Law Enforcement’s Personal Foursquare? – 6th Cir Rules Warrantless GPS Tracking of Cell Phones Legal

Earlier this year I wrote about the 4th Amendment/privacy/suppression issues being decided by the Supreme Court in United States v. Jones. As I, and other criminal defense lawyers had hoped, SCOTUS ultimately ruled in that case that the police’s surreptitious installation of a GPS tracking device on Jones’ vehicle without a warrant was unconstitutional and that any evidence obtained as a result must be suppressed. Despite that criminal defense and civil rights victory, the issue appears to be unresolved given last week’s 6th Circuit ruling in United States v. Melvin Skinner, a ruling which, on its face appears to be at odds with the Jones decision.

Melvin Skinner was convicted of drug trafficking and conspiracy to commit money laundering. Law enforcement used the GPS feature of his "pay as you go" cell phone to track and ultimately arrest him. The SkinnerCourt based it’s ruling, and apparent departure from Jones, on the distinction that the police had not placed the GPS tracking device on/with Skinner themselves, but merely made use of technology Skinner himself was using. The Court found that Skinner had no Constitutionally protected interest in "erroneous expectations regarding the undetectability of their modern tools."

Having litigated numerous suppression issues involving GPS and cell phone tracking as both a former federal prosecutor, and now, as a long-time Boston-based criminal defense attorney, I am of the opinion that the 6th Circuit’s decision falls squarely within the gray area I referenced in my earlier Jones blog entry. I disagree with the 6th Circuit that it is sufficient to hang one’s proverbial hat on the distinction that law enforcement made no "physical intrusion." Given that Skinner’s GPS enabled phone was purchased from, and service provided by, a private cell phone service corporation, I believe law enforcement was obligated to first seek a warrant to obtain the information from his cell phone service provider necessary to track his specific phone. On the other hand, though, purchasing GPS tracking components or GPS enabling software for one’s personal data devices without realizing it might be used to track you strikes me as somewhat naïve.

Now, I’m not saying that purchasing GPS components for one’s own private use constitutes de facto consent to be monitored by the government or law enforcement personnel; far from it. I am, however, saying there is, at least, a factual difference between the government surreptitiously slapping a tracking device on the undercarriage of one’s car, or even cloning one’s phone in order to install a GPS tracking device of their own (without a warrant) and knowing that one has himself installed tracking capability that theoretically could be used by someone who knows about it.

Admittedly, current technology makes this distinction even murkier. The reality is that most personal communication devices, whether it be cell phone, tablet, etc., now incorporate a factory-installed GPS chip as the default. Given that inclusion of GPS is a manufacturer’s standard, that fact, alone, could well provide SCOTUS grounds upon which to move the Skinner case out of the proverbial gray area and into a bright-line comfort zone that will allow them to rule squarely in favor of an individual’s privacy interests. At least, that’s what I’m hoping will happen.

In the meantime, I hope the Skinner case will, in fact, make its way up to the SCOTUS so that this distinction can be resolved in the interests of personal privacy, or at a minimum, the Geolocation Privacy and Surveillance Act introduced last year to update privacy laws to include more modern technology and its aspects will gain traction. Until then, I will continue to advocate and argue on behalf of my clients for the full extent of their 4th Amendment rights, and plan to give the government no quarter on illegal searches and seizures. While the Great Abolitionist Frederick Douglas’ mantra may once have been "Agitate, agitate, agitate," when it comes to the 4th Amendment the watchwords for experienced criminal defense attorneys like me in Massachusetts and elsewhere is "litigate, litigate, litigate," and "file those motions to suppress!"

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828