Criminal Procedure - Fourth Amendment - Sixth Circuit Holds That "Pinging" a Target's Cell Phone to Obtain GPS Data Is Not a Search Subject to the Warrant Requirement

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CRIMINAL PROCEDURE--FOURTH AMENDMENT--SIXTH CIRCUIT HOLDS THAT "PINGING" A TARGET'S CELL PHONE TO OBTAIN GPS DATA IS NOT A SEARCH SUBJECT TO THE WARRANT REQUIREMENT.--United States v. Skinner, 690 F.3d 772 (6th Cir. 2012), reh'g and reh'g en banc denied, No. 09-6497 (6th Cir. Sept. 26, 2012).

In United States v. Jones, (1) the Supreme Court faced the question of whether the Fourth Amendment applies to global positioning system (GPS) tracking of criminal suspects. While the Court unanimously held that the tracking required a warrant, the Justices split 5-4 over the rationale: Justice Scalia's majority opinion based the decision on the physical trespass of placing the GPS tracker on the suspect's car, (2) while Justice Alito's concurrence applied the "reasonable expectation of privacy " test derived from Katz v. United States. (3) Recently, in United States v. Skinner, (4) the Sixth Circuit held that using the GPS capabilities of a target's cell phone to track his location did not constitute a Fourth Amendment search, hinging the decision on the lack of a reasonable expectation of privacy under the Katz test. (5) By not engaging with the actual process by which police "ping" cell phones for GPS data, however, the Sixth Circuit missed a chance to decide the case more narrowly. Because pinging is an active process that could be considered an electronic trespass, the court could haves elected an approach that under Jones might have forestalled its Katz analysis entirely and all owed Congress to set the standards in this evolving area of law and technology.

In early 2006, la w enforcement agents in Tennessee arrested Christopher Shearer, a member of a marijuana-trafficking conspiracy run by James Michael West. (6) Once Shearer agreed to become a criminal informant for the Drug Enforcement Administration (DEA), agents discovered that West was using disposable cell phones, registered under false names and purchased by another conspirator, to coordinate shipments of marijuana from Arizona to Tennessee by a courier unknown to the informant. (7) After obtaining the number of the courier's disposable cell phone and a description of the vehicles accompanying one of the shipments, the DEA agents procured a court order (but not a search w arrant) to obtain GPS coordinates from the courier's phone via a ping, or signal requesting those coordinates, sent by the phone company to the phone. (8) Using the data received in response to the ping, the agents followed the courier's movement and realized that he was going to stop overnight in Texas. (9) The agents alerted colleagues who were near the rest stop where the courier had stopped for the night; those colleagues then arrested the courier and identified him as Melvin Skinner. (10) Skinner was indicted for conspiracy to distribute more than 1000 kilograms of marijuana. (11)

Before trial, Skinner sought to suppress the evidence and statements that grew out of the search sparked by the pinging of the phone. (12) Judge Phillips of the Eastern District of Tennessee adopted the recommendation of Magistrate Judge Guyton, who began his analysis by stating that cell-site data is "[s]imply data sent from a cellular phone tower to the cellular provider's computers." (13) Because "neither party argued or briefed the issue of whether a search actually occurred," the court assumed that a search had taken place. (14) The magistrate judge recommended that Skinner's motion be rejected on two grounds: first, because Skinner lacked standing to challenge the search, (15) and second, because he lacked a reasonable expectation of privacy under the Katz test. (16) Following the district court's adoption of the magistrate's recommendation, Skinner went to trial and was convicted. (17)

The Sixth Circuit affirmed. (18) Writing for the panel, Judge Rogers (19) held that "[t]here 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. …