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| Seal of the United States Court of Appeals for the Sixth Circuit. (Photo credit: Wikipedia) |
Geo-data received based on "reasonable grounds" phone was connected to a crime.
In a 2-1 ruling, the US Circuit Court of Appeals for the Sixth Circuit has ruled (PDF) that law enforcement has the right to obtain location data from a cellphone in order to track a suspect without a warrant. The case involves a man named Melvin Skinner, a newly convicted drug trafficker, who was part of a cross-country, large-scale drug operation organized by another man, James Michael West.
Skinner had appealed his many convictions: conspiracy to distribute and possession with intent to distribute over 1,000 kilograms of marijuana, conspiracy to commit money laundering, aiding and abetting the attempt to distribute in excess of 100 kilograms of marijuana. His attorneys argued that the government’s use of his GPS location information from his phone, which led to his arrest, constituted a warrantless search in violation of the Fourth Amendment.
"There 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," wrote Judge John Rogers, in the majority opinion. "If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal."
The Stored Communications Act strikes again
In January 2006, Christopher S. Shearer, another participant in the West marijuana operation, was stopped with $362,000 in cash. Shearer was on his way to deliver money on behalf of West to his marijuana supplier, Philip Apodaca, in Tucson, Arizona. Under questioning, DEA agents learned from Shearer how the West group conducted the drug trafficking operation. The agents found out that Apodaca would purchase prepaid cellphones under fictitious names and used pre-programmed contact information to orchestrate drug trafficking. Those phones were then discarded after a period of time.
However, by May and June 2006, law enforcement agents received authorization to intercept the communications of two phones established in West’s name. In an order written by a Tennessee federal magistrate judge, the prosecuting United States attorney received authorization to install a pen register, a trap and trace device, and to receive location data from the call’s origination and termination points, in addition to GPS and ping data from those phones.
Among other rationales, the judge cited the Stored Communications Act (also known as a 2703(d) order) as grounds to provide this order. Under that federal statute, authorities can’t receive the contents of electronic communication (what was said), but can find out where and to whom it was said. In contemporary cases within the last decade, law enforcement and judges have increasingly used this reasoning to obtain extensive location data that can effectively turn the phone into a tracking device. Such information previously would have required a much higher legal threshold—a probable cause-driven warrant.
Thanks to the intercepted calls between Shearer and West, law enforcement learned of the existence of a truck driver courier, known by the codename "Big Foot," who turned out to be Melvin Skinner. Based on the location data acquired from both phones, law enforcement agents were able to learn of Skinner’s location en route during his drug delivery from Arizona to Tennessee. Not surprisingly, he was promptly arrested at a rest stop near Abilene, Texas while driving a "motorhome filled with over 1,100 pounds of marijuana."
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