GPS chip to track its location in realtime? The Sixth Circuit Court of Appeals considered this question recently in United States v. Skinner, and handed down its controversial decision on August 14th.

In a 2-1 ruling, the Court held that the police’s GPS pinging did not violate the Fourth Amendment, even without a search warrant based on probable cause.

Background

In 2006, DEA authorities gained inside knowledge relating to a large-scale drug-trafficking operation led by James Michael West and supplier Philip Apodaca. Defendant Melvin Skinner was a courier in this operation, transporting marijuana from Mexico to Tennessee. Throughout his travels, Skinner used burners purchased by Apodaca to communicate with West; none of whom were aware that the phones contained GPS chips.

At the time, the police only knew Skinner by his alias: Big Foot. Through a series of wiretaps on regular mobile phones registered to West, agents got an idea of the organization’s plan, and discovered the phone number of Big Foot’s secret phone. By pinging the phone and observing its GPS data, the police were ultimately able to locate Skinner’s RV. They brought out drug-sniffing dogs and then entered the motorhome, uncovering over 1,100 pounds of marijuana and two semi-automatic handguns.

Before trial, Skinner sought to suppress the search of the motorhome on Fourth Amendment grounds, since it took place without a warrant. The district court did not buy this argument, and Skinner appealed.

No Fourth Amendment Violation

The Sixth Circuit affirmed, holding that Skinner did not have a reasonable expectation of privacy in the data given off by his burner phones:

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.

That last sentence really sets the tone for the entire decision–leading with a moral obligation and then weaving through precedent to achieve that result.

Toward this end, the Court cited United States v. Knotts, and reasoned that the agents monitoring Skinner did not violate the Fourth Amendment because the information they received by pinging the burner could have been obtained by following Skinner down public roads. In other words, the Court saw the GPS data as “simply a proxy for [the defendant’s] visually observable location.”

Continuing this “proxy” argument, the Court brings up United States v. Forest, where DEA agents pinged the defendant’s cellphone and used the coordinates to reconnect after losing visual contact along a public roadway. Again, the Court points to the fact that the police only used the GPS data to “augment” what they could have seen with their own eyes, and thus did not conduct a “search” within the meaning of the Fourth Amendment.

Later on, the Court distinguishes United States v. Jones by emphasizing the ‘trespassory nature of the police action” in that case. The DEA agents in Jones “lojacked” the vehicle by attaching a tracking device. In Skinner, the police did not place a tracking device on the RV; they didn’t have to since they suspected he already had the phone. Nor did the Court see the police’s surveillance as “extremely comprehensive” to the point that it violated the Fourth Amendment in and of itself.

For these reasons, the Court held that Skinner did not have a reasonable expectation of privacy in the GPS data and location of his burner phone.

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This decision reeks of “You’re gonna get what you deserve” to the point where it has already rankled a lot of legal analysts. The Court seems to start from a point of moral outcry (technology helps criminals but not the police), and then works backward toward a passable legal explanation for its ruling. Maybe there is a good legal explanation, but this decision is filled with logical leaps and slippery slope analogies.

For example, the Court reasons that a criminal should not be able to “rely on the expected untrackability of his tools.” But this reasoning seems to gloss over the important question of when the “suspect” turns into a full-fledged “criminal.” True, it’s hard to feel bad for Skinner (especially knowing what he did), but how will the Court’s logic affect future suspects? Will it not deprive them of Fourth Amendment rights on the police’s assumption that they are conducting criminal activity? It’s hard to see where the idea of probable cause fits into the equation.

Immediately following, the Court reduces the opposing argument to absurdity–imagining a world where “dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent,” or where “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.” Without further development, these analogies do not seem to support the idea that Skinner forfeited his constitutional protections by driving on a public road.

As Julian Sanchez pointed out on the Cato@Liberty blog, the Supreme Court held in Katz v. United States that “what a person knowingly exposes to the public, even in his own home or offices is not a subject of Fourth Amendment protection . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” (emphasis added).

This is important because while Skinner’s RV was viewable by the general public, the location of his phone and its connection to the drug plot were not. This would seem to cut against the Court’s comparison to Knotts.

The decision also seems to sidestep the fact that the police did not even know Skinner’s true identity when they started tracking him. To the Court, it is an irrelevant question because the police could have obtained this info “by other means.” In response, critics have pointed to Kyllo v. United States (absent from the decision), where the Supreme Court held that the agents’ use of thermal imaging did not escape the requirements of the Fourth Amendment, simply because the same information could have been acquired through other lawful means.

All in all, this decision is definitely worthy of its resemblance to The Wire–it forces you to grapple with the moral dilemma of admiring creative police work, while fearing how it could be abused. But hey . . . it’s all ‘n the game, right?

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