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Sixth Circuit: No expectation of privacy in disposable cellphone data

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  • suesarkis@aol.com
    Sixth Circuit: No expectation of privacy in disposable cellphone data By Sheri Qualters The National Law Journal August 14, 2012 A federal
    Message 1 of 1 , Aug 15, 2012
      Sixth Circuit: No expectation of privacy in disposable cellphone data
      By Sheri Qualters The National Law Journal
      August 14, 2012

      A federal appeals court has ruled that there is no Fourth Amendment
      violation when a criminal defendant is tracked through the GPS technology on his
      disposable mobile phone. In a split decision, it held that the defendant
      "did not have a reasonable expectation of privacy in the data emanating from
      his cell phone that showed its location."

      On August 14, the U.S. Court of Appeals for the Sixth Circuit affirmed the
      conviction of Melvin Skinner on two counts of drug trafficking and one
      count of conspiracy to commit money laundering. The court also affirmed a
      sentence of 235 months in prison, five years of supervised release, plus a $100
      special assessment for each count issued by Judge Thomas Phillips of the
      Eastern District of Tennessee.

      Judge John Rogers wrote the opinion in _U.S. v. Skinner_
      (http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf) , joined by Judge Eric Clay. Judge
      Bernice Donald filed an opinion concurring in part and concurring in the
      judgment.

      According to the opinion, the Drug Enforcement Administration learned
      about a drug-trafficking operation led by James Michael West after arresting a
      participant in 2006. In June of that year, the DEA learned that West used
      one secret phone to communicate with his marijuana supplier and another to
      communicate with a courier, who was identified as Skinner at his arrest.

      By tracking West's calls, the DEA believed the courier was using a
      pay-as-you-go phone with a particular number.

      On July 12, 2006, a federal magistrate judge issued an order authorizing a
      phone company to release several types of information about the phone
      associated with the number to the government. This included subscriber
      information, cell site information, GPS real-time location, and "ping" data for the
      disposable phone. After pinging that phone, agents discovered that West
      was using it at his primary residence to communicate with the courier on a
      different phone. Agents obtained a second judge's order to obtain the same
      types of information about the second phone.

      By "pinging" the second phone, agents learned that the courier had
      traveled from Tucson, Ariz., on July 14, 2006, to the Abilene, Texas, area in two
      days' time. DEA agents were sent to the signal's source, a motor home at a
      truck stop in Abilene. A search uncovered 1,100 pounds of marijuana, two
      cellphones and two semi-automatic handguns. Skinner and his son Samuel were
      arrested at the scene.

      Before his trial, Skinner sought to suppress the motor home search on the
      ground that the agents' use of the cell phone's GPS location information
      was a warrantless search that violated the Fourth Amendment. The district
      court denied his motion to suppress.

      Skinner appealed on Fourth Amendment grounds. He also argued that there
      wasn't enough evidence to convict him of the money-laundering conspiracy
      charge and that he was entitled to a mitigating role reduction because he was a
      minor participant in the drug conspiracy.

      The Sixth Circuit majority found none of these arguments persuasive. It
      relied on a 1983 Supreme Court decision, U.S. v. Knotts, which held that the
      government's use of a beeper to track a suspect "amounted principally to
      the following of an automobile on public streets and highways."

      The majority also distinguished the case from the 2012 Supreme Court
      ruling in U.S. v. Jones, which held that a government's placement of a GPS
      device on a car is a Fourth Amendment search. Rogers wrote that Skinner's case
      was different because there was no physical intrusion: "Because authorities
      tracked a known number that was voluntarily used while traveling on public
      thoroughfares, Skinner did not have a reasonable expectation of privacy in
      the GPS data and location of his cell phone. Therefore, suppression is not
      warranted and the district court correctly denied Skinner's motion to
      suppress."

      In her concurrence, Donald agreed that there was enough evidence to
      support Skinner's conspiracy to commit money laundering conviction and that he
      was not entitled to a mitigating-role sentencing reduction. But she disagreed
      with the majority's holding that Skinner did not possess a reasonable
      expectation of privacy with regard to the phone's GPS data: "In my view,
      acquisition of this information constitutes a search within the meaning of the
      Fourth Amendment, and, consequently, the officers were required to either
      obtain a warrant supported by probable cause or establish the applicability of
      an exception to the warrant requirement."

      Donald opined that the agents were entitled to the good faith exception
      set forth in a 1984 Supreme Court ruling U.S. v. Leon: "Because there is no
      indication of police misconduct and officers clearly had probable cause, if
      not a warrant, to conduct the challenged search, I would affirm on this
      ground,."

      William Killian, the U.S. attorney for the Eastern District of Tennessee,
      said that two aspects of the ruling are significant: "Modern technology
      utilized by criminals is also utilized by police to detect criminal behavior.
      Two, there's no expectation of privacy on the public thoroughfares of the
      country."

      David Lewen Jr., an assistant U.S. attorney in Knoxville, Tenn., argued
      for the government.

      Skinner's lawyer, Gerald Gulley Jr. of Knoxville, did not respond to a r
      equest for comment.






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