Fourth Amendment: No Reasonable Expectation of Privacy in the GPS Data and Location of Cell Phone
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Between 2001 and 2006, James Michael West ran a large-scale marijuana-trafficking operation in Tennessee. The marijuana was smuggled into the United States from Mexico. Philip Apodaca lived in Tucson, Arizona. He was responsible for sending the marijuana to Mr. West in Tennessee via couriers. Apodaca maintained contact with the couriers by giving them “pay-as-you-go” cell phones he had purchased under fictitious names and in which he had programmed with “contact information” that allowed him to keep track of the couriers as they transported the marijuana across the country. While Apodaca was knowledgeable about how to use and program these phones, he was not aware that they were equipped with GPS technology. It proved to be a costly error for the drug operation.
In January 2006 one of West’s drug co-conspirators, Christopher S. Shearer, was stopped in Flagstaff, Arizona. He was on his way to deliver $362,000 to Apodaca for the purchase of more Mexico marijuana. It didn’t take much for Drug Enforcement Administration (“DEA”) agents to flip Shearer. He provided them with detailed information about West’s operation, including Apodaca’s pay-as-you-go contact phones.
DEA agents in May and June of 2006 obtained court orders which permitted them to intercept “wire-communications” from two phones subscribed in West’s name. This included calls between Shearer and West through which the agents learned that West used a courier named “Big Foot” who turned out to be Melvin Skinner. Based on information gathered from West’s phone conversations and other information provided by Shearer, the agents learned that Big Foot had frequently delivered money to Apodaca in Arizona beginning in 2001 and returned to Tennessee with hundreds of pounds of marijuana for West. For unknown reasons, Big Foot shut down his courier activities between 2002 and 2004 but resumed them in 2005 after West gave him money to buy a truck for transporting the drugs.
DEA agents in June 2006 developed information that West was using a secret phone to communicate with Apodaca and another one (phone “6447”) to communicate with Big Foot. The Sixth Circuit Court of Appeals, in United States v. Skinner, picks up the labyrinth details of the drug conspiracy here:
“Based on calls intercepted in late June and early July 2006, authorities learned that Big Foot had recently delivered between $150,000 and $300,000 to Apodaca to pay off existing drug debt and purchase additional drugs. In later calls between West and Apodaca, the agents also determined that Big Foot would meet Apodaca in Tucson, Arizona on July 11, 2006, to pick up approximately 900 pounds of marijuana. Big Foot would be driving a ‘nice [RV] with a diesel engine,’ while Big Foot’s son would be driving an F-250 pickup truck, both with Southern license plates. Big Foot would then leave for West’s home in Mooresburg, Tennessee, on or about Thursday, July 13, 2006. Believing that Big Foot was carrying the 6447 phone, authorities obtained an order from a federal magistrate on July 12, 2006, authorizing the phone company to release subscriber information, cell site information, GPS real-time location, and ‘ping’ data for the 6447 phone in order to learn Big Foot’s location while he was en route to deliver the drugs.
“That same day, agents ‘pinged’ the 6447 phone and discovered that it was currently located in Candler, North Carolina, the location of West’s primary residence. Based upon intercepted calls as well as the 6447 phone’s records, agents determined that West was using the 6447 phone to communicate with Big Foot on a phone with a (530) 869-6820 (‘6820 phone’). Authorities then obtained a second order from the magistrate judge authorizing release of the same information for the 6820 phone, which revealed that the phone was located near Flagstaff, Arizona.
“By continuously ‘pinging’ the 6820 phone, authorities learned that Big Foot left Tucson, Arizona on Friday, July 14, 2006, and was traveling on Interstate 40 across Texas. At no point did agents follow the vehicle or conduct any type of visual surveillance. At around 2:00 a.m. on Sunday, July 16, 2006, the GPS indicated that the 6820 phone had stopped somewhere near Abilene, Texas. Authorities coordinated with agents in the Lubbock, Texas office of the DEA, who were quickly dispatched to a truck stop. At the truck stop, agents discovered a motorhome and a truck with Georgia license plates. An officer approached the motorhome, knocked on the door, and introduced himself to the man, later identified as [Melvin] Skinner, who answered the door. After Skinner denied the officer’s request to search the vehicle, a K-9 officer and his dog who were at the scene conducted a perimeter dog sniff around the motorhome that alerted officers to the presence of narcotics. The officers then entered the motorhome, where they discovered sixty-one bales of marijuana, over 1,100 pounds, as well as two cellular phones, and two semi-automatic handguns. Skinner and his son, Samuel, were placed under arrest.”
Skinner was indicted for a host of drug-related offenses, and shortly after his indictment, Skinner’s attorneys quickly put before the trial court the question of whether the GPS location information obtained from his cell phone was a “warrantless search” in violation of the Fourth Amendment. The trial court rejected the warrantless search argument, finding that Skinner did not have “standing” to make a Fourth Amendment challenges because (1) the phone was not subscribed to him and (2) the phone was “used as part of a criminal scheme.” The trial court further reasoned that because the cell phone was used on “public thoroughfares” and had been purchased by a drug dealer and given to Skinner in furtherance of a drug trafficking conspiracy, he did not have a legitimate expectation of privacy in either the phone or the motorhome. Afterwards, Skinner received a 235-month prison sentence.
On appeal, the Sixth Circuit agreed with the trial court, saying that “Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go phone.” The appeals court added any device used in the transportation of contraband which gives off a tracking signal, the police have every right to track that signal. The appeals court based its opinion on the U.S. Supreme Court decision in United States v. Knotts in which the court rejected a Fourth Amendment challenge to the police using a “beeper” concealed in a five-gallon drum to track the defendant and to learn the location of a drug laboratory. The Supreme Court said the use of the beeper did not violate the Fourth Amendment because the “government surveillance conducted by means of the beeper in this case amounted to the following of an automobile on public streets and highways … A person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”
Utilizing Knotts, the Sixth Circuit in Skinner found no inherent constitutional difference between trailing a defendant and using technology to track him. The appeals court then cut to the chase, saying its decision was based on the notion that law enforcement officials should be allowed to use technological advances to prevent crime. The first two paragraphs of the court’s opinion succinctly expressed this position:
“When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them. This is not a case in which the government secretly placed a tracking device in someone’s car. The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross-country shipments of drugs. Unfortunately for the drug runners, the phones were trackable in a way they may not have expected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.
“The government used data emanating from Melvin Skinner’s pay-as-you-go cell phone to determine its real-time location. This information was used to establish Skinner’s location as he transported drugs along public thoroughfares between Arizona and Tennessee. As a result of tracking the cell phone, DEA agents located Skinner and his son at a rest stop near Abilene, Texas, with motorhome filled with over 1,100 pounds of marijuana …”
While we believe it would be difficult to find a reasonable expectation of privacy in phone 6820 because Big Foot did not purchase it, we also believe the Sixth Circuit’s reasoning indicates an increasing willingness of the courts to embrace a “surveillance state”—a subject matter we dealt with earlier this year. The Sixth Circuit, we fear, has open the door for continued law enforcement abuse of our reasonable expectation of privacy. Technology is a good thing in the private sector, and sometimes in the Government sector. But unchecked technology in the hands of law enforcement can be dangerous because the “war on crime” (and all the other social “wars” being waged in this country) creates temptation to abuse that technology. That’s why the term “war crimes” was coined.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization