Sixth Circuit Authorizes Warrantless GPS Tracking

United States v. Melvin Skinner, Slip Op (6th Circuit) (Aug. 14, 2012)

By: Wassem Amin

On August 14, 2012, Constitutional Fourth Amendment protections took a leap backwards in an illogical ruling by the Sixth Circuit. The case involved a marijuana courier, who used two disposable GPS-equipped cell phones, which were subsequently tracked by the Drug Enforcement Agency. The DEA obtained a 2703(d) order, not a warrant, for real-time GPS tracking information from the defendant’s cell phone carriers, which led to the defendant’s arrest.

In a decision that, in this writer’s opinion, misapplies the law, the Court held that law enforcement agents do not require a warrant to obtain tracking information from a GPS-equipped cell phone, analogizing it to a license plate.

In reaching this holding, the Sixth Circuit erroneously used two distinct technologies interchangeably–namely cell-site data and GPS tracking. By doing so, the Court neglected the fact that there are two different statutes that apply to each of the foregoing–Federal Rules of Criminal Procedure Rule 41 (“Rule 41”) and the Stored Communications Act (“SCA”). In fact, the Court never even mentions either one of the statutes within the opinion. To obtain access to information from a tracking device, the Government must obtain a warrant from the court after making a showing of probable cause, using Rule 41. On the other hand, § 2703(d) of the SCA, which requires a clerk magistrate’s order and a showing much less than probable cause, is used to obtain Cell Site Location Information (“CSLI”). Although the opinion never attempts to make this critical distinction, the DEA in this case used two 2703(d) orders to obtain the cell phone’s tracking information.

Information exchanged between a cell phone and the nearest cell phone tower—called Cell Site Location Information (“CSLI”)—allows service providers to triangulate a customer’s location. In a densely populated area, the triangulation could be fairly precise—usually within a few hundred feet. The SCA “addresses access to stored wire and electronic communications and transactional records. It . . . protects privacy interests in personal and proprietary information while protecting the Government’s legitimate law enforcement needs.”

The portion of the SCA relevant to CSLI disclosure is that which addresses the disclosure of “record[s] or other information pertaining to a subscriber of [an electronic communication] service.” To obtain a 2703(d) order, the government must provide an affidavit showing “specific and articulable facts that there are reasonable grounds to believe” that the information sought from the cell phone provider “is relevant and material to an ongoing investigation.” The judge then signs the ex-parte order if he finds that the requisite factual showing has been made.

On the other hand, GPS location information requires that a cell phone be equipped with a GPS chip–and allows the precise real-time tracking of a cell phone. Information from a GPS-equipped cell phone is classified as a tracking device and thus requires a warrant. The definition of a tracking device in Rule 41 is a device “which permits the tracking of the movement of a person or object.” The term tracking device is nowhere to be found in the SCA, making it apparent that legislature never intended it to so apply.

The Sixth Circuit uses the terms “cell-site data” and “GPS” several times throughout the opinion interchangeably. In reality, these two technologies are governed by two different statutes. The Court stated that “[the defendant] does not have a legitimate expectation of privacy in cell site data….” A couple of paragraphs down, it then says the “Government’s argument is strengthened by the fact that the authorities sought court orders to obtain information from [the defendant’s] location from the GPS capabilities of his cell phone.” Nowhere in the opinion does it distinguish between the different standards required. In fact, it appears that the Sixth Circuit is unaware that such a distinction exists.

This distinction is critical for one important reason–the Fourth Amendment, as expressly set out through Rule 41, requires a warrant to obtain tracking device information. Therefore, the defendant in this case should have succeeded in his motion to suppress because the Government never obtained a warrant. It is baffling how the Sixth Circuit completely ignored this basic distinction.

The Sixth Circuit’s holding demonstrates the need for the United States Supreme Court to clarify the Fourth Amendment’s applicability in this area–an opportunity it side-stepped in US. v. Jones. The ambiguity of the current law necessitates that the inquiry be answered on a case-by-case basis by thousands of different magistrate judges—many of whom who have their own understandings as to what is private or not and may lack the necessary technological expertise to ascertain what kind of information is disclosed.

The full opinion can be found here.


*The opinions expressed in this blog entry are those of the author and do not necessarily reflect the Firm’s view.


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