Sixth Circuit Rules That Pinging a Cell Phone to Determine Its Location is Not a Fourth Amendment “Search”

The decision handed down this morning is United States v. Skinner, and it was 2-1 on the Fourth Amendment merits. The defendant used a pre-paid cell phone obtained by providing false identity information (also known as a “burner“) to communicate with co-conspirators as he brought a motor home filled with marijuana from Arizona from Tennessee. Agents learned the cell phone number that the defendant was using and obtained a court order requiring the cell phone company to disclose location information of the phone to the agents. The government used the location information to track the car for three days, eventually catching up to the car ata rest stop in Texas. Local police brought out a dog to sniff for marijuana; the dog alerted for the presence of drugs inside; and the search of the car revealed 1,100 pounds of marijuana inside.

The majority opinion by Judge Rogers concludes that the defendant did not have a reasonable expectation of privacy in the location that his cell phone was broadcasting. The court’s opinion relies on several different strands of Fourth Amendment law. Perhaps the major rationale is this: Cell phones work by broadcasting location, and an expectation of privacy based on a misunderstanding of how the technology works cannot be reasonable.

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.

Justice Alito’s concurring opinion in Jones did not change this because the defendant was monitored for only three days, which was not long enough to implicate the concerns of “comprehensive” monitoring that arose with 28 days of GPS monitoring in Jones.

Judge Donald concurred. She would have found that the monitoring was a search because “”society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from any cell phone.” Se would have then expanded the scope of the good-faith exception to the exclusionary rule so that suppression was not an available remedy.

A few very quick thoughts on the opinion:

1) Unless I’m just missing something obvious, the opinion seems pretty vague on the technological facts. The majority opinion initially says that the government obtained a court order ordering the cell phone company to release “cell site information, GPS real-time location, and ‘ping’ data” for the phone used by the suspect. It then says that the government tracked the suspect’s location by “pinging” the cell phone over three days. Later on, the majority opinion (and the concurrence) refers to the location information as “GPS location information.” But cell-cite information and GPS information are different, and “pinging” the cell phone could mean actively sending a request for cell-site data, actively sending a request for GPS data, or something else. So I’m a bit murky on the facts of what happened, which makes it hard to know what to make of the court’s analysis.

2) The murkiness of the facts are particularly unfortunate because the reasoning of the majority opinion relies heavily on cell phones broadcasting location information as just part of the way that they work. But if pinging the cell phone means actively sending a request to the phone to return its current GPS location, that’s not just how cell phones work: That’s the product of the cell phone provider setting up a mechanism by which the government can manipulate the phone into revealing its location. That seems to be a very different category of Fourth Amendment problem than a problem of how a technology “naturally” works.

2) I agree with Judge Donald that it was irrelevant that the phone was used in crime, and that it was a pre-paid phone. On the other hand, Judge Donald doesn’t have much in the way of analysis for why she thinks the location information is protected: She just announces her view that “society is prepared” to recognize Fourth Amendment rights in GPS information generally. I don’t think that’s how the reasonable expectation of privacy test works: Whichever model you think applies, getting to the result requires analysis rather than just announcing a result. Plus, her extension of the good-faith exception seems deeply misguided to me. At the same time, I think it shows an interesting pairing of arguments that we’re likely to see more of: The pairing of more rights and fewer remedies. It’s easier to expand Fourth Amendment protections if you’re also willing to say the exclusionary rule doesn’t apply, as the decision amounts to an advisory opinion that the police have to follow next time but that doesn’t lead to a remedy this time.

I’ll be out for most of the rest of the day and may not have a chance to provide updates or respond to comments; my apologies in advance for that. Thanks to many readers who sent on the link to the opinion.

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